Wednesday, May 16, 2012

Tiptoeing Through TwIqbal

First, Bexis wishes to welcome the Blog's readership from his new office at Reed Smith.  A fair amount of PR occurs with significant lateral hires in the law biz, but Bexis promises that it won't go to his head, even though the folks at 360 decided he deserved a promotion to "guru" status.

Ommmmmmmm.....

Anyway, enough of that.  Let's get back to our blogging.  The other day we saw a TwIqbal article on a BNA news letter written by a couple of Arnold & Porter lawyers (Agneshwar  and Sharpe).  We had to read it, if only because it used the term “TwIqbal,” since the Blog has, if not outright invented the term (we heard it used at a PLAC meeting years ago) at least popularized it.  It turns out that the A&P article cited heavily to the blog − in particular our 2009 survey of TwIqbal law and our TwIqbal cheat sheet.


So reading the A&P article, and its reliance on the blog, got us thinking.  In particular, it got us thinking about a dirty little secret.  That secret is that our TwIqbal cheat sheet is probably not as comprehensive as our other cheat sheets and scorecards.  We haven’t done a thorough TwIqbal review in over six months.  That’s partially because there are simply so blasted many TwIqbal opinions and partially because we’re particularly selective on that scorecard.  We don’t put cases in our TwIqbal cheat sheet if they deny dismissal of any significant TwIqbal issue, even if a particular opinion is favorable on other pleading points.

Anyway, the A&P article has spurred us into action to find cases that we may have missed through our somewhat catch-as-catch-can updating process for the TwIqbal cheat sheet.  We’ve done some research into drug/device related TwIqbal cases (all product liability cases is just too much work, now) and here’s what we’ve found:

Cases TwIqballed for failure to allege any facts in support of the claims.

Deese v. Immunex Corp., 2012 WL 463722, at *5-7 (S.D. Miss. Feb. 13, 2012); In re Pamidronate Products Liability Litigation, ___ F. Supp.2d ___, 2012 WL 272889, at *3 (E.D.N.Y. Jan. 30, 2012) (all arguably unpreempted claims); Fullington v. PLIVA, Inc., 2011 WL 6153608, at *5 (E.D. Ark. Dec. 12, 2011) (all arguably unpreempted claims); Callaway v. American Medical Systems, Inc., 2011 WL 7724268, at *4 (W.D. La. Dec. 8, 2011).

Cases TwIqballed for failure to allege the identity of the manufacturer.

Callaway, 2011 WL 7724268, at *4; Esposito v. I-Flow Corp., 2011 WL 5041374, at *4-5 (E.D. Pa. Oct. 24, 2011).

Cases TwIqballed for failure to allege causation.

Bartlett v. Pfizer, Inc., 2012 WL 718782, at *3 (D.R.I. March 5, 2012); Callaway, 2011 WL 7724268, at *4.

Cases TwIqballed for failure to allege injury.

Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352, 1360-66 (11th Cir. 2011) (plaintiff had not pleaded recoverable economic injury); Polk v. KV Pharmaceutical Co., 2011 WL 6257466, at *6, 8 (E.D. Mo. Dec. 15, 2011).

Cases TwIqballed for failure to plead the nature of claimed FDA violations.

Metz v. Wyeth LLC, ___ F. Supp.2d ___, 2012 WL 1058870, at *6 (M.D. Fla. March 28, 2012) (negligence per se claim); Gross v. Stryker Corp., ___ F. Supp.2d ___, 2012 WL 876719, at *19-22 (W.D. Pa. March 14, 2012); Viserta v. St. Jude Medical, Inc., 2012 WL 667814, at *3-4 (D.S.C. Feb. 29, 2012); Erickson v. Boston Scientific Corp., ___ F. Supp.2d ___, 2011 WL 7036060, at *6 (C.D. Cal. Dec. 12, 2011); Tierney v. AGA Medical Corp., 2011 WL 7400469, at *4 (D. Neb. Nov. 18, 2011); Rhynes v. Stryker Corp., 2011 WL 5117168, *5 (N.D. Cal. Oct. 27, 2011).

Cases TwIqballed because res ipsa loquitur was too vaguely pleaded to establish negligence.

Gross, 2012 WL 876719, at *10.

Warning claims TwIqballed for failure to plead what was inadequate about the warning.

Reed v. Pfizer Inc., ___ F. Supp.2d ___, 2012 WL 859729, at *3-4 (E.D.N.Y. March 14, 2012).

Warning claims TwIqballed for failure to plead causation as to the
prescribing physician under the learned intermediary rule.

Deese, 2012 WL 463722, at *5; Grinage v. Mylan Pharmaceuticals, Inc., ___ F. Supp.2d ___, 2011 WL 6951962, at *4 (D. Md. Dec. 30, 2011).

Warning claims based on failure to provide any FDA mandated package insert
TwIqballed for failure to plead any facts to support the claim.

Salvio v. Amgen, Inc., 2012 WL 517446, at *3 (W.D. Pa. Feb. 15, 2012).

Failure to update warning claims TwIqballed for failure to plead any facts to support the claim.

In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, 2012 WL 718618, at *4 (E.D. Ky. March 5, 2012); Bowman v. Wyeth, LLC, 2012 WL 684116, at *7 (D. Minn. March 2, 2012); Coney v. Mylan Pharmaceuticals, Inc., 2012 WL 170143, at *4 (S.D. Ga. Jan. 19, 2012); Del Valle v. PLIVA, Inc., 2011 WL 7168620, at *7 (S.D. Tex. Dec. 21, 2011) (all generic drug preemption cases).

Design defect claims TwIqballed for failure to plead risk-utility.

Grinage, 2011 WL 6951962, at *6.

Design defect claims TwIqballed for failure to plead alternative design.

Reed, 2012 WL 859729, at *5; Salvio, 2012 WL 517446, at *7.

Manufacturing defect claims TwIqballed for failure to nature of defect.

Eckhardt v. Qualitest Pharmaceuticals Inc., ___ F. Supp.2d ___, 2012 WL 1511817, at *5 (S.D. Tex. April 30, 2012) (generic preemption case); Cooley v. Medtronic, Inc., 2012 WL 1380265, at *4 (E.D. Ky. April 20, 2012) (PMA preemption case); Reed, 2012 WL 859729, at *5; In re Fosamax Products Liability Litigation, 2011 WL 5903623, at *5 (D.N.J. Nov. 21, 2011).

Implied warranty of fitness for a particular purpose claims
TwIqballed due to failure to allege any facts to support the claim.

Reed, 2012 WL 859729, at *6; Grinage, 2011 WL 6951962, at *6-7

Express warranty claims TwIqballed for failure to plead the language of the warranty.

Gross, 2012 WL 876719, at *26; Reed, 2012 WL 859729, at *6; Deese, 2012 WL 463722, at *6.

Express warranty claims TwIqballed for failure to plead failure to plead basis of the bargain.

Gross, 2012 WL 876719, at *27; Horsmon v. Zimmer Holdings, Inc., 2011 WL 5509420, at *4 (W.D. Pa. Nov. 10, 2011).

Res ipsa loquitur claims TwIqballed for failure to plead how
possible alternative causes are ruled out.

Gross, 2012 WL 876719, at *24-25.

FDCA violation claims TwIqballed for failure to plead causation by the violation.

Bartlett, 2012 WL 718782, at *4; Viserta, 2012 WL 667814, at *4.

We've simultaneously updated the cheat sheet to reflect these cases.  You might ask if that's redundant information but (aside from wanting to maintain our lists), the cheat sheet is set up in a fundamentally different fashion from this post.  This post is organized by subject, whereas the cheat sheet is strictly chronological by case.

Anyway, there's the newest TwIqbal ammunition.  Now get out there and win us some more cases to put on the list.

1 comment:

peermurphy said...
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