None of our regular bloggers are solo practitioners.  And we’ve all been practicing for quite some time.  So, it is fair to stay that we’ve all had ample opportunity to offer writing advice to more junior lawyers.  Know your audience.  Use active voice.  Stop using legalese.  Avoid redundancy. And be direct and concise.  Which also translates to less is more.  We typically also appreciate direct and concise court opinions.  But the decision in Williams v. Boston Scientific Corp., 2023 U.S. Dist. LEXIS 220371 (N.D. Ohio Dec. 11, 2023), had so little discussion of any facts it made us want to delve a little deeper into the pleadings.  What we found was direct and concise.  It was less, but it was not more. 

Plaintiff originally filed suit in state court in Ohio.  So, we looked at the Ohio pleading rules.  Under the Ohio Rules of Civil Procedure, a complaint need only contain “a short and plain statement of the claim showing that the party is entitled to relief.”  Civ.R. 8(A)(1).  Civil Rule 8(E) further provides that averments in pleadings be “simple, concise, and direct.”   While Ohio may not have fully embraced TwIqbal, our quick look gives us some confidence that Ohio law requires more than conclusory allegations and some pleading of minimal facts in support of the advanced claims. 

Next, we looked up the complaint.  The original complaint contained sixteen paragraphs alleging claims for design defect, manufacturing defect, and failure to warn.  Those paragraphs concisely state that plaintiff had bladder surgery in 2020.  In 2021, it was discovered that plaintiff had an internal hernia allegedly caused by the pelvic mesh used during the earlier surgery.  The hernia has caused plaintiff ongoing pain and suffering.  That’s pretty much it.

After the case was removed to federal court and in response to defendant’s motion to dismiss, plaintiff amended her complaint.  The amended complaint still only had sixteen paragraphs and contained only two new averments—the product identification numbers for the implanted mesh and the mesh purportedly contained polypropylene.  Not surprisingly, defendant renewed its motion to dismiss.

We don’t think it matters whether you use Ohio pleading standards or federal, although the court correctly used the federal standard.  The complaint in this case simply identified a medical device and identified a complication suffered after use of that medical device.  Under no standard is that enough for notice pleading.

Plaintiff’s only design defect allegation is that the foreseeable risks of the product exceed its benefits.  But this is just a recitation of what constitutes a design defect under the Ohio Products Liability Act (OPLA).  The complaint “contains no statements regarding a plausible defect in the mesh” which is not sufficient to state a claim.  Id. at *4.        

For design defect, plaintiff needed to plead some “plausible basis to infer the device at issue materially deviated” from product specifications.  Plaintiff’s only statement in support of this claim is that the product contained polypropylene.  But plaintiff does not explain how that means the product was manufactured improperly, because she can’t.  For the presence of polypropylene, a material used in numerous types of mesh implants, to be a manufacturing defect plaintiff would also have to have alleged that the use of polypropylene in the manufacturing process was against the product’s design and specifications.  She did not; again, because she cannot. 

Plaintiff’s single warnings allegation was that the mesh “was not provided with warnings of the limitations on its use for implantation.”  But because Ohio recognizes the learned intermediary doctrine, what the complaint needed to include was some statement regarding what warnings were provided to her surgeon and “how an adequate warning may have influenced her doctors.”  Id. at *6.  The complaint here did not even include what warnings accompanied the product, let alone what information her doctor had and what, in her belief, would have been an appropriate warning.  Without those basic facts, plaintiff’s warning claim also fails. 

Plaintiff appears to have made one sweeping argument that defendant wanted the complaint to contain “all of the defect details” before any discovery is conducted.  Id. To which the court responded: “[P]leading standards do[] not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”  Id. 

We stand by our belief that direct and concise is desirable and that usually means less is more.  But when less is really nothing, it means dismissal.