Kansas has given us many great people and institutions. We Philadelphians are particularly grateful for Darren Daulton, the late, great Phillies catcher. We have also enjoyed the work of Charlie Parker, Buster Keaton, and, of course, Dorothy Gale. Further, the Kansas college basketball team is perennially very good. (But that was a tough loss last Sunday to St. John’s. And someone surprised us with the fact that Bill Self’s team has not made it through the first weekend of the NCAA tournament in four years. Yikes.) We especially esteem Kansas because it has not shown up on any Hellhole list that we have seen. Its courts are almost always sane. 

Minshew v. Krumme, 2026 WL 759033 (D. Kansas March 18, 2026), is a purported class action alleging non-sterile conditions in Kansas and Missouri operating rooms. The plaintiffs sued a series of doctors and medical institutions, alleging that the defendants performed surgeries with unsterile tools and thereby caused the plaintiffs to sustain infections. The complaint contained causes of action for negligence, negligence per se, breach of fiduciary duty, breach of express contract, breach of implied contract, unjust enrichment, violation of the Kansas Consumer Protection Act, medical malpractice, and fraud.  The plaintiffs filed the case in state court, but the defendants removed it to federal court. The defendants then filed motions to dismiss. Most of the causes of action were dismissed.  

Why should you care? 

One part of the decision is relevant to product liability claims.  That is the dismissal of the negligence per se claim under Kansas law.  In Kansas, as in many other states, negligence per se is limited “to violations of a statute for which the legislature intended to create a private cause of action.”  The cite is to the Brooks favorable Tenth Circuit FDA medical device preemption decision.  The FDCA was not at issue here, but analogous federal and Kansas regulations were.  The plaintiffs claimed that defendants violated federal Medicare regulations and state hospital licensing regulations.  

Kansas courts deploy a two-part test to determine whether a private right of action is created: (1) the party must show that the statute was designed to protect a specific group of people rather than protect the general public; and (2) the court must review legislative history to see whether a private right of action was intended. (Justice Scalia would have frowned at the last bit.)

The problem for the plaintiff in Minshew is that none of the regulations or underlying laws at issue reflected any intent to provide a private cause of action.  Because enacting bodies (Congress for Medicare and the Kansas legislature for the enabling statute for the state regs) did not intend a private right of action, the negligence per se claims failed.  The state statute had been amended several times and the legislature had never included any private action.  Moreover, Kansas appellate courts generally will not infer a private right of action where a statute provides criminal penalties but does not mention civil liability. That was the situation here. 

The federal Medicare regulations at issue did not confer any private right of action. The plaintiff could not evade that obstacle by relying on the Medicare as Secondary Payor (MSP) statute. First, the MSP facially did not apply to the allegations of the complaint. Second, the MSP shows that Congress knew how to create a private action had it so desired — and it did not do so for the statutes that supposedly supported the plaintiff’s claims here. 

This result fits into one of the “defenses to negligence per se” that Bexis blogged about way back in 2007. Plaintiffs in prescription medical product liability litigation frequently claim negligence per se as to purported FDCA violations.  Fight back. With Minshew and other cases, we defense hacks have plenty of ammunition. 

The plaintiffs tried to save the negligence per se claim by pointing to Missouri regulations, as well as the Kansas regulations. But Kansas choice of law principles do not allow depecage (the application of the law of different states to different issues within the same claim), so the effort to drive the case over the state line did not work. 

The rest of the opinion is not especially blogworthy because the dismissals, or non-dismissals, are mostly related to medical malpractice peculiarities. The court did clean things up considerably (appropriate when cleanliness was the main issue) by holding that the plaintiffs’ “negligence and medical-malpractice claims subsume their claims for fraud, breach of implied and express contract, unjust enrichment, and breach of fiduciary duty.”