Is fear of injury the same thing as injury? The question answers itself. At least it should. They are not the same, and there are strong jurisprudential reasons for courts to throw out cases alleging mere fear of injury. We have a No Injury scorecard documenting a pretty clear court consensus that fear of injury
Back when Bexis was still at Dechert, we put up a cautionary post called “CAFA Not With Standing.” In that post we cautioned against using constitutional standing as a defense to class actions with questionable and attenuated damages claims. Remember CAFA, we pointed out. The damages sought in state-court class actions need to support federal Article III standing, or else defendants won’t be able to keep the actions in federal court.
Well, yesterday the court in Bouldry v. C.R. Bard, Inc., No. 12-80951-CIV, slip op. (S.D. Fla. Dec. 18, 2012), addressed precisely the situation discussed in that post. Fortunately, our side won, and the class action stayed in federal court, where there are plenty of other arguments against its validity.
First, we have to point out that Reed Smith was involved in the Bouldry case, so we can’t say as much as we’d like. We’ll have to stick to the legal propositions. As for the facts, all we can say is that the Bouldry opinion should be applicable to other attenuated injury class actions, regardless of the product or conduct involved.
Bouldry involved a state class action in Florida alleging that a medical device had a higher risk of failure than it should. The class consisted of people who had not suffered any failure. There are good arguments that this sort of at-risk damages are not recoverable under most states’ laws − see our no injury scorecard, and in particular the Shiley heart valve cases from the late 1980s and early 1990s, which addressed similar allegations. Hint: the defendant won almost all of them.
About a year ago we reported on the dismissal of what we characterized as a “really bogus” attempted class action in In re McNeil Consumer Healthcare Marketing & Sales Practices Litigation, 2011 WL 2802854 (E.D. Pa. July 15, 2011) (“MCH”). We distilled the 2011 MCH opinion down into four “simple rules” for pleading:
Simple rule #1: If you didn’t buy the product, you can’t claim economic loss from purchasing it.
Simple rule #2: There has to be something wrong with the product before you can sue over it.
Simple rule #3: What you didn’t buy can’t cause you any injury from its mere purchase. See simple rule #1.
Simple rule #4: Don’t allege physical impossibilities.
We noted at the end of that post that the court in MCH had granted leave to amend, but speculated that the plaintiffs − even though enjoying the excellent representation characteristic of multidistrict proceedings − might well flunk TwIqbal again because they were more interested in alleging something that had a prayer of being certified as a class than they were in stating a claim in the first place.
It turns out we were right.
Sometimes it all depends on the docs. One of the reasons that the Bone Screw litigation never really went anywhere is that the prescribing physicians were all tertiary care spine surgeons who by and large knew the devices they were implanting inside and out. In almost a decade of litigation, the Bone Screw plaintiffs couldn’t
We were just reading an interesting, relatively new, decision from our home Circuit, Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), and our reaction to it wasn’t quite what most readers would expect. The defendant won, but we were still troubled.
Sometimes defendants can lose by winning – as we discussed that
Today is Boxing Day, when we, along with millions of other Americans, scamper off to the Mall to return those Christmas presents that just didn’t quite fit (physically or spiritually or aesthetically) our needs. So buh-bye jelly-of-the-month club (we’re diabetic), Hello Kitty lounge pants (wrong size), Three Stooges talking bottle-opener (we love hearing “nyuck, nyuck,
When we convince a court that an action against one of our clients must be dismissed for failure to state a claim – say, for TwIqbal reasons – under Rule 12, we sometimes say that the plaintiff’s case was so poor that s/he couldn’t even get to first base. A much rarer form of dismissal,
To our readers:
Sorry about that. Blogger was down for almost 24 hours yesterday and this morning. In almost five years, we’ve never experienced that during business hours. Anyway, that combined with Bexis having to fly to the west coast for the ALI annual meeting, kept us from posting until now.
Here’s the post we
We’re pleased by the dismissal of Myers-Armstrong v. Actavis Totowa LLC, 2009 WL 1082026 (N.D. Cal. April 22, 2009). In M-A, the defendant was basically shut down by the FDA over Good Manufacturing Practices issues at its plant. The defendant recalled over 100 drugs (it was a generic manufacturer) at the wholesale, but
As readers who use our No Injury Scorecard know, we’re very interested in identifying situations where plaintiffs – and especially consumer fraud plaintiffs – get dismissed because they don’t have (or don’t choose to allege) a legally sufficient injury.
Why?
Class actions, mostly. As we’ve pointed out before, the plaintiff-side class action aggregators have