The Iqbal/Twombly Decisions

Mass Tort Cases

Recently, there has been an uptick in mass tort cases where plaintiffs' counsel, without pleading market-share liability (a theory that is only appropriate in certain, very limited factual circumstances), simply name all industry manufacturers of a device when the patient-plaintiff could only have used a singular medical device from one known or knowable manufacturer. Historically, under these circumstances the named defendant manufacturers will each proceed to retain counsel to answer the complaint; exchange some calls and letters demanding evidence of product ID from the plaintiff; conduct sufficient discovery to properly separate the wheat from the chaff (as far as the defense bar is concerned, an objectionable shifting of the burden of proof); and then, finally, after weeks and perhaps even months of legal maneuvering, ultimately seek dismissal of the action because their product is found not to be the one at issue. This scenario, which is repeated frequently in mass toxic tort cases, is an undeniable waste of our courts' time and resources, and constitutes an unjustified expense for those improperly named defendant-manufacturers.