Bexis was updating the chapter of his drug and medical device treatise pertaining to, inter alia, punitive damages and came across In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2020 WL 8970347 (D.N.J. March 12, 2020).

Consistent with a number of alarmingly pro-plaintiff decisions that we’ve already seen from that MDL, we found the portion of this Valsartan decision pertaining to punitive damages (why Bexis was reading it) a head scratcher.  The ruling in question was that the TwIqbal (Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) pleading standard simply doesn’t apply to punitive damages:

[O]n a Rule 12(b)(6) motion, the “plausibility” pleading regime addresses the types of facts a plaintiff must allege to make out a cause of action, not the types of damages the alleged cause of action may eventually warrant. . . .  [N]othing in Twombly, Iqbal, or their progeny refers to pleading requirements for damages. . . .  In sum, once a civil complaint shows a claim to be facially plausible, nothing in Rule 8 or its judicial gloss suggests, let alone requires, that this Court scrutinize the damages requested by plaintiff as redress for that claim.  The take-away is that Rule 8 does not demand a plausibility review of the pleaded allegations of a punitive damages remedy.

2020 WL 8970347, at *11 (citations and quotation marks omitted).

Oooo-kaaay.

That struck us as odd, if not bizarre, given that the language of Fed. R. Civ. P. 8(a), which TwIqbal applied, embraces both a complaint’s “statement of the claim” and its “demand for the relief sought.”  Thus, Bexis made a note to blog on it – but only after he finished his chapter update due at the end of February.  But even before that was done, Poozhikala v. Medtronic Inc., 2022 WL 610276 (C.D. Cal. Jan. 31, 2022), fell into our laps.  Among many other things, it rejected the same anti-TwIqbal syllogism that Valsartan embraced.

Defendant also moves to dismiss or strike Plaintiffs’ request for punitive damages. . . .  The better view conforms to the pleading standards set forth in Twombly and Iqbal.  Here, Plaintiffs fail to supply factual support showing Defendant acted with “oppression, fraud, or malice,” relying instead upon conclusory allegations.  Therefore, Plaintiffs’ request for punitive damages is dismissed.

Id. at *8 (agreeing with Bouncing Angels, Inc. v. Burlington Insurance Co., 2017 WL 1294004, at *4 (C.D. Cal. March 20, 2017) (“Plaintiff must still satisfy the requirements of [TwIqbal]”; plaintiff “failed to plead sufficient facts to support a finding of malice, fraud or oppression”) (citing two more cases), and Kelley v. Corrections Corp., 750 F. Supp. 2d 1132, 1146-48 (E.D. Cal. 2010) (applying TwIqbal because “[p]unitive damages are never awarded as a matter of right, are disfavored by the law”).

That’s only the tip (twip?) of the TwIqbal iceberg.  The first place we went was to the Blog’s own TwIqbal Cheat Sheet, which is relatively narrow, since it:  (1) cites only cases where every TwIqbal argument is successful, and (2) is limited to prescription medical product cases.  Searching for “punitive,” we found seven more cases applying TwIqbal to punitive damages claims.

  • Rhynes v. Stryker Corp., 2011 WL 2149095, at *5 (N.D. Cal. May 31, 2011). “[I]n order for Plaintiffs’ punitive damages claim to survive a motion to dismiss, Plaintiffs must allege sufficient facts to state a plausible claim that [defendant] engaged in vile, base, and contemptible conduct. [Defendant] argues that [plaintiff] has failed to meet this standard.  The Court agrees.”
  • Vasquez v. Gloucester County, 2014 WL 1599499, at *3 (D.N.J. April 21, 2014). “[Plaintiff’s] Complaint simply alleges that the [device] was used for its intended purpose, but that the warnings were insufficient. . . .  These allegations lack any contention or inference that [defendant] withheld or misrepresented information to the FDA . . ., the threshold for permitting punitive damages.  The Court must therefore dismiss the claim for punitive damages.”
  • Nowell v. Medtronic, Inc., 372 F. Supp.3d 1166, 1240 (D.N.M. 2019). “[Plaintiff] has not alleged facts sufficient to support a finding that the Defendants’ conduct maliciously, intentionally, fraudulently, oppressively, recklessly, or wantonly offended [plaintiff’s] rights such that [plaintiff] is entitled to punitive damages.”  Affirmed on other grounds 2021 WL 4979300 (10th Cir. Oct. 27, 2021).
  • Cofresi v. Medtronic, Inc., 450 F. Supp.3d 759, 768 (W.D. Tex. 2020). “Punitive damages are available when the evidence shows that the defendant acted with fraud, malice, or gross negligence. . . .  [T]he Court finds that Plaintiff’s allegations do not go beyond mere legal conclusions.  Plaintiff fails to show that Defendant . . . acted with an extreme degree of risk or was consciously indifferent to the safety of others by creating the [product] in question.  Thus, Plaintiff’s punitive damages and gross negligence claims must be dismissed.”
  • Baca v. Johnson & Johnson, 2020 WL 6450294, at *6 (D. Ariz. Nov. 2, 2020). “In addition to the fact that the Complaint fails to allege fraud with particularity, the Complaint also fails to allege that the FDA determined by final action that Defendants withheld or misrepresented information relevant to the Product’s approval.  The statutory exception does not apply, and the claim for punitive damages . . . will be dismissed.”
  • Stich v. Smith & Nephew, Inc., 2021 WL 1997411, at *8 (D.N.J. May 19, 2021). “Aside from . . . boiler plate language, Plaintiff’s Complaint is devoid of any specific factual allegations to support a finding that Defendant acted with malice, or wanton or willful disregard of people who could foreseeably be harmed by Defendant’s conduct.”
  • Parker v. Medtronic Sofamor Danek USA, Inc., 2021 WL 4751185, at *4 (N.D. Ohio Oct. 12, 2021). “In support of his request for punitive damages, Plaintiff alleges . . . [a] conclusive recitation [that] does not satisfy Rule 8, and the first amended complaint does not otherwise contain any factual allegations that do.”

Significantly, two of these six decisions dismissing punitive damages allegations under TwIqbal are from the District of New Jersey, as is Valsartan.

That’s a start, but what about the federal courts of appeals?  Since Valsartan is in the Third Circuit, we looked there first.  In In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3d Cir. 2010), the court recognized that “the concern expressed in Twombly is just as applicable to” cases involving “the availability of punitive damages and of attorneys’ fees to the successful plaintiff.”  Id. at 370.  A “defendant should not be put to the expense of big-case discovery on the basis of a threadbare claim.”  Id. (citation and quotation marks omitted).  Likewise, in Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. 2010), a Third Circuit panel specifically affirmed a TwIqbal dismissal of punitive damages allegations:

[C]ourts do indeed dismiss claims for punitive damages in advance of trial. . . .  [U]nder the pleading standards we are bound to apply, there is simply no foundation in the complaint for a demand for punitive damages.  Cf. Iqbal, 129 S.Ct. at 1950 (explaining that while a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct”); Twombly, 550 U.S. at 556 (explaining that a plaintiff must “identify[ ] facts that are suggestive enough to render [his claim] plausible”).

362 Fed. Appx. at 283 (emphasis added).

The Fifth Circuit, in one of its “shotgun pleading” decisions, had no trouble affirming dismissal of a TwIqballed punitive damages claim:

Further, [plaintiffs] assert that “[b]ecause the conduct of Defendant was intentional, deliberate, reckless, and in conscious disregard for the consequences of its actions[,] … Defendant is liable for punitive damages.”  These assertions result in the obvious question − what “conduct” is [the complaint] referring to?  No one could know. . . .  Complaints with such obvious deficiencies clearly run afoul of the specificity required by Rule 8(a)(2) and Iqbal, and therefore we reiterate that they are unacceptable in this Circuit.

Bass v. Regions Bank, Inc., 947 F.3d 1352, 1356 n.5 (11th Cir. 2020).  The Sixth Circuit has similarly held:

Under Ohio tort law, claimants may obtain punitive damages only when . . . the actions or omissions of the defendant demonstrate malice or aggravated or egregious fraud.  [Plaintiff’s] pleadings leave it unclear whether he has “plausibl[y]” made sufficient allegations to satisfy these requirements with respect to his common law. . . .  Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 462 (6th Cir. 2010) (other citations and quotation marks omitted).  For additional affirmances of dismissals of punitive damages allegations under the TwIqbal standard, seePyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 226 (2d Cir. 2017); Hall v. Greystar Management Services, L.P., 637 Fed. Appx 93, 99 (4th Cir. 2016).

Since it is evident that Valsartan’s blanket refusal to apply TwIqbal standards to punitive damages is inconsistent with binding Third Circuit precedent, we looked for where the Valsartan rationale came from.  That decision relied almost entirely on Jones v. Francis, 2013 WL 5603848, at *2 (D.N.J. Oct. 2013).  Jones appears to have made up its exclusion of punitive damages from TwIqbal out of whole cloth.  While asserting that “nothing in Twombly, Iqbal, or their progeny refers to pleading requirements for damages requests,” id., Jones apparently failed to consider either Rule 8 itself, or that “progeny.”

As for the Rule, as we mentioned, Rule 8(a) applies to both “claims” and “relief”:

(a) Claim for Relief.  A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction . . .;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(Emphasis added).  Nothing in TwIqbal indicates any attempt to salami-slice the subsections of Rule 8(a).  Moreover, we note that Iqbal specifically rejected an argument that a plaintiff’s ability, under Rule 9, to allege “malice” and “intent” “generally,” somehow also relaxed the pleading requirements of Rule 8:

Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard.  It does not give him license to evade the less rigid − though still operative − strictures of Rule 8. . . .  And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label “general allegation,” and expect his complaint to survive a motion to dismiss.

556 U.S. at 686-87 (citation omitted).

And if Jones had actually looked at TwIqbal “progeny,” it would have found the Third Circuit’s Insurance Brokerage and Boring decisions we’ve already discussed.  They aren’t hard to find.  A basic search for “punitive damages” within the same paragraph as “Twombly” or “Iqbal” (thankfully, both case names are distinctive) produced them.  Other than Twombly and Iqbal themselves, Jones only cited to a couple of general Third Circuit cases that had nothing to do with punitive damages.  2013 WL 5603848, at *2 (citing Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), and Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).  Indeed, the Third Circuit’s emphatic embrace in Fowler of Iqbal as “the final nail-in-the-coffin for the ‘no set of facts’ standard that applied to federal complaints before Twombly” counsels just the opposite result – that TwIqbal should apply broadly to all allegations that, like punitive damages, must meet Rule 8(a) pleading standards – particularly given usually rigorous substantive state-law standards limiting the availability of punitive damages.

Most TwIqbal decisions aren’t appealed, so running the same search for federal district court decisions yielded almost 700 hits.  So we’ll just look at the first few.  The most “relevant” decision is Rivin v. Patrick K. Willis Co., 2020 WL 8365251, at *3 (C.D. Cal. Dec. 4, 2020), which like a couple of cases already cited is from California.  Rivin held:

Here, the Court agrees that [TwIqbal] pleading requirements apply to claims for punitive damages.  A closer reading of Iqbal supports this conclusion.  In Iqbal, the Supreme Court stated that even though Rule 9(b) permits “[m]alice, intent, knowledge, and other conditions of a person’s mind [to] be alleged generally[,]” the “generally” is only “relative to the particularity requirement applicable to fraud or mistake.” 556 U.S. at 686.  It does not, however, give a plaintiff “license to evade the less rigid − though still operative − strictures of Rule 8.”  Id. at 686–87. . . .

Thus, the Court must consider whether the FAC contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. at 678 (quoting Twombly, 550 U.S. at 570)).  The FAC merely regurgitates the definition of malice, fraud, and oppression, and reiterates [statutory] elements. The Court therefore concludes that the FAC contains no factual allegations that could plausibly give rise to a finding of fraud, oppression, or malice, or that any officer, director, or managing agent authorized or ratified the alleged conduct necessary for punitive damages.

Id. at *3.  Here are a few more California cases that apply TwIqbal to punitive damages claims, since that state seems to generate the largest number of decisions in this area:  Somerville v. Medtronic, Inc., 2021 WL 5926029, at *13 (C.D. Cal. Aug. 19, 2021); Doe 1 v. United Airlines, Inc., 2021 WL 4595766, at *5-6 (C.D. Cal. April 22, 2021); Warnshuis v. Bausch Health U.S., LLC, 2020 WL 3294808, at *12 (E.D. Cal. June 18, 2020); MCI Communications Services, Inc. v. Security Paving Co., 2016 WL 1436521, at *4 (E.D. Cal. April 12, 2016); Polk v. OSI Electronics, Inc., 2014 WL 12787639, at *10 (C.D. Cal. Feb. 24, 2014).

Also in the top ten relevant cases is Amini v. CSAA General Insurance Co., 2015 WL 3466517 (D. Nev. May 29, 2015), which also TwIqballed a punitive damages claim:

Plaintiff’s complaint is almost completely devoid of factual content. . . .  The same is true of his punitive and exemplary damages prayer.  [Plaintiff] states baldly that the insurer . . . “acted fraudulently, in bad faith, and with malice and oppression so as to justify an award of punitive and exemplary damages.” . . . These mere labels and conclusions are simply insufficient to survive dismissal under [TwIqbal]. . . .  [A]ll punitive damages allegations are dismissed.

Id. at *1 (footnote omitted).

The top ten list also includes Thomas v. Rijos, 780 F. Supp.2d 376 (D.V.I. 2011) – notable because it is also from a Third Circuit-bound court.  Holding that TwIqbal applies to pleading “gross negligence,” Thomas first and foremost followed the Third Circuit’s Boring decision (discussed above).  780 F. Supp.2d at 380.  Thomas also pointed us to two Pennsylvania cases that dismissed insufficient punitive damages claims under TwIqbalId. (citing Fedor v. Van Note-Harvey Associates, 2011 WL 1043817, at *1-2 (E.D. Pa. March 18, 2011), and Allegrino v. Conway E & S, Inc., 2010 WL 3943939, at *11 (W.D. Pa. Oct. 6, 2010)).

Another top-ten relevant case is Shukh v. Seagate Technology, LLC, 873 F. Supp.2d 1087 (D. Minn. 2012):

But the cases do not suggest that claims for punitive damages are exempt from [TwIqbal] pleading requirements.  In each of the cases on which [plaintiff] relies the court observed that the fact-finder could plausibly infer from plaintiff’s factual allegations that the standard for punitive damages was met.  In short, [plaintiff’s] suggestion that [defendant’s] motion is an attempt to force him to prove up his claims at the pleading stage rings hollow in the wake of [TwIqbal].  The Court finds that the requirement emerging from those cases that a complaint’s allegations support a plausible inference of entitlement to relief applies to the expression of punitive damages.

Id. at 1090 (citations and quotation marks omitted).

Two of the omitted citations in Shukh are to other top-ten-relevant medical device decisions making precisely the same point that Shukh did – that TwIqbal applies to punitive damages.  Both Troyer v. I-Flow Corp., 2011 WL 2517031, at *5 (S.D. Ohio June 23, 2011), and Clonch v. I-Flow Corp., 2010 WL 4806769, at *5 (S.D. Ohio Nov. 17, 2010), applied TwIqbal standards to punitive damages claims, but found those standards satisfied.  This is a long way from Valsartan’s proposition that TwIqbal doesn’t apply at all to punitive damages allegations.

That’s a good way to conclude.  Here are more decisions from prescription medical product liability litigation that did what Valsartan should have done – recognize the applicability of TwIqbal to allegations concerning punitive damages:  In re Zantac (Ranitidine) Products Liability Litigation, 2021 WL 2685632, at *12 (S.D. Fla. June 30, 2021); Reynolds v. Medtronic, Inc., 2021 WL 1854968, at *11 (S.D. Ohio May 10, 2021); Clements v. Sanofi-Aventis, U.S., Inc., 111 F. Supp. 3d 586, 600-01 (D.N.J. 2015); Tapia v. Davol, Inc., 2015 WL 6828660, at *8 (S.D. Cal. Nov. 6, 2015); Rhoton v. 3M Co., 2015 WL 7770234, at *4 (N.D. Ala. Dec. 3, 2015); Halsey v. Smith & Nephew, Inc., 2014 WL 12717702, at *13 (D. Vt. Feb. 4, 2014); Halsey v. Smith & Nephew, Inc., 2013 WL 12226936, at *6 (D. Vt. Aug. 13, 2013); Moore v. Mylan Inc., 840 F. Supp. 2d 1337, 1353 (N.D. Ga. 2012); Sieloff v. Stryker Corp., 2012 WL 5835396, at *1 (D. Ariz. Nov. 16, 2012); Salvio v. Amgen Inc., 2012 WL 517446, at *7 (W.D. Pa. Feb. 15, 2012); Alfeo v. I-Flow, LLC, 2012 WL 442981, at *2 (S.D. Fla. Feb. 10, 2012); Salvio v. Amgen, Inc., 810 F. Supp.2d 745, 757 (W.D. Pa. 2011); Henderson v. Sun Pharmaceuticals Industries, Ltd., 2011 WL 4024656, at *8 (N.D. Ga. June 9, 2011); Puricelli v. Genetech, Inc., 2011 WL 1576779, at *4 (E.D. Mo. April 26, 2011); Lefker v. I-Flow Corp., 2010 WL 4806771, at *2 (S.D. Ohio Nov. 17, 2010); and Cruz v. Mylan, Inc., 2010 WL 598688, at *4 (M.D. Fla. Feb. 17, 2010).  On the merits, some of these cases dismissed punitive damages allegations; others found them sufficient.  But all of them did the right thing insofar as they applied TwIqbal.