Today’s case got us thinking about all of the consumer products available that require the purchaser to add water to turn the purchased product into its usable or desired form.   Start with Jell-O.  You add hot and cold water to turn powder in a wiggly, jiggly, sweet snack.  There’s always room for Jell-O.  Or, how about all of the powdered drink mixes that have been around since the 1930s:   Kool AidTangCrystal Light.  And, what about the always popular sea monkeys (enjoy these vintage commercial clips).  Well, if plaintiffs in Thornton v. Davita Healthcare Partners, Inc., 2014 U.S. Dist. LEXIS 50975 (D. Col. Apr. 9, 2014) had prevailed on their products liability claims, the next time you stirred up a batch of Country Maid lemonade, you might  have had to consider yourself a manufacturer. 

 Boiled down to its core, that in fact was plaintiff’s claim. But, we don’t make light of the alleged injuries and serious harm that these plaintiffs suffered.  This group of consolidated plaintiffs all underwent hemodialysis at Davita clinics and as part of the process all were treated with dialysate (a prescription-only medical product that maintains the proper balance of acids and bases in a patient’s blood) manufactured by a company called Fresenius.  Id.  at *3-4.  Plaintiffs suffered severe injuries, including for some death, allegedly as a result of improper blood pH. 

The same plaintiffs filed a separate suit in a different jurisdiction against the manufacturer of the dialysate.  We haven’t seen that complaint and know nothing about that case.  What we do have is a general belief that if these plaintiffs want to file products liability claims, they in fact need to be brought against the manufacturer of the product plaintiffs allege injured them and not the clinic that administered the product to them.

 In addition to negligence and consumer protection claims, which the court found survived defendant's motion to dismiss, plaintiffs brought strict products liability and breach of express and implied warranty claims against the clinic.  While hospital liability isn’t a main focus of the DDL blog, we have posted on it before, mainly to help our clients in cases where hospitals are co-defendants.  And, as our 50-state survey found, the overwhelming weight of authority is that a hospital cannot be strictly liable for claimed defects in drugs and medical devices that are used in medical procedures within its walls.  For the most part, plaintiffs attempting to bring such claims allege that the hospital is strictly liable as a distributor or intermediate seller.  But in Thornton, plaintiffs argued that the clinic was actually the manufacturer:

Acknowledging that Fresenius manufactures [dialysate], plaintiffs nonetheless insist that Davita is also a manufacturer because it adds water to the powdered compounds sold by Fresenius and thereby “manufactures” the solution that Davita ultimately uses in its dialysis treatments.

Id. at *10.  We aren't in favor of any arguments looking to expand the definition of manufacturer.  Fortunately, this one never got off the ground. 

Certainly the precision, sterilization, and we're sure other procedures that go into mixing dialysate don’t equate to mixing up a pitcher of Tang in your kitchen.  But it’s not a preposterous analogy and it supports the court’s conclusion that plaintiffs’ theory “stretches the commonsense and legal definitions of manufacturer too far.”  Id.      

The court’s analysis starts off with citations to the lead cases in ten states (plaintiffs’ home states plus Colorado) supporting that strict liability and breach of implied warranty claims are not available against healthcare providers.  Id. at *11- 14.  In response to that overwhelming body of law, plaintiffs attempted to fit the clinic under each state’s definition of manufacturer.  The court disagreed:

Davita is not a manufacturer of solutions for hemodialysis.  Doctors prescribe hemodialysis, and Davita administers the treatment.  The only action that Davita takes that could possibly be construed as “manufacturing” is the addition of water to achieve the correct concentration of hemodialysis solution. Plaintiffs are free to allege that Davita acted negligently in its creation of the solution or monitoring of patient blood pH, but they cannot pretend that by adding water to a product manufactured by someone else (a step that is necessary to use the product for its intended purpose) Davita thereby became a manufacturer of the product or that Davita should be held strictly liable for defects in that product.

Id. at *15-16.    In addition to plaintiffs’ lack of case law to support their position, they also offered no facts to suggest that by adding water to the dialysate powder, a new product was created or that the product was “chemically altered” in a way that allegedly caused plaintiffs’ injuries.  Id. at *16.  If they had would that have made a difference?  We don't think so, but since they didn't go there, neither will we.  The bottom line for this case --re-hydrating a powder is simply part of the process of administering it and the clinic’s role was that of a healthcare provider – nothing more.

So, enjoy your Jell-O and Kool Aid with the further benefit of knowing that by adding water you remain simply a consumer of a sugary treat (or just recall them fondly from your childhood, the taste might not be one that carries forward to adulthood).