Three Strikes And . . . You Get Another Chance?

by Reed Smith
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“Legal conclusions, though, are not entitled to the assumption of truth.” If that were the only point we could take away from Wright v. Howmedica Osteonics Corp., No. 5:17-cv-459, 2017 U.S. Dist. LEXIS 168785 (M.D. Fla. Oct. 12, 2017), we would be satisfied.  We understand notice pleading and such, but we have seen all too many complaints—mainly in state court—where the allegations consist of little more than reciting the elements of the cause of action.  Thank you, we are aware that a product liability claim for the most part involves alleging a defect in the defendant’s product, an injury, and a causal connection between the two.  But merely saying it does not make it so, particularly in federal court where TwIqbal rules the day and demands factual content that allows the court actually to tell whether the defendant could be liable for the misconduct alleged.  (You can see our updated TwIqbal cheat sheet here.)

The Wright order therefore is a sight for sore eyes, in all ways but one.  (The title of this post may give you an idea of our one area of dissatisfaction, which we will get to, we promise.)  The plaintiff in Wright alleged that a prosthetic hip insert caused her injury, and she sought remedies under a number of theories—negligent manufacturing, strict liability for manufacturing defect, negligent labeling, strict liability for failure to warn, negligent recall procedures, and strict liability for recall procedures. Id. at **1-3.

The problem for the plaintiff was that she set forth the elements of these purported causes of action, but did not allege facts describing what the defendant did wrong or how it caused her any damage. The court therefore started its analysis pretty much the same way we started this blogpost—merely alleging legal conclusion will get you nowhere on the pleadings because they “are not entitled to the assumption to truth.” Id. at *3.

What did the court mean by that? The remark appears first to lead into the court’s criticism of the plaintiff’s counsel.  The plaintiff filed one complaint, then an amended complaint, which the defendant moved to dismiss.  The district court granted that motion with leave to amend on the basis that the plaintiff had “not identified the alleged defect or the unreasonably dangerous nature” of the device. Id. at *3.  The plaintiff then filed a second amended complaint—her third try at alleging claims against this defendant—so the defendant moved to dismiss again. Id. at **3-4.

In response, the plaintiff “had the audacity” to file the same unsuccessful response that she filed in response to the first motion to dismiss, changing only the title and date on the proof of service. Id. at **4-5 & n. 4.  The district court was not amused:  “While the Court does not expect perfection, it expects more of counsel who appear before it. . . than what Plaintiff’s Counsel has shown to date.” Id. at *5.

And it did not improve from there. On strict products liability for a manufacturing defect, the claim failed because the plaintiff

does not allege what is defective about the [device] or how that defect caused Plaintiff’s injuries. Instead Plaintiff alleges in ipse dixit conclusions that the [device] is defective because she had pain sometime after the [device] was implanted.  That is not enough.

Id. at *6. The district court also had these very helpful words on the plaintiff’s allegation that the device was recalled:

Plaintiff’s allegation that the [device] was recalled is not a substitute for identifying the [device’s] defect. That is because a recall is not an admission that a product is defective.

Id. (emphasis added, citing Hughes v. Stryker Corp., 423 F. App’x 878, 880 (11th Cir. 2011)).  We will bank away this clear and unambiguous statement on product recalls for future use.

The district court thought the failure-to-warn claim was came closer to stating a claim, but it still fell short: The plaintiff alleged neither why the labeling was inadequate, nor facts showing that the plaintiff was damaged by an alleged failure to warn adequately. Id. at **7-8.  The negligence claims merely recited the elements of a negligence action (and now that we have said that, you are reciting those elements in your head, aren’t you?), but they were supported “by nothing but conclusions.” Id. at *8.  Finally, the claims based on the product recall failed because Florida law does not recognize a duty of care in connection with a recall separate from a general duty to act with reasonable care, and Florida does not recognize a claim for strict liability for product recall at all. Id. at **9-10.

In all, it’s a strong order, as it dismissed claims because the plaintiff “provide[d] conclusions and parrot[ed] elements of the causes of action,” but did not allege facts in support. Id. at *9.  She did not even make a genuine effort to allege facts in support.

Which leads to the one significant problem with the order—the district court granted leave to amend, even though the plaintiff had already had three opportunities to state a claim and could not do it. Three opportunities seem quite enough, and amending will be futile in any event for claims that do not exist under the controlling law in the first place.  So what gives?  We are not sure, but perhaps counsel will make a genuine attempt to state a claim, or maybe he will again recycle his already-rejected opposition when responding to the defendant’s next motion to dismiss.  It could turn out to be a sad retelling of the movie Groundhog Day, with the same events relentlessly playing out over and over again, except with a slightly different ending.  The district court here presumably has extraordinary patience, but perhaps not the patience of a saint.  We expect the next order to dismiss will be without leave to amend.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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