We’ve written several times about a recent U.S. Supreme Court case involving a fellow named Javaid Iqbal (here, here, here) who was never charged with any 9/11-related terrorism, but nevertheless was subjected to all sorts of horrible treatment over the course of several months, and ultimately attempted to sue former Attorney General John Ashcroft and FBI director Robert S. Mueller III for masterminding the whole fiasco.
You may recall that the Supremes, in a 5-4 decision, disallowed the suit because, said the majority, Iqbal neglected to present “concrete” factual evidence of his claim at the time that he filed it. You may also recall that in the aftermath of the decision, pundits feared it would mean an across-the-board, unprecedented increase of what ANYONE bringing ANY KIND of lawsuit must initially show in order to avoid having his/her case tossed.
Well, unfortunately, those prognostications appear to be coming true—in a very big way. Last month, the New York Times reported that the Iqbal decision had already been cited “more than 500 times” in dismissal decisions involving anything from a breach of contract case to a disability discrimination suit. And a piece in today’s American Lawyer is now building upon those findings, citing the recent dismissals of suits involving the anti-psychotic drug Seroquel, a woman who “developed multi-organ failure after taking an epilepsy drug called Trileptal,” and a class action involving Playtex baby bottle coolers which may have been tainted with lead.
Justice Ginsburg, who dissented from the Iqbal ruling, said the majority “messed up the federal rules governing civil litigation.”
And she was right, because there’s good reason to make sure the “discovery” process can go ahead before a case is dismissed. We know that wrongdoers aren’t always forthcoming with information about their screw-ups, and filing lawsuits can be the only way injured parties can get to the bottom of what happened. (Or as attorney Alissa Magenheim queried, “How do you get there if you’re not allowed to go there?”)
So where do we go from here? It’s hard to say. Senator Arlen Spector (D-PA) is said to be on the “warpath” against Iqbal, and his corrective legislation (à la Ledbetter) is in the works. In the meantime, brace yourselves. Thanks to Iqbal, the civil justice forecast appears to be calling for storms.