We have promised ourselves that we will stream this week’s “This Is Us” episode when we finish this blog post. We love this series beyond reason, and we dread its imminent demise, notwithstanding the title’s grammatical transgression. (We generally condition any sort of allegiance on correct use of predicate nominatives.) We are struck, over and over again, by writers who “get it,” on so many levels. For similar reasons, but without the grammar concern, we love today’s case.
Our co-blogger, Mr. Boranian, covered Bond v. Johnson & Johnson, 2021 U.S. Dist. LEXIS 243038 (D.N.J. Dec. 21, 2021), last week, but he concentrated on the choice-of-law issues. Here, we take a deeper dive into the court’s decisions on the substantive claims. Bond is a hernia mesh decision out of the District of New Jersey, decided at the very end of last year. (It was a close contender for our “Ten Best” list, being discussed on today’s webinar.) It is a decision on two plaintiffs’ motions to dismiss. Both plaintiffs alleged that they were injured by the defendants’ hernia mesh, and both asserted claims for defective design, failure to warn, and manufacturing defect under the New Jersey Products Liability Act, along with common-law claims for negligence, design defect, failure to warn, manufacturing defect, and breaches of warranties. The court’s discussion of the plaintiffs’ design defect claims is the source of our delight, and we will save that for last.
As last week’s post explained, the court began with a detailed, more-interesting-than-usual choice-of-law discussion, resulting in applications of the laws of the plaintiffs’ respective places of injury — Michigan and North Carolina — and not the law of New Jersey, where the defendants maintained their principal places of business and designed their hernia mesh. Since New Jersey law did not apply, the court dismissed both plaintiffs’ NJPLA claims for defective design, failure to warn, and manufacturing defect, while the North Carolina plaintiff’s remaining claims fell victim to that state’s six-year statute of repose.
The court held that Michigan plaintiff’s manufacturing defect claim failed because the plaintiff had not plausibly alleged that his hernia mesh deviated from the defendants’ manufacturing standards. His failure-to-warn claim failed under Michigan’s learned intermediary rule, for two reasons. First, the court held that it was “unable to assess the warning” provided with the mesh “against the omissions [the plaintiff] allege[d],” because the complaint did not set forth the specific language the warnings contained. Bond, 2021 U.S. Dist. LEXIS 243038 at *33-34. Second, the plaintiff “failed to adequately allege causation, as he [did not] particularize specific omissions or inadequacies supporting his allegations beyond the generally accepted risks of hernia surgery.” As such, he “failed to plausibly allege that any inadequacies in the warnings proximately caused his injuries.” Id. at *34-35 (internal punctuation and citations omitted). Different from the usual “warnings causation” decision, but we’ll take it. Finally, the court dismissed the express and implied warranty claims because the plaintiff had not provided pre-suit notice “upon discovering a breach,” as Michigan law required.
Now, onto the best part. We spend our professional life in the mass tort space, defending our medical device clients against “design defect” claims. This is how it usually goes: a plaintiff pleads (and eventually his expert offers the “general causation” opinion) that the device is “defective” because it is prone to/capable of something or other, and he pleads that the “defective” device caused his alleged injuries. But, to satisfy the “causation” element of a design defect claim, a plaintiff is required to plead how a specific defect in his device caused his specific injuries, and mass tort plaintiffs never go beyond generalities and conclusory allegations. (Nor do typical plaintiffs’ experts draw the requisite causal connections in their eventual case-specific reports.) Nevertheless, it is nigh impossible to win a motion to dismiss a design defect claim because judges decline to confront the deficiencies of these claims early in the litigation. The judge in Bond was an exception.
The Michigan plaintiff (remember, the other plaintiff’s claims were time-barred) alleged three “defects” in his mesh: 1) a set of guidelines recommended against the “plug” design of his mesh, as “the incidence of erosion seem[ed] higher” with that design; 2) the “multiple layers” of the mesh resulted in “increased dense adhesion formation” which, in turn, caused a long list of injuries; and 3) the mesh was “susceptible to in vivo degradation,” which caused an overlapping list of injuries. (Sound familiar to anyone??)
And the court held that the “causation” allegations were not adequate:
[The plaintiff] has failed to sufficiently allege that any of these defects caused his alleged injuries. . . . With respect to the use of a “plug” design, . . . other than conclusory allegations, [the plaintiff] does not further define “erosion” or explain whether he experienced any of the injuries that [the] design allegedly makes more likely.
Id. at *25 (citations omitted). Similarly, the plaintiff did not “cite to any study, guidelines, or support for [the] proposition that a “multi-layered” design increased “the intensity and duration of the inflammatory response, thereby increasing dense adhesion formation.” In other words, he did not explain “how the alleged defect caused his injury.” Id. at *26-27 (emphasis in original, internal punctuation and citations omitted). “Further,” the court held, the plaintiff “failed to differentiate his injuries from those that normally attend hernia repair surgery, with or without mesh.” Id. at *27. Finally, the plaintiff did not “cite to any materials supporting [the] proposition” that the defendants’ mesh was prone to in vivo oxidative degradation, nor did he “explain the term . . . or provide any further explanation of how such degradation” caused his alleged injuries. Id. at *29.
The court concluded:
Without further explaining how [the mesh] causes the injuries [he] enumerates and whether he in fact experienced those injuries, [the plaintiff’s] allegations are conclusory and do not suffice. He has failed to allege a logical sequence of cause and effect explaining why the multi-layered polypropylene mesh design would have caused his particular injuries.
Id. at *30 (internal punctuation and citations – including citation to Iqbal – omitted). The only fly in this ointment is that the court dismissed the design defect claim without prejudice and with leave for the plaintiff to amend. But we are immensely heartened by (and will cite) this rare decision emphasizing the “causation” element of a design defect claim and imposing consequences on a plaintiff who did not satisfy his burden to plead this element of the claim.
We will keep our eyes open for motion practice addressed to an amended complaint in this case. In the meantime, stay safe out there.