Back in the Pleistocene era when we toiled in law school, it seemed as if modern tort law developed as the result of a cross-continental game of ping pong played between the California and New Jersey courts. That still seems to be the case. Sure, there is the occasional, horrific verdict in flyover country that makes us stand up and take notice. But such cases seldom offer any doctrinal breakthrough; rather, they are barbaric yawps by courts determined to aid local plaintiff lawyers and wave every bit of prejudicial detritus along to the jury box. For legal rulings of consequence, whether admirable or execrable, count on California or New Jersey courts to say something interesting. (The trial bench in New Jersey has improved considerably. Fifteen years ago we wouldn’t have so readily embraced these Springsteen lyrics, but today we do: “Put your makeup on/fix your hair up pretty/And meet me tonight in Atlantic City.”)
Consider the new wave of breast implant litigation. There is a recent California decision that is so awful as to force us to avert our eyes. Someone else can (and will) blog about that one. Today’s favorable (from the perspective of sound policy, the Enlightenment, and the defense bar) premarket approval (“PMA”) breast implant preemption decision, D’Addario v. Johnson & Johnson et al., 2020 WL 3546750 (D.N.J. June 30, 2020), is Jersey justice at its finest – even when applying Connecticut law. The plaintiffs alleged that breast implants caused the patient to suffer from breast implant-associated anaplastic large cell lymphoma (“BIA-ALCL”). Look here for background on BIA-ALCL. The plaintiffs in D’Addario, the patient and her husband, filed claims for strict liability-manufacturing defect and failure to warn in violation of the Connecticut Product Liability Act (“CPLA”), negligent misrepresentation, breach of express and implied warranty, violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), and loss of consortium.
The first issue was whether the misrepresentation, warranty, and CUTPA claims were subsumed by the CPLA. The issue was crystal clear regarding the misrepresentation and warranty claims. Even the plaintiffs agreed that the claims were subsumed by the CPLA. And let’s take a moment to praise states that have passed Product Liability Acts. New Jersey is one of them. Louisiana is another. So is Connecticut. These acts impose some degree of order on the chaos that product liability common law all too often is. We would do virtually anything – trade Joel Embiid to the Knicks, watch a season of 90 Day Fiance, or forego anesthetic for our next dental extraction – to see Pennsylvania replace its incoherent common law with a Product Liability Act.
The plaintiffs tried to save their CUTPA claim. A CUTPA claim seeks to redress a financial injury. That sort of thing is typically not regarded as a part of the traditional tort remedy for harm caused by a defective product. The plaintiffs in D’Addario tried to characterize their injuries as “financial” in nature, but the court did not buy it. The plaintiffs alleged that the defendants’ deceptive trade practices caused the patient to suffer from permanent and continuing injuries that require “ medical treatment and hospital expenses.” Sure, there is a financial component to all that, but, in the end, the plaintiffs’ injuries alleged were “ hose typically asserted in garden-variety products liability suits.” Goodbye CUTPA, hello CLPA.
The second issue was juicier: are the plaintiffs’ product liability claims preempted? By now it should be clear that product liability claims against these class III PMA breast implants are pretty much always going to be preempted. As usual, the plaintiffs claimed that they were alleging a “parallel” claim involving a violation of both federal and state law. And, as usual, the plaintiffs did not allege any such parallel claim. The manufacturing defect claim was preempted because the plaintiffs did not tie what they claimed was wrong with the device to any particular FDA PMA requirement. “It is not enough to state that a state law parallels federal law generally.” Vague, general claims of numerous regulatory violations do not cut it, nor do vague, general incantations of causation. The plaintiffs complained that the implants contained an endotoxin, but there was no allegation “that the FDA required the exclusion of this endotoxin.” Better luck next time. (And, sadly, the court dismissed without prejudice, so maybe there will be a next time.)
The D’Addario court also held that the failure to warn claim was preempted. The warning claim was either challenging FDA-approved warnings or alleging some form of fraud on the FDA (possibly failure to report claim), and either way was preempted. To the extent plaintiffs took issue with the original warning provided to consumers, healthcare providers, and the public, the court deemed the claim preempted because the company could not provide warnings or instructions different from those initially approved by the FDA. To the extent plaintiffs challenge the information provided to the FDA in its premarket approval application, the court concluded: (1) the plaintiffs “identified no separate state law duty to warn the FDA,” and (2) such a claim alleges fraud on the FDA and would be impliedly preempted under Buckman. Thus, the D’Addario court dismissed the plaintiffs’ failure-to-warn claim.
The misrepresentation and warranty claims are preempted for the same reasons. In addition, the breach of warranty claim “based on device safety and effectiveness fails because Plaintiffs fail to allege a violation of a federal regulation.” At bottom, the plaintiffs’ claims challenged the safety and effectiveness of the breast implants, and “to find for Plaintiffs, the Court would necessarily contradict the FDA’s determination of safety and effectiveness during premarket approval.”
Our cup runneth over. But wait, there’s more. The D’Addario court smacked down the all-too-common plaintiff sin of lumping together allegations against multiple defendants. The court held that all counts must be dismissed because “Plaintiffs’ Complaint broadly alleges Defendants’ misconduct but fails to allege the conduct for which each defendant is culpable.” The plaintiffs tossed in the usual allegations of “agents” or “alter egos,” without a shadow of a factual basis for such allegations. The D’Addario court put the issue elegantly: “It is not enough to say that ‘each of the defendants is responsible for everything.’” Look, pleadings that lump together multiple defendants contravene Federal Rule of Civil Procedure 8. They also fail to supply adequate notice. They are also just plain lazy. The Jersey court did not stand for it. Fuhggedaboutit.
The D’Addario court also dismissed the loss of consortium claim as a matter of law because it is a derivative claim and plaintiffs failed to assert any product liability claim.
We’ve lived in both Jersey and California. We love both places. But for sensible legal opinions (and better pizza), the Garden State comes out on top. And, as Ella sang, “If you don’t feel so hot / Go out to some Jersey spot / Whether you’re hep or not / The Jersey bounce’ll make you swing.”
By the way, if this case sounds familiar, maybe it us because it is similar to the Cashen v. Mentor case we covered here. In that case, a New Jersey court held that the Ohio Product Liability Act subsumed breast implant claims, and that claims were preempted. Maybe we should let New Jersey courts handle the law from all 50 jurisdictions.
Congrats to the defense team of Dustin Rawlin, Monee Hanna (Tucker Ellis), and Michael Zogby and Jessica Brennan (Faegre Drinker Biddle & Reath).