Back in September we gave you the end of the year holiday season countdown. With Halloween behind us, we are down to Hanukkah (15 days away (Mensch on a Bench is already sold out for 2013)), Thanksgiving (16 days away) and Christmas (42 days to go).  If someone would make a scarecrow holding a turkey and wearing a Santa hat – it sure would save a lot of decorating time.  Especially since each of these holidays seems to start before the last one is over.  If you look around just about anywhere, you’re likely to wonder if you slept through November altogether.  Christmas music started playing in shopping malls across the country November 1st.  Pumpkins were packed away and replaced with stockings, candy corn was traded in for candy canes, and witches were shoved aside to make room for reindeer seemingly overnight.

But despite all the marketing hoopla, there is still one thing that toy stores and advertisers can’t control that really drives home the spirit of the holidays – the first snow of the season.  And for those of us in the Philadelphia, New Jersey, New York area, we got it today.  It wasn’t much.  It didn’t stick to the ground.  It was mostly over before rush hour was.  But it was snow nonetheless.  And a snow that doesn’t cause traffic jams and require shoveling is even better. So, for this area of the North East at least, we feel the holidays are truly upon us.  Let the bustling, the caroling, the baking, and the egg-nogging begin.

And while you ponder sugar plums, mulled cider, and crackling fires, we’ll update you on a recent federal decision that refused to recognize an expansion of state products liability law – Baird v. Bayer Healthcare Pharmaceuticals, Inc., 2013 U.S. Dist. LEXIS 156667 (Oct. 31, 2013).  Plaintiff alleged she sustained injuries as a result of her intrauterine device (“IUD”) and filed a complaint alleging thirteen causes of action:  negligence, strict liability (design defect, manufacturing defect, failure to warn, non-conformance with representations, and failure to adequately test), breach of express and implied warranties, fraudulent and negligent misrepresentation, fraudulent concealment, fraud and deceit, and punitive damages.  Id. at *2-3.  We call that throw-it-against-the-wall-and-see-if-something-sticks pleading.  Defendant filed a motion to dismiss the warranty, negligent misrepresentation, duty to test, and punitive damages claims.  Applying Kentucky law, the court granted defendant’s motion in its entirety and with prejudice.

The court dismissed the warranty claims because plaintiff failed to plead privity.  Id. at *7-8.  As for negligent misrepresentation, duty to test, and punitive damages – the court dismissed them because they aren’t recognized by Kentucky law.  The court tossed out the punitive claim because punitive damages are a remedy, not a separate cause of action.  Id. at *10.  But because punitive damages were alleged in the prayer for relief, the dismissal doesn’t have any substantive bearing on the case.

The other two dismissals however are significant and are grounded in the court’s adherence to the doctrine of Erie v. Tompkins that federal courts sitting in diversity jurisdiction should not usurp the function of state appellate courts and predict expansions of state tort law.  So, because “Kentucky courts have not spoken on this issue, [the Eastern District of Kentucky] will not read into Kentucky products liability law a failure-to-test claim.”  Id. at *6.  Like so many other courts, this one found failure to test subsumed under failure to warn.  Likewise, under Kentucky law, negligent misrepresentation claims are limited to “instances where a party is in the business of supplying false information for the guidance of others in their business transactions.”  Id. at *9.  The court found no Kentucky products liability negligent misrepresentation claims and noted that the Sixth Circuit has predicted that Kentucky would not adopt such a claim.  Therefore, allowing plaintiff Baird’s “negligent misrepresentation claim to proceed . . . would improperly expand the cause of action.”  Id. at *10.

Now, back to the holidays.  Have you heard that Robo Fish are this year’s Hexbugs?  (if you understand this, you are the parent of an elementary school child).