We just bought tickets for ourselves and a dear visiting colleague to see Barry Manilow in concert next month.   We love everything about Barry – his songwriting (we orchestrated many a youthful breakup with “Even Now” played over and over again), his chutzpah (just shy of his 79th birthday, he premiered a new musical, to raves, at the National Yiddish Theatre Folkbiene) and his unabashed and unapologetic joie de vivre and showmanship.  The first time we saw Barry in concert, we were young, in love, and spending the summer at the Jersey Shore.  The first live strains transport us back to those breezy days when we thought we could wish anything into reality simply by believing it enough.

We know better now, of course.  As does the plaintiff in today’s case, which turns on whether a plaintiff can satisfy Twiqbal by pleading facts “on information and belief.”  In Warren v. ResMed Corp., 2022 U.S. Dist. LEXIS 114447 (S.D.N.Y. June 28, 2022), the plaintiff alleged that her husband/decedent died because of a malfunction of the defendant’s ventilator.  (The decedent suffered from a degenerative neurological condition that affected his ability to breathe.)   The complaint alleged that the plaintiff found her husband unresponsive and observed “a gap or opening between the face mask” of the ventilator and the decedent’s face, and that “the gap impaired the functioning of the ventilator in a manner which should have caused an alarm to sound but did not.”  Warren, 2022 U.S. Dist. LEXIS 114447 at *3.  She filed suit in New York state court, and the defendants removed the case to the Southern District of New York.  She asserted all of the usual product liability claims sounding in strict liability, negligence, and breach of warranty, and the defendants moved to dismiss the failure-to-warn and breach of express warranty claims.

In her failure-to-warn claim, the plaintiff alleged that, “[u]pon information and belief,” the decedent’s doctor was provided with a User Guide that one of the defendants prepared and that, she alleged, contained inadequate warnings.   Similarly, in the breach of express warranty claim, the plaintiff alleged, “upon information and belief,” that the doctor and the decedent had “received, read, and reviewed” the defendants’ User Guide and Patient/Caregiver Instruction warranting “that the ventilator was fit, was reasonably safe, capable, and was of merchantable quality.”  Id. at *4-5.  In their motion to dismiss, the defendants argued that the plaintiff’s warnings and warranty claims failed because “the facts alleged ‘upon information and belief . . . [were] not peculiarly in the possession and control of the defendant,” and the complaint did not “contain a statement of facts upon which the beliefs [were] founded.”  Id. at *8 (internal punctuation and citation omitted).  The defendants contended that, “absent such a factual basis, the relevant allegations [were] purely speculative and [could not] provide a basis for” the claims.  Id.  

And the court agreed.  With respect to the failure-to-warn claim, the court held that the complaint “fail[ed] to state a claim because it [did] not plausibly allege that [the doctor] received inadequate warning from the Defendants.”  Id. at *9.  The court continued, “Although the [complaint] is replete with allegations concerning the substance of the allegedly “inadequate” warnings, it does not identify a single fact that supports the Plaintiffs’ ‘belief’ that [the doctor] received the documents in question.” Id. at *9-10.   “As a result,” the court concluded, “the allegation that [the doctor] received the relevant warnings from the Defendants is wholly conclusory.  Because the Plaintiff does not adequately allege that [the doctor] received the relevant warnings, the [complaint] fails to state a claim for failure to warn.”  Id.   This is akin to the “failure to read” argument we regularly make in our prescription drug and device cases:  if the doctor never read the warnings, the allegedly-inadequate warning could not have been a proximate cause of the plaintiff’s injuries.  (You can find our 50-state failure-to-read survey here.)

Similar deficiencies doomed the breach-of-express-warranty claim.  The defendants argued that the plaintiff’s “upon information and belief” pleading failed to adequately plead “the existence of a material statement amounting to a warranty” and “reliance on the warranty.”  The plaintiff countered that it would be “counterintuitive to assume” that the doctor did not receive and rely on the defendants’ express warranty, and that dismissal would be premature because discovery would elucidate the relevant facts.

The court emphasized that the complaint was “bereft . . . of any facts that would permit the inference” that the doctor or the plaintiff read and relied on the defendants’ express warranties and that the deficient pleading was not cured by the plaintiff’s conclusory assertion that it would be “counterintuitive” to assume that she was incorrect in her “information and belief.”  The court concluded, “Because the Plaintiff’s allegation that [the doctor] received and relied upon the documents in question” was not “accompanied by a statement of the facts on which the belief [was] based,” the express warranty claim failed as a matter of law.  Id. at *13-14 (internal punctuation and citations omitted).

Finally, the court rejected the plaintiff’s argument that she should be permitted discovery to develop the facts of her claim, stating that “a plaintiff who has failed adequately to state a claim is not entitled to discovery”; rather, “discovery is authorized solely for parties to develop the facts in a lawsuit in which a plaintiff has stated a legally cognizable claim, not in order to permit a plaintiff to find out whether he has such a claim.”  Id. at *14 (internal punctuation and citations omitted).

The plaintiff sought leave to amend the complaint to plead additional facts to support her claims.  The court explained that, under Second Circuit precedent, amendment was “not warranted . . . absent some indication as to what a plaintiff might add to its complaint in order to make it viable,” and this plaintiff “had not identified what new information she would include” if permitted to amend.  Id. at *15 (internal punctuation and citations omitted).  Nevertheless, the court permitted the plaintiff to move for leave to amend, with the motion to include a memorandum of law explaining how the amended complaint would survive a comparable motion to dismiss.

This last is a nice touch, and one we’ve not seen before.  We like this decision, obviously – we favor anything that forces plaintiffs to marshal facts to back up their claims before they file their lawsuits.  We’ll let you know if we hear anything further on this.  In the meantime, fire up some classic Manilow music, and stay safe out there.