No writer made as strong an impression on us in high school as Albert Camus. The opening of The Stranger is arresting: “Mother died today. Or maybe it was yesterday, I don’t know.” Our teacher pronounced The Plague to be an even better book, and he often quoted the bit about how we had “to be content to live only for the day, alone under the vast indifference of the sky.” [One of our time entries for yesterday is very similar.] Now, in the days of the coronavirus, it is hard not to bump into borrowed lines from The Plague, especially this one: “There are more things to admire in men than despise.” Perhaps Camus would rethink that after wandering down supermarket aisles denuded of toilet paper.
Camus has put us in the mood for absurdity, so let’s take a look at a pro se product liability lawsuit attempting to squeeze into the overused, incoherent, narrow-gap, Riegel “parallel claim” exception. In Jacob v. Mentor Worldwide, LLC, 2019 WL 3229010 (M.D. Fla. July 17, 2019), the plaintiff alleged that a breast implant ruptured and caused her to suffer from a “lupus-like syndrome.” The plaintiff had an M.D. after her name, but we don’t know what sort of doctor she was. What we do know is that she wasn’t much of a lawyer and, as the saying goes, had a fool for a client. The complaint included causes of action for negligence, failure to warn (of the foreign country origin and of the risk of failure), and manufacturing defect. The defendant, represented by actual lawyers, moved to dismiss on the grounds of express and implied preemption.
In responding to the motion, the plaintiff argued that she was adversely affected by the implants, that, as a doctor, she could attest to the harm she suffered, that the implants were unduly porous, and that the defendant’s failure to disclose the risk of syndromes mimicking connective tissues disease led to a misdiagnosis of her condition. What does any of that have to do with preemption? Not a thing. That made life easy for the court: “Defendant is correct that Plaintiff’s claims are the extent that Plaintiff is seeking to recover for Defendant’s alleged labeling or manufacturing requirements that are different from, or in addition to, those imposed by the FDA. Similarly, Defendant is correct that Plaintiff’s claims are preempted to the extent that Plaintiff is seeking to enforce federal requirements that are not grounded in traditional state tort law.”
The problem for the plaintiff is that all her claims fell into those preempted categories. Her claims talk about failures to warn the public, doctors, and the FDA (can you say Buckman?) and, most obviously preempted of all, failures to “revise the product labeling” and communicate the “true rate” of adverse events.
Moreover, the court was irked by the plaintiff’s wholesale failure to comply with the Federal Rules of Civil Procedure. Rule 8 insists on “short and plain” statements of jurisdictional bases and substantive claims. Each allegation must be “simple, concise, and direct.” Apparently, the plaintiff’s prose flunked these requirements. (She should have read Camus – talk about simple, concise, and direct!). Rule 10 requires numbered paragraphs, and the plaintiff did not even get that right.
The court gave the plaintiff 28 days to amend her complaint, but ordered that any claim that “seeks to recover for Defendant’s alleged labeling or manufacturing requirements that are different from, or in addition to, those imposed by the FDA, or seeks to enforce federal requirements that are not grounded in traditional state-tort law,” is dismissed with prejudice.
So the plaintiff was free to try again. That possibility puts us in mind of another work by Camus, The Rebel. The central image of that work (a philosophical investigation, not a novel) is the myth of Sisyphus.
In the meantime, we’ll leave you with another quote from The Plague: “What’s true of all the evils in the world is true of plague as well. It helps men to rise above themselves.”