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We write today with an update on a case applying the defense of illegality (or “in pari delicto”) to cut off product liability claims under Kansas law.  Messerli v. AW Distributing, Inc. is the sad case of someone who passed away, allegedly as a result of inhaling intoxicating fumes (or “huffing”) from computer dusters, those cans of compressed air you use to blow away dust.  As we wrote here, a federal district court in Kansas granted one defendant’s motion to dismiss on the basis that the decedent had engaged in illegal conduct, which supported a complete defense.  To summarize, Kansas’s illegality defense bars claims arising from a plaintiff’s illegal conduct, and huffing is a crime in Kansas under laws against “the unlawful abuse of toxic vapors.”

This was the first court to rule that Kansas’s illegality defense applies in a product liability case, so the plaintiff asked the federal court to certify questions to the Kansas Supreme Court.  The other defendants predictably filed “me too” motions seeking the same result for themselves. 

The court’s order on those motions is Messerli v. AW Distributing, Inc., No. 22-2305, 2023 U.S. Dist. LEXIS 188974 (D. Kan. Oct. 20, 2023), and the defense again came out on top.  First, the district court denied the plaintiff’s request to certify questions.  This is the most interesting part of the order because, after all, this was a federal court, and it was the first to apply Kansas law in this manner.  Heck, that was one of the major points of our last post and partly what made the case blogworthy in the first place.  Regular readers also know that we often bemoan federal courts who make unfounded Erie predictions of state law. 

This Erie prediction, however, was exceptionally well supported, and a certified question requires much more than what the plaintiff had to offer.  The issue of whether illegality bars product liability claims met the bare criteria for certification:  It was both (1) outcome determinative and (2) unprecedented in the Kansas appellate courts.  Even so, “[a] federal court needn’t certify ‘every time an arguably unsettled question of state law comes across [its] desk.’”  Id. at *10.  It is within a federal court’s discretion to make an Erie prediction, rather than certify, and that is what this court did.  It considered, for example, decisions from multiple other jurisdictions, as well as Kansas decisions recognizing the illegality defense generally.  The “weight and trend” of the authorities supported the court’s prediction, which the plaintiff only reinforced by citing dissenting opinions urging a different result.  Id. at *11-*13.  Plaintiffs were also unable to provide any signal that the Kansas courts considered the question at all unsettled.  Id. at *16. 

In the end, “[t]he questions at play here aren’t as novel and important as plaintiff would have the court believe.”  Id. at *17.  The district court also noted that requests to certify are particularly disfavored after the requesting party has received an adverse ruling.  Indeed, the plaintiff here was basically asking the federal court to submit its order to a state court for review.  That pathway typically runs through the United States Court of Appeals, not a state court.  And if the plaintiff really thinks the Kansas Supreme Court needs to weigh in here, it can renew its certification request on appeal.  Id. at *17-*20.  The plaintiff’s request for certification was too little, too late.

Second, the district court dismissed the claims against the other defendants.  The complaint did not distinguish between the various defendants.  To the contrary, the plaintiff alleged that all the defendants’ products were “identical in composition,” and it brought claims against the defendants indiscriminately.  The illegality defense therefore barred the claims against the other defendants, too. 

This order terminated all claims in the case, so we the suppose the next stop may be the Tenth Circuit, and maybe even another motion to certify questions.  We will keep you posted.