Twombly's Plausibility Standard in Product Liability Cases

Plausible impossibilities should be preferred to unconvincing possibilities. ' Aristotle

On May 21, 2007, the United States Supreme Court decided an antitrust case that impacts every new civil case, including product liability cases, filed in federal court. The decision is Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), and it goes far beyond the antitrust context. The Twombly decision significantly changed the accepted standard for a motion to dismiss from “no set of facts” to enough “plausible” facts. Now, to survive a motion to dismiss for failure to state a claim, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. The allegations have to nudge the “claims across the line from conceivable to plausible,” or else face dismissal under the new plausibility standard. Id. at 1974 (emphasis added). This is a higher standard than the “no set of facts” standard. Exactly how much higher is difficult to know or predict with certainty. It should mean that a claim has been stated if the allegations are credible, and not stated if the allegations are simply possible.

Not only does Twombly's plausibility standard apply in federal court, it likely applies in state courts that also use the “no set of facts” standard, now abrogated by the Supreme Court. Product liability cases that have been filed in federal and state courts since Twombly are being reviewed under this new pleading standard. The impact of Twombly likely is as significant as the Supreme Court's major decisions on the standards for summary judgment (Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986)), and the admissibility of expert testimony (Daubert v. Merrell Dow Pharm., Inc., 113 S.Ct. 2786 (1993)). The initial impact of Celotex and Daubert were not immediately known, but they ultimately proved to enhance the gatekeeping role of trial court judges. It is impossible to keep up with every change in the law, especially in the product liability area, where the law seems to change on a regular, if not nuanced, basis. Nonetheless, the Twombly decision is a change with which all product liability practitioners should be familiar.

The Old Standard: Conley v. Gibson

The “no set of facts” failure to state a claim standard was established in the Supreme Court's landmark decision Conley v. Gibson, written by Justice Hugo Black in 1957. 78 S.Ct. 99 (1957). The Conley plaintiffs were railroad workers who alleged that their union had refused to protect them against discriminatory discharges. The union moved to dismiss the complaint on the ground that plaintiffs' allegations of general discriminatory treatment lacked sufficient specificity. Justice Black, widely regarded as one of the most influential Supreme Court justices in history, rejected the union's position and articulated the standard that was to be followed for the next 50 years:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley, 78 S.Ct. at 102 (emphasis added).

Every law student since Conley v. Gibson undoubtedly was taught the familiar “no set of facts” phrase. The standard has been a bedrock principle of pleading practice for over 50 years. Indeed, according to Westlaw's “Citing References” link to Conley v. Gibson, there are over 100,000 documents that have cited the decision since its publication, averaging a staggering 5.5 times per day, every day for the last 50 years. That impressive run on citations should end with Twombly.

The New Standard: Bell Atlantic v. Twombly

The Twombly plaintiffs brought a class action alleging the defendant telephone companies were involved in a conspiracy to inflate charges for telephone and high-speed internet services in violation of the Sherman Act. The plaintiffs alleged that defendants “engaged in parallel conduct” that prevented competition in the defendants' respective service areas. Twombly, 127 S.Ct. at 1962. The district court dismissed plaintiffs' complaint for failure to state a claim because allegations of parallel business conduct, taken alone, did not state a claim under the Sherman Act. Id. at 1963. The court of appeals reversed, holding that the district court tested the complaint by the wrong standard when it did not account for a set of facts that would permit the plaintiffs “to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence.” Id.. quoting Twombly v. Bell Atlantic Corp., 425 F.3d 99, 114 (2nd Cir. 2005).

The specific issue the Supreme Court addressed was “the proper pleading standard for pleading an antitrust conspiracy through allegations of parallel conduct.” Id. at 1963. The Supreme Court reversed and simultaneously abrogated Conley's “no set of facts” standard, calling it a “famous observation [that] has earned its retirement.” Id. at 1969.

The Court was careful to point out that its decision is consistent with Fed. R. Civ. P. 8(a)(2), which merely requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 1964, quoting Fed. R. Civ. P., Rule 8(a) (emphasis added). This rule is generally understood to mean that notice pleading, not fact pleading, is all that is required to state a claim sufficiently. The Court specifically declared that it is not requiring complaints to have “detailed factual allegations” or a “heightened fact pleading of specifics.” Id. at 1964, 1974. Instead, the Court explained that because Rule 8(a)(2) requires a “showing” that the plaintiff is entitled to relief, the new standard is consistent with Rule 8(a)(2) by requiring “some factual allegation” based on “plausible grounds.” Id. at 1965 n.3, 1965. “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief.'” Id. at 1966.

Justice Stevens wrote a passionate dissent eulogizing the “no set of facts” standard. Justice Stevens observed that neither the petitioners nor any of the six amicus briefs “requested that the Conley formulation be retired” and stated that he “would not rewrite the Nation's civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so.” Id. at 1979 (Stevens, J., dissenting). Nonetheless, the majority had little trouble explaining why the “no set of facts” standard had earned its retirement. “We could go on, but there is no need to pile up further citations to show that Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough.” Id. at 1969.

The Meaning of Plausibility

The definition of “plausibility” under the Court's new standard is not obvious. Moreover, the differences between the “no set of facts” and “plausibility” standards are not obvious either. For plaintiff's counsel looking for a silver lining, the differences are a matter of semantics. For defense counsel, the differences are enormous. This is not the first time the Supreme Court has been faced with a predicament of trying to define something that may be indefinable. One of the famous examples is Justice Potter Stewart's definition of hard-core pornography: “I know it when I see it.” Jacobellis v. Ohio, 84 S.Ct. 1676, 1683 (1964) (Stewart, J., concurring). Fortunately, there has been some effort in trying to define what the new plausibility standard means in practice instead of relying on the “I know it when I see it” approach.

Shortly after the Court announced the new standard, the Tenth Circuit described the differences between it and the old standard as “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Scheider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). In a subsequent opinion, the Tenth Circuit further clarified the meaning of “plausibility,” saying: “'plausibility' in this context must refer to the scope of the allegations in a complaint: [I]f they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.' The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974).

Twombly Applies in All Civil Cases

As one would expect, the new plausibility standard has been applied by judges in a wide variety of civil cases besides antitrust. There was some question, however, about whether this would be the result of Twombly, as noted by Justice Stevens in his dissent: “Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer.” Twombly, 127 S.Ct. at 1988 (Stevens, J., dissenting). The future has arrived and it is obvious that the new standard is being applied in every kind of civil case imaginable. Twombly has been cited over 25,000 times according to Westlaw's “Citing References” link in less than two years from publication. The new standard has been applied in intellectual property, environmental, employment, civil rights, product liability cases and more.

Product Liability Cases Under Twombly

Since Twombly, judges have reviewed product liability allegations under the new plausibility standard and dismissed claims when the facts were insufficient. In some instances, these cases would likely have been dismissed under the old “no set of facts” standard, but it is difficult to know definitively. Even so, it is clear that the starting point for the analysis of these cases begins with Twombly's new plausibility standard. The following is a brief discussion of some interesting federal and state court cases relying on Twombly.

Federal Court Cases

In Bailey v. Janssen Pharmaceutica, Inc., 288 Fed. Appx. 597 (11th Cir. 2008), the plaintiff was the personal representative of Chad Beal, who died after using a prescription skin patch that contained a lethal dose of pain narcotic. Plaintiff sued the manufacturer, distributor and retailer of the patch under design, manufacturing and warning defect theories. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6). Bailey, 288 Fed. Appx. at 601. The court of appeals reversed the dismissal of the design and manufacturing defect claims relying on Twombly after “piecing together ' minimally sufficient factual allegations.” Id. at 607. However, the court affirmed the dismissal of the failure to warn claim under Twombly.

Plaintiff's warning claim alleged that “the defective patches were not accompanied by adequate instructions and/or warnings to fully apprise the prescribing physicians ' of the full nature or extent of the risks and side effects associated with its use.” Id. at 608. The court found this allegation to be “conclusory” because the complaint failed to “recite the contents of the warning label or the information available to Beal's physician or otherwise describe the manner in which the warning was inadequate.” Id. at 608-09.

In Swicegood v. Pilva, Inc., 543 F. Supp. 2d 1351 (N.D. Ga. 2008), the plaintiff alleged injuries from ingesting the generic equivalent of the prescription drug Reglan. Plaintiff sued multiple parties, including the company that first obtained FDA approval of Reglan and its successor in interest. Plaintiff's liability theories against those defendants were strict liability and negligent failure-to-warn. Defendants moved to dismiss based on plaintiff's failure to allege facts that defendants actually manufactured the drug that caused plaintiff's injuries. The court granted defendants' motion citing Twombly, noting that dismissal is appropriate “where it appears that the facts alleged fail to state a plausible claim for relief.” Swicegood, 543 F. Supp. 2d at 1354.

In McCracken v. Ford Motor Co., — F. Supp. 2d –, 2008 WL 4822057 (E.D. Pa. 2008), a pro se plaintiff alleged his thyroid cancer was caused by radiation exposure from the defendant's vehicle. The plaintiff alleged that “putting lead materials in the windshield would have provided a barrier to ionized and gamma radiation, unlike the glass used by Ford.” McCracken, 2008 WL 4822057 at *2. The plaintiff asserted multiple claims, including failure-to-warn. He alleged that the defendant had a “duty to warn him of the danger that operating Ford vehicles at high speeds would increase his exposure to harmful radiation” and that defendant had a “corporate responsibility to inform the consumer (i.e., the plaintiff) of the deadly consequences of using their vehicles.” McCracken, 2008 WL 4822057 at *4.

Ford moved to dismiss for failure to state a claim. Relying on Twombly, the court granted Ford's motion stating that “without more, [the plaintiff's] allegations are too conclusory to support his claim that Ford had a legal duty to warn [the plaintiff] about the danger that traveling at high speeds would increase the level of radiation in the vehicle.” Id. “Even assuming that Ford did have a duty to warn [plaintiff] about radiation exposure, Plaintiff has not set forth sufficient facts to identify how Ford breached that duty ' .” Id.

In addition to the above cases specifically reviewing product liability allegations under the new plausibility standard, several other federal product liability cases involving preemption issues have relied on the new standard. See, e.g., Mensing v. Wyeth, Inc., 562 F. Supp. 2d 1056 (D. Minn. 2008) (generic drug); Demahy v. Wyeth, Inc., — F. Supp. 2d –, 2008 WL4758615 (E.D. La 2008) (generic drug); Morris v. Wyeth, Inc., — F. Supp. 2d –, 2008 WL4696924 (W.D. Ky. 2008) (generic drug); Parker v. Stryker Corp., — F. Supp. 2d –, 2008 WL 4716879 (D. Colo. 2008) (artificial hip implant device); and McWilliams v. S.E., Inc., — F. Supp. 2d –, 2008 WL4057828 (N.D. Ohio 2008) (skydiver tandem harness).

State Courts

Before Twombly, 26 states and the District of Columbia specifically adopted the “no set of facts” standard articulated in Conley v. Gibson. See Twombly, 127 S.Ct. at 1978 (Stevens, J. dissenting) (“Taking their cues from the federal courts, 26 States and the District of Columbia utilize as their standard for dismissal of a complaint the very language the majority repudiates: whether it appears 'beyond doubt' that 'no set of facts' in support of the claim would entitle the plaintiff to relief.”) It seems logical that those same states will follow the Supreme Court's lead and retire the “no set of facts” standard and replace it with the new plausibility standard. At least one state, Massachusetts, has already done so. See Iannacchino v. Ford Motor Co., 888 N.E.2d 879 (Mass. 2008).

In Iannacchino, the plaintiffs brought a class action against a vehicle manufacturer and a component part manufacturer alleging that the door handle systems used in their vehicles were defective. Defendants moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), which is “actually a motion to dismiss ' [that] argues that the complaint fails to state a claim upon which relief can be granted.” Iannacchino, 888 N.E.2d at 883, n. 7 (citation omitted). The court concluded that the complaint did “not contain sufficient factual allegations.” Iannacchino, 888 N.E.2d at 882.

In deciding this case, the court relied on the state's supreme court authority that specifically adopted the Conley v. Gibson standard, which is Nader v. Citron, 360 N.E.2d 870 (1977). Id., 888 N.E.2d at 883 n. 7. The court also stated, however, that “we take the opportunity to 'retire' the Conley language.” Id. The court stated “While we have concluded that the plaintiff's complaint is insufficient on the basis of the standard described in Nader v. Citron ' we take the opportunity to adopt the refinement of that standard that was recently articulated by the United States Supreme Court in [Twombly].” Id., 888 N.E.2d at 889-90. The Massachusetts Supreme Court explained that it agreed with “the Supreme Court's analysis of the Conley language, which is the language quoted in our decision in Nader v. Citron ' and we follow the Court's lead in retiring its use.” Id. at 890.

Conclusion

Twombly is obviously very significant. The Supreme Court does not often overturn 50 years of precedent. The new plausibility standard simply provides that a complaint's factual allegations must state “enough facts to state a claim to relief that is plausible on its face.” 127 S.Ct. at 1974. This new standard will be reviewed and applied in thousands of cases filed in federal and state courts. Unless or until the standard is retired, practitioners should take time to read Twombly and understand its scope. Aristotle is credited with saying that “plausible impossibilities should be preferred to unconvincing possibilities.” Centuries later, it appears that the Supreme Court would agree.

Brian W. Fields is a partner in the Kansas City, MO, office of Lathrop & Gage, LLP and specializes in product liability cases and other complex litigation. He can be contacted at [email protected].

Plausible impossibilities should be preferred to unconvincing possibilities. ' Aristotle

On May 21, 2007, the United States Supreme Court decided an antitrust case that impacts every new civil case, including product liability cases, filed in federal court. The decision is Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955 (2007), and it goes far beyond the antitrust context. The Twombly decision significantly changed the accepted standard for a motion to dismiss from “no set of facts” to enough “plausible” facts. Now, to survive a motion to dismiss for failure to state a claim, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. The allegations have to nudge the “claims across the line from conceivable to plausible,” or else face dismissal under the new plausibility standard. Id. at 1974 (emphasis added). This is a higher standard than the “no set of facts” standard. Exactly how much higher is difficult to know or predict with certainty. It should mean that a claim has been stated if the allegations are credible, and not stated if the allegations are simply possible.

Not only does Twombly's plausibility standard apply in federal court, it likely applies in state courts that also use the “no set of facts” standard, now abrogated by the Supreme Court. Product liability cases that have been filed in federal and state courts since Twombly are being reviewed under this new pleading standard. The impact of Twombly likely is as significant as the Supreme Court's major decisions on the standards for summary judgment ( Celotex Corp. v. Catrett , 106 S.Ct. 2548 (1986)), and the admissibility of expert testimony ( Daubert v. Merrell Dow Pharm., Inc. , 113 S.Ct. 2786 (1993)). The initial impact of Celotex and Daubert were not immediately known, but they ultimately proved to enhance the gatekeeping role of trial court judges. It is impossible to keep up with every change in the law, especially in the product liability area, where the law seems to change on a regular, if not nuanced, basis. Nonetheless, the Twombly decision is a change with which all product liability practitioners should be familiar.

The Old Standard: Conley v. Gibson

The “no set of facts” failure to state a claim standard was established in the Supreme Court's landmark decision Conley v. Gibson, written by Justice Hugo Black in 1957. 78 S.Ct. 99 (1957). The Conley plaintiffs were railroad workers who alleged that their union had refused to protect them against discriminatory discharges. The union moved to dismiss the complaint on the ground that plaintiffs' allegations of general discriminatory treatment lacked sufficient specificity. Justice Black, widely regarded as one of the most influential Supreme Court justices in history, rejected the union's position and articulated the standard that was to be followed for the next 50 years:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley, 78 S.Ct. at 102 (emphasis added).

Every law student since Conley v. Gibson undoubtedly was taught the familiar “no set of facts” phrase. The standard has been a bedrock principle of pleading practice for over 50 years. Indeed, according to Westlaw's “Citing References” link to Conley v. Gibson, there are over 100,000 documents that have cited the decision since its publication, averaging a staggering 5.5 times per day, every day for the last 50 years. That impressive run on citations should end with Twombly.

The New Standard: Bell Atlantic v. Twombly

The Twombly plaintiffs brought a class action alleging the defendant telephone companies were involved in a conspiracy to inflate charges for telephone and high-speed internet services in violation of the Sherman Act. The plaintiffs alleged that defendants “engaged in parallel conduct” that prevented competition in the defendants' respective service areas. Twombly, 127 S.Ct. at 1962. The district court dismissed plaintiffs' complaint for failure to state a claim because allegations of parallel business conduct, taken alone, did not state a claim under the Sherman Act. Id. at 1963. The court of appeals reversed, holding that the district court tested the complaint by the wrong standard when it did not account for a set of facts that would permit the plaintiffs “to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence.” Id. . quoting Twombly v. Bell Atlantic Corp. , 425 F.3d 99, 114 (2nd Cir. 2005).

The specific issue the Supreme Court addressed was “the proper pleading standard for pleading an antitrust conspiracy through allegations of parallel conduct.” Id. at 1963. The Supreme Court reversed and simultaneously abrogated Conley's “no set of facts” standard, calling it a “famous observation [that] has earned its retirement.” Id. at 1969.

The Court was careful to point out that its decision is consistent with Fed. R. Civ. P. 8(a)(2), which merely requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 1964, quoting Fed. R. Civ. P., Rule 8(a) (emphasis added). This rule is generally understood to mean that notice pleading, not fact pleading, is all that is required to state a claim sufficiently. The Court specifically declared that it is not requiring complaints to have “detailed factual allegations” or a “heightened fact pleading of specifics.” Id. at 1964, 1974. Instead, the Court explained that because Rule 8(a)(2) requires a “showing” that the plaintiff is entitled to relief, the new standard is consistent with Rule 8(a)(2) by requiring “some factual allegation” based on “plausible grounds.” Id. at 1965 n.3, 1965. “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief.'” Id. at 1966.

Justice Stevens wrote a passionate dissent eulogizing the “no set of facts” standard. Justice Stevens observed that neither the petitioners nor any of the six amicus briefs “requested that the Conley formulation be retired” and stated that he “would not rewrite the Nation's civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so.” Id. at 1979 (Stevens, J., dissenting). Nonetheless, the majority had little trouble explaining why the “no set of facts” standard had earned its retirement. “We could go on, but there is no need to pile up further citations to show that Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough.” Id. at 1969.

The Meaning of Plausibility

The definition of “plausibility” under the Court's new standard is not obvious. Moreover, the differences between the “no set of facts” and “plausibility” standards are not obvious either. For plaintiff's counsel looking for a silver lining, the differences are a matter of semantics. For defense counsel, the differences are enormous. This is not the first time the Supreme Court has been faced with a predicament of trying to define something that may be indefinable. One of the famous examples is Justice Potter Stewart's definition of hard-core pornography: “I know it when I see it.” Jacobellis v. Ohio , 84 S.Ct. 1676, 1683 (1964) (Stewart, J., concurring). Fortunately, there has been some effort in trying to define what the new plausibility standard means in practice instead of relying on the “I know it when I see it” approach.

Shortly after the Court announced the new standard, the Tenth Circuit described the differences between it and the old standard as “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Scheider , 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). In a subsequent opinion, the Tenth Circuit further clarified the meaning of “plausibility,” saying: “'plausibility' in this context must refer to the scope of the allegations in a complaint: [I]f they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.' The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly , 127 S.Ct. at 1974).

Twombly Applies in All Civil Cases

As one would expect, the new plausibility standard has been applied by judges in a wide variety of civil cases besides antitrust. There was some question, however, about whether this would be the result of Twombly, as noted by Justice Stevens in his dissent: “Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer.” Twombly, 127 S.Ct. at 1988 (Stevens, J., dissenting). The future has arrived and it is obvious that the new standard is being applied in every kind of civil case imaginable. Twombly has been cited over 25,000 times according to Westlaw's “Citing References” link in less than two years from publication. The new standard has been applied in intellectual property, environmental, employment, civil rights, product liability cases and more.

Product Liability Cases Under Twombly

Since Twombly, judges have reviewed product liability allegations under the new plausibility standard and dismissed claims when the facts were insufficient. In some instances, these cases would likely have been dismissed under the old “no set of facts” standard, but it is difficult to know definitively. Even so, it is clear that the starting point for the analysis of these cases begins with Twombly's new plausibility standard. The following is a brief discussion of some interesting federal and state court cases relying on Twombly.

Federal Court Cases

In Bailey v. Janssen Pharmaceutica, Inc. , 288 Fed. Appx. 597 (11th Cir. 2008), the plaintiff was the personal representative of Chad Beal, who died after using a prescription skin patch that contained a lethal dose of pain narcotic. Plaintiff sued the manufacturer, distributor and retailer of the patch under design, manufacturing and warning defect theories. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6). Bailey, 288 Fed. Appx. at 601. The court of appeals reversed the dismissal of the design and manufacturing defect claims relying on Twombly after “piecing together ' minimally sufficient factual allegations.” Id. at 607. However, the court affirmed the dismissal of the failure to warn claim under Twombly.

Plaintiff's warning claim alleged that “the defective patches were not accompanied by adequate instructions and/or warnings to fully apprise the prescribing physicians ' of the full nature or extent of the risks and side effects associated with its use.” Id. at 608. The court found this allegation to be “conclusory” because the complaint failed to “recite the contents of the warning label or the information available to Beal's physician or otherwise describe the manner in which the warning was inadequate.” Id. at 608-09.

In Swicegood v. Pilva, Inc. , 543 F. Supp. 2d 1351 (N.D. Ga. 2008), the plaintiff alleged injuries from ingesting the generic equivalent of the prescription drug Reglan. Plaintiff sued multiple parties, including the company that first obtained FDA approval of Reglan and its successor in interest. Plaintiff's liability theories against those defendants were strict liability and negligent failure-to-warn. Defendants moved to dismiss based on plaintiff's failure to allege facts that defendants actually manufactured the drug that caused plaintiff's injuries. The court granted defendants' motion citing Twombly, noting that dismissal is appropriate “where it appears that the facts alleged fail to state a plausible claim for relief.” Swicegood, 543 F. Supp. 2d at 1354.

In McCracken v. Ford Motor Co., — F. Supp. 2d –, 2008 WL 4822057 (E.D. Pa. 2008), a pro se plaintiff alleged his thyroid cancer was caused by radiation exposure from the defendant's vehicle. The plaintiff alleged that “putting lead materials in the windshield would have provided a barrier to ionized and gamma radiation, unlike the glass used by Ford.” McCracken, 2008 WL 4822057 at *2. The plaintiff asserted multiple claims, including failure-to-warn. He alleged that the defendant had a “duty to warn him of the danger that operating Ford vehicles at high speeds would increase his exposure to harmful radiation” and that defendant had a “corporate responsibility to inform the consumer (i.e., the plaintiff) of the deadly consequences of using their vehicles.” McCracken, 2008 WL 4822057 at *4.

Ford moved to dismiss for failure to state a claim. Relying on Twombly, the court granted Ford's motion stating that “without more, [the plaintiff's] allegations are too conclusory to support his claim that Ford had a legal duty to warn [the plaintiff] about the danger that traveling at high speeds would increase the level of radiation in the vehicle.” Id. “Even assuming that Ford did have a duty to warn [plaintiff] about radiation exposure, Plaintiff has not set forth sufficient facts to identify how Ford breached that duty ' .” Id.

In addition to the above cases specifically reviewing product liability allegations under the new plausibility standard, several other federal product liability cases involving preemption issues have relied on the new standard. See, e.g., Mensing v. Wyeth, Inc. , 562 F. Supp. 2d 1056 (D. Minn. 2008) (generic drug); Demahy v. Wyeth, Inc., — F. Supp. 2d –, 2008 WL4758615 (E.D. La 2008) (generic drug); Morris v. Wyeth, Inc., — F. Supp. 2d –, 2008 WL4696924 (W.D. Ky. 2008) (generic drug); Parker v. Stryker Corp., — F. Supp. 2d –, 2008 WL 4716879 (D. Colo. 2008) (artificial hip implant device); and McWilliams v. S.E., Inc., — F. Supp. 2d –, 2008 WL4057828 (N.D. Ohio 2008) (skydiver tandem harness).

State Courts

Before Twombly, 26 states and the District of Columbia specifically adopted the “no set of facts” standard articulated in Conley v. Gibson. See Twombly, 127 S.Ct. at 1978 (Stevens, J. dissenting) (“Taking their cues from the federal courts, 26 States and the District of Columbia utilize as their standard for dismissal of a complaint the very language the majority repudiates: whether it appears 'beyond doubt' that 'no set of facts' in support of the claim would entitle the plaintiff to relief.”) It seems logical that those same states will follow the Supreme Court's lead and retire the “no set of facts” standard and replace it with the new plausibility standard. At least one state, Massachusetts, has already done so. See Iannacchino v. Ford Motor Co. , 888 N.E.2d 879 (Mass. 2008).

In Iannacchino, the plaintiffs brought a class action against a vehicle manufacturer and a component part manufacturer alleging that the door handle systems used in their vehicles were defective. Defendants moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), which is “actually a motion to dismiss ' [that] argues that the complaint fails to state a claim upon which relief can be granted.” Iannacchino, 888 N.E.2d at 883, n. 7 (citation omitted). The court concluded that the complaint did “not contain sufficient factual allegations.” Iannacchino, 888 N.E.2d at 882.

In deciding this case, the court relied on the state's supreme court authority that specifically adopted the Conley v. Gibson standard, which is Nader v. Citron , 360 N.E.2d 870 (1977). Id., 888 N.E.2d at 883 n. 7. The court also stated, however, that “we take the opportunity to 'retire' the Conley language.” Id. The court stated “While we have concluded that the plaintiff's complaint is insufficient on the basis of the standard described in Nader v. Citron ' we take the opportunity to adopt the refinement of that standard that was recently articulated by the United States Supreme Court in [Twombly].” Id., 888 N.E.2d at 889-90. The Massachusetts Supreme Court explained that it agreed with “the Supreme Court's analysis of the Conley language, which is the language quoted in our decision in Nader v. Citron ' and we follow the Court's lead in retiring its use.” Id. at 890.

Conclusion

Twombly is obviously very significant. The Supreme Court does not often overturn 50 years of precedent. The new plausibility standard simply provides that a complaint's factual allegations must state “enough facts to state a claim to relief that is plausible on its face.” 127 S.Ct. at 1974. This new standard will be reviewed and applied in thousands of cases filed in federal and state courts. Unless or until the standard is retired, practitioners should take time to read Twombly and understand its scope. Aristotle is credited with saying that “plausible impossibilities should be preferred to unconvincing possibilities.” Centuries later, it appears that the Supreme Court would agree.

Brian W. Fields is a partner in the Kansas City, MO, office of Lathrop & Gage, LLP and specializes in product liability cases and other complex litigation. He can be contacted at [email protected].