In Sisk v. Abbott Laboratories, — F.R.D. –, No. 1:11-cv-159 (W.D.N.C. Feb. 10, 2014) (J., Reidinger), after prevailing in part on its motion for summary judgment, the defendant asked the court for the Western District to reconsider the part of the motion it had denied. The case involves claims of negligence on behalf of the minor plaintiff, alleging that he had developed meningitis as a result of consuming contaminated powdered infant formula. The formula had been obtained from Transylvania Community Hospital, who had received it from the defendant at no cost.

In the initial motion, the defendant had argued that the formula was a donation to the hospital and, thus, the entire case should be dismissed under N.C. Gen. Stat. 99B-10(a).  G.S. 99B-10(a), which is part of North Carolina’s Product Liability Act, provides that “any person . . . who donates an item of food for use or distribution by a nonprofit organization or nonprofit corporation shall not be liable for civil damages . . . resulting from the nature, age, condition, or packaging of donated food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor.” The court refused to dismiss the entire case, concluding that there was a genuine issue of fact as to whether the formula was a donation by the defendant. The defendant then asked for reconsideration.

In a published opinion, the court again denied the motion for summary judgment, but this time on different grounds. The court concluded that the defendant had waived the G.S. 99B-10(a) defense by failing to plead it in its answer. The court explained that the defendant’s blanket assertion “adopt[ing] and incorporat[ing] by reference any and all defenses that are or may become available to it under the North Carolina Product Liability Act . . . ,” was insufficient to provide any meaningful notice of the defendant’s specific affirmative defense.

The court then determined that the failure to plead the defense resulted in unfair surprise and prejudice to the plaintiff because the parties had not engaged in any substantial discovery on the issue. It was not until the filing of the defendant’s motion for summary judgment that the plaintiff received any indication that the defendant intended to rely on 99B-10(a). And this was long after discovery had closed.

The court quoted with approval an Eastern District opinion similarly rejecting a new defense theory that would necessitate re-opening of discovery just before trial, and that would afford little time to the plaintiff to prepare for the new and unanticipated defense. See Resolution Trust Corp. v. Southwest Dev. Co., 807 F. Supp. 375, 379 (E.D.N.C. 1992), rev’d on other grounds, Resolution Trust Corp. v. Cunningham, 14 F.3d 596 (4th Cir. 1993).

Practice Tip:  While Twombly and Iqbal have tightened the pleading standards for plaintiffs, defendants have their own pleading burdens to observe. Defenses must be stated so as to provide “meaningful notice” of the specific affirmative defenses the defendant intends to assert in the litigation.