For The Defense, October 2010 - DRI Today

D R U G A N D M E D I C A L D E V I C EWhat Happenedto Rule 11?By Amy K. FisherBaseless Pleadingsand ProductIdentificationThe “sue first andinvestigate later”mentality abusesthe judicial processand drains ourclients’ resources.The Federal Rules of Civil Procedure require attorneysand their clients to “stop, think, investigate, and research”before filing papers to initiate suits or to conduct litigation.Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987).Specifically, Fed. R. Civ. P. 11 requires anattorney—or a party, personally, if unrepresented—tosign every pleading to certifythat “to the best of the person’s knowledge,information, and belief, formed after an inquiryreasonable under the circumstances:… the factual contentions have evidentiarysupport or, if specifically so identified, willlikely have evidentiary support after a reasonableopportunity for further investigationor discovery[.]” Fed. R. Civ. P. 11(b)(3).Defense lawyers and our clients generallyassume that plaintiffs first obtain the relevantmedical records and contact medicalproviders to identify relevant products beforefiling suit. See Aaberg v. ACandS Inc.,152 F.R.D. 498, 501 (D. Md. 1994) (there isa “reasonable expectation[]… that a complaintat least identify… the specific products…that, plaintiff claims, caused hisinjury”). Yet many litigants commence legalactions without conducting research touncover the necessary information to identifythose products. Perhaps counsel signedup a client over the Internet, without screeningthe records or speaking with the client.Perhaps he or she was motivated by a rapidlyrunning statute of limitations. Perhapsplaintiff’s counsel only dabbles in pharmaceuticallitigation and has no concept of thesteps necessary to identify a product. Perhapsa provider’s notes do not definitivelyidentify a product, instead only mentioninga general, or generic, product name.Regardless of the reason, Fed. R. Civ. P. 11requires more effort—either an investigationof a patient’s pharmacy and billing recordsor a discussion with the health careprovider about a product’s identity.Nonetheless, it is in vogue in the plaintiffs’bar to file claims against a slew ofpotential defendants and sort out theright ones during discovery—an approachthat completely nullifies Fed. R. Civ. P.11(b), which mandates that before initiatinga suit, a plaintiff should engage inan “inquiry reasonable under the circumstances”to find evidentiary support for allfactual contentions. Fed. R. Civ. P. 11(b)(3). Just this year, a California district court20 n For The Defense n October 2010■ Amy K. Fisher is a partner in the Indianapolis office of Ice Miller LLP. She serves as national, coordinating, and local counselfor a variety of pharmaceutical and device manufacturers in nation- wide, complex multi- district litigation involving mass-tort andclass action product liability claims. She was recently named a 2010 Indiana Super Lawyers Rising Star. Ms. Fisher is a memberof DRI.