Adding to the growing favorable precedent concerning state human tissue shield statutes is Heitman v. Aziyo Biologics, Inc., 2024 WL 4019318 (N.D. Fla.  Jul. 22, 2024).    

The plaintiff alleged that he was infected with tuberculosis from an unfortunately contaminated human tissue allograft that was implanted in his spine during surgery. The plaintiff alleged that he has experienced serious side effects from that infection. He and his wife filed a complaint against the defendants. The complaint included causes of action for strict products liability and breach of the implied warranty.  Id. at *1.   

The defendants moved for partial summary judgment. The central legal issue was whether Florida’s human tissue shield statute barred the strict liability and warranty claims.  The statute provides that:

the procurement, processing, testing, storage, or providing of human tissue and organs for human transplant . . . is the rendering of a service; and such service does not constitute the sale of goods or products to which implied warranties of merchantability or fitness for a particular purpose are applicable.  No implied warranties exist as to defects which cannot be detected, removed, or prevented by reasonable use of available scientific procedures or techniques. 

Fla. Statute § 672.316(6).  Florida’s blood shield statute contains similar language which has been interpreted by Florida’s Supreme Court to bar both strict liability and breach of implied warranty claims.  Id. at *2.

Plaintiffs only opposed dismissal of their implied warranty claims arguing that the human tissue shield statute precludes warranty claims only for defects that cannot be scientifically detected which is not the case for tuberculosis.  Id. at *2.  No Florida court has yet to interpret the human tissue shield statute, much less address the narrow issue of whether it bars implied warranty claims for “detectable defects.”  Therefore, applying the Erie doctrine, the court could make an “educated guess” on how the Florida Supreme Court would rule, but could not “create or modify” state law.  Id. at *3.  Therefore, “without something more on this issue of first impression,” the court was not willing to put “its own gloss on” the statute.  Id.

Applying the plain language of the statute, the court dismissed all strict liability, express warranty, and implied warranty claims.  The court also noted that it did not have authority to certify a question to the Florida Supreme Court, but that perhaps on appeal the Ninth Circuit would. Id. at n.5.           

Stay tuned for more favorable rulings in this case.