provided the Defense with a new type of ammunition that they have not hesitated to use. We must be equally diligent in educating ourselves and fortifying our claims so that they are deemed by the courts as trial worthy and not unsubstantiated refuse to be casually dismissed.
In What Types of Cases Will We Most Likely Run Into This Issue?
As Plaintiffs attorneys there are four types of claims where
we can anticipate the emergence of this pleading issue: 1. Medical Malpractice Claims 2. Product Liability Claims 3. Loss of Consortium Claims 4. Claims for Wrongful Termination Under the False Claims Act
For those who regularly litigate in Federal Court, you are probably already well versed in the application of this new pleading standard. However, for those of you who have not faced a 12(b)(6) motion since May of 2009, or for those just beginning to engage in more regular appearances in the Federal system, the following will provide you with a fundamental understanding of what you can expect to see and a few basic strategies to combat these attacks and preserve your client’s claims.
Medical Malpractice Claims Medical malpractice claims tend to be state claims and
therefore, heard in state courts. However, as we know, there are occasions where we end up in federal court (usually due to diversity jurisdiction). Because we tend to think of these claims as substantively state law driven, we tend to forget that the Federal Rules of Civil Procedure are still applied. As such, we can now expect a pleading standard beyond that of just “notice” in our medical malpractice claims that end up in federal courts. Te most foreseeable danger that we will encounter
in these federally filed medical malpractice claims will be dismissal due to our bad-habit use of template complaints. While this may suffice in state court, this will surely result in the dismissal of the claim when filed in the corresponding federal jurisdiction. Specific factual details supporting each element of the medical malpractice claim are now mandated to survive a 12(b)(6) motion. Gone are the days of filing while waiting for records, or picking and choosing what we reveal to the Defendant during various points of discovery. If we want to survive in Federal court, all of our cards must be on the table.
One of the severe shortcomings of this new pleading
standard is that alleging intentional torts will become increasingly difficult due to the inaccessibility of information
Trial Reporter / Winter 2010 11
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