The genius who devised the theory of evolution. The statesman who defended Western Civilization against the Nazis. The man who freed a subcontinent via the majesty of nonviolent resistance. The greatest basketball player of all time. The composer of Shaft. The Pope's favorite saint. Our national emblem.
What do these heroes have in common?
Today’s case is Dimieri v. Medicis Pharm. Corp., 2014 U.S. Dist. LEXIS 95409 (M.D. Fla. July 14, 2014). Dimieri ingested Solodyn for the treatment of acne. He discontinued use of Solodyn after experiencing “numbing pain in the crown of his head” and noticing alleged hair loss. He alleged that Solodyn was making him bald. That, apparently, ranks as an injury. He brought a complaint against the defendant for failure to warn, strict liability, breach of warranties, misrepresentation, negligence, and fraud.
The defendant filed a motion to dismiss all the claims, arguing that they ran afoul of the learned intermediary doctrine, TwIqbal pleading standards, and the requirement that fraud claims be articulated with specificity. The court agreed with the defendant, and dismissed the complaint, while affording the plaintiff with leave to try again and amend.
The court rejected the failure to warn claim because, on the face of the complaint, there was no hint that the doctor – the learned intermediary – had been inadequately warned or that any additional warning would have made a difference. The plaintiff did not allege the extent of his physician’s knowledge regarding the risk of consuming Solodyn. The plaintiff did not assert whether his physician’s knowledge of Solodyn was inadequate, which is the relevant question. The complaint contained the usual sloppy formulation about how the defendant failed to warn “Plaintiff and other people”, but the court rightly deemed that allegation to be too vague to imply that the physician had inadequate knowledge of the risks of Solodyn. In any event, the complaint offered the court no reason to infer that any inadequacy of warnings to the plaintiff’s physician proximately caused the plaintiff’s injury.
Maybe the plaintiff was trying to allege a design or manufacturing defect, but the plaintiff did not identify the source or nature of any such alleged defect. The “Complaint fails to make a sufficient causal connection; Plaintiff does not state what possible defect in Solodyn might have caused the hair loss or deny the existence of other factors which might have caused his hair loss.” Id. at *13.
The warranty claims flunk Florida law, which requires that the parties be in privity. The plaintiff did not allege the existence of privity between himself and the defendant. Nor did the plaintiff allege any sort of substantial contact with the defendant’s representative. At most, the complaint said that “Defendant impliedly warranted that “SOLODYN’ was a safe and suitable medication to be used to help acne,” but such a boilerplate statement does not come close to showing the existence of a warranty or the presence of privity.
The misrepresentation claims were also woefully vague and general. They were bereft of any specific misrepresentation given to the plaintiff’s physician regarding Solodyn, or of any personal contact the plaintiff may have had with the alleged fraudulent advertising. Consequently, such claim was barred by TwIqbal, lack of specificity, and the learned intermediary doctrine. The plaintiff did allege that the bottle of Solodyn lacked a proper label and that “improper information” was provided to him, preparing the reader for something actual, and meaty and specific. Maybe even something hair-raising. But, alas, such expectations are dashed because there is no there there. The complaint furnishes no specificity as to the content of this information (or misinformation). Again, the learned intermediary doctrine applies and the pleading falls far short of the specificity standard under Fed.R.Civ.P. 9(b) for fraud and misrepresentation.
As is often the case, the negligence claim is a bit of a puzzler. We often get the sense that it is designed by plaintiffs to be a forlorn catchall. Dimieri based his claim for negligence on these two sentences: “Plaintiff relied on the superior knowledge of the Defendants and their instructions for ‘SOLODYN’ and thus sustained damages as a result from the improper instructions furnished by Defendant,” and “[a]s a direct and proximate result of the negligent acts of the Defendant, Plaintiff has been awarded damages in the amount in excess of $20,000.00.” The court declined to play catchall. The claim was devoid of that first element of a negligence claim that we all learned in law school: existence of a duty between the defendant and the plaintiff. But even if the plaintiff had made the old school try at stating a duty, it would not have been recognized at law because of the learned intermediary doctrine.
The court’s disposition of the Dimieri complaint was clean and efficient. Perhaps there was no need to reach the most interesting question: is baldness really an injury? As alluded to above, some very successful, happy men achieved great things despite being follicularly challenged. And we’ve barely begun the list of clean-headed heroes. Our baldest presidents were also our greatest. John Adams had a great wife, his son had the best post-presidential career (think Amistad), Eisenhower oversaw Operation Overlord, and Garfield had the most colorful assassin. Lionel Messi won the award for most outstanding player in the recent World Cup, but to any impartial eyes the player who most consistently made positive differences for his team was Arjen Robben, who runs around the field like Robert Duvall doing a St. Vitus Dance. Rock and roll artists define cool, and two of the coolest are Billy Corgan (lead dirge-singer of Smashing Pumpkins) and Ed Cassidy, drummer in the late, lamented LA band Spirit. Cassidy was called Mr. Skin. The skin he displayed was his scalp. The only reason anyone ever watched the ABC courtroom drama Murder One was because the bald star (like everyone else, we forget his name) who oozed gravitas and menace. When Senator Alan Cranston ran for president, there were some who predicted that his baldness would doom his candidacy. Cranston turned the issue around, asserting that baldness proved his virility – he wasn’t wasting valuable hormones growing hair. And we all know how well he did. Adlai Stephenson at least got nominated. He lost to Eisenhower (see above), but his bald head was so full of wit and wisdom that he made the term "egghead" respectable.
It’s not just men who made the most out of a glowing pate. Sinead O’Connor rocked a dome, masterfully covered a Prince tune, and produced one of the two or three all-time weirdest moments on SNL. The only reason to watch the first Star Trek movie was Persis Khambatta, an arresting presence in what was otherwise a turgid mess. Demi Moore has shown off all sorts of crazy looks, including a head as bald as Bruce Willis’s.
Where were we?
If nothing else, the Dimieri case shows a court that insists on factual pleading. A plaintiff is not going to satisfy TwIqbal with bald assertions.