If, like this blogger, you had small children in the early 2000s, subconsciously you may have read today’s title with a Scottish brogue.  That’s because it might recall a scene from Shrek where Mike Myers (Shrek) and Eddie Murphy (Donkey) are having a philosophical conversation about the many and varied attributes of ogres.  “Ogres are like onions. . . . Onions have layers. Ogres have layers. You get it.”  We get it.  We also get that this reference might be coming to mind because having lived through the Shrek years, we recently introduced the now teenagers to So I Married an Axe Murderer.   Instead of talking about onions and layers, we are now subject to “We have a piper down” and “Look at the size of that boy’s head” butchered in a bad Scottish accent (not only by the kiddos).  It also means the teens have been introduced to the Bay City Rollers, which let’s face, everyone should be.

That’s what at least one of us here at the DDL blog thought of when we read the decision in Bayer Corporation v. Leach, 2020 WL 3118509 (Ind. S. Ct. Jun. 12, 2020).  Complaints are like onions, they have layers.  And having layers means courts have to consider each layer on its own merits.  The theories and causes of action alleged in a complaint need to be peeled back and examined independently.  You don’t get to lump it all together.  That’s what the Indiana Supreme Court said too.

The case involves the multiple claims of 36 women who allege they were injured by the medical device Essure, an implantable birth control device.  Id. at *1.  Essure is a PMA medical device and our blog is full of posts about the many preemption wins in Essure litigation (in the dozens).  Here, defendant moved to dismiss the complaint on both the insufficiency of the pleadings and on preemption grounds.  The motion was denied by the trial court who allowed an interlocutory appeal.  That appeal was decided at the end of 2019 with the court upholding the denial.  See Bayer Corporation v. Leach, 139 N.E.3d 1127 (Ind. Ct. App. 2019).  Both the trial court and the appellate court looked at the pleadings and the preemption arguments only in the context of plaintiffs’ manufacturing defect claim.  While defendant argued that other claims were not adequately pleaded and/or were preempted, both courts held that because “the manufacturing-defect claims are viable, we need not address any other legal theory.”  Id. at 1130 n.3.   Because the complaint was not completely “devoid of allegations upon which relief could be granted,” defendant was not entitled to a dismissal of anything.  Id. at 1135.

That’s an all or nothing standard and complaints aren’t an all or nothing proposition.  Complaints have layers.  Let’s just start with causes of action – of which there are often many.  Those causes of action require different allegations, are premised on different facts, and are based on different laws.  To say one was sufficiently pleaded tells you nothing about any of the others.  What about the grounds for a cause of action – there can be several.  We’ve seen many courts determine that a plaintiff could only proceed on a failure to warn claim to the extent it wasn’t premised on the product’s labeling or that a plaintiff couldn’t maintain the part of her design defect claim that was based on a stop selling argument.  Complaints have layers in part because plaintiffs make many and varied claims.  Sometimes, not all of them stick.  Whittling down the size and scope of a complaint at the pleadings stage can have a tremendous impact on the size and scope of a case overall.  If all that is left after a motion to dismiss is a manufacturing defect claim, you’ve likely drastically reduced the amount of discovery that is needed and the case may even be positioned to resolve quickly.

The Indiana Supreme Court didn’t say all that, but they did unanimously reverse and remand the case to the appellate court with instructions for it to “address the viability of each claim.”  Bayer v. Leach, 2020 WL 3118509 at *1 (emphasis added).  The court noted that this was a complex litigation in which plaintiffs “allege several sets of operative facts, amounting to several discrete claims.”  Id. at *2.  Already, we are beyond a one size fits all rationale.  Rather, “[i]n a complaint with multiple claims, the viability of a single claim does not immunize a separate, deficient claim from judgment on the pleadings.”  Id.  Nonviable claims are supposed to be disposed of and the litigation is supposed to proceed only as to those that survive.  Complaints have layers.  You can’t have one good claim propping up a load of bad ones.  That would be like balancing “an orange on a toothpick!

We’ll leave you with Eddie Murphy’s final words on the whole ogres are like onions thing – “You know, not everybody likes onions.”  So true of complaints as well.