Photo of Stephen McConnell

It is beach weather, but which beach? The Jersey shore is close, has fun boardwalks and rides, and offers the comfort of the familiar. Then again, you must pay to get on sand covered with New Yorkers. The Outer Banks are lovely, with dunes, wild horses along the surf, splendid lighthouses, and the spot where the Wright Brothers flew into the modern age. Then again, OBX is nine hours away. It also is creepy-crawling with New Yorkers.

How to choose? We thought about heading to the spot with law friendlier to the right side of the v. If we’re going to fritter money away on overpriced accommodations and restaurants, why not at least patronize a place that gives us and our clients a fair shot? But then what shall we do with a case like King v. Ethicon, Inc., 2022 WL 2341633 (D.N.J. June 29, 2022), in which a New Jersey court applies North Carolina law to trim back a typically overpleaded pelvic mesh complaint? The no-nonsense disposition of the King remand court contrasts vividly with the lassitude with which similar issues were treated (or not treated) in the mesh MDL court. Because this same plaintiff’s case languished for four years in a mesh MDL (after already not being filed until 10 years after surgery), before plaintiff voluntarily dismissed it (details in the opinion), that contrast is particularly dramatic.

The King complaint was initially filed in the S.D. West Virginia mesh MDL in 2014. The plaintiff lived in North Carolina, and that is where she had the pelvic mesh implanted. The defendant was headquartered in New Jersey. The plaintiff brought claims for strict liability failure to warn, design and manufacturing defect, misrepresentation, gross negligence, and violation of the New Jersey consumer protection act. The plaintiff voluntarily dismissed her complaint in 2018 pursuant to an MDL court order permitting her to refile within five years if she underwent a revision surgery. The plaintiff had her pelvic mesh removed by a doctor who does many such removals and shows up in many such lawsuits. The plaintiff refiled her complaint in New Jersey federal court in October of 2021. The defendant moved to dismiss several of the claims and to limit the negligence claims.

The King court’s Rule 12 opinion quickly cut the complaint down to two surviving claims: negligent design and negligent failure to warn. One of the reasons the King court was able to lay waste to so many of the plaintiff’s causes of action was the application of North Carolina law. In our defense hack mind we’re going to Carolina. North Carolina does not recognize strict liability at all, does not recognize independent product liability causes of action for failure to test, failure to inspect, or failure to train physicians, and does not recognize negligent misrepresentation as a personal injury cause of action. In short, North Carolina has uncommonly sensible laws governing product liability. Add that to a very intelligent, ethical Attorney General, the fact that one is never very far from a Brew Thru or Duck Donuts, and we might very well point our car due south for summer vacation.

But remember that it was a smart New Jersey judge who authored the King opinion, and not all of the goodies came out of North Carolina law. For example, the manufacturing defect claim in King was a goner because the plaintiff did not “plausibly allege that her implanted TVT deviated from Defendants’ design specifications.” In fact, other allegations in the complaint belied the manufacturing defect claim, such as when the plaintiff alleged that the mesh device implanted was “in the condition directed and expected by … Defendants.” There was no allegation of any problem with the manufacturing process. That spelled the end of the manufacturing defect claim.

In addition, the fraud/fraudulent concealment claims in King flunked the specificity requirement of Fed. Rule Civ. P. 9(b)). The plaintiff did not adequately plead the “contents” of any misrepresentations. She complained about “marketing” and “promotional materials,” but never identified any particular document or statement. The plaintiff also alleged constructive fraud, but could not show even a shadow of a fiduciary relationship between her (or her doctor) and the medical device manufacturer.

The plaintiff ended up conceding that her invocation of the New Jersey consumer fraud statute was misplaced because the New Jersey statute cannot apply extraterritorially. She tried switching to the North Carolina Unfair Trade and Deceptive Practices Act, but that claim also fell short of the requisite Rule 9(b) particularity.

Finally, the plaintiff’s gross negligence claim got Twiqballed out of court. A claim for gross negligence requires a plausible allegation of “wanton” conduct in addition to the usual elements of negligence. In King, the plaintiff lobbed in general accusations that the defendant withheld information about product risks, but never cited any “factual content” sufficient “to raise Plaintiff’s right to relief above the speculative level.”

Unlike the four years that this same case sat around with nothing happening in the MDL, within seven months, the King case was reduced to its essentials, and the parties can now focus on case-specific issues like how the plaintiff’s initial 10 year wait to file suit can possibly avoid the statute of limitations.

The King case says something good about product liability law in both New Jersey and a North Carolina. So we are no closer to deciding where to take our flip-flops, cooler, and floaties. Maybe we’ll look up some Massachusetts cases. We’re kind of jonesing for a Cape Cod lobster roll.