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Contentious Litigation

BY Lori G. Cohen
January 31, 2016

As we discussed in the Part One of this article, available at http://bit.ly/1IRj11p, defense attorneys are increasingly finding themselves faced by opposing counsel bent on using any means possible to harass them and their clients, leading to a more contentious litigation environment than is really necessary. We continue herein with a review of some of those tactics, and we consider how they may be addressed.

File First, Investigate Later

Overly-aggressive opposing counsel may show their true colors as early as the pleading stage. Federal Rule of Civil Procedure 11 requires an attorney to conduct an objective and reasonable inquiry into the facts and law before filing a complaint. Consequently, the “Rambo” attorney's complaint lies vulnerable to a motion to dismiss. A fine example of this arose in the Western District of Pennsylvania, where the court dismissed plaintiff's negligence action against multiple pain pump manufacturers as impermissibly speculative because her allegation only stated the “possibility” that her chondrolysis diagnosis occurred after a pain pump was implanted in her shoulder, and the plaintiff did not identify the actual manufacturer or product ID in her complaint. Kester v. Zimmer Holdings, Inc., No. 210-CV-00523, 2010 WL 2696467 (W.D. Pa. June 16, 2010). The Kester court determined that allowing the plaintiff to “file first and investigate later” was contrary to FRCP 11(b). Id. (internal citation omitted).

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