A.G. v. Elsevier, Inc. , 732 F.3d 77 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1559
A.G., BY AND THROUGH HIS MOTHER AND NEXT FRIEND,
SHERRI MADDOX, AND K.S., BY AND THROUGH HIS MOTHER
AND NEXT FRIEND, FELICIA CLARK,
Plaintiffs, Appellants,
v.
ELSEVIER, INC., THE BOND CLINIC, HENRY LERNER, M.D.,
AND EVA SALAMON, M.D.,
Defendants, Appellees,
AMERICAN JOURNAL OF OBSTETRICS & GYNECOLOGY,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Thompson, Selya and Lipez,
Circuit Judges.
Kenneth M. Levine, with whom Sheila E. Mone and Kenneth M.
Levine & Associates LLC were on brief, for appellants.
William S. Strong, with whom Kotin, Crabtree & Strong, LLP was
on brief, for appellee Elsevier, Inc.
Douglas A. Robertson, with whom Charles P. Reidy, III and
Martin, Magnuson, McCarthy & Kenney were on brief, for appellee
Lerner.
Chad P. Brouillard, with whom Joan Eldridge and Foster &
Eldridge, LLP were on brief, for remaining appellees.
October 16, 2013
SELYA, Circuit Judge. This is a curious case in which
the plaintiffs, unsuccessful medical malpractice suitors, seek
damages against the authors and publisher of a case report,
introduced into evidence in the malpractice trials, that appeared
in a peer-reviewed obstetrical journal. Acting on the defendants'
motions to dismiss, see Fed. R. Civ. P. 12(b)(6), the district
court concluded that the plaintiffs' complaint stumbled on the
plausibility threshold. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
Accordingly, the court dismissed the complaint for failure to state
a claim upon which relief could be granted. See Gorbey ex rel.
Maddox v. Am. Journal of Ob. & Gyn., 849 F. Supp. 2d 162, 165-66
(D. Mass. 2012).
The plaintiffs' theory of the case is imaginative but
unpersuasive. Starting with the premise that the case report was
false, they allege that the falsity "caused" the juries in the
malpractice trials to find against them. This optimistic
allegation overlooks that, for aught that appears, causation is
unprovable here and, thus, the causation allegation is wholly
speculative. Consequently, the plaintiffs' claim does not reach
the plateau of plausibility which, under Iqbal and Twombly, is the
new normal in federal civil procedure. We therefore affirm.
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I. BACKGROUND
We briefly rehearse the background of the case, reserving
some details for our later discussion of the merits. Because this
appeal follows the granting of motions to dismiss, we take as true
the facts presented in the complaint. See Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 51 (1st Cir. 2013).
Plaintiffs A.G. and K.S., appellants here, were born with
permanent brachial plexus injuries.1 Births involving shoulder
dystocia — a phenomenon in which a fetus's shoulder becomes stuck
after delivery of the head — present significant risks to the
infant, including asphyxiation. To deliver a baby safely following
the incidence of shoulder dystocia, an obstetrician has several
options. Prominent among these options is traction, which can be
used to pull the infant out of the birth canal. But this pulling
potentially can damage the brachial plexus (a network of nerve
fibers running to the shoulder, arm, and hand). Injuries to this
network can seriously impair function and sensation in the arm.
See generally The Merck Manual 1802, 2679-80, 2770-71 (Robert S.
1
The plaintiffs originally sued using their full names, and
their malpractice cases and the district court proceedings were
litigated on that basis. On appeal, however, a duty judge granted
the plaintiffs' motion to redact the caption of the case and use
initials instead of names. See Fed. R. App. P. 25(a)(5). Although
this seems to be a classic example of closing the barn door after
the horse has galloped away — the records in the state courts and
in the district court are not sealed and at least two opinions have
already been published using the plaintiffs' full names — we have
employed the redacted case caption.
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Porter et al. eds., 19th ed. 2011) (describing shoulder dystocia
and brachial plexus injuries).
The plaintiffs, minors suing through their mothers and
next friends, alleged in separate medical malpractice actions that
their brachial plexus injuries were caused by the application of
excessive traction during delivery. A.G.'s action, brought in
Virginia, ended in a take-nothing verdict, which he did not appeal.
K.S.'s action, brought in Illinois, likewise ended in a take-
nothing verdict, which he unsuccessfully appealed. See Stapleton
ex rel. Clark v. Moore, 932 N.E.2d 487 (Ill. App. Ct. 2010).
At both trials, the defense introduced into evidence a
case report entitled "Permanent Brachial Plexus Injury Following
Vaginal Delivery Without Physician Traction or Shoulder Dystocia"
(the Case Report). The Case Report, co-authored by Drs. Henry
Lerner and Eva Salamon and published in the American Journal of
Obstetrics and Gynecology, purports to document an instance of
brachial plexus injury occurring in a delivery performed by Dr.
Salamon. The Case Report portrays the delivery as unaccompanied by
either shoulder dystocia or physician-applied traction. See Henry
M. Lerner & Eva Salamon, Permanent Brachial Plexus Injury Following
Vaginal Delivery Without Physician Traction or Shoulder Dystocia,
Am. J. of Obstetrics & Gynecology, Mar. 2008, at e7.
Unwilling to let the matter rest after losing their
malpractice cases, the plaintiffs joined forces and sued Dr.
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Lerner, Dr. Salamon, Dr. Salamon's employer, the journal, and the
publisher in the United States District Court for the District of
Massachusetts. Their complaint asserted a cause of action under
chapter 93A, section 9, of the Massachusetts General Laws,
contending that the Case Report was false because the described
delivery actually included both shoulder dystocia and the
application of traction. They further alleged that the defendants
engaged in fraudulent conduct by publishing the false Case Report
and later refusing to retract it. To show harm sufficient to
support their claim for damages, the plaintiffs averred that the
Case Report had tipped the balance in their state-court malpractice
trials.
All of the defendants moved to dismiss. The district
court granted their motions, concluding that the plaintiffs had
failed to allege any "facts from which the Court could reasonably
infer that the [Case Report] was material to the juries' verdicts."
Gorbey, 849 F. Supp. 2d at 165. This timely appeal followed.
II. ANALYSIS
We review de novo a district court's dismissal of a
complaint for failure to state a claim. Santiago v. Puerto Rico,
655 F.3d 61, 72 (1st Cir. 2011). In our assessment, "we accept as
true all well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the pleader's favor." Id. "We
may augment these facts and inferences with data points gleaned
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from documents incorporated by reference into the complaint,
matters of public record, and facts susceptible to judicial
notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
The focal point of our analysis in this case is the
requirement that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief." Fed.
R. Civ. P. 8(a)(2). 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." Twombly,
550 U.S. at 570.
Conducting a plausibility inquiry is "a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679. For a claim
to withstand a motion to dismiss, it need not show that recovery is
probable, but it must show "more than a sheer possibility" of
liability. Id. at 678.
The plausibility standard invites a two-step pavane.
Grajales v. P.R. Ports Auth., 682 F.3d 40, 45 (1st Cir. 2012). At
the first step, 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)." Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). At the second
step, the court must determine whether the remaining factual
content allows a "reasonable inference that the defendant is liable
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for the misconduct alleged." Id. (internal quotation marks
omitted).
Consistent with the foregoing, the plaintiffs in this
chapter 93A case were required to proffer a complaint plausibly
alleging that the defendants' deceptive acts caused them injury or
loss. See Rhodes v. AIG Dom. Claims, Inc., 961 N.E.2d 1067, 1076
(Mass. 2012); Hershenow v. Enter. Rent-A-Car Co., 840 N.E.2d 526,
532 (Mass. 2006). The court below zeroed in on the weakest link in
the plaintiffs' chain of allegations — causation — and concluded
that their complaint failed plausibly to state a viable claim.
Gorbey, 849 F. Supp. 2d at 165-66. We test this conclusion.
The complaint's bald assertion that "[b]ut for" the Case
Report the plaintiffs "would have been successful" at the
malpractice trials is exactly the type of conclusory statement that
need not be credited at the Rule 12(b)(6) stage. See Iqbal, 556
U.S. at 678. Here, moreover, that conclusory statement is
presented as an ipse dixit, unadorned by any factual assertions
that might lend it plausibility. So viewed, the complaint stumbles
on the plausibility threshold. See, e.g., Shay v. Walters, 702
F.3d 76, 82-83 (1st Cir. 2012).
The plaintiffs resist this assessment. They contend that
merely by alleging that the Case Report caused their losses they
have raised a factbound question on which discovery must be
allowed. This contention elevates hope over reason: the
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plausibility standard demands that a party do more than suggest in
conclusory terms the existence of questions of fact about the
elements of a claim. Thus, in Iqbal, 556 U.S. at 680-81, the Court
— faced with a comparably opaque allegation — declined to find
plausibility and refused to allow discovery to address whether the
defendants, as conclusorily alleged, were willfully responsible for
racial discrimination against the plaintiff.
Case law in this circuit is transparently clear as to
this aspect of the plausibility standard. See, e.g., Pruell v.
Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012); Peñalbert-Rosa v.
Fortuño-Burset, 631 F.3d 592, 595 (1st Cir. 2011). We follow this
unbroken line of cases and hold that the rote recital of the
elements of a cause of action is not enough, by itself, to nudge a
case past the plausibility threshold.
This remains true even where, as here, plaintiffs attempt
to camouflage conclusory statements as allegations of fact. When
allegations, though disguised as factual, are so threadbare that
they omit any meaningful factual content, we will treat them as
what they are: naked conclusions. See Iqbal, 556 U.S. at 678;
Peñalbert-Rosa, 631 F.3d at 595; see also Artuso v. Vertex Pharm.,
Inc., 637 F.3d 1, 9 (1st Cir. 2011) (explaining that even though an
averment may be couched as a factual allegation, it can be "so
subjective that it fails to cross 'the line between the conclusory
and the factual'" (quoting Twombly, 550 U.S. at 557 n.5)).
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In this instance, the paucity of factual content bearing
on causation is made painfully apparent by a comparison between the
complaint's allegations of fraudulent conduct and its allegation of
causation. Even after stripping away the conclusory statement that
the defendants' actions constituted "unfair or deceptive acts or
practices," the complaint contains raw facts tending to support the
claim of fraud. It says, for example, that Dr. Lerner never read
the labor and delivery notes before helping to author the Case
Report; that the hospital records reflected that the box for
shoulder dystocia had been checked but then crossed out; and that
Dr. Salamon had stated under oath that she applied traction in all
deliveries. These raw facts, taken together, indicate that the
plaintiffs have more than a gambler's chance of proving fraud.
In stark contrast, the allegation of causation is
unembellished by any supporting facts. Once the conclusory
statement regarding causation is stripped out of the complaint, the
only relevant factual allegation is that the Case Report was
"introduced, used, and relied upon" by defense counsel at both
medical malpractice trials. This solitary fact provides no basis
for a rational inference that the Case Report was critical to the
juries' verdicts; that inference depends entirely upon speculation
and surmise.
Nor does the complaint (or anything else in the record,
for that matter) suggest a feasible way as to how discovery might
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help to develop the missing patina of facts. This is crucial
because the Twombly Court required, as a hallmark of plausibility,
that the complaint contain "enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence." Twombly, 550
U.S. at 556. Here, this hallmark is utterly absent.
In a hapless effort to blunt the force of this reasoning,
the plaintiffs asseverate that the plausibility standard applies
only to allegations of wrongful conduct and not to allegations of
causation. This asseveration is simply wrong.
As an initial matter, this court frequently has affirmed
dismissals of complaints premised on the absence of plausible
allegations unrelated to wrongful conduct. See, e.g., Mead v.
Independence Ass'n, 684 F.3d 226, 231-32 (1st Cir. 2012); Harron v.
Town of Franklin, 660 F.3d 531, 537 (1st Cir. 2011); Martino v.
Forward Air, Inc., 609 F.3d 1, 4-5 (1st Cir. 2010); Uphoff Figueroa
v. Alejandro, 597 F.3d 423, 431 (1st Cir. 2010). Indeed, we have
upheld at least one dismissal for failure to state a claim due to
a lack of any plausible allegation of causation.2 See Portugués-
Santana v. Rekomdiv Int'l, Inc., 725 F.3d 17, 27 (1st Cir. 2013);
see also Rodríguez-Ramos v. Hernández-Gregorat, 685 F.3d 34, 43
2
We are not alone. Our sister circuits have held with a
regularity bordering on the echolalic that the plausibility
standard applies with undiminished force to allegations of
causation. See, e.g., In re Terrorist Attacks on September 11,
2011, 714 F.3d 118, 127 (2d Cir. 2013); In re NM Holdings Co., 622
F.3d 613, 618-25 (6th Cir. 2010); Zutz v. Nelson, 601 F.3d 842,
851-52 (8th Cir. 2010).
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(1st Cir. 2012) (considering whether causation allegation "passes
muster under Iqbal").
In all events, there is a larger picture: it is neither
necessary nor desirable to balkanize the plausibility standard
element by element.3 To pass through the plausibility screen, a
complaint does not have to evince a "one-to-one relationship
between any single allegation and a necessary element of the cause
of action." Rodríguez-Reyes, 711 F.3d at 55. Rather, the
plausibility standard should be applied to the claim as a whole.
See id. The critical question is whether the claim, viewed
holistically, is made plausible by "the cumulative effect of the
factual allegations" contained in the complaint. Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011).
This holistic approach is compatible with Rule 8(a)(2),
which is the font from which the plausibility standard springs.
That rule speaks only in terms of "the claim," making no particular
distinction among elements.
The complaint before us cannot survive such an inquiry.
The superficiality of the causation allegation, coupled with the
3
Of course, different pleading rules may apply to certain
elements of certain claims, which must satisfy a heightened
pleading standard. See, e.g., Fed. R. Civ. P. 9(b) (requiring
"particularity" for pleading circumstances of fraud or mistake).
The case at hand does not require us to investigate the interaction
between the plausibility standard and these special rules.
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speculative nature of the claim as a whole, makes manifest that the
plaintiffs have failed to plead a plausible cause of action.
The plaintiffs have a fallback position. They argue that
their claim is not inherently speculative because the causation
question here (that is, how the original juries would have decided
the malpractice suits in the absence of the Case Report) is no more
impervious to proof than the causation question in a garden-variety
legal malpractice case. In explanation, the plaintiffs say that,
in that type of case, the claimant needs to show that she would
have prevailed at a prior trial in the absence of her attorney's
negligence; yet, courts typically allow the jury to engage in the
counterfactual analysis of how the trial would have ended under
different circumstances. See, e.g., Fishman v. Brooks, 487 N.E.2d
1377, 1380 (Mass. 1986).
This analogy is unconvincing: even in the legal
malpractice context, a complaint may be dismissed if the
allegations of causation depend solely on conclusory statements.4
Thus, in Portugués-Santana, we had no difficulty concluding that
the complaint "fail[ed] to establish the causation element
necessary to make out a plausible legal malpractice claim." 725
F.3d at 27. While the complaint there explicitly alleged that the
4
This is so regardless of whether the rule in Massachusetts
is that causation in a legal malpractice case "must be decided on
an objective basis." Glenn v. Aiken, 569 N.E.2d 783, 786 (Mass.
1991). Whether from an objective or a subjective standpoint, the
buck-naked allegation of causation proffered here is insufficient.
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defendant's "acts and omissions . . . were the proximate cause of
the damages suffered," this conclusory statement was held to be
wholly unsupported by factual allegations sufficient to make the
plaintiff's claim plausible. See id. at 26-27. The same is true
here.
We add a coda. The plaintiffs lament that if we affirm
the dismissal of this suit, defendants in future medical
malpractice actions will be able to rely with impunity on the
fraudulently contrived Case Report. But this gaudy rhetoric
distorts the reality of events. The Daubert doctrine presents an
appropriate opportunity to raise, in a pretrial setting, concerns
about the Case Report. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993); see also 29A Am. Jur. 2d Evidence § 1014
(2013) (describing similar doctrines in state courts).
III. CONCLUSION
We need go no further.5 Consistent with the teachings of
Iqbal, 556 U.S. at 679, the court below drew sagaciously "on its
judicial experience and common sense" to identify an incurable
infirmity in the plaintiffs' complaint. The judgment of dismissal
is, therefore,
Affirmed.
5
Because the plausibility standard offers an unimpugnable
basis for upholding the order of dismissal, we do not address any
of the defendants' alternative grounds for affirmance.
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