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How Do You Plead?

Just because you were injured by the negligence of another, that does not guarantee you can receive compensation for your injuries. As the plaintiff in a personal injury lawsuit, you bear the burden of proving every element of the case by a preponderance of the evidence to the jury’s satisfaction. The defendants, meanwhile, are not sitting back quietly and respectfully while you prove your case against them. They are objecting at every instance and vigorously challenging your interpretation of the facts of application of the law.

Sometimes the defendants’ arguments rest on very technical legal matters. If possible, the defendant will try to have the case dismissed on a technical point before the case ever gets to trial. If the court finds that you have made an error in your pleadings, it has the power to give you time to fix your mistake, or it may dismiss the case with prejudice, meaning that you will not be allowed to re-file your claim.

Recently, a federal judge in the Eastern District of New York had to decide how to deal with defendants’ motion to dismiss the case for failure to state a claim upon which relief can be granted (Rule 12(b)(6) of the Federal Rules of Civil Procedure). In the case of Reed v. Pfizer, the plaintiff was claiming personal injury from taking the oral contraceptive pill Lybrel, including deep vein thrombosis (DVT) in the leg and pulmonary embolism in the lungs. The drug’s manufacturers, Pfizer and Wyeth, moved to dismiss the complaint.

The plaintiff had alleged the drug was defective under several different theories, including failure to warn, manufacturing defect, design defect, breach of express warranty and breach of implied warranty. The court looked at how the complaint set forth the injury under each theory, and in each instance decided that the plaintiff did not allege sufficient facts to state a claim, but instead merely stated conclusions about the how the defendant violated the law. The judge dismissed the case.

The case was dismissed without prejudice, meaning the plaintiff has a chance to amend her pleadings and file the complaint again. The judge gave the plaintiff 30 days to do so. This was actually the second time the judge had granted leave to the plaintiff to amend her insufficient pleadings; while this particular judge places a high value on deciding cases on their merits rather than dismissing them on technical points, he made it pretty clear that there wouldn’t be a third round if the plaintiff didn’t get it right this time. Another judge may have dismissed the case with prejudice, leaving the plaintiff out in the cold with regard to obtaining compensation for her injuries.

If you have a products liability or other personal injury case, be sure and retain an experienced trial attorney who understands the importance of drafting a complaint accurately and can argue against the defendant’s attempts to dismiss the case on technical details. In New York City, contact Leandros A. Vrionedes, P.C. for a free consultation.

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