Palermo v. LifeLink Foundation, Inc.
2014 WL 114531, 152 So. 3d 1177, 2014 Miss. App. LEXIS 14 (2014)
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Rule of Law:
Under Mississippi law, the provision of human tissue for medical transplantation constitutes the rendering of a service, not the sale of a product. Therefore, suppliers of human tissue are shielded from strict products liability and product-liability negligence claims by the state's "blood shield" statute.
Facts:
- On March 2, 2005, Richard Palermo injured his right knee, and his doctor, Gene Barrett, recommended surgery using a human tissue allograft.
- On March 22, 2005, LifeLink Foundation, Inc., a nonprofit tissue bank, filled an order for a tibialis tendon allograft.
- Prior to shipment, the allograft was tested, and there were no findings of sepsis or medical infection in the donor's history.
- LifeLink shipped the allograft to a distributor, Nutech Medical Inc., which then shipped it to the surgery center.
- On April 5, 2005, Dr. Barrett performed surgery on Richard Palermo using the allograft.
- Following the surgery, Palermo's knee exhibited signs of infection.
- On May 11, 2005, Dr. Barrett removed the allograft from Palermo's knee, and the infection subsided.
- Subsequent testing of the removed allograft showed that no bacteria was present.
Procedural Posture:
- Richard and Shelia Palermo filed a complaint in the Hinds County Circuit Court (trial court) against LifeLink and other defendants, alleging strict products liability, negligence, and breach of warranty.
- After other defendants were dismissed, the Palermos filed an amended complaint against LifeLink.
- LifeLink filed a motion for summary judgment, arguing that the Palermos' claims were barred by Mississippi's public health statute.
- The trial court granted LifeLink's motion for summary judgment, holding that the statute classified the provision of tissue as a service, not a sale of a product.
- The Palermos (appellants) appealed the trial court's decision to the Mississippi Court of Appeals, with LifeLink as the appellee.
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Issue:
Does Mississippi's public health statute, which defines the provision of human tissue as a service rather than a sale, bar claims for strict products liability and product-liability negligence against a tissue bank that supplied an allograft?
Opinions:
Majority - Fair, J.
Yes. Mississippi's public health statute bars claims for strict products liability against a tissue bank because it explicitly defines the provision of human tissue as a service, not a sale. The court reasoned that Mississippi Code Section 41-41-1, a "blood shield" statute, unambiguously states that the 'procurement, processing, storage, distribution and/or use of... human tissue... constitutes the rendering of a service... and does not constitute a sale.' Because the Mississippi Products Liability Act applies only to the sale of products, it does not apply to the provision of human tissue. The court noted this was a case of first impression in Mississippi but found that this interpretation aligns with the overwhelming majority of other states and the Restatement (Third) of Torts, which reflect a strong public policy to protect the availability of life-saving tissue by shielding providers from strict liability. The court also held that the simple negligence claim failed because the Palermos produced no evidence that LifeLink breached any duty of care in its handling of the allograft.
Analysis:
This case is significant as a matter of first impression in Mississippi, officially extending the protections of the state's "blood shield" statute to suppliers of human tissue, not just blood products. The decision aligns Mississippi with the strong majority of jurisdictions that legally classify the provision of human tissue as a medical service to avoid the application of strict products liability. This ruling reinforces the public policy of encouraging tissue and organ donation by insulating providers from litigation that could make such services prohibitively expensive or unavailable. Consequently, future plaintiffs in Mississippi will be unable to bring strict liability claims against tissue banks and must meet the higher burden of proving simple negligence.
