We know that any federal court analysis that starts with Although the state has not recognized the duty . . . is going to be followed by a “prediction” of state law that instead creates unprecedented liability according to the federal court’s personal predilections.  Which is precisely what the court did in CLF v. Coopersurgical, Inc., 2025 U.S. Dist. LEXIS 61420 (D. Ore. Mar. 31, 2025). 

We’ve posted many times that under the Erie doctrine, in the words of the Supreme Court:

[a] federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”

Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975).  Which is also the law of the Ninth Circuit, which includes Oregon. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir. 2002) (federal courts should not predict “potential changes” to state law).  But the CLF court did not feel so constrained in deciding that Oregon would recognize a claim for failure to recall despite the nationwide precedent rejecting such a theory of liability. 

CLF involves claims for the destruction of embryos allegedly due to a culture medium manufactured by defendant that did not contain sufficient levels of magnesium needed for the embryos to survive.  Defendant moved to dismiss on several grounds, nearly all of which were denied and since we aren’t really in the business of touting defense losses, we are not going to discuss each one.

But, creating a heretofore unrecognized claim for failure to recall is the type of bad decision that we can’t just let pass by.  As discussed in much more detail in this post, failure-to-recall theories are among the most widely debunked purported “torts” ever.  Even the Third Restatment of Torts rejected any purported common-law obligation either to recall a product in the absence of any governmental order, or for the anticipatory removal of products from the market earlier than any governmental recall required.  As have almost every court to rule on the issue. 

Despite acknowledging that Oregon has “not recognized a distinct duty to recall” for any product, nowhere does CLF mention Erie or the standards for predictions of state law.  Had it, and in the absence of lower court decisions, the district court likely could not have turned a blind eye to the Restatement or the vast majority of decisions going the opposite way.  Nor does its short discussion address that the product at issue is an FDA-regulated device—which is important because the FDA supervises recalls.  The lack of thoughtful analysis makes the expansion of state law even more egregious. 

Contrary to Erie’s caution against federal courts expanding state tort law, CLF bases its conclusion on nothing more than an unsupported assertion that failure to recall is “consistent with” “broader” state product liability law because “a product recall is a warning.”  CLF, 2025 U.S. Dist. LEXIS 61420, *19-20.  This too ignores that most courts have found failure to recall claims more akin to stop-selling claims, which is why they reject them.  In fact, in this case the product was recalled. So, plaintiff’s argument really isn’t that it should have been recalled, but that it should have been recalled earlier or essentially—never sold.  

As far being analogous to warnings, CLF rests its holding on failure to recall being similar to a failure-to-update warning claim.  Another contrived claim that emerged in generic drug litigation for the sole purpose of threading the eye of the needle between Mensing and Buckman preemption.  Hardly a solid basis on which to predict the expansion of state law to recognize a new basis for liability.

Sitting in diversity, federal courts must be cautious when making pronouncements about state law. It’s not enough that no court might have had occasion to reject a novel theory like failure to recall nonetheless being a basis for liability.  There must be state-law precedent somewhere affirmatively supporting a claim for a federal court to predict its adoption.  No such Oregon law exists, and CLF oversteps.