Home -> Law Blog Directory -> Personal Injury Law Blogs -> Drug and Device Law

Personal Injury Law

: Drug and Device Law

Standing Up To Pain Pump Litigation

By James M. Beck and Mark Herrmann

We don't subscribe to the theory of collective conscience, though when Julie Delpy talks about it in Waking Life it's hard to disagree. Still, there are times when you find yourself repeatedly stumbling against the same idea in ways that seem beyond coincidence. Last week we praised a federal judge in New Jersey who sent Intron plaintiffs packing for want of standing. The week before, we blogged about potential TwIqbal misfires, including one painful pain pump case. And before that, we've discussed the various ways courts deal with pain pump plaintiffs' stubborn refusal to identify the products that allegedly caused injury. Some courts have made plaintiffs identify the products, applying our TwIqbal friend. Some, sadly and bafflingly, don't. And some act the slacker and merely await discovery. Then somebody sent us a nice decision out of the Northern District of Texas that applied the standing requirement to pain pump litigation. It's a ruling that visits pain on plaintiff lawyers who don't identify the relevant products. Guess what? We like it.

In Daughtery v. I-Flow, Inc., et al., 2010 WL 2034835 (N.D. Texas April 29, 2010), the plaintiff brought an action on behalf of a class of folks allegedly injured by pain pumps that deliver post-surgery anesthetic. The action was brought against pretty much every manufacturer under the sun that made the pumps or anesthetics. Once again, the plaintiff did not allege which particular pump and which particular anesthetic were used on him. Maybe this is a bit of collective conscience -- all pain pump plaintiff lawyers seem to have decided that ignorance is bliss, or lassitude is a-okay, or that dreaded market-share liability will enter the fray. We imagine the plaintiff lawyers would tell us that that they don't know the specifics and that's what litigation is for. (Yes, we imagine them ending a sentence with a preposition -- the sort of bad grammar up with which we will not put.) But why can't the lawyers ask a few questions of the hospital or doctor before pecking away at their word processors and hailing people into court? Are they dazed and confused? In the case we wrote about last week, the plaintiff served interrogatories on the defendant, and that seemed to prevent the court from granting the motion to dismiss. But how is the manufacturer supposed to know the answer to the question about which particular products the hospital used for a particular patient? Does the defendant have to turn around and ask the hospital? Since when is the defendant obligated to discharge the plaintiff lawyer's Rule 11 duty?

Well, the Texas court wasn't standing for this nonsense. Or, to be more precise, it employed the standing doctrine to put an end to this nonsense. The many, many defendants filed many, many motions, both for a more definite statement, and to dismiss on many different grounds. But standing is a threshold doctrine, and the judge rather elegantly got rid of the whole mess by holding that the plaintiff hadn't alleged a connection between his injury and "any particular defendant(s)," that the plaintiff failed to identify "which of the defendants manufactured the pain pump or the anesthetic(s) that were administered to him," and that, therefore, he had not "pled facts sufficient to establish that he has Articled III standing to pursue a direct claim against any of the defendants for his own personal injury." Goodbye individual action, and goodbye class action.

Again, we don't know if there is a zeitgeist or collective judicial conscience, but we think it would be mighty fine if other courts picked up on the Daughtery court's efficient way of disposing of lazy pleading. TwIqbal doesn't show up at all in this very short opinion, but the sense and effect of the standing requirement in this case is so similar to TwIqbal that we're adding it to our TwIqbal cheatsheet. Whether you think that's cheating or not, add standing to the armamentarium, right next to TwIqbal, when taking aim at sloppy complaints.

Full post as published by Drug and Device Law on June 21, 2010 (boomark / email).