A.G. v. Elsevier, Inc.

Decision Date16 October 2013
Docket NumberNo. 12–1559.,12–1559.
Citation732 F.3d 77
CourtU.S. Court of Appeals — First Circuit
PartiesA.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.


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.

Before THOMPSON, SELYA and LIPEZ, Circuit Judges.

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, seeFed.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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, underIqbal and Twombly, is the new normal in federal civil procedure. We therefore affirm.


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. 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, 403 Ill.App.3d 147, 342 Ill.Dec. 360, 932 N.E.2d 487 (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. 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 applicationof 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.


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 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, 127 S.Ct. 1955.

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, 129 S.Ct. 1937. 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, 129 S.Ct. 1937.

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 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., 461 Mass. 486, 961 N.E.2d 1067, 1076 (2012); Hershenow v. Enter. Rent–A–Car Co., 445 Mass. 790, 840 N.E.2d 526, 532 (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, 129 S.Ct. 1937. 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 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, 129 S.Ct. 1937, 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...

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