Monday, January 07, 2013

Another Good TwIqbal Decision: We’ve Come a Long Way

Just before we rang in the New Year, the DC Circuit gave us Rollins v. Wackenhut Servs., Inc., No. 2012 U.S. App. LEXIS 26549 (D.C. Cir. Dec. 28, 2012), which affirmed a district court TwIqbal dismissal that we blogged about in 2011.  The decision didn’t break any new ground or give us a new TwIqbal twist.  Frankly, it was a slam dunk.  But it gives perspective.  Gone are the days when a complaint would simply name the drug or device and the injury, allege causation, and survive.  Remember, just a few years ago that was enough.  Complaint after complaint would do that or little more and glide into discovery.  Now, they don’t survive.

Rollins involved a second-generation antipsychotic drug, Abilify, and a suicide.  Like all such suicide cases, it is very sad.  The decedent had a history of mental illness and treatment with antipsychotics.  Despite that, he obtained a job as a security guard, received a gun, and eventually used it to commit suicide.  He was taking Abilify at the time.  Id. at *2-5.  His mother brought a claim against the security company for negligently hiring him and giving him a gun, as well as strict liability claims against the manufacturers and distributors of Abilify.  Id. at *5-6.  The claim against the security firm was dismissed, and upheld by the Court of Appeals, because suicide is an intervening cause to a negligence claim.  Id. at *7-16.  That left the claims against the pharmaceutical companies. 

But the factual allegations were few.  The plaintiff named the companies, the drug and the injury, and alleged that Abilify had a suicide risk that caused the decedent’s suicide.  And, while these are precisely the type of allegations that used to get a plaintiff straight through to discovery, they don’t anymore.  It’s not that there was no meat on the bones.  There were no bones.  The court spelled out what was lacking in the complaint:

It alleged no facts to support a manufacturing defect claim. It affirmatively pleaded that the ABILIFY® warning label warned of the precise risk of increased suicidal tendencies among young adults.  It also alleged no facts that plausibly could satisfy either the risk-utility test for design defects, or the more demanding test for unavoidably unsafe products under Comment k to the Restatement (Second) of Torts § 402A.  

Id. at *18-19.  In other words, the complaint has to allege something to make the existence of a manufacturing defect, or a design defect, plausible.  It didn’t.  As to warning defect, it did worse.  It alleged that Abilify carried a black-box warning on suicide.  This actually negated plaintiff’s warning defect claim. 

And superfluous and supposedly scandalous allegations didn’t help.  The plaintiff made a number of allegations about “promotion of off-label uses” and other things.  The court, however, found “no apparent relevance” between these allegations and plaintiff’s product liability claim.  Id. at *19.     

There are a couple of other interesting things in the decision.  The Court of Appeals affirmed, as have other courts, that TwIqbal applies on a FRCP 12(c) motion on the pleadings just as it does on a FRCP 12(b)(6) motion.  Id. at *16-18.  It also affirmed the district court’s decision to dismiss with prejudice because the plaintiff failed to file a proper motion to amend under FRCP 15 (instead, improperly requesting an amendment in her opposition papers) and because the plaintiff’s allegations about the warning actually showed that the she could not state a proper claim.  Id. at *19-23.

This is all very good.  We’re in a new post-TwIqbal world.  Plaintiffs can’t just glide through the pleading stage with nothing, hoping that discovery might provide them with something.  They have to arrive at the court with it.

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