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The plaintiff in Pachecho v. Johnson & Johnson, 2024 WL 3260883 (M.D. Ga. Jul. 1, 2024), both over-pleaded her causes of action and under-pleaded their factual support (at least as to manufacturing defect).  Both errors led the court do a little pruning.  And while the cases continues, we hope in its uncluttered state, the weakness of the surviving claims more readily stands out.

First up were plaintiff’s over-pleaded negligence and gross negligence claims.  Plaintiff alleged defendant was negligent or grossly negligent in “the design, manufacture, testing, inspection, processing, advertising, marketing, labeling, assembling, packaging, distribution, detailing, promotion and sale of the Product.”  Id. at *1.  Defendants argued that the only potentially viable negligence-based claims were for the “three recognized” products liability claims—design defect, manufacturing defect, and failure to warn.  Id. at *3.  Looking to decisions by other district courts on the issue and the Third Restatement of Torts, the court here agreed.  Id. at *4. 

Of particular importance is the court’s rejection of a claim for failure to test.  Georgia law does not recognize such a claim.  Therefore, an allegation that a defendant failed to adequately test a product is merely a sub-part of one of one of the recognized duties.  Id. In other words, there can be no liability for failure to test absent proof of a design, manufacturing, or warning defect.  Think of it this way, a plaintiff can argue that additional testing should have been done, but if she cannot establish a defect in the product that caused her alleged injury, whether and how much testing a defendant did is irrelevant because the lack of testing itself cannot be the cause of the injury.  Id.  Therefore, plaintiff cannot have an independent claim for failure to test.  Or for that matter, for failure to inspect, failure to process, and so on.  Plaintiff’s negligence claims are limited to design, manufacturing, and warning. 

Defendants next argued that because plaintiff’s negligence, gross negligence, and strict liability claims are all based on the same grounds, they should be consolidated.  Here the court only agreed in part.  Under Georgia law, strict liability design defect claims are subject to a risk-utility analysis, “which incorporates the concept of reasonableness”—a negligence principle.  Id. at *5.  Therefore, the difference between a strict liability design defect claim and a negligent design defect claim is one of “semantics.”   Id. Since duplicative claims should be consolidated, the court granted that portion of defendants’ request.  However, because reasonableness is not an element of plaintiff’s strict liability manufacturing defect and failure to warn claims, or any of her gross negligence claims, the court did not agree to consolidate those.  Id. at *6. 

Which brings us to plaintiff’s under-pleading.  Unlike a design defect claim, a manufacturing defect claim must plead a “deviation” from a standard or a departure in the manufacturing process.  Id. at *7.    While plaintiff’s complaint contained the word “deviated,” it lacked any “facts . . . supporting the bare legal assertion that they were “deviat[ions] … from Defendants’ design and manufacturing specifications.”  Id. at *8.  Plaintiff failed to plead any facts showing what the product’s intended design or specifications were, how defendants deviated from those specifications, or how such a deviation caused plaintiff’s injury.  Therefore, she has not stated a manufacturing defect claim—in strict liability, negligence, or gross negligence.  Id.

In sum, plaintiff lost all her manufacturing defect claims and her failure to test claims. Leaving only design defect and warning claims which historically post-remand plaintiffs in the mesh litigation have struggled with.  Limited to these pared down claims is certainly not where plaintiff wanted to be.