When you write a few hundred or more posts for a legal blog devoted to the somewhat niche subject of drug and device product liability law, you look for themes or hooks to keep both the writer and presumptive readers engaged. The themes may be fairly obvious based on the date of the post, the subject matter, or the name of a party. A post may include hidden references or word play for specific readers, sometimes upon request. Song lyrics, movie quotes, sports stuff, and events in the lives of the authors may also feature in posts. Of course, according to the conventions of this Blog, we use plural pronouns even when referring to a singular author, and we have also referred to author’s offspring with sobriquets like Drug and Device Law Daughter or Drug and Device Law Rock Climber. Whether these devices amuse readers may be revealed in occasional emails, texts, or other comments that we receive. Most attempts at cleverness echo like the sound of a falling tree in a forest with no human around to hear it.
With that insight into our sausage making complete, we begin to employ a number of these devices in our present post. We will not, however, attempt any link to Juneteenth, the day on which this post is being published, because that would be silly and demeaning. Cordle v. Enovis Corp., No. 24-5958, 2025 WL 1570340 (6th Cir. June 3, 2025), is merely the unpublished affirmance on appeal of a dismissal of a knee brace product liability case originally brought in Kentucky federal court. We could talk about bourbon or horseracing or even President Lincoln if we wanted an easy theme. Nah. This past Sunday, we attended the college graduation of the Drug and Device Law Engineer (a.k.a. Drug and Device Law Coxswain) on a beautiful day in a remote corner of New England. Were we to go the song route, we might feature a sappy snippet from “Cat’s in the Cradle” or “Sunrise, Sunset” or perhaps an updated version of “We Didn’t Start the Fire” that started with the events of 2003, when she was born. Again, nah. We can take a more direct route to link the graduation to Cordle. Back in the early 2000s, we spent a fair amount of time litigating diet drug cases all over the Commonwealth of Kentucky. We had the win on medical monitoring in the Kentucky Supreme Court in Wood v. Wyeth. We had the class action settlement in Northern Kentucky that ended with plaintiff lawyers in jail and/or disbarred, a judge kicked off the bench and disbarred, and the forced sale of one of the most successful racehorses of this century. We even had cases down in Ashland, where Cordle would eventually be pending, that involved one of the most notorious “pill mill” prescribers of the era. One of the main local lawyers with whom we worked on these cases was distantly related to both Secretary of State Henry Clay and abolitionist Cassius Marcellus Clay, the namesake for the boxer better known as Muhammad Ali, collectively some of the best known Kentuckians.
In a respite from all of this litigating in Kentucky, we took a family vacation to a Caribbean resort with a small Drug and Device Law Engineer in arms. En route from our room to dinner one night, an elegant older woman approached and asked us to hold the elevator for her husband, who “would love to see your beautiful baby girl.” We acceded to the somewhat unusual request. The lady’s husband ambled slowly down the hall, clearly impacted by advanced Parkinsonian symptoms. When Muhammad Ali got to the elevator, his face lit up as he played with the little DDLE’s toes and cheek and made cooing sounds to her delight. Her brother got a plaintiff mock punch to the jaw.
Forgive us our long and indulgent detour to our recounting of an episode from more than twenty years ago. We did not need to go back nearly so far to make a connection to Kentucky, knee braces, personal jurisdiction, or pleading foibles. We did it in small part—the main reason was to fulfill our fatherly duty to offset filial accomplishment with a touch of embarrassment—to emphasize what we see as the real relevance of the Sixth Circuit’s decision in Cordle. We have said many times that plaintiffs usually get too many chances to plead claims that survive motions to dismiss and that too many courts let vague allegations suffice even after TwIqbal. The Cordle appellate decision got it right on both issues. From filing to dismissal to affirmance on appeal, the case lasted less than twenty-one months. We have seen way too many cases where plaintiffs are still amending their complaints, pursuing jurisdictional discovery, and generally fumbling around to plead factual allegations that state a claim two years or more into a case.
Below, the Cordle plaintiff amended her complaint in response to the initial motion to dismiss by the one of two defendants served in the case. The initial motion argued that there was no personal jurisdiction over the movant and that plaintiff’s complaint was too vague to state any claims. 2025 WL 1570340, *1. The amended complaint added some details and a third defendant, an entity related to the movant. A second motion to dismiss by the same movant was denied on personal jurisdiction, but granted on 12(b)(6) because the complaint offered only conclusory allegations about defect and causation. After the remaining defendants were served, they both moved to dismiss on multiple grounds. Id. at *2. They were both dismissed, one for both lack of personal jurisdiction and failure to state a claim and the other just for failure to state a claim. Id. Plaintiff was also not granted leave to file a third complaint because her proposed amendment would have been futile given its lack of allegations of conduct and causation specific to each defendant. Id. On appeal, plaintiff challenged only the latter personal jurisdiction ruling and the denial of leave to amend, implicitly accepting that the second complaint failed to state any claims against any of the defendants.
On personal jurisdiction, plaintiff argued below and on appeal that the defendant at issue was subject to specific personal jurisdiction because it registered to do business in Kentucky. Registration is not enough under Kentucky cases (see here for Kentucky cases and other registration cases) and plaintiff had not offered factual allegations of the defendant’s conduct of business in the state related to the case. Id. at *2. She also offered the general argument that her allegations against another defendant over which the trial court exercised personal jurisdiction should be sufficient against its parent. But the second complaint did not allege that relationship or anything that the parent did regarding the product at all. This meant that there was not a “factual basis necessary to support personal jurisdiction” over the particular defendant. Id. at *3. Plaintiffs do need to plead facts, after all. This failure also doomed plaintiff’s argument that she should have been provided an evidentiary hearing before dismissal. The “threadbare jurisdictional argument” in her written submissions did not create any disputed issues of fact that would have made a hearing helpful. Id.
Next up was plaintiff’s argument that she should have been allowed a third chance at a pleading claims and personal jurisdiction before her case was dismissed with prejudice. In evaluating futility, the Sixth Circuit looked at the proposed third complaint and saw that it “contains only vague assertions that all defendants caused her injury through defective design, manufacturing, and distribution of the knee brace.” Id. at *4. It neither alleged what each defendant allegedly did wrong nor facts “showing that defendants worked together.” Id. There was no reason to force another round of motions to dismiss, and the district court was correct not to allow plaintiff “yet another bite at the apple.” Id. While some wine, and perhaps some children, will improve with age, a product liability case that starts with vague allegations rarely does. If we had them handy, we would toss our caps in the air to celebrate the work of both Cordle courts for giving plaintiff her day in court without letting the case drag on too long. Instead, perhaps a sip of bourbon—no ice or water allowed—may have to suffice.