Alabama Depo Provera Dismissal for Pfizer Makes Three Recent Twombly/Iqbal or "Inartful Pleading" Wins for Kaye Scholer

July 25, 2013

NEW YORK: Kaye Scholer has scored its third recent Twombly/Iqbal win for Pfizer, this time in an Alabama Depo Provera case (Batchelor v. Pfizer Inc). Twombly/Iqbal is a pleading standard that resulted from two Supreme Court cases (Bell Atlantic v. Twombly and Ashcroft v. Iqbal).

The plaintiff in the case sued to recover damages for alleged injuries she suffered after taking the birth control drug known as Depo Provera. Kaye Scholer moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that the plaintiff had not met its pleading burden. The judge struck the complaint on its own inherent authority, which technically made the defense motion moot, but which was effectively the same as granting that motion and giving the plaintiff leave to re-plead. The court's bases for striking the complaint included many of the arguments made in Kaye Scholer's motion to dismiss.

The Batchelor opinion cited one of Kaye Scholer's earlier wins in Reed v. Pfizer (E.D.N.Y.) involving the drug Lybrel. The third recent dismissal secured by Kaye Scholer for "inartful pleading" was in the Duncan v. Pfizer (N.D. Miss.), which also involved Depo Provera.

With these three wins, Kaye Scholer has contributed significantly to the precedential building blocks for future motions to dismiss in product liability cases.

The litigation team for Pfizer consisted of Partner Jim Herschlein, Counsel Angela Vicari and Associate Michel Pignatiello, along with Pfizer in-house Counsel Daniel Thacker (on the Depo-Provera cases) and Amanda Perez (on Reed v. Pfizer).

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