Like many of you, we spend a large portion of our professional life litigating cases consolidated in MDLs. MDLs serve a purpose in this “mass tort” world, but they also breed laziness and complacency among plaintiff lawyers who amass “inventories” of clients they’ve never met and about whose claims they know nothing in the hope of numbers-driven settlements. “Master pleadings” exacerbate the problem, as plaintiff lawyers need only check boxes on “short form complaints” – they don’t need to know (much less assert) facts about their plaintiffs, and they don’t need to worry about pleading the elements of the claims they select. But here’s the rub: MDLs don’t last forever. Sooner or later, MDLs lock their gates to new cases and remand the cases that remain on their dockets to transferor courts. At that point, the “lens” changes from “panorama” – a view that scans across an entire landscape – to “portrait” – one object in focus but everything else blurred. And there is no “herd immunity” to obscure the deficiencies in individual cases.
Today’s case is a perfect example. In Baca v. Johnson & Johnson, Inc., 2020 WL 6450294 (D. Ariz. Nov. 2, 2020), the plaintiff alleged that she was injured by the defendant’s pelvic mesh device. The mesh MDLs had closed to new cases by the time the plaintiff filed suit, so she was forced to file a “stand-alone” case in the District of Arizona. But her lawyer did not change gears, filing a complaint that could not withstand the scrutiny it would have escaped in the MDL. The court began by explaining that, under Twiqbal, the “short and plain statement” standard of Fed R. Civ. P. 8(a)(2) “does not require detailed factual allegations, but it demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Baca, 2020 WL 6450294 at *1 (citations to Twiqbal omitted). As the court emphasized, “a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draws a reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Baca complaint asserted no fewer than sixteen causes of action, and the defendant moved to dismiss them all.
The complaint included four strict liability causes of action: manufacturing defect, failure to warn, “defective product,” and design defect. The defendant argued that the manufacturing defect claim failed because it did not identify a flaw in the manufacturing process as defined by Arizona law: the complaint did not identify any aspect of the product that deviated from the manufacturer’s design and did not allege that the plaintiff’s particular product was manufactured differently from other similar units. The court agreed, holding that “summary allegations that the product failed to perform as designed and intended, without explanation as to how those defects are tied to the manufacturing process, do not demonstrate that the product had a manufacturing defect.” Id. at *3 (internal punctuation and citations omitted).
In the failure-to-warn count, the defendant focused on our pet argument: warnings causation. While the plaintiff listed the warnings she alleged that the defendant failed to provide, she “did not name the treating physician who received the allegedly inadequate warning [or] state that these physicians would have acted differently had they been provided with a different warning.” Id. The Court held, “The Complaint needs to show how the alleged failure to warn caused the injury, and simply alleging warnings that [the defendant] should have included does not satisfy this element.” Id. Moreover, under the learned intermediary doctrine, it was of no moment that the plaintiff alleged that she would have rejected the product if she had “known the true facts,” because the “defendant’s duty to warn ends once it provides an adequate warning to the healthcare provider.”
The court held that the design defect claim failed because it relied on generalizations about adverse events associated with the product but “simply fail[ed] to show how the product caused this Plaintiff’s specific injury.” Id. at *4 (emphasis in original). And the “defective product” claim failed because there is no such claim under Arizona law.
Having disposed of the strict liability claims, the court turned to the plaintiff’s negligence, negligent misrepresentation, negligent infliction of emotional distress, and gross negligence claims. The defendant argued that, if the complaint failed to state a claim for strict liability, it necessarily could not state claims sounding in negligence. The court agreed, emphasizing that, although causation was an “essential element” of all of the negligence claims, the complaint failed to allege “how the product, its design, or a failure to warn caused Plaintiff’s injury.” Id.
The court held that the plaintiff’s three fraud-based common-law claims and her claim under the Arizona Consumer Fraud Act failed to satisfy Rule 9(b)’s particularity requirement. The implied warranty claim failed because, in Arizona, this claim has been merged into the doctrine of strict liability in tort, so “an implied warranty claim is not available under Arizona’s product liability law when a complaint also brings a claim of strict liability.” Id. at *5. The express warranty claim failed because the plaintiff did not plead a particular injury so it was not possible to determine “whether the injuries fell outside of the forewarned complications.” Id. at *6.
Finally, under Arizona law, manufacturers are not liable for punitive damages if the product was approved by a government agency. The plaintiff argued that the claim fell under a statutory exception because she alleged that the defendant had fraudulently withheld information from the FDA. The court rejected this argument because the statute requires that the regulatory violation be determined by “final action” of the government agency, and there was no allegation that the FDA determined by “final action” that the defendant had withheld or misrepresented information that was relevant to the product’s approval.
And so court held that the complaint “fail[ed] to state any cause of action” and dismissed it in its entirety. The dismissal was without prejudice, of course, but we love this decision. The judge combined an unerring grasp of the elements of all of the plaintiff’s claims with the rigor to demand that those elements be properly pled. We should be so fortunate. We will keep our eyes open for a motion addressed to an amended complaint. In the meantime, stay safe out there