Appreciation of silence has probably never been as important as in this age of near constant noise and distraction – says someone who starts streaming Pandora radio the minute she hits her office in the morning. But with ringing phones, pinging texts, Twitter updates, Facebook pokes, and weather alerts the adage “silence is golden” takes on heightened meaning. Just a small reprieve from audio-stimulation can change your outlook, offer a fresh perspective, or simply calm you down.
And then there is the value in being silent oneself. In the words of Will Rogers: “Never miss a good chance to shut up.” Good advice for lawyers. There is the value of silence in those around us. “You have a grand gift for silence, Watson. It makes you quite invaluable as a companion.” Sir Arthur Conan Doyle. It’s always good to have a sounding board. Finally, as Leonard da Vinci is credited as saying: “Nothing strengthens authority so much as silence.” Well. . . that one might not be that helpful for plaintiffs.
If there is one time you simply cannot be silent is in your complaint – at least in federal court. That’s more or less what the court said in Kennedy v. Pfizer, Inc., 2104 U.S. Dist. LEXIS 113874 (W.D. La. Aug. 15, 2014). The suit was brought under the Louisiana Products Liability Act (“LPLA”) on behalf of a minor child whose mother died after being treated for seizures. Id. at *2-4. Plaintiff alleges the decedent was treated with multiple drugs, including Keppra manufactured by one of the defendants and that Keppra was unreasonably dangerous as defined in the LPLA. The court examined each cause of action and found the allegations in each completely lacking.
The first cause of action under the LPLA is for a product that is unreasonably dangerous in its construction or composition – more commonly known as a manufacturing defect claim. As to Keppra, the complaint said only that it was “unreasonably dangerous in [its] construction and composition.” Id. at *8. Sound familiar? Applying TwIqbal, the court found this was a “clear example of mere labels and conclusions and a formulaic recitation of the elements of a cause of action.” Id. at *9. Silent on any facts to support this conclusory allegation, the claim was dismissed.
Next – design defect. Under the LPLA, plaintiff has to prove two elements on a design defect claim – an alternative design capable of preventing the alleged injury and that the likelihood and gravity of injury from the product outweighed the burden of adopting the alternative design. Id. Once again, as to Keppra, the complaint was silent except for an allegation that it “was unreasonably dangerous in [its] . . . design.” Id. Failure to plead an alternative design was fatal to this cause of action on its own and also doomed plaintiff’s ability to make any allegation about the balancing test element of the claim. Id. at *10-11.
Plaintiff’s best pleaded claim was failure to warn. Here the complaint alleged that the label did not adequately warn about the “likelihood to cause consumers to develop Steven Johnson Syndrome.” Id. at *12. While the allegation was at least specific to the condition decedent allegedly developed, there were no allegations concerning the effect of an alternative warning on the decedent or her prescriber (i.e. with a different warning physician wouldn’t have prescribed). Silence on causation leads to dismissal.
Finally, plaintiff attempted to plead a breach of express warranty claim. This time the court found the complaint was silent as to whether “the defendant had advertised its product; [whether] the defendant had detailed its product to doctors; [whether] the defendant had made any other form of communication regarding the product; or [whether] the plaintiff was induced to take the product because of any alleged express warranty.” Id. at *14-15. That’s a lot of silence. The loudest of which was plaintiff’s “failure to allege that [the drug’s] express warranty induced the use of the product” – an essential element of a breach of express warranty claim. Id. at *15.
Overall this was just a bad complaint and a good use ofTwIqbal. In light of which, we might need to amend the wisdom of Confucius: “Silence is a true friend who never betrays” except under federal pleadings standards. Doesn’t have the same ring to it, but you get our point.