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?
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
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
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
Anybody who has litigated a prescription medical product liability case knows about the learned intermediary rule, which is now followed in all fifty states. Just as prescription medical product warnings are routed through prescribing physicians, so necessarily is the causation aspect of such warnings. The details vary from state to state, but in all learned intermediary cases, correcting an allegedly inadequate warning must cause the learned intermediary physician to do something differently, and that “something” must prevent the plaintiff’s claimed injury.
At the same time, the Supreme Court’s TwIqbal decisions require that plaintiffs plead facts to support the elements of their causes of action. From the defense perspective, that means that complaints against our clients should be required to plead (at minimum): (1) the identity of the relevant prescriber, (2) what that prescriber would have done differently with a “better” warning, and (3) how that difference would have prevented the claimed harm. We don’t ask for a lot, but at least one fact supporting these essential causal elements should certainly be mandatory.Continue Reading Using TwIqbal To Enforce Warning Causation in Learned Intermediary Cases
In golf, a mulligan is when a golfer hits a second shot if they’re not satisfied with their first shot. We’ve used the term before to refer to the second chances given to plaintiffs to re-plead their claims. So, we decided to look up the origin of the term and found conflicting stories. The most
Even though lawyers who bill for their time defending product liability cases might favor those cases sticking around and plaintiffs getting many chances before inevitable dismissals with prejudice, we have been clear that we think plaintiffs should not get to re-plead around preemption once courts have defined the preempted path. There seems to be an
If you are of a certain age and are presented with a trio of items, we bet you sometimes add “Oh My” to the end of the list, as in Lions, and Tigers, and Bears-Oh My. Or, you think of other things that come in threes, such as the past and the present
We have often characterized judicial options as mixed bags, and a recent example of such a mixed bag can be found in Muldoon v. DePuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 130020 (N.D. Cal. July 23, 2024). The plaintiff claimed injuries from a ceramic-on-metal hip implant. He alleged that friction and wear caused the
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