That's the kind of goodbye that the court gave plaintiffs in Tolliver v. Bristol-Myers Squibb Co., No. 1:12-cv-00745 (N.D. Oh. July 30, 2012) (slip op.), ushering their case right out the courtroom doors. The plaintiffs brought negligence, negligence per se, breach of warranty, strict liability and defect claims, all related to injuries allegedly suffered because of the use of Plavix. Slip op. at 2. But in Ohio, like in many other states, such product liability claims can’t be brought under the common law. They must be brought under the state Product Liability Act (here, the OPLA). So “Goodbye,” said the court, to plaintiffs’ negligence, negligence per se, and breach of warranty claims. Slip op. at 4-5.
Under the OPLA, only four types of claims are allowed: manufacturing defect, design defect, failure to warn, and non-compliance with manufacturer’s representation. But to properly state any of those claims, plaintiffs must clarify which provision of the OPLA they are invoking. Plaintiffs didn’t. In fact, their complaint didn’t even mention the OPLA. Slip op. at 5. That could have been more than a “Goodbye.” It could have been “Gone, Goodbye.”
But the court cut plaintiffs a break and attempted to construct OPLA claims from the facts that they alleged. That’s where TwIqbal came in and put an end to it.
For a manufacturing defect claim, plaintiffs alleged that the defendants failed to manufacturer Plavix in a safe and suitable manner, causing plaintiffs’ injuries. In other words, they alleged no facts, only legal conclusions. “Goodbye.” Slip op. at 5-7. For a design defect claim, plaintiffs alleged that defendants failed to design Plavix safely and that its risks outweighed its benefits. More bare legal conclusions. “Goodbye.” Slip op. at 7-8. For failure to warn, plaintiffs alleged that defendants failed to warn of Plavix’s true risks, and for non-compliance with manufacturer’s representation, they alleged that defendants breached representations, injuring plaintiffs. Not a fact to be found. “Goodbye,” and “Goodbye.” Slip op. at 8-9.
So all the claims are gone, and we come to plaintiffs’ request for leave to amend. Under Sixth Circuit law (and most anywhere), a plaintiff must state with particularity the grounds upon which a request for leave to amend is based. In other words, you just can’t ask for it and expect to get it. We bet you see this one coming already. Here’s plaintiffs’ request: “In the event that the Court finds that the Plaintiffs failed to plead a claim accordingly, Plaintiffs respectfully request leave to amend their Complaint.” Slip op. at 9.