Plaintiffs love lobbing civil conspiracy claims into drug and device cases. Maybe it’s because there’s a deep pocket on the sidelines. Maybe plaintiffs hope to use a bogus “conspiracy” allegation to argue for the broad admissibility of conduct evidence or “co-conspirator statements.” Or, more likely, maybe the plaintiff just can’t figure out who to blame (so blame everyone!).
A federal court recently wielded our good friend TwIqbal and blew out civil conspiracy claims in a pair of pain pump cases. The cases are virtually identical: both plaintiffs alleged a civil conspiracy between the pain pump manufacturer and a distributor, claiming that the defendants conspired to promote pain pumps for an off-label use in violation of FDA regulations. See Dean v. DJO, LLC, 2010 WL 1999295 (D. Or. May 17, 2010); Flint v. DJO, LLC, 2010 WL 1999302 (D. Or. May 17, 2010). The off-label use in both cases was the implantation of pain pumps into the shoulder joint after arthroscopic surgery. In one case, DJO was alleged to be a co-conspirator who participated in the design, manufacture, marketing, or distribution of the pain pump at issue (the Flint case). In the other case (Dean), the plaintiff did not allege that DJO had anything to do with the specific pain pump at issue, but rather was liable for conspiring to promote pain pumps (generally) off-label. Shades of Bone Screw!Continue Reading TwIqbal Quashes Quazy Conspiracy Claims