In a recent action in front of the U.S. District Court for the District of Rhode Island, defendants in a product liability action argued that the plaintiff failed to satisfy the pleading requirements of Twombly [PDF] and Iqbal [PDF] because she failed to identify the manufacturer of the product she alleged to have caused her injuries. District Judge William E. Smith, disagreed with defendants, finding plaintiff had “made out facially plausible claims against each Defendant, alternatively.” Koch v. I-Flow Corp. et al., C.A. No. 09-441 S., 2010 WL 2265670 (D.R.I. Jun. 7, 2010) [PDF].
Plaintiff Shereen Koch (“Koch”), underwent three arthroscopic shoulder surgeries in 2005 and 2006, which included the “implantation of a pump designed to bathe Plaintiff’s shoulder joint with a local anesthetic after surgery.” Koch alleged that the treatment had not been approved by the federal Food and Drug Administration and resulted in permanent injuries to her shoulder cartilage. Plaintiff filed suit against the manufacturer of the pump as well as the manufacturers of bupivacaine
, the anesthetic administered through the pump. She asserted claims against these defendants for I) negligence and negligence per se, II) strict products liability, III) breach of express warranty, IV) breach of implied warranties, V) fraudulent misrepresentation, VI) fraudulent concealment, VII) negligent misrepresentation, and VIII) fraud and deceit.
Bupivacaine is manufactured and marketed under different trade names and prior to filing her complaint, Koch was not able to identify which brand of bupivacaine she received in her pump. As a result, she filed claims, in the alternative, against both manufacturers of bupivacaine. In response, these bupivacaine manufacturer defendants filed a motion to dismiss plaintiff’s claims, Counts I – IV, on the ground that she cannot meet the standard for facial plausibility established by the United States Supreme Court because she could not identify the specific brand that harmed her.
The Court denied this motion to dismiss stating that while Koch must ultimately identify which defendant manufactured the bupivacaine administered to her, she made out plausible claims against each defendant, which was sufficient at this stage of the litigation. On Plaintiff’s fraud and misrepresentation claims, Counts V – VIII, the Court granted defendants’ motion to dismiss based upon Koch’s failure to satisfy Rule 9
by failing to set forth specific and particular facts concerning defendants’ alleged misrepresentations.
This decision instructs that manufacturers of products subject to a products liability action may be required to litigate an action beyond a motion to dismiss even where a plaintiff cannot specifically identify the brand of the product that caused the alleged harm. While this will most likely arise in the medication context, all manufacturers should be aware of this possibility.