Two More 'Iqbal' Dismissals Emerge in Product Liability Cases

The Supreme Court's May 2009 ruling in Ashcroft v. Iqbal (pdf) is quickly becoming the best thing to happen to the products liability defense bar since Daubert. We told you a couple of weeks ago about the dismissal of a false-marketing suit involving AstraZeneca's anti-psychotic drug Seroquel because it didn't meet the new, tougher pleading standard the Court laid down in Iqbal. Now we have word of two other recent Iqbal dismissals involving controversial products. No wonder Sen. Arlen Specter is on the warpath against Iqbal.

On July 23, Judge Herman Weber tossed manufacturing and design defect claims in Frey v. Novartis Pharmaceuticals Corp., in which Amanda Frey sued Novartis when she developed multi-organ failure after taking an epilepsy drug called Trileptal. In his 13-page opinion (pdf), Weber concluded that Frey's lawyers at O'Connor Acciani & Levy "have failed to allege any facts that would permit the court to conclude that a manufacturing defect occurred and that the defect was the proximate cause of Amanda Frey’s alleged injuries." Lead counsel for Novartis was Michael Junk of Hollingsworth LLP, who didn't immediately return our call. [Hat tip: Drug and Device Law.]

The Mass Tort Defense blog, meanwhile, has news of the July 24 dismissal of a class action against Playtex, alleging excess lead in baby bottle coolers. Chicago federal district court Judge Joan Lefkow wasn't as explicit in her reliance on Iqbal as Judge Eber, but she did cite the ruling in her discussion of the pleading standard she applied. Plaintiffs lawyers Mary Jane Feit and John Tangren of Wolf Haldenstein Adler Freeman & Herz told the Litigation Daily that Lefkow's ruling actually demands that they meet an even higher pleading standard than that required by Iqbal because their class action alleges fraud. They said they will "probably" file an amended complaint against Playtex, and noted that they are awaiting Lefkow's rulings on motions to dismiss two related class actions, in both of which defendants have asserted that their complaints did not meet Iqbal standards.

Meanwhile, the plaintiffs lawyer representing Amanda Frey in the Novartis case, had plenty to say about the Supreme Court's Iqbal pleading standard. "What a mess they have created with that," Alissa Magenheim of O'Connor Acciani told us. "I think it's going to become an insurmountable [pleading] standard if we're not careful." The problem, she said, is that the standard demands specificity that plaintiffs can't often show until they've been permitted discovery. "How do you have the facts unless you're an insider?" Magenheim said. "How do you get there if you're not allowed to go there?"

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.