Products Liability Claims Iqbal poses perhaps the greatest threat to product liability
litigation because this is an area which heavily depends on the procurement of information during the discovery process. Cases which fall within the category of product liability have no hope of access to documentation of knowledge, intent, or negligence prior to discovery. Given this reality it is difficult to surmise how we as Plaintiffs attorneys can overcome such an obstacle and still meet our burden as set forth by the Supreme Court. Negligent product liability suits will become more difficult to prosecute, while intentional product liability suits will become nearly impossible to pursue. Claims which have their origin in public safety are threatened by this ruling which seeks to give added protection to those undeserving of yet another advantage. A friend, who happens to be a product liability defense
prior to discovery. One piece of good news is that in cases where we obtain sufficient facts during discovery which reveal evidence of intentional torts, we may still be permitted to amend the complaint prior to trial. Te U.S. District Court for the District of Maryland permitted the amending of a complaint in order to add a count for punitive damages due to information that was revealed during the course of a Defense witness’ deposition. Reed v. River Rd. Surgical Ctr., LLC, 2009 U.S. Dist. LEXIS 71962. Te Court ruled in favor of the Plaintiff in response to the Defendant’s 12(b)(6) motion and stated that “the Plaintiffs have alleged sufficient facts to demonstrate Dr. Shutz was warned that training was necessary on how to use the defibrillator, but failed to take action. Te complaint alleges that the cardiac defibrillator is critical medical equipment. Tese allegations are sufficient to state a claim for punitive damages.” Id at 9. It appears that if the Plaintiff: 1) makes an immediate request to amend the complaint once the information has been revealed, 2) provides a detailed explanation of the substance and source of the new information, and 3) demonstrates that there is no way this information was previously available, the court may be inclined to permit this addition.
12 Trial Reporter / Winter 2010
attorney, informed me that he has filed over 100 12(b)(6) motions in just the past two months. He relayed to me that he has seen numerous complaints where Plaintiffs rely on conclusory allegations regarding defective designs, defective manufacturing, and breaches in warranty. Plaintiffs assert that a product is unreasonably dangerous, and therefore caused the injury, without any accompanying facts which could possibly hope to support these complex claims. His words of wisdom, which I while gladly pass on to all of you, is that it would be wise for us to begin reciting facts not just in the beginning of the complaint, but also accompanying each of the counts. Along with this additional recitation, he recommended that Plaintiffs begin referencing other comparable safe products in their complaint, thereby distinguishing the offending product as defective. Tis will help clarify our claims and reinforce them to the full extent of their immediate voracity.
Loss of Consortium Claims
A derivative claim for loss of consortium can accompany either a medical malpractice or product liability suit in Federal court. Tis derivative claim for a marital injury is rooted in a separate claim for injury caused by the tortious act of a third party to a spouse. Deems v. Western Maryland Railway Company, 247 Md. 95, 100, 231 A.2d 514 (1967). Tere are two ways which a Defendant can attack the validity of a consortium claim due to insufficient pleading. Te first is by attacking the primary tort claim as insufficient, and the second is by attacking the evidentiary support of the loss of consortium claim itself. Because of the claim’s derivative nature, the complaint
must contain sufficient allegations of the primary wrongdoing, of causation, and that both, in turn, led to the marital loss. Te Federal Courts have held that if a Defendant attacks the sufficiency of the primary claim(s) under Iqbal
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