The Impact of Iqbal: Beyond Its Literal Translation & Its Place In Our Future
Cases such as Iqbal impact the technical course of
litigation, but they also impact the mindset of future jurors: jurors who are now inundated with a 24-hour news cycle devoted to the discussion of the fabled “frivolous” lawsuit. Te irony is that decisions like this one have sought to prevent or deter this boogieman and have only succeeded in making the acquisition of justice that much more difficult. Tus, jurors come armed with the pre-conceived notion that the wrongfully injured are the “at-fault” party. Despite the well publicized attempts of generously paid Defense lobbyists, the fact remains that tort litigation is one of the last lines of defense against greedy and/or careless Defendants who put profit above the safety and well-being of the consumer. Mere propaganda does not eliminate this intent: it only serves to mask it. We work in a state where strict non-economic damage caps
are employed under the political guise of lowering physician malpractice premiums and medical costs. Decisions such as Waltzer enact expert report requirements with dispositive ramifications for Plaintiffs while failing to enumerate any consequences for Defendant’s similar omissions. What is
the appropriate response to these newly elaborated Federal requirements which, when missed, result in yet another way for a Plaintiff ’s claim to be dismissed and, possibly, forever barred? Did Iqbal really clarify the terms of pleading for a Plaintiff, or did it merely provide an outlet for conservative jurisdictions to dismiss claims based on a complaint being subjectively “too speculative,” or “possible” as opposed to the now mandated “plausible.” As time goes by, each citing case aids in the definition of
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this standard, comparing and contrasting each set of facts to those in preceding cases. For now the best that we can do is to allow as little room for error as possible so as to not provide the window of opportunity for these Defendants to get meritorious claims dismissed on mere technicalities. Trough the cessation of filing boiler plate complaints in Court and the continuation of diligently sharing pleadings and filings which have been successful in response to these motions, we can help shape and define what qualifies as “plausible” in the eyes of the Federal court system. It is our obligation, as Plaintiffs attorneys, to make an even more concerted effort when formulating the evidentiary basis of our complaints. We must list each and every fact we have in our possession in order to demonstrate that our clients have a right to fully access our legal system and have their claims heard. Te Defense bar has come together on this decision and used it as a platform to further their agenda. We must do the same and respond with equal force and diligence as we file and defend our client’s right to pursue a claim.
Biography Annie B. Hirsch, Te Law Offices of Annie B. Hirsch,
DrGaber.com
341 N. Calvert Street, Suite 300 Baltimore, MD 21202 410.986.4400
1838 Greenetree Road, Suite 445 Pikesville, MD 21208 410.653.8840
Seven Square Office Park 9110 Philadelphia Road, Suite 206 Rosedale, Maryland 21237 410.986.0048
GAB00409_Trial Reporter
Ad2.indd 1 14 Trial Reporter / Winter 2010
LLC, received her JD from Te University of Maryland School of Law. While there, she focused her studies and graduated with a certificate in healthcare law. Ms. Hirsch has spent her career on the Hill and in the courtroom, acting as an advocate on behalf of injured victims and their families. She has had the honor of working for Senator Edward M. Kennedy on the Healthcare Equality and Accountability Act, as well as representing families on behalf of Te Coalition to End Childhood Lead Poisoning. Ms. Hirsch has extensive experience in the field of medical malpractice, product liability, nursing home, and personal injury litigation. In February, 2009, Ms. Hirsch opened Te Law Offices of Annie B. Hirsch, LLC, where she currently represents the severely injured and their families throughout the State of Maryland. Ms. Hirsch is a member of the American Healthcare Lawyers Association (AHLA), MAJ, and AAJ. She can be reached at
abhirsch@abhirschlaw.com. Website:
www.abhirschlaw.com.
12/15/09 3:24 PM
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