It’s hard to escape the suspicion that blue states are more pro-plaintiff and red states are more pro-defense, though that is not a hard and fast rule. There are parts of Alabama and Texas where it is hard for an out of state corporate defendant to get a fair shake. Delaware and West Virginia also do not fit neatly into the blue/plaintiff-red/defense model.
Still, when we read a case where a Massachusetts court tries to predict New York tort law, our fears toggle between whether the pro-plaintiff errors will be multiplied linearly or exponentially. Daley v. Mira, Inc., 2019 WL 499775 (D.Mass. Feb. 8, 2019), is pretty bad. Check that; it is really bad.
The plaintiff in Daley alleged that a surgical implant used in an eye operation in 1986 went bad in 2015 (that’s right – 29 years later) resulting in follow-up operations and near total vision loss in one eye. She sued the manufacturer and seller of the implant. She also sued a company that designed and patented the implant. The designer then licensed the product to the aforementioned manufacturer-seller, more than 29 years ago. This much is clear: the patent-holder had no dealings with the plaintiff. So how could it be a proper defendant?
To answer that question it is necessary to look at the plaintiff’s theories of recovery. After some initial skirmishing, it was determined that New York Law governed the tort claims. So goodbye to the claim under Chapter 93A of the Massachusetts General Law. Goodbye, also to the warranty claim, because of the statute of limitations. What was left against the patent-holder? Three other claims remained: negligent pre-market testing, strict product liability, and post-sale failure to warn. The patent-holder moved to dismiss these claims, contending that it would not be held liable under any of these theories under New York Law. That argument was premised largely on the defendant’s status as never having interacted with the plaintiff. You know – standard product liability stuff.
But hold up a moment. The claim of inadequate pre-market testing, based on an alleged failure to make sure the product could not fail after 29 years, is a bit of a reach. There is certainly no indication that the FDA required any of the testing for “long-term effects.” And whatever product testing is necessary is required by the FDA of the company that submitted the device. The court did not ask these questions, or many questions at all in waving this pre-market testing theory along. This ‘what, me worry’ approach may now be responsible for creating a very broad cause of action available to lots of future plaintiffs against lots of fairly remote defendants.
Whether any of these theories should apply to a non-manufacturer/seller is an issue of theoretical majesty. But the Massachusetts court seems to think it is fairly simple. Either the non-manufacturer/seller can be held liable for its own remote role, because New York Law recognizes “that a defendant can owe a duty of care to a third party – even without a contractual or other direct relationship between the defendant and the third party – and, thus, may be liable to the third party for injuries resulting from a breach of that duty,” or it can be dragged into court based on an allegation of concerted action. If that were so, we would see patent holders dragged into product liability litigation all the time – but we don’t.
The result in the Daley case is bad, and it follows ineluctably from the court’s deficient methodology. Here we have a Massachusetts federal court purporting to predict New York law. The opinion is quite short. That brevity is something we ordinarily welcome. But not one of the New York cases cited by the Massachusetts court is at all on point (they do not involve any kind of product, and one ultimately rejected the claimed duty). Absent is the usually rigorous duty analysis undertaken by New York courts. So what we have is something we have griped about many times before – a federal court expanding state law tort doctrine, and here it is doing damage to the law of a different state. (We are not completely discounting the possibility that what is really going on is that a Patriots or Red Sox fan is trying to wreak havoc on New Yorkers. Those two Super Bowl losses to the Giants must still sting. And, recent success notwithstanding, 100 years of losing to the Yankees really smarts.)
Even aside from lacking anything approximating a rigorous legal analysis, the Daley court seems oblivious to the real world implications of the decision. The extension of liability to the patent-holder is particularly dangerous in terms of the chilling effect it would have on the licensing of patents. Must a patent holder undertake extensive testing – including clinical trials – before it can license a patent? How can a patent holder, or anyone for that matter, test whether a medical device might fail after 29 years?
Massachusetts and New York have always had a funny relationship. That is true in all sorts of areas, including historical and cultural. It is possible that Thoreau did not quite get Whitman’s poetry, or got only parts of it (certainly not the sexy bits). Such a misreading might have been unfortunate. But at least it didn’t actually hurt anybody. (Well, maybe it hurt Whitman’s feelings. Come to think of it, we could see a Massachusetts court making that actionable, too.)