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If you are even a casual reader of this blog, you have probably come upon a post disparaging the rulings coming out of the In re BHR Hip Implant Products Liability Litigation.  That court’s PMA preemption opinion made our worst decision list for 2018.  It rendered an abysmal decision finding that failure-to-report claims are not preempted.  And the nicest thing we had to say about its Daubert rulings earlier this year was … meh.  But we finally have some good news to report.

In the individual case of Mosca v. Smith & Nephew, Inc. (In re BHR), 2021 U.S. Dist. LEXIS 208131 (D. Md. Oct. 27, 2021), defendant moved for summary judgment on plaintiff’s negligence per se claim.  Under Maryland law, for a statute to serve as the basis for negligence per se, it must be “designed to protect a specific class of persons.”  Id. Maryland courts have specifically ruled that a statute that protects the public as a whole cannot support a negligence claim.  Id. at *39.

Plaintiff based her negligence per se claim on alleged violations of Maryland’s “Little FDCA.”  Id. at *38.  That’s what we call state enacted versions of the federal Food, Drug, and Cosmetic Act.  So, the question before the court, and a matter of first impression, was whether Maryland’s “Little FDCA” was created to protect a specific class or whether it was designed to protect the public at large.  The MDL court looked to a decision by the Maryland Court of Appeals which rejected the federal FDCA as a basis for a negligence claim because “it served to protect the public in general.”  Id.  Because Maryland’s “Little FDCA” was analogous to the federal version, the MDL court ruled its purpose was likewise to protect the public at large.  Therefore, it could not be the basis for a negligence per se claim.

In reaching its decision, the MDL court noted that because the issue had not yet been addressed by Maryland, its obligation as a federal court with diversity jurisdiction was not to “declar[e] a new duty” under state law, a task “better suited” to the Maryland courts or legislature.  Id. at *40n.3.  This caught our attention since it was only five months ago that the same judge in the same MDL blatantly created a “new duty” where one had not previously existed under state law – a failure-to-report claim (post on that decision linked above).  But we’ll take a win, and a little Erie doctrine, where we can get it.