Here comes another one of those “mixed bag” cases and, being in the bag for the defense side, we are determined to emphasize our favorite parts of the bag, In O’Neil v. Argon Med. Devices, Inc., 2020 U.S. Dist. LEXIS 26043 (NDNY Feb. 13, 2020), the plaintiff sued because her IVC filter could not be removed. Well, so what? After all, plenty of IVC filters have been sold with explicit instructions that they were intended to be permanent implants. Yes, but not this particular IVC filter. It called itself an “Option Filter,” which could be removed if need be. Ah, but was there a “need be” in this particular case? Not so clear. O’Neil started to look like a mere fear-of-injury case to our eyes. It was surely a candidate for swift dismissal. That is how things looked to the defendant, who filed a motion to dismiss. The motion succeeded in parts and did not succeed in others. The outcome is, as we said, mixed, but the particular mix is somewhat surprising.

To begin with, the plaintiff got past the no-injury hurdle by, literally, bellyaching. He claimed stomach pain from the IVC filter. That seems implausible, but there we are. And where we are is at a bad part of the mixed bag. That bad part is accompanied by other bad parts, such as the court’s failure to dismiss flimsy claims for design and manufacturing defect. The court also refused to apply comment k for reasons that are incoherent and troubling.

But (to reverse a Raymond Chandler quote) trouble is not our business, so we’ll move on to the more intelligent, correct, life-affirming, defense-hack-heart-warming aspects of the O’Neil opinion. The court dismissed the failure to warn claims because the complaint inadequately explained how the warnings were inadequate. This ruling is correct, useful, and uncommon. We have long held the belief that plaintiffs are too often allowed to pursue failure to warn claims that fail to provide notice as to the case theory. That lack of notice, of course, is absolutely intentional. Plaintiff lawyers want to keep a free hand right up until the closing argument. Someday a court somewhere will do the right thing and impose a requirement that every failure to warn complaint must quote the words of the warning and describe how exactly it is inadequate, and then specifically offer a rewrite of the warning that allegedly would have been adequate and would have avoided the alleged injury. The O’Neil court did not quite go as far as we’d like, but at least it demanded something more than the usual, vague incantation. It almost makes us forgive the court’s mistreatment of the no-injury and comment k issues. Almost.

The O’Neil court also dismissed the express warranty claim for failure to allege either the terms of the warranty or any reliance with any degree of concreteness. Similarly, the court held that the implied warranty of fitness claim flunked, because the plaintiff did not allege he needed the IVC filter for a particular purpose (something different from the ordinary purpose). Also, again, the reliance allegation was deficient. After these rulings, it is hardly surprising that the claims for fraudulent and negligent misrepresentation did not satisfy the particularity requirement of Fed. R. Civ. P 9(b). The complaint contained only vague assertions of fraud, sans the who, where, and when, as well as the how the statements were actually fraudulent.

There is enough in the O’Neil court’s rulings to lend potential support to your next motion to dismiss failure to warn, warranty, and fraud claims. Just beware of those bad parts we covered at the outset. What makes O’Neil particularly alluring is that its dismissals were issued without affording the plaintiff leave to amend. Naturally, the plaintiff’s opposition to the motion to dismiss sought leave to amend in case any of the claims were headed south, but it did so in an utterly perfunctory way. That was not good enough. Because the plaintiff did not supply an “indication of how he would cure the amended complaint’s deficiencies, the Court denies the request to further amend the complaint at this time.”

As we said, O’Neil is a mixed bag. But like a Halloween trick-or-treat sack where the leaden Heath, Krackel, and Three Musketeer bars sank beneath the insipid Twizzlers and candy corn, the bottom of the bag turned out pretty well.