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.