Friday, May 29, 2009

The Other Side of Ashcroft v. Iqbal on Rule 8

Scales Rick's post last week on the Supreme Court's decision in Ashcroft v. Iqbal highlighted the concern that many civil procedure and employment law scholars have over what Federal Rule of Civil Procedure 8 requires for a complaint to withstand summary judgment. Mark Herrmann and Jim Beck at Drug and Device Law blog have an extensive post, arguing that the decision is simply an affirmation that the holding in Bell Atlantic Corp. v. Twombly (that conclusory statements of the law are not enough) would apply regardless of the substantive law at issue. They also argue that this result makes good policy because a liberal pleading standard, in combination with the liberal discovery rules adopted after that liberal pleading standard, give plaintiffs with frivolous suits nearly carte blanche to go on extremely expensive fishing expeditions.

They agree that Swierkewicz v. Sorema must have been effectively overruled by Twombly, but conclude that this is a positive thing necessary to weed out frivolous cases. On why this standard will not weed out meritorious ones, they write,

we believe that the hallmark of a meritorious case is that it’s factually supported from the get go. Maybe at the outset it’s “only” a product liability case, and not a far more involved negligence per se or conspiracy case, but it’s a case that warrants resort to discovery. A meritorious case is one with an identifiable aspect of a warning that’s arguably inadequate, that has known medical consequences attributable to the alleged defect, and as a result of those consequences, there’s an actual injury. That’s the kind of case that’s entitled to accrue the expense of discovery. If things then turn up that indicate something more afoot, the plaintiff can seek to amend the complaint to allege that something more.

The meritorious case, we think, doesn’t have any Twombly problems to start with – except maybe around the edges should the plaintiff overplead.

A meritorious case is not one where the plaintiff pleads that the product was “defectively designed” and leaves it at that.

It's good food for thought.


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