What is the best way to describe a collection of cases? If we talk about a school of fish, a pride of lions, a descent of woodpeckers, and (our favorite) a murder of crows, how does one denote cases in the plurality? A gaggle? A bindle? A flopstain? Anyway, a long Lexis-sheet of cases shows up on our monitor every week. How do we decide which ones merit a post? Maybe the other carpal tunnel-maimed wretches on this blog consult different standards, but here is the decision-ladder we climb: (1) the case must be useful or otherwise important for practitioners to understand; (2) we would rather publicize good (pro-defense) results; (3) powerful reasoning helps; (4) it is way more fun to report on a decision that is well written; and (5) when in doubt, we plump for opinions that can support a drawn-out, tendentious analogy to a film, tv show, or song currently rattling around our head. That last criterion is, of course, perfectly silly. But we stand by it.
A.G. v. Elsevier, Inc., 2013 WL 5630077 (1st Cir. Oct. 16, 2013), meets the first four elements of our test. It addresses two of a drug and device defense lawyer’s best buddies (proximate causation and the TwIqbal pleading standard), it affirms dismissal of a complaint that sought to impose a new and unusual form of liability, it employs iron-clad analysis, and it contains delicious prose.
Right from the start, the court tells us that this is “a curious case.” A.G., 2013 WL 563077 at *1. So it is. The plaintiffs, suing through their mothers, were minors who had previously lost medical malpractice actions against the doctors who delivered them. Now they were suing the authors and publisher of a peer-reviewed case report that had been used by the defendants in the malpractice trials. The plaintiffs claim that after losing their med-mal trials they discovered that the case report was phony. The plaintiffs sought compensation from those responsible for the case report because it had “caused” the jury to return a defense verdict. Id. The court called this allegation “optimistic,” “imaginative but unpersuasive,” and, most important, “unprovable.” Id. The plaintiffs’ claim does not reach the “plateau of plausibility” which, under Twombly and Iqbal, is the “new normal” in federal civil procedure. Id.
For those of you who insist upon receiving some of the concrete facts, here you go. The plaintiffs were born with permanent brachial plexus injuries. They alleged in their medical malpractice actions that the injuries were caused by the application of excessive traction during delivery. The defendant doctors introduced into evidence a case report purporting to document an instance of brachial plexus injury occurring in a delivery without any physician-applied traction. Presumably, defendants cited the case report to support an argument against medical causation. The jury returned a defense verdict. Why? We do not know. That is exactly the point.
“Unwilling to let the matter rest after losing their malpractice case,” the plaintiffs sued the authors of the article, the authors’ employer, the journal, and the publisher. Id. at *2. The plaintiffs asserted that the case report falsely described the delivery at issue because, among other things, there in fact was an application of traction. The plaintiffs further asserted that the defendants knowingly/fraudulently published the false case report, and continued the fraud by refusing to retract it. The defendants moved to dismiss. The district court granted the motion. The First Circuit affirmed. What caused those courts to reach those decisions? Unlike juries, court decisions are mostly explicable. Here, we would say that common sense, logic, and TwIqbal caused the courts to arrive at the right result.
As the First Circuit saw it, the complaint stands or falls on the “bald assertion” that, but for the case report, the plaintiffs would have won their case. Id. at *3. Predicting what juries will do is a sucker’s game. Since we are talking about a First Circuit decision, let’s put it this way: you’d have been better off lining up behind the degenerates at the old Wonderland dog track to bet on a quinella, or wagering that, after 86 years of futility, the Sawks would win three World Series in ten years. Hmmm. Maybe that sports analogy isn’t so good. The court says it better: “That conclusory statement is presented as an ipse dixit, unadorned by any factual assertions that might lend it plausibility. So viewed, the complaint stumbles on the plausibility threshold.” Id.
Predictably, the plaintiffs argued that simply mouthing the allegation of causation raises a fact-bound question that warrants a delightful excursion through discovery. Some courts might have agreed with this hooey, forgetting that the whole point of TwIqbal was to avoid useless, expensive discovery. Not this court. It viewed the plaintiffs’ boilerplate as an effort to “camouflage statements as allegations of fact,” and as an elevation of “hope over reason.” Id.
The plaintiffs themselves supplied a helpful example of how to plead facts as opposed to mere conclusions. In alleging that the case report was fraudulent, the complaint offered “raw facts tending to support the claim of fraud,” such as that an author never read the labor and delivery notes before writing the case report, that the hospital records were ambiguous, and that the doctor who had performed the procedure that was the subject of the case report “had stated under oath that she applied traction in all deliveries.” Id. at *4. Those are all good gotchas. But now the court was using them as a gotcha against the plaintiffs: “In stark contrast, the allegation of causation is unembellished by any supporting facts.” Id. The complaint states that the case report was "introduced, used, and relied upon" by defense counsel at the med-mal trials. Id. But to say that the case report was critical to the jury's verdict requires an “inference [that] depends entirely upon speculation and surmise.” Id.
Well, isn’t the purpose of discovery to help plaintiffs substantiate their suspicions? No. Rule 11, professionalism, and plain decency mean that one should not write up a complaint without first having some factual basis for an accusation. But even beyond that inconvenient ethical point, the plaintiffs did not “suggest a feasible way as to how discovery might help to develop the missing patina of facts.” Id. What’s that you say? What if the plaintiffs went out and interviewed the jurors? But would asking jurors to engage in a counterfactual exercise really be probative? Or even minimally trustworthy?
In what the court called a “hapless effort” to escape TwIqbal, the plaintiffs argued that “the plausibility standard applies only to allegations of wrongful conduct and not to allegations of causation.” Id. We think that the plaintiffs’ proposed distinction is opportunistic and pernicious. The court seems to think that too, but it uses more polite language (“wrong”), and observes that it is “neither necessary nor desirable to balkanize the plausibility standard element by element.” Id. Balkanizing anything is bad. See World War I.
The plaintiffs also argued that the causation question here “is no more impervious to proof than the causation question in a garden-variety legal malpractice case.” Id. *5. Untrue. There is no authority that malpractice cases are somehow immune from the pleading standards set forth by the U.S. Supreme Court. Even in a legal malpractice case, “a complaint may be dismissed if the allegations of causation depend solely on conclusory statements.” Id.
Finally, the plaintiffs tried to put on a parade of horribles, warning the First Circuit that affirmance of the dismissal would permit defendants in future med-mal cases to rely with impunity on the now discredited case report. But, as the court points out, the plaintiffs’ “gaudy rhetoric” ignores the availability of Fed. Rule of Evidence 702 to weed out junk science, including phony case reports. Id. Did you see how the court did that? It enlisted one of our buddies, Daubert, to help out another, TwIqbal. All we need now is a mention of preemption and our poor little defense-hack heart would a-fib with joy.
And here, at last, we are able to satisfy that fifth criterion for bloggable cases. (The serious-minded among you can stop reading.) The A.G. court’s marriage of two of our favorite doctrines brings a pop culture reference to our brain-pan. In the run-up to the finale of Breaking Bad, there were all sorts of theories bandied about as to how Walter White’s saga should terminate. We believe that Gilligan et al. did a pretty fine job of putting an exclamation point at the end. And, even though we normally dislike “it-was-all-a-dream” wrap-ups, we also find ourselves liking Emily Nussbaum’s re-imagining of the last scene. But our favorite proposal comes from a commenter who suggested that on the drive down from Maine, Walter White should stop at an eatery in Bloomfield, New Jersey, pry Tony Soprano away from the onion rings and into WW's car, and then the two anti-heroes would drive down together to Albuquerque to deal some medieval pain on the Neo-Nazis. Now that's the stuff of happy endings.