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More than ten years since the Supreme Court wrote Twombly and Iqbal, the power of those two decisions remains strong enough to roll over almost any claims that dare to show up without supporting facts. The plaintiff in Shapiro v. NuVasive, Inc., 2019 U.S. Dist. LEXIS 191373, at *4-5 (S.D. Fla. Nov. 5, 2019), directed design and manufacturing defect claims at the manufacturer of pedicle screws that had broken off and caused her pain seven years after her spinal surgery.  The plaintiff made no allegations, however, about the actual defect. Defendant moved to dismiss.

Can you see TwIqbal rolling over the horizon?

The court started off, as most federal courts do, by grounding its analysis in TwIqbal. Id. at *3. It explained that a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face,” pointing directly to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facts that “do not permit the court to infer more than the mere possibility of misconduct” are insufficient, with the court pointing this time to Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Can you hear TwIqbal rumbling louder?

The court then took the plaintiff to task for relying solely on the allegation that the screw broke off seven years after the surgery. The court explained that the plaintiff must at least identify the defect, even though she needn’t prove it yet:

[Plaintiff] argues, without citing a strict liability case, that this allegation is sufficient, and that requiring her to specify how the product is defective is “unattainable” and that it is “contrary to law” to require a plaintiff to definitively prove her claims at this stage. However, the law only requires Shapiro to identify a defect that she contends caused her injury. It does not require Shapiro to prove that the screws used in her surgery were in fact defective.

Id. at *5 (emphasis added).

It’s a roar now.

The court ended by addressing plaintiff’s failure to test, failure to inspect and failure to warn claims. In Florida, failure to test and failure to inspect are not independent claims. They are subsets of plaintiff’s defect claims, which the court already held to be deficient. Id. at *5-6. Plaintiff’s failure to warn claim was also deficient because it was not based on an alleged deficient warning to the doctor, which is required under learned intermediary doctrine. Id. *6.


You turn and plaintiff’s claims are gone. All you can see is the aftermath, and TwIqbal rolling, ever powerful, off into the distance.

The plaintiff may get another chance, though. The court’s dismissal was without prejudice, so plaintiff might be able to replead. But she will need facts. Otherwise, you can expect TwIqbal to roll through again.