[Drug and Device Law] There Will be Blood (Shield Laws)
It is a pity that the case discussed in today’s post did not come out around Halloween. That is not to say that there is anything ghoulish about the invaluable service (keep that word "service" in mind) of making blood and body tissues available to patients in need. We are more likely to perceive certain tactics of predatory plaintiff lawyers as ghoulish. We are not saying that our opponents often resemble vampires or werewolves. No. We are not saying that. Not out loud.
It has been a while since we have seen a case about a blood shield law – that is, a state law that immunizes providers of blood (and other body tissues) from strict liability. In Palermo v. Lifelink Foundation, Inc., 2014 WL 6480524 (Mississippi Nov. 20, 2014), the Mississippi Supreme Court for the first time addressed the interplay between the state’s blood shield law and the strict liability provisions in the Mississippi Products Liability Act (MPLA). The plaintiff alleged that he was injured by infected tissue surgically placed into this knee. He argued that the strict liability and breach of warranty provisions of the MPLA trumped the blood shield law. He lost.
The Mississippi Supreme Court’s opinion is extensive, but the reasoning is straightforward. First, we are treated to a little history. In May of 1966, the Mississippi Legislature passed the blood banking statute. Here is the meat of it:
"[t]he procurement, processing, storage, distribution and or/use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing, transplanting the same or any of them into the human body for all purposes whatsoever is the rendering of a service by every person participating therein, … and does not constitute a sale."
That statute is similar to statutes in virtually all the states (the Mississippi Court identifies New Jersey and Vermont as the only outliers), and they are usually referred to as “blood shield” statutes. Most of those statutes specify that blood is a service and not a sale. Most also either specify that negligence is the only theory available, or specifically exclude both strict products liability and implied warranty theories. In 1987, the Mississippi Legislature amended its blood shield statute to include “human tissue, organs or bones.” That is why the blood shield statute applies to Mr. Palermo’s case.
But Mr. Palermo argued that the blood shield statute did not apply to his case, because in 1993 the Mississippi Legislature codified strict products liability and, in doing so, it provided for strict liability claims against a “manufacturer” or a “seller.” Apparently the theory was that the later statute overruled the earlier. But that argument makes no sense, and the Mississippi Supreme Court did not buy it. When the Legislature passed the MPLA, it did so with the knowledge that, “for all purposes whatsoever,” it had statutorily defined people involved in blood procurement, processing, storage, distribution, and/or use as a service provider, not a seller. Thus, not only was there no manifest intent to overrule the earlier, more specific statute, but there also was no contradiction between the statutes. Nothing in the MPLA indicates that the Legislature intended to redefine blood or tissue banks as sellers, and the plain language of the MPLA makes clear that it does not apply to mere service providers -- who are, again, not sellers.
Consequently, the plaintiff’s case was properly dismissed. His theories of strict liability and breach of warranty were legally precluded, and he had not made out a case of negligence.
The Mississippi Supreme Court's interpretation of the blood shield statute is consistent with what we've seen from other states. We know of no state that has interpreted its codification of product liability law (most such codifications postdate blood shield statutes) to trump, overrule, or eviscerate the protection provided by blood shield statutes.
And that makes sense. Blood shield statutes are a legislative recognition of the critical importance of the availability of blood and tissue, as well as a recognition that strict liability would destroy the supply. (It is a policy choice similar to what happened on the federal level with vaccines). But when have concerns about the supply of life saving products ever stopped vampires or ghouls?
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Posted By Steve McConnell to Drug and Device Law at 12/03/2014 02:30:00 PM --
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