Pleading

Subscribe to Pleading via RSS
Photo of Bexis

We’ve written before about the long-running Muldoon v. DePuy Orthopedics lawsuit.  For one thing, it’s been around forever – its facts are almost as old as the Blog.  As we stated here:

Muldoon . . . is a suit over hip-replacement surgery conducted in 2007.  Suit was not filed, however, until 2015 – undoubtedly Muldoon is another example of the flotsam and jetsam dredged up by MDL lawyer solicitation.  So Muldoon was stale from the beginning.  But it got worse. For some eight years, Muldoon sat in the horribly mismanaged Pinnacle Hip MDL in Texas.  It appears that nothing at all happened during those years . . . [until] 2023, when the case was ultimately remanded, without comment.  So, due to the combined lassitude of the plaintiffs and MDL management, the suit is nearly 14½ years post-surgery, and only now being addressed on the pleadings.

(citations and quotation marks omitted).

Finally, in Muldoon v. DePuy Orthopaedics, Inc., 2025 U.S. Dist. Lexis 34013 (N.D. Cal. Feb. 25, 2025), it was dismissed with prejudice.  And in the end, the plaintiff didn’t even put up a fight.  Faced with the defendant’s latest dismissal motion, “[p]laintiff has declined to file any opposition.”  Id. at *2.  What was at stake this time were the claims that had survived the defendant’s first dismissal motion against the plaintiff’s absurdly excessive 18-count post-MDL amended complaint.  We had some words to say about that complaint as well:  “It is a dog’s breakfast.  Or it is what our dogs deliver to our yard right after consuming their breakfast.”Continue Reading Muldoon Dismissed – The End of an Error?

Photo of Eric Alexander

From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products.  Innovator liability, first described in Conte back in 2008, is a good example of a bad idea.  Its offspring, the so-called duty to innovate…

Photo of Eric Alexander

Four weeks ago, we posted concerning an MDL judge’s decision not to sanction a plaintiff lawyer for false representations concerning diversity jurisdiction.  We disputed that acting in the client’s “best interest” was a good excuse and questioned whether MDL courts cut plaintiff lawyers more slack than they should.  We also had a bit of a…

Photo of Bexis

Today’s guest post comes from Reed Smith partner, Matt Jacobson. He discusses a new medical device case that puts the “Tw” in TwIqball – as in twisting a screw. The result is a total defense win, albeit with the “twist” that the plaintiff can try again, if he can. As always, our guest posters deserve 100% of the credit (and any blame) for what they write.

*********

Have you ever heard that old idiom “having a screw loose” and wondered where it came from?  My guess is most of you have heard the saying, but never thought twice about its origin (well maybe Bexis has).  But since I have your attention, here is a small history lesson.  During the industrial revolution, if a screw from a machine came loose it meant that the machine was not behaving normally.  Since these machines were built for mass production, having a screw come loose would cause the entire machine to shut down, halting the process.  At least one person claims that Eli Whitney, famed for inventing the cotton gin, was the person to say this phrase first.  But I cannot verify that fact no matter how many internet searches I ran, so that will remain a mystery.   Continue Reading Guest Post – Twlqbal in the E.D. Cal.- No Screws Loose There

Photo of Michelle Yeary

Do kids still do connect-the-dots?  Back before tablets, smart phones, laptops, and even computers, when you went on a long car trip you passed the time playing license plate bingo, punch buggy, annoying your parents, and maybe you had an “activity book.”  An actual paperback book filled with coloring pages, mazes, word scrambles, seek-a-word, and…

Photo of Stephen McConnell

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?

Photo of Michelle Yeary

So learned some plaintiffs in In re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation, MDL 3060, 2024 U.S. Dist. LEXIS 206474 (N.D. Ill. Nov. 13, 2024).  While not a drug or device case, the problem it exhibits is common to many mass torts.  Plaintiffs’ counsels’ solicitations produce a rush to file complaints…

Photo of Bexis

Our prior TwIqbal post concerning learned intermediary causation was well received by our readers, so we’re back with a second, related (and, as it turned out, even longer) discussion of pleading in prescription medical product warning litigation.

In addition to pleading causation, a product liability plaintiff alleging an inadequate warning must plead how the warning was inadequate.  Sounds rather obvious, but never underestimate the capacity of plaintiffs in our sandbox for failing to plead their cases.  The amount of precedent bouncing lazy plaintiffs for not bothering to allege what (they claim) is wrong with prescription medical product  warnings is surprisingly (or maybe not) extensive.Continue Reading Using TwIqbal To Require Plaintiffs To Identify Claimed Warning Inadequacy

Photo of Steven Boranian

We receive emails from readers fairly regularly.  They are usually from other attorneys, sometimes friends or acquaintances sharing their points of view or expanding on things that we may have underplayed or overlooked.  Although we don’t spend much time (or really any time) trying to predict when we might hear from others, we have noticed…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book