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This post is from the non-Reed Smith side of the blog.

A lawyer is a person who writes a 10,000-word document and calls it a “brief.”— Franz Kafka

Our profession often gets criticized for purposeful confusion via legalese, fine print, or just plain old-fashioned verbosity.  We cannot deny that the loquacious and the prolific do get drawn to the law.  But, spewing words is not a gift if the product is not focused, precise, and strategic. The lawyer who gets to the point is often the lawyer with the better facts or arguments.  A lesson learned by the drafter of the complaint in Brown v. C.R. Bard, Inc., 2022 WL 420914 (E.D. PA Feb. 11, 2022).

Plaintiff alleged that six years after implant, she experienced complications from her pelvic mesh and was required to undergo a revision surgery.  Id. at *1.  Plaintiff filed her lawsuit alleging twelve causes of action.  Only two survived defendant’s motion to dismiss.

Plaintiff’s first cause of action was for negligence.  To the extent plaintiff alleged issues with the material used in the design of the product and with the warnings that accompanied the product, the court found she satisfied her obligation at the pleadings stage.  Id. at *2.  Plaintiff, however, had not pled enough to maintain a negligence claim based on manufacturing defect.  Her “conclusory” allegations on manufacturing defect were substantially the same as her design defect allegations.  Id. at *3.  So, plaintiff’s negligence claim was allowed to proceed but not as to manufacturing defect.

Plaintiff’s next three cause of action were strict liability design defect, strict liability failure to warn, and strict liability manufacturing defect.  Following the majority to have decided the issue, the court found that Pennsylvania would apply comment k to preclude strict liability design and warning claims in prescription medical device cases.  Id. at *3-5.  Having already determined that plaintiff failed to plead facts to support a manufacturing defect claim, the court could have stopped there.  Instead, in dicta, the court held that a strict liability manufacturing claim could lie.  Id. at *6.  Because it is not barred by comment k, the manufacturing defect claim was dismissed without prejudice.  As other Pennsylvania courts have done, plaintiff’s breach of implied warranty claims shared the same fate as her strict liability claims.  Id. at *11.

Plaintiff brought four fraud-based claims – common law fraud, constructive fraud, negligent misrepresentation, and violation of Pennsylvania’s consumer protection act.  First, there is no consumer protection claim because under Pennsylvania law, a prescription drug/device manufacturer does not have a duty to disclose information directly to consumers.  The learned intermediary doctrine bars this form of statutory fraud.  Id. *7.

As to plaintiff’s other fraud claims, because Pennsylvania recognizes third-party reliance, the learned intermediary doctrine is not an impediment.  But there are several other obstacles to common law fraud.  Chief among them is that negligence is the sole theory of recovery for failure to warn in prescription drug/device cases in Pennsylvania.  So, when “the crux of [plaintiff’s] fraud allegations . . . are that [defendant] had a duty to warn,” plaintiff’s fraud claims fail.  Id. at *7.

Moreover, fraud claims are subject to the heightened pleadings standards of Rule 9 – fraud must be pleaded with specificity.  Specificity cannot be confused with verbosity or prolixity.  Pleading fraud requires specific allegations about the who, what, where, and when.  Plaintiff’s “who” included a generic list of unspecified “agents, employees, representatives, designees, or any other person acting on behalf of Defendant.”  Id. at *8.  The “what” could have been in instructions for use or “commercial documents,” or studies or advertisements.  Id.  As for “when” it could have been any time from when plaintiff’s surgeon was in medical school to before, during, and/or after the implanting surgery.  Id.  And the where could have included the hospital, the doctor’s office, or any professional seminar or meeting.  Id. 

 Plaintiff spent paragraphs and pages stringing together and/or possibilities to try to bolster her fraud claim, but instead of conveying specificity (or more likely concealing the lack of thereof) they were like a blinking beacon of generality and ambiguity.

[Plaintiff’s] citation to so many sources, especially when made in the alternative, clearly demonstrate the lack of specificity in the Amended Complaint.

Id. at *9.  Piling non-specifics on top of more non-specifics does not lead to particularity.  It’s just a longer, wordy deficient complaint.  Plaintiff’s breach of express warranty claim failed for the same reason.  Id. at *9-10 (the same “overly broad and conclusory allegations” were fatal, as was the failure to attach a copy of the actual warranty).

That left negligent infliction of emotional distress and unjust enrichment.  Surprisingly, in an otherwise thorough analysis of Pennsylvania law, the court allowed the emotional distress claim to stand.  Id. at *11.  But a negligent infliction case in Pennsylvania is where the plaintiff is not the one alleging the physical harm.  The plaintiff typically alleges she saw an accident happen or is closely related to the victim such that while not suffering the physical trauma has suffered emotional distress.  In a product liability case, emotional distress is not a separate claim, but rather a category of damages.  In this respect, the decision misses the mark.

Finally, unjust enrichment is not a product liability theory in Pennsylvania because it is not a cognizable claim where the plaintiff in fact receives and use the product.  Here, where the mesh was implanted for six years, plaintiff cannot demonstrate that defendant refused to provide the product.  Id. at *12.

Twelve counts and hundreds of non-specific allegations later, plaintiffs are left with negligence (based on failure to warn and design defect) and negligent infliction of emotional distress (not really a separate claim in this context).  Brevity may not be the cure as it certainly cannot substitute for particularity.  But, when a writer tries to explain too much, he’s out of time before he begins — Isaac Bashevis Singer.