United States Court of Appeals

For the First Circuit

No. 12-1559

A.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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Thompson, Selya and Lipez,

Circuit Judges.

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.

October 16, 2013
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, see Fed. 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

(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (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, under Iqbal and Twombly, is the

new normal in federal civil procedure. We therefore affirm.

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I. BACKGROUND

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.

1

 The plaintiffs originally sued using their full names, and

their malpractice cases and the district court proceedings were

litigated on that basis. On appeal, however, a duty judge granted

the plaintiffs' motion to redact the caption of the case and use

initials instead of names. See Fed. R. App. P. 25(a)(5). Although

this seems to be a classic example of closing the barn door after

the horse has galloped away — the records in the state courts and

in the district court are not sealed and at least two opinions have

already been published using the plaintiffs' full names — we have

employed the redacted case caption.

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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 takenothing verdict, which he unsuccessfully appealed. See Stapleton

ex rel. Clark v. Moore, 932 N.E.2d 487 (Ill. App. Ct. 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.

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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

application of 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.

II. ANALYSIS

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

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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.

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. 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.

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

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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., 961 N.E.2d 1067, 1076

(Mass. 2012); Hershenow v. Enter. Rent-A-Car Co., 840 N.E.2d 526,

532 (Mass. 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. 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

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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, 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 not enough, by itself, to nudge a

case past the plausibility threshold.

This remains true even where, as here, plaintiffs attempt

to camouflage conclusory statements as allegations of fact. When

allegations, though disguised as factual, are so threadbare that

they omit any meaningful factual content, we will treat them as

what they are: naked conclusions. See Iqbal, 556 U.S. at 678;

Peñalbert-Rosa, 631 F.3d at 595; see also Artuso v. Vertex Pharm.,

Inc., 637 F.3d 1, 9 (1st Cir. 2011) (explaining that even though an

averment may be couched as a factual allegation, it can be "so

subjective that it fails to cross 'the line between the conclusory

and the factual'" (quoting Twombly, 550 U.S. at 557 n.5)).

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In this instance, the paucity of factual content bearing

on causation is made painfully apparent by a comparison between the

complaint's allegations of fraudulent conduct and its allegation of

causation. Even after stripping away the conclusory statement that

the defendants' actions constituted "unfair or deceptive acts or

practices," the complaint contains raw facts tending to support the

claim of fraud. It says, for example, that Dr. Lerner never read

the labor and delivery notes before helping to author the Case

Report; that the hospital records reflected that the box for

shoulder dystocia had been checked but then crossed out; and that

Dr. Salamon had stated under oath that she applied traction in all

deliveries. These raw facts, taken together, indicate that the

plaintiffs have more than a gambler's chance of proving fraud.

In stark contrast, the allegation of causation is

unembellished by any supporting facts. Once the conclusory

statement regarding causation is stripped out of the complaint, the

only relevant factual allegation is that the Case Report was

"introduced, used, and relied upon" by defense counsel at both

medical malpractice trials. This solitary fact provides no basis

for a rational inference that the Case Report was critical to the

juries' verdicts; that inference depends entirely upon speculation

and surmise.

Nor does the complaint (or anything else in the record,

for that matter) suggest a feasible way as to how discovery might

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help to develop the missing patina of facts. This is crucial

because the Twombly Court required, as a hallmark of plausibility,

that the complaint contain "enough fact[s] to raise a reasonable

expectation that discovery will reveal evidence." Twombly, 550

U.S. at 556. Here, this hallmark is utterly absent.

In a hapless effort to blunt the force of this reasoning,

the plaintiffs asseverate that the plausibility standard applies

only to allegations of wrongful conduct and not to allegations of

causation. This asseveration is simply wrong.

As an initial matter, this court frequently has affirmed

dismissals of complaints premised on the absence of plausible

allegations unrelated to wrongful conduct. See, e.g., Mead v.

Independence Ass'n, 684 F.3d 226, 231-32 (1st Cir. 2012); Harron v.

Town of Franklin, 660 F.3d 531, 537 (1st Cir. 2011); Martino v.

Forward Air, Inc., 609 F.3d 1, 4-5 (1st Cir. 2010); Uphoff Figueroa

v. Alejandro, 597 F.3d 423, 431 (1st Cir. 2010). Indeed, we have

upheld at least one dismissal for failure to state a claim due to

a lack of any plausible allegation of causation.2 See PortuguésSantana v. Rekomdiv Int'l, Inc., 725 F.3d 17, 27 (1st Cir. 2013);

see also Rodríguez-Ramos v. Hernández-Gregorat, 685 F.3d 34, 43

2 We are not alone. Our sister circuits have held with a

regularity bordering on the echolalic that the plausibility

standard applies with undiminished force to allegations of

causation. See, e.g., In re Terrorist Attacks on September 11,

2011, 714 F.3d 118, 127 (2d Cir. 2013); In re NM Holdings Co., 622

F.3d 613, 618-25 (6th Cir. 2010); Zutz v. Nelson, 601 F.3d 842,

851-52 (8th Cir. 2010).

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(1st Cir. 2012) (considering whether causation allegation "passes

muster under Iqbal").

In all events, there is a larger picture: it is neither

necessary nor desirable to balkanize the plausibility standard

element by element.3 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." Rodríguez-Reyes, 711 F.3d at 55. Rather, the

plausibility standard should be applied to the claim as a whole. 

See id. The critical question is whether the claim, viewed

holistically, is made plausible by "the cumulative effect of the

factual allegations" contained in the complaint. Ocasio-Hernández

v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011).

This holistic approach is compatible with Rule 8(a)(2),

which is the font from which the plausibility standard springs. 

That rule speaks only in terms of "the claim," making no particular

distinction among elements.

The complaint before us cannot survive such an inquiry. 

The superficiality of the causation allegation, coupled with the

3

 Of course, different pleading rules may apply to certain

elements of certain claims, which must satisfy a heightened

pleading standard. See, e.g., Fed. R. Civ. P. 9(b) (requiring

"particularity" for pleading circumstances of fraud or mistake). 

The case at hand does not require us to investigate the interaction

between the plausibility standard and these special rules.

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speculative nature of the claim as a whole, makes manifest that the

plaintiffs have failed to plead a plausible cause of action.

The plaintiffs have a fallback position. They argue that

their claim is not inherently speculative because the causation

question here (that is, how the original juries would have decided

the malpractice suits in the absence of the Case Report) is no more

impervious to proof than the causation question in a garden-variety

legal malpractice case. In explanation, the plaintiffs say that,

in that type of case, the claimant needs to show that she would

have prevailed at a prior trial in the absence of her attorney's

negligence; yet, courts typically allow the jury to engage in the

counterfactual analysis of how the trial would have ended under

different circumstances. See, e.g., Fishman v. Brooks, 487 N.E.2d

1377, 1380 (Mass. 1986).

This analogy is unconvincing: even in the legal

malpractice context, a complaint may be dismissed if the

allegations of causation depend solely on conclusory statements.4

Thus, in Portugués-Santana, we had no difficulty concluding that

the complaint "fail[ed] to establish the causation element

necessary to make out a plausible legal malpractice claim." 725

F.3d at 27. While the complaint there explicitly alleged that the

4

 This is so regardless of whether the rule in Massachusetts

is that causation in a legal malpractice case "must be decided on

an objective basis." Glenn v. Aiken, 569 N.E.2d 783, 786 (Mass.

1991). Whether from an objective or a subjective standpoint, the

buck-naked allegation of causation proffered here is insufficient.

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defendant's "acts and omissions . . . were the proximate cause of

the damages suffered," this conclusory statement was held to be

wholly unsupported by factual allegations sufficient to make the

plaintiff's claim plausible. See id. at 26-27. The same is true

here. 

We add a coda. The plaintiffs lament that if we affirm

the dismissal of this suit, defendants in future medical

malpractice actions will be able to rely with impunity on the

fraudulently contrived Case Report. But this gaudy rhetoric

distorts the reality of events. The Daubert doctrine presents an

appropriate opportunity to raise, in a pretrial setting, concerns

about the Case Report. See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993); see also 29A Am. Jur. 2d Evidence § 1014

(2013) (describing similar doctrines in state courts).

III. CONCLUSION

We need go no further.5 Consistent with the teachings of

Iqbal, 556 U.S. at 679, the court below drew sagaciously "on its

judicial experience and common sense" to identify an incurable

infirmity in the plaintiffs' complaint. The judgment of dismissal

is, therefore,

Affirmed.

5 Because the plausibility standard offers an unimpugnable

basis for upholding the order of dismissal, we do not address any

of the defendants' alternative grounds for affirmance.

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