There was a time when it seemed that half our posts were mixed bags of TwIqbal — product liability claims tested against the SCOTUS decisions in Twombly and Iqbal requiring pleadings to be substantive and plausible.  Then things settled down for a bit.  Did plaintiffs get smarter?  Did courts resume tolerance for bare bones complaints? Today’s case, Zamora v. AAP Implants, Inc., 2024 WL 48551352 (S.D. Fla. Nov. 21, 2024), is a mostly favorable TwIqbal magistrate’s decision.  It reminds us of the power and limitations of TwIqbal.

The plaintiff in Zamora claimed that a medical device (plate and screws) used to treat a fractured arm failed catatstrophically.  She alleged that the device “broke, snapped, split, and or cracked inside” her arm while she was “performing the simple movement of lifting her hand to her mouth.”  Her complaint included causes of action for failure to warn, design defect, manufacturing defect, and negligent “failure to test and inspect.”  

The defendant filed a motion to dismiss the complaint, which prompted the plaintiff to amend.  Then the defendant moved to dismiss the amended complaint, which prompted the plaintiff to file a second amended complaint.  Then the defendant moved to dismiss the warning, manufacturing defect, and failure to test/inspect causes of action.  That motion was teed up for the magistrate, except that the failure to test/inspect claim really was not at issue because the plaintiff did not respond to the motion to dismiss that claim. The court concluded that the plaintiff had conceded on the test/failure claim, and such concession made good sense because Florida law does not recognize an independent cause of action for negligent failure to test or inspect.  Thus, this case goes onto the failure to test cheat sheet for putting Florida on the nice, not naughty, list. 

The discussion of the warning claim applies the rationales for both of our recent TwIqbal posts on pleading the purported warning defect (“Plaintiff fails to allege the risks associated with the Device’s prescribed use”) and pleading physician-based warning causation (“allegations that explicitly claim that Plaintiff’s physician would not have used the Device if it were not for Defendant’s failure to warn”).  The plaintiff’s particularly poorly pleaded second amended complaint also failed to plead that the implanting surgeon, rather than the general public, should have been warned, so there are three pleading grounds for dismissing the plaintiff’s warning-related claims (“Plaintiff must clearly set forth the allegation that Defendant failed to warn her prescribing physician”).  Sadly, the court permitted the plaintiff to amend yet again.  Discovery was not yet closed, so why not take another shot at pleading an intelligible warning claim?  Grrrrr.  

Even more sadly, the plaintiff got away with a mashup of design and manufacturing defect allegations. The defendant argued that the manufacturing defect claim should be dismissed because it failed to allege that the device “deviated from all other Products or failed to meet a manufacturing specification” and because the plaintiff’s manufacturing defect claim was duplicative of her design defect claim. Indeed, to our jaded, defense-hack eyes, the defendant’s argument was absolutely correct.  As with most manufacturing defect claims, the one in Zamora was complete hooey, and complete TwIqbal bait.  

But the Zamora court seized upon the Bailey Eleventh Circuit case, which held that a plaintiff “should not be penalized for failing to possess and plead the specific facts involving the source of the defect that will likely come into her possession during the course of discovery.”  First, that “likely” is doing a lot of work.  Second, the proposition is unnecessary and silly.  Why not force plaintiffs to plead claims based upon actual known facts, and if discovery supports new theories, then the plaintiffs can add them?  But Bailey, Zamora, and way too many courts allow plaintiffs to plead claims based, not on facts or reasonable belief, but hope and cynicism. Consequently, the manufacturing defect claim, which will inevitably run aground on lack of evidence, lives on to clutter the docket.  Perhaps the court will be tougher minded when it comes to summary judgment.