If you are like us you may be feeling a little sluggish this morning. Perhaps you’re stumbling out of a candy-induced sugar coma or trying to explain to a four-year old why fairy wings were only OK for school yesterday (or both). So, we thought we’d keep our post simple today. Simple because you’ve all seen it before. Another pain pump case down the drain.
Last week in Esposito v. I-Flow, 2011 U.S. Dist. LEXIS 122570 (E.D. Pa. Oct. 24, 2011), the Eastern District of Pennsylvania did what the Western District of Pennsylvania did last year in Kester v. Zimmer Holdings, Inc. which we discussed here and here -- dismissed the case for (1) failure to state a claim under Pennsylvania law, (2) failure to plead fraud with particularity under Rule 9(b), and (3) failure to plead with the specificity required by Twiqbal. Again, we are left scratching our heads about what the plaintiffs’ lawyers bringing the pain pump cases are thinking. Courts across the country have dismissed pain pump cases as insufficient and speculative under Twiqbal. But that doesn’t seem to deter plaintiffs’ counsel from wheeling out the same tired, non-specific, collectively vague and overall pathetic allegations in these cases.
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