We have all heard that bad facts make bad law. We have also heard that discretion is the better part of valor. Sometimes, faced with bad alleged facts, a bad decision may be the predictable result of a motion to dismiss. We are all for knocking out non-existent claims and making plaintiffs plead properly, but it is important when deciding to file 12(b)(6) to keep an eye on the relief being sought and how that relief would affect the case. Although we do not have any knowledge of the considerations that went into the filing of this motion to dismiss, sitting here with our retrospectoscope, we see Williamson v. Stryker Corp., No. 12 Civ. 7083 (CM), 2013 U.S. Dist. LEXIS 104445 (S.D.N.Y. July 23, 2013), as a predictably bad decision. We also feel a little like the venerable plaintiffs’ expert from whom we first heard the term“retrospectoscope,” smug, in our office, blathering on about something with which we were not involved. Unlike him, however, we will resist the temptation to ascribe motive to why the court ruled as it did, as we believe motive is a subject for juries/readers to decide not for experts/blawgers to opine.
Id. at **6-7. Plus, plaintiff’s review of defendants’ website before the first surgery and discussions with their representatives before the second allegedly created liability under theories of fraud, warranty, negligent misrepresentation, and deceptive business practice. As you might expect from this lead in, defendants’ motion was denied across the board, although the court directed plaintiff to flesh out her fraud and negligent misrepresentation counts.
On top of this, the court applied an unlabeled res ipsa loquitur to infer that proximate causation for a manufacturing defect had been pled. Going well beyond the complaint itself, the court read an allegation that plaintiff thought the first implant broke when she felt sudden pain as enough to “conclude that nothing she or her physician did caused the knee devices to break.” Id. at *13. This, in turn, “suggests that the breaks were due to a flaw in the manufacturing process, as opposed to some mishap in surgery or an expected risk of using the device.” Id. at **13-14. We just felt a sudden pain in our head as we tried to follow that bit of reasoning. That must make the reasoning defective. The sound bite that “[i]t is sufficient at this stage that Plaintiffs have alleged that the two knee devices broke, and that nothing [plaintiff] did caused the break” certainly makes a mess of causation, to say nothing of proximate causation. Id. at *14. Even if defendants had been successful in their motion on the manufacturing defect claim, the plaintiff would have been allowed to amend and most of her claims would have been unaffected.
Next up were the claims for express warranty, negligent misrepresentation, fraud, and deceptive business practices, which involve somewhat different elements but were all based on the same set of communications, through the defendants’ website before the first implant and calls and emails with defendants’ representatives before the second. Of course, these are all claims being made for a medical device that was available only through a learned intermediary. The court completely ignores whether any of these informational claims can be made for a prescription medical device or hinge solely on allegations about information relayed to plaintiff and other potential patients. Yet, the learned intermediary doctrine adopted by New York courts is never mentioned in the decision. That is quite an omission.
Id. at *24. We could go on for a while about these two sentences in the context of a case where a plaintiff faced amputation before her first surgery, but it seems to us that the express warranty claims were not going to be dismissed given the allegations about the plaintiff’s reliance on direct statements made to her by defendants’ representatives before the second surgery. The court actually used plaintiff’s reliance on those statements to “reinforce the sufficiency of her pleading” as to the first surgery. Ouch. That pain in our head in back.
Lastly, the court allowed the statutory deceptive business practice claims to stand. The only issue was whether the website was “consumer-oriented.” Based on the same vague allegations about the website’s content—remember, plaintiff was excused from knowing the details of what she allegedly relied upon—the court deduced it was “clearly consumer-oriented” and made statements about the product’s safety without disclosing its risks. Id. at *35. We are not sure where the court got that information, as no cites to the complaint are given and the court was not allowed to consider extraneous material. We did look at the 2013 version of website for the product, at least the portion you can view without entering your medical license number and hospital affiliation. It included terms like “arthrodesis,” “likelihood and speed of union,” “transversal locking screws,” and “fatigue strength laboratory tested to 10 million normal gait cycles.” Those may be consumer-oriented if the consumer is an orthopedic surgeon. The website also disclaimed that the manufacturer “does not dispense medical advice and recommends that surgeons be trained in the use of any particular product before using it in surgery” and noted surgeons “must always rely on his or her own professional clinical judgment when deciding whether to use a particular product when treating a particular patient.” Somehow that website content was not analyzed in the opinion, probably because plaintiff did not include it in her complaint. Maybe she will add that when she amends her complaint to add the basic details about the representations she allegedly received.