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First Circuit Affirms Dismissal of 93A Claim for Lack of Plausible Causation Allegation

The First Circuit has affirmed the dismissal of 93A claims against doctors, a clinic and the publisher of a case report the doctors wrote. Plaintiffs alleged that the case report fraudulently misstated the facts of a childbirth, that the case report was introduced as evidence in prior medical practice suits plaintiff had brought and that the case report caused them to lose those malpractice cases. The First Circuit held the district court properly dismissed because plaintiffs failed to allege a plausible theory of causation.

Plaintiffs' children were born with a particular kind of birth defect that they had alleged in their malpractice cases were caused by excessive use of traction during childbirth. The case report purported to describe an instance in which a child was born with the same birth defect without the use of traction. The juries in the medical malpractice cases returned defense verdicts.

In the subject case, plaintiffs alleged the case report was fraudulent because one of the authors never read the labor and delivery notes before helping to write the report, that the hospital records initially indicated a circumstance in which traction could have been used but had been changed, and that the other doctor who co-authored the case report had stated under oath she used traction in all deliveries. With respect to causation in the subject case, plaintiffs simply alleged that "but for" the falsity of the case report, the juries in the medical malpractice cases would have found for plaintiffs. Defendants moved to dismiss for failure to state a claim upon which relief could be granted arguing plaintiffs had not alleged a plausible theory of causation and citing Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. The District Court granted their motions and plaintiffs appealed.

The First Circuit discussed pleading requirements under Iqbal and Twombly and applicable First Circuit precedent. It said "[a] mechanistic recital of the elements of a claim will not suffice: the complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" The complaint need not show that recovery is "probable" but it must show "more than a sheer possibility" of recovery.

The plausibility standard involves a two-step "pavane." [Wikipedia tells us a "pavane" is "a slow processional dance common in Europe during the 16th century" and, yes, Judge Selya wrote the opinion]. First, the court must separate the complaint's factual allegations, which must be accepted as true, from its conclusory legal allegations, which need not be credited. Second, the court must determine whether the factual allegations allow a reasonable inference that the defendant is liable for the misconduct alleged.

The Court said that plaintiffs' "bald assertion" that "but for" the case report plaintiffs would have prevailed "is exactly the type of conclusory statement that need not be credited at the Rule 12(b)(6) stage." The only "fact" pled with respect to causation was that defense counsel "introduced, used, and relied upon" the case report. It noted the difference between the detailed factual allegations supporting the fraud allegations and those supporting the causation allegation. [At this point, it might be worth commenting that F.R.C.P. 9 requires that fraud be pled with particularity which could also account for the difference in the pleadings].

The Court said this allegation "provides no basis for a rational inference that the case report was critical to the juries' verdicts." It said that inference "depends entirely upon speculation and surmise." In addition, nothing in the complaint suggested how discovery could develop facts that support causation.

The Court rejected plaintiffs' argument that the plausibility standard does not apply to causation allegations. It said there was no reason to treat causation allegations differently. Rather, "[t]he critical question is whether the claim, viewed holistically, is made plausible by 'the cumulative effect of the factual allegations' contained in the complaint."

The Court similarly rejected plaintiffs' argument that their claim is not inherently speculative because the causation issue was the same as for any legal malpractice claim in which plaintiff alleges she would have prevailed in a prior lawsuit but for her attorney's negligence. It said conclusory causation allegations in a legal malpractice claim have also been deemed insufficient. It affirmed the dismissal of the case.

What remains entirely unclear is what these plaintiffs could have alleged that would meet the "plausibility" standard. Any causation requirement in this context involves some assumptions as to what the jury found convincing, unless, of course, plaintiffs have interviewed the jurors and been told the case report was highly persuasive. I do not do legal malpractice work so I do not know how plaintiffs typically prove causation but it would surprise me if courts require evidence of what the jurors in the first case thought of any particular evidence. Rather, it is my understanding that such cases usually turn on expert testimony as to what evidence or arguments should have been presented to the jury in the first case by a "competent" attorney and then the jury in the malpractice case decides whether that would have made a difference to them had they been the first jury, given all the evidence in the first case. If so, that approach arguably could have been used in the subject case.

A.G. v. Elsevier, No. 12-1559, 2013 WL 5630077 (1st Cir. Oct. 16, 2013)

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