Richard (Rickey) Palermo v. LifeLink Foundation, Inc.
152 So. 3d 1099
Miss.2014Background
- In 2005 Richard Palermo received a tibialis allograft from LifeLink during ACL/meniscus surgery and later developed a post‑operative infection; the graft later tested negative for bacteria.
- Palermo sued LifeLink (among others) alleging strict products liability, negligence, and breach of warranty under the Mississippi Products Liability Act (MPLA), Miss. Code § 11‑1‑63.
- LifeLink moved for summary judgment arguing it is a service provider under Miss. Code § 41‑41‑1 (the "blood/tissue shield" statute) and therefore not subject to the MPLA.
- The trial court granted summary judgment for LifeLink; the Court of Appeals affirmed, holding human tissue distribution is not a "sale" and is excluded from products‑liability law.
- The Mississippi Supreme Court granted certiorari limited to whether the MPLA applies to human tissue in light of § 41‑41‑1 and affirmed the lower courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MPLA (strict products liability) applies to human tissue/allografts | Palermo: MPLA applies; § 41‑41‑1 does not bar products‑liability claims for contaminated human tissue | LifeLink: § 41‑41‑1 defines procurement/processing/distribution/use of human tissue as a "service" and not a "sale," so MPLA (which covers "manufacturers"/"sellers") does not apply | Held: MPLA does not apply to human tissue providers statutorily defined as service providers under § 41‑41‑1; summary judgment affirmed |
| Whether § 41‑41‑1 should be read as an exception to § 11‑1‑63 or vice versa | Palermo: MPLA controls; § 41‑41‑1 irrelevant to products liability scheme | LifeLink: Historical context and statutory language ("for all purposes whatsoever") show legislature intended to treat blood/tissue as services, exempting them from products liability | Held: § 41‑41‑1 predates and excludes persons covered from strict products liability; MPLA’s terms (manufacturer/seller) do not reach service providers |
| Whether there were genuine factual disputes (contamination/causation) precluding summary judgment | Palermo: Disputed facts about whether the allograft was contaminated and whether LifeLink’s conduct caused infection | LifeLink: Even accepting factual disputes, it is not subject to MPLA; negligence claim also failed on elements | Held: On MPLA claim, no need to reach factual disputes because statute removes claim; trial court also correctly found negligence/causation not proven for summary judgment |
Key Cases Cited
- State Stove Mfg. Co. v. Hodges, 189 So. 2d 113 (Miss. 1966) (adopted strict products‑liability principles and tied strict liability to the existence of a sale)
- Lawson v. Honeywell Intern., Inc., 75 So. 3d 1024 (Miss. 2011) (statutory interpretation principles; definition of "manufacturer" for products‑liability purposes)
- Seymour v. Brunswick Corp., 655 So. 2d 892 (Miss. 1995) (de novo review standard for summary judgment)
- Huff v. Shopsmith, Inc., 786 So. 2d 383 (Miss. 2001) (common law remains influential in products‑liability statutory scheme)
- Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006) (statutory products‑liability scheme reflects common law tenor)
- Scordino v. Hopeman Bros., Inc., 662 So. 2d 640 (Miss. 1995) (definition of "manufacturer" in Mississippi products‑liability context)