If you even dally in one or more of the most popular social media sites (Facebook, Twitter, instragram), then you’ve probably heard about Throwback Thursday -- or if you are super cool, #tbt. Nobody is exactly sure when it started, but by 2013 it was thoroughly ensconced in our social media habits. Purportedly there are somewhere around 23 million pictures tagged #throwbackthursday on Twitter alone.
What is Throwback Thursday? Some say it’s an excuse to post your most angelic baby picture or a photo of yourself from anytime in the past when you were thinner than you are now. Or, perhaps post an embarrassing old photo of a friend. All are legitimate throwbacks. The only real requirement seems to be a picture so old you actually had to snap a photo of a physical picture to be able to post it. So, that means you probably need to reach back at least 5 years.
Well, this post reaches back almost 20 years for some of us (Bexis and Yeary). A time when not only were photos in hard copy, but so were our filings. Mad dashes to the courthouse to beat the 4:00 pm closing rather than hitting the submit button at 11:59 pm. Making dozens of copies to serve on all the parties rather than sending a pdf by email. Ahh, the feel of warm pages fresh off the printer and the frenzy of cab rides to the airport to make the last Federal Express flight of the night. Sweet memories.
We’ve certainly on this blog taken more than one opportunity to discuss the many successes that came out of theOrthopedic Bone Screw Litigation, chief among them Buckman. So, we couldn’t let Throwback Thursday pass without mentioningLonon v. Globus Medical, Inc., 2014 U.S. Dist. LEXIS 36218 (S.D. Ga. Mar. 18, 2014). Yep, an actual pedicle screw case.
Plaintiff had spinal surgery in which eight pedicle screws were implanted in his spine. About two years later, plaintiff started experiencing pain which led to a finding that two of the screws had fractured. Id. at *1-2. Plaintiff filed a single cause of action for negligence, alleging that defendant had a “duty to insure that the pedicle screws would not cause injury to Plaintiff” and “to provide Plaintiff with a pedicle screw that would not fracture.” Id. at *2. And that’s it.
You don’t have to have been involved in the bone screw litigation to know, that’s not enough. In fact, the court’s description of the complaint as “spartan” might just be an understatement. The court notes that nowhere in the complaint will you find any allegations about how the screws are supposedly defective. Id. at *6-7. Instead, plaintiff seems to solely rely on the “mere fact that they fractured as supporting the notion that Defendant breached some duty.” Id. at *7. Not even close toTwIqbal compliant.
And what duty is defendant alleged to have breached? Plaintiff’s sole allegation is that defendant owed a duty to provide a pedicle screw that was “correctly manufactured and would not fracture.” Id. at *6. “As written, it appears that Plaintiff believes Defendant was obligated to provide him with an indestructible pedicle screw, which is not a duty recognized under Georgia law.” Id. at *7. So, not only are plaintiff’s very generalized legal conclusions not supported by any facts, the one duty he does allege isn’t a duty at all.
Given the extreme deficiencies of the complaint, the court also noted they shouldn’t be difficult to correct. So, plaintiff was given a short time to amend his complaint. We assume the claim will be re-filed given that the court found plaintiff’s counsel made better allegations in his response to the motion to dismiss than he asserted in the complaint. And, if it does get re-filed, we’ll keep an eye out for further developments that may lead us to once again wax nostalgic.