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A Little Iqbal Win

By James M. Beck and Mark Herrmann

We just stumbled across Mohr v. Targeted Genetics, No. 09-3170, 2009 LEXIS 107761 (C.D. Ill. Nov. 18, 2009), and thought we'd share that small Iqbal win.

Jolee Mohr was enrolled in a clinical trial for an investigational gene therapy for rheumatoid arthritis. While Mohr was in the trial, her treating physician prescribed Abbott's rheumatoid arthritis drug, Humira, for her. Mohr died on July 24, 2007. The complaint pled that physicians should have known that it was dangerous to prescribe the investigational gene therapy and Humira simultaneously. The complaint named the manufacturer of the investigational therapy, Abbott, and an institutional review board as defendants.

But the complaint pled no specifics about Abbott's alleged misconduct. Abbott neither contributed to the design or manufacture of the investigational therapy nor was involved in any way in the clinical trial. All it did was lawfully distribute Humira.

The complaint pled strict liability and wrongful death claims against Abbott, but the complaint did not identify any tortious conduct by Abbott. Even if it were true that Mohr was prescribed and ingested Humira, those facts don't state a claim against Abbott. And, under Iqbal, plaintiffs must do more than plead "the 'magic words' which are typically used to support a product liability claim." Id. at *8. The court thus granted Abbott's motion to dismiss, although it gave plaintiff the right to replead.

Perhaps we'll have more to report if the plaintiff chooses to file an amended complaint.

Full post as published by Drug and Device Law on December 07, 2009 (boomark / email).