It is a pity that the case discussed in today’s post did not come out around Halloween.  That is not to say that there is anything ghoulish about the invaluable service (keep that word “service” in mind) of making blood and body tissues available to patients in need.  We are more likely to perceive certain tactics of predatory plaintiff lawyers as ghoulish.  We are not saying that our opponents often resemble vampires or werewolves.  No.  We are not saying that.  Not out loud.

It has been a while since we have seen a case about a blood shield law – that is, a state law that immunizes providers of blood (and other body tissues) from strict liability.  In Palermo v. Lifelink Foundation, Inc., 2014 WL 6480524 (Mississippi Nov. 20, 2014), the Mississippi Supreme Court for the first time addressed the interplay between the state’s blood shield law and the strict liability provisions in the Mississippi Products Liability Act (MPLA).  The plaintiff alleged that he was injured by infected tissue surgically placed into this knee.  He argued that the strict liability and breach of warranty provisions of the MPLA trumped the blood shield law.  He lost.

The Mississippi Supreme Court’s opinion is extensive, but the reasoning is straightforward.  First, we are treated to a little history.  In May of 1966, the Mississippi Legislature passed the blood banking statute.   Here is the meat of it:

“[t]he procurement, processing, storage, distribution and or/use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing, transplanting the same or any of them into the human body for all purposes whatsoever is  the rendering of a service by every person participating therein, … and does not constitute a sale.”

Continue Reading There Will be Blood (Shield Laws)