No Action Against Publisher of Allegedly Fraudulent Medical Article

Several infants suffered permanent brachial plexus injuries during delivery. Brachial plexus injuries during delivery commonly occur when physicians apply traction in order to deliver an infant experiencing shoulder dystocia. Shoulder dystocia occurs when a fetus's shoulder becomes stuck after delivery of the head.


The representatives of the infants sued the delivering physicians for medical malpractice alleging their brachial plexus injuries were caused by the application of excessive traction during delivery. At trial the physicians introduced into evidence an article published in the American Journal of Obstetrics & Gynecology, a peer-reviewed medical journal. The article purported to document an instance of brachial plexus injury occurring in a delivery unaccompanied by either shoulder dystocia or physician-applied traction. The juries found in favor of the infants, but awarded no money in damages.


The infants sued the publisher of the journal and the authors of the article under the Massachusetts Consumer Protection Act. Specifically, the suit alleged that the defendants' acts of writing, submitting for publication, publishing, and failing to retract the article constituted unfair or deceptive acts or practices. The plaintiffs alleged that the article was false because the described delivery actually included both shoulder dystocia and the application of traction. The plaintiffs further alleged that presenting the article to the juries had tipped the balance in their state-court malpractice trials. The United States District Court for the District of Massachusetts dismissed the action for failure to state a claim upon which relief may be granted.


The First Circuit United States Court of Appeals affirmed the district court’s dismissal. The court held that to survive a motion to dismiss for failure to state a claim, a complaint must contain enough facts to state a claim to relief that is plausible on its face. To determine whether a complaint is plausible on its face, courts perform a two-step analysis. First, courts must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited). Second, courts must determine whether the remaining factual content allows a reasonable inference that the defendant is liable for the misconduct alleged. On a motion to dismiss for failure to state a claim upon which relief can be granted, when allegations, though disguised as factual, are so threadbare that they omit any meaningful factual content, they will be treated as naked conclusions. The critical question is whether the claim, viewed holistically, is made plausible by the cumulative effect of the factual allegations contained in the complaint. 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. The plausibility pleading standard applies with undiminished force to allegations of causation.


Here, the court found that the complaint's bald assertion that the minors would have been successful in their state-court malpractice trials but for the defendants’ introduction into evidence of the allegedly fraudulent article, presented as ipse dixit, unadorned by any factual assertions that might lend it plausibility, did not plead a plausible cause of action against the publisher and authors. The 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.


The court especially noted the difference between the complaint’s factual support for the element of fraud and causation. The complaint contained raw facts tending to support the claim of fraud. For example, the complaint stated that one author never read the labor and delivery notes before helping to write the article. The hospital records reflected that the box for shoulder dystocia had been checked but then crossed out. The doctor who performed the delivery that was the subject of the article had stated under oath that she applied traction in all deliveries. The court concluded that these facts, taken together, indicated that it was plausible that the plaintiffs might prove fraud.


In contrast, the court noted that the plaintiffs’ allegation of causation was unembellished by any supporting facts. Once the conclusory statement regarding causation was stripped out of the complaint, as required by the first step of the plausibility analysis, the only relevant factual allegation was that the article was introduced, used, and relied upon by defense counsel at both medical malpractice trials. The court found that this solitary fact provided no basis for a rational inference that the article was critical to the juries' verdicts. Nor did the complaint (or anything else in the record, for that matter) suggest a feasible way as to how discovery might help to develop the missing facts such that it would be plausible that the plaintiffs might prove causation.


Moreover, the court found the infants’ policy argument unpersuasive. The court noted that the Daubert doctrine presented an appropriate opportunity to raise, in a pretrial setting, concerns about the veracity of medical journal articles.


See: A.G. ex rel. Maddox v. v. Elsevier, Inc., 2013 WL 5630077 (C.A.1 (Mass.), October 16, 2013) (not designated for publication).