Monday, April 12, 2010

Keeping it Real

Many of us who currently labor in the fields of drug-and-device litigation have also worked in other areas of the law. Some of us have worked on criminal cases. We all like to gripe about judges, calling some of them tough or even brutal. Those sorts of labels possess special meaning when it comes to potential deprivations of liberty. You want to see tough? Watch what happens at a bail hearing, or motion to suppress evidence, or, especially, at a sentencing.

Over the years, we've occasionally day-dreamed about what some of these "tough" judges would do if they got a gander at some of the fluffy mass tort cases produced by a plaintiff lawyer assembly line.

Well now we know. Few judges have a more robust reputation for toughness than Manuel Real. Judge Real was Chief Judge of the Central District of California for many years. His career has been, to say the least, marked with controversy. For example, he was the judge who found Larry Flynt in contempt after Mr. Flynt offered some, um, colorful language in open court. Everyone agrees that Judge Real has always been decisive, even if there are plenty of folks who don't like what he decided.

At least a couple plaintiff mass tort lawyers have learned that the hard way. In Adams v. I-Flow Corp., et al, 2010 U.S. Dist. LEXIS 33066 (C.D. Cal. March 30, 2010), 141 plaintiffs sued multiple defendants for injuries allegedly from shoulder pain pumps. Plaintiffs seem to think they can file these cases against all the manufacturers in the market, waiting for later to figure out exactly who manufactured the particular product at issue. See http://druganddevicelaw.blogspot.com/2010/03/pain-pump-case-injures-twomblyiqbal.html

That's certainly what happened in Adams, where plaintiffs claimed "injury as a result of the unidentified pain pumps' administration of the unidentified anesthetics." Adams, 2010 U.S. Dist. LEXIS 33066 at *3. For once, the judge's exasperation with this strategy seems to equal our own: "Nowhere in their Complaint does even one of the plaintiffs identify the particular pain pump or anesthetic used following his or her specific surgery or the manufacturers of those products." Id.

Upon this edifice of agnostic imprecision, plaintiffs filed claims for negligence, strict liability, breach of warranty, misrepresentation and fraud, and violations of state trade practices laws. Defendants filed motions to dismiss causes of action and to strike certain allegations.

The court begins with Twombly and Iqbal, always a good place to start. The court observes that Iqbal requires pleading of "factual content" plausibly suggesting that "the defendant" is liable. Id. at *5 (emphasis in original). The factual allegations cannot be in the air or addressed to the market as a whole. "[I]n an action such as this, a plaintiff must allege the identity of the particular defendant who manufactured the pain pump and the particular pump and the particular defendant who manufactured the anesthetic that allegedly injured the plaintiff." Id. at *7. The court ties the lack of specific product identification nicely into the rationale of Iqbal: "plaintiffs plead nothing more than the sheer possibility that any particular defendant might have manufactured the product that allegedly injured each plaintiff." Id. at *8.

There it is; no agonizing over market-share liability or the challenges of discovery. Maybe after reading thousands of criminal indictments that lay out in excruciating detail who did what in complex financial or drug conspiracies, some judges rightly wonder why mass tort complaints reach such dizzying heights (depths?) of abstraction and obfuscation. Shouldn't plaintiffs do a little investigation, a little work, before dragging people into court?

Similarly, the court found that plaintiffs could not escape the two year statute of limitations by generally pleading that "they were unaware of a causal link between their alleged injuries and defendants' products until less than one year prior to filing the Complaint." Id. at *10. Believe it or not, the court actually required plaintiffs to provide facts supporting their assertion that they could not have discovered the information earlier.

The court also dismissed the breach of warranty claims for want of privity, because the Complaint was "devoid of any facts suggesting that plaintiffs relied upon anything other than their physicians' skill and judgment in selecting and prescribing the anesthetics and pain pumps." Id. at *11. Further, and not surprisingly, the fraud claims fall far short of Rule 9's specificity requirements. Id. at *12.

Finally (in terms of the motion to dismiss), the claims under California's consumer fraud statute fail because they do not connect any particular plaintiff with any particular defendant. Id. at *13-14. Does anyone see a theme emerging here?

And the goodies don't end there. The court struck the design defect allegations because California (like most states) doesn't permit such claims against pharmaceutical manufacturers. Id. at *15-16. (So why do plaintiffs keep inserting these claims? Are their word processors stuck? Rule 11, anyone?) The court also struck the usual allegations that defendants "failed to warn plaintiffs, the public, and the FDA." The court based its ruling on the learned intermediary rule and Buckman. Id. at * 17-18. Again, that is not exactly a bolt from the blue. The opinion's reasoning is direct and to the point because the law is just that clear (except, apparently, to some judges and all plaintiff lawyers).

Finally (this time we mean it), Judge Real finds that the 141 plaintiffs are misjoined and, therefore, severs them. All those surgeries no-way-no-how arose out of the same transaction or occurrence. Id. at *20-21. So much for plaintiff lawyers' effort to create a monster mass action where all sorts of bad evidence comes in that wouldn't be permitted in individual actions. Oh, and now they'll have to pay more filing fees.

All of this in only a few pages. The Adams opinion is a swift, elegant bit of tough love. As one of our teenaged kids would say, the only way to improve it would be to put a couple of slices of bacon on top of it.

2 comments:

Anonymous said...

Seriously? I think the point is that it should be the Plaintiff's responsibility to do at least the minimum amount of investigation before going and filing a lawsuit that will cost thousands to defend for all of the manufacturers, only one of which can plausibly be responsible. Nobody expects plaintiffs to know the manufacturer - we expect them to figure it out however.

Neal Fortin said...

Rule 11, please!