Isn’t it strange how, once you focus on a particular topic or item, you start espying it everywhere? If you are in the market for an SUV, for example, they start showing up at every intersection, parking lot, and billboard. Lately, we keep bumping up against body parts. Bear with us; this is not a descent into ghoulishness. Well, maybe it is, a little. Advertisements for I, Frankenstein have taken over our television. The weekend Wall Street Journal had an article co-authored by Nobel prize winner Gary Becker advocating creation of a market for sale of transplant organs.
And then there’s the case of Palermo v. LifeLink Foundation, 2014 WL 114531 (Mississippi Ct. of Appeals January 14, 2014). The plaintiff sued LifeLink Foundation for strict products liability, products-liability negligence, and breach of warranty, alleging that LifeLink supplied a contaminated infected allograft (body part/tissue) for his surgery.
The facts sound pretty favorable for the defendant. There was testimony that prior to shipment of the allograft there were no findings of sepsis or medical infection in the medical history or autopsy of the allograft donor. After the allograft was removed from the plaintiff’s knee, it was tested and no bacteria was present. LifeLink, as a tissue bank, was required to follow certain guidelines with regard to testing, packaging, and distributing human tissue set by the FDA and the American Association of Tissue Banks (AATB). In packaging the allograft for shipment, LifeLink followed the AATB’s standards for tissue banking, which require processed frozen or cryopreserved muscular-skeletal tissue to be stored at negative 40 degrees Celsius or colder. The record showed that the allograft was shipped on dry ice and stored at the required temperature during delivery. There was no evidence or expert testimony to show that LifeLink did not comply with the requirements issued by the FDA and AATB.
The more fundamental issue was whether body parts could be the subject of a product liability suit under Mississippi law. The trial court said no, granted summary judgment for the defendant, and the Court of Appeals affirmed. The reasoning was rigorous and inescapable. Mississippi law specifically provides protection for those persons or entities who use “human tissue” for medical purposes. The Mississippi court reviewed case law from all over the country and saw “a nationwide antipathy over applying products-liability or strict-liability concepts to body parts such as blood and tissue.” Finally, the court looked to the Restatement (Third) of Torts, section 19, which provides that “human blood and human tissue[,] even when provided commercially, are not subject to the rules of this Restatement.” Accordingly, the court concluded that, “like blood made available for transfer to others, human tissue provided to others in medical procedures is not a ‘product’ subject to products-liability law, and the distribution of human tissue, including reasonable payments for related services, does not constitute a ‘sale’ for purposes of strict liability.”
We conducted some research after reading the Palermo case, but somehow we ended up on websites summarizing movies about body part transplants. Type “body parts movie” into your browser and, whaddya know, you learn that there was a horror film in 1991 called Body Parts, in which a criminal psychologist loses his arm in a car crash and has his limb replaced with one belonging to an executed serial killer. You’ll never guess what happens. Or maybe you will. The film was based on a story titled “Choice Cuts.” Paramount pulled ads for Body Parts from the Milwaukee market after the police found out what was going on in Jeffrey Dahmer’s apartment. You might not remember Body Parts, because it didn’t fare too well with viewers or critics. Variety lamented that the film “literally goes to pieces in the last third, until the brain seems the most salient part missing.” The Baltimore Sun didn’t like it much either, while acknowledging that it was “the best film for barbecue lovers since The Texas Chainsaw Massacre.” It turns out that there is a long history of films about transplants gone awry. The original Frankenstein is the seminal example. And recall how in Young Frankenstein, the donor was “Abby Normal.” There’s an episode in The Simpsons “Treehouse of Horror XXIV” where Bart’s head is grafted onto Lisa’s body.
We were glad to see Bruce Dern get a Best Actor nomination for Nebraska. Dern has always been a fine actor, but for many years he was pegged as a player of malevolent misfits. (Arguably, that applies to his role as Tom Buchanan in the 1974 version of The Great Gatsby.) Dern played a mad scientist in The Incredible 2-Headed Transplant. (Pat Priest, who played Marilyn in TV’s The Munsters, was also in the cast.) A maniacal killer’s head is added to the body of an imbecilic caretaker. As the movie poster tells us, “This brain wants to love/This brain wants to kill!”
Here we go making your day a whole lot better by telling you about The Thing with Two Heads. This movie actually made it into theaters in 1972, though you’ll hardly believe it. The plot is simple, with all the pathos and inevitability of Madame Bovary or Billy Budd: a dying racist, played by screen legend Ray Milland, demands that his head be transplanted onto a healthy body. The only available body is of a black death row inmate slated for execution. The inmate is played by Rosey Grier, who had an amazing career as a defensive lineman on the Los Angeles Rams Fearsome Foursome, and an amazing (though in a different way) career as a thespian. Grier also served as a bodyguard for RFK’s entourage in 1968, and ended up wrestling the pistol away from Sirhan Sirhan. Later, Grier became a big advocate for macrame and needlepoint. Interesting life. But back to the movie. Milland’s head is affixed to Grier’s body. Grier then escapes before his own head gets lopped off, and the two-headed creature (constantly engaging in a not-so-high-minded racial dialogue) flees law enforcement. The two-headed escapee motorcycles away from a 14 car police convoy. Sounds thrilling, doesn’t it? The publicity campaign cautioned against the possibility of “apoplectic strokes, cerebral hemorrhages, cardiac seizures or fainting spells.” We’d call that an adequate warning, except maybe for the failure to alert us that watching the movie would permanently delete 20 points from our IQ. In case you suspect we’re making this up, here’s the trailer for The Thing with Two Heads.
In our version of the body parts story, a bitter plaintiff lawyer receives a transplant from some smart, good-hearted person – maybe a science teacher, nun, or member of DRI. The medical procedure works. A life is saved. But after a couple of weeks, something strange happens. Every time the plaintiff lawyer authors a nastygram about ediscovery, his hand refuses to hit the Send button. When he is about to ask an abusive, unfair question at a deposition, his mouth clamps shut. It eventually opens, but only true, nice things emerge, like the words of comment K or the poetry of Emily Dickinson. In one scene, the lawyer tries to board his private plane for the short hop to Edwardsville, Illinois. His legs cannot make it up the stairs. He ends up staying home, bakes a Bundt cake, and binge-watches Grey’s Anatomy.
We’re not sure exactly what body part gets transplanted in our story, but the effect is plain: the addition of a conscience.