Legal Commentary

The prolific folks at Drug and Device Law responded to my post, arguing why Iqbal/Twombly is the right approach to pleading. I would respond by pointing to two points on which actually, somewhat, agree.

First, they criticize Conley for allowing plaintiffs to get away with complaints that say "Defendants violated my rights" or "Defendants injured me" or claims "an FDA violation." I agree that such complaints are insufficient. For one thing, I do not believe that a proper reading of Conley allows such complaints. And while I have no doubt that such complaints are filed all the time and some may even get passed some judges, I question whether they are the norm or whether going to the opposite extreme is the solution to such abuses. For another, there was far more to the complaints in both Twombly and (especially) Iqbal and it is not clear in that sort of case what the plaintiff possibly can do to get into discovery.

Second, they close their post with the following:

Carl Sagan once said that extraordinary claims require extraordinary proof. He should have been a lawyer. In today's legal environment, given the huge expense of discovery as a means of generating the necessary proof, at the outset extraordinary claims properly demand more rigorous pleading.

Again, I probably agree. But if we set too high a pleading hurdle, there never will be an opportunity to actually prove extraordinary (or even ordinary) claims when the proof is available only through some formal discovery process from which plaintiffs are barred when they are unable to allege facts that they cannot know or prove without discovery.

Ultimately, I think we may just have to agree to disagree as to whether the system should be skewed in favor of Type II errors (meritorious claims dismissed at the outset) over Type I error (non-meritorious claims getting into discovery). That is the bottom-line policy dispute at work here.