Palermo v. LifeLink Foundation, Inc.
152 So. 3d 1177
Miss. Ct. App.2014Background
- Richard Palermo received a tibialis tendon allograft from LifeLink for ACL/meniscus surgery; postoperative knee infection led to removal of the allograft and recovery.
- LifeLink procured, processed, tested, frozen, and shipped the tissue in compliance with FDA/AATB standards; subsequent testing of the removed graft showed no bacteria.
- The Palermos sued LifeLink (among others) asserting strict products liability, products-liability negligence, and breach of warranty; other defendants were dismissed and LifeLink moved for summary judgment.
- Trial court granted LifeLink summary judgment, holding Mississippi’s public-health statute (Miss. Code § 41-41-1) treats human tissue transfers as services, excluding them from strict products-liability treatment under the Mississippi Products Liability Act (MPLA).
- The court also excluded the Palermos’ late-designated expert (Dr. Kainer) for violating the discovery schedule and found the Palermos failed to create a genuine issue on negligence (duty/breach/causation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether donated human tissue is a “product” under the MPLA (strict products liability) | Tissue is not expressly excluded from MPLA; therefore strict liability applies | Miss. Code § 41-41-1 treats human tissue transfers as services, not sales; public policy and authorities exclude tissue from product classification | Human tissue (allograft) is not a “product” for MPLA purposes; strict products liability does not apply |
| Whether Palermos’ products-liability negligence claim survives given (1) above | Products-liability negligence is viable if tissue is treated as a product | If tissue is not a product, products-liability negligence fails | Products-liability negligence claim fails because tissue is not a product |
| Whether factual record creates genuine issue on simple negligence (duty/breach/causation) | LifeLink breached standards in procurement/processing causing infection | LifeLink complied with FDA/AATB standards; Palermos offered no expert showing breach | No genuine issue of material fact; summary judgment proper on negligence due to lack of evidence of breach/causation |
| Whether trial court abused discretion by excluding late expert (Dr. Kainer) and denying Palermos’ court-reporter request | Exclusion was improper; they needed rebuttal expert; entitled to hire reporter under statute | Designation was untimely without reasonable excuse; court had discretion to exclude; transcription not mandatory and court could dispense with oral argument | Court did not abuse discretion: Dr. Kainer excluded for untimeliness; denial of separate court reporter not reversible error |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard governs when no genuine issue exists)
- Lewallen v. Slawson, 822 So.2d 236 (Miss. 2002) (de novo review of summary judgment)
- Condos v. Musculoskeletal Transplant Found., 208 F. Supp. 2d 1226 (D. Utah 2002) (donated human tissue not a product for strict liability)
- CryoLife, Inc. v. Superior Court, 110 Cal. App. 4th 1145 (Cal. Ct. App. 2003) (human tendon allograft not a product under CA statute)
- Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399 (donated human tissue not subject to products-liability rules)
- Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1087 (Miss. 2003) (trial courts have discretion to enforce scheduling orders and manage discovery)