United States District Court, D. Massachusetts
IN RE NEW ENGLAND COMPOUNDING PHARMACY, INC. PRODUCTS LIABILITY LITIGATION THIS ORDER APPLIES TO ALL CASES AGAINST THE SPECIALTY SURGERY DEFENDANTS
MEMORANDUM OF DECISION AND ORDER
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
Steering Committee ("PSC") moves for judgment on
the pleadings regarding the Specialty Surgery Center
("SSC") Defendants' and Calisher and
Associates' (collectively, "Defendants")
affirmative defense of comparative fault to the extent they
attribute fault to certain non-party governmental
entities. Docket # 3249.
court may enter judgment on the pleadings only if the
uncontested and properly considered facts conclusively
establish the movant's entitlement to a favorable
judgment." Aponte-Torres v. Univ. of Puerto
Rico, 445 F.3d 50, 54 (1st Cir. 2006). A Rule 12(c)
motion "implicates the pleadings as a whole, " id.
at 55, and thus, includes consideration of both
plaintiffs' complaint and defendants' answer. See
NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 8 (1st Cir.
2002). Here, because the PSC moves for judgment on the
pleadings regarding Defendants' affirmative defense,
"the parties agree that the source of the pertinent
facts is the [Defendants' answer]."
Aponte-Torres, 445 F.3d at 55; see also
Docket # 3250, at 6 ("[T]he Court need look no further
than the facts as alleged in the Defendants' respective
Answers to reach [the conclusion that Defendants'
comparative fault defenses attributing fault to certain
nonparty governmental entities fails as a matter of
law]."). For purposes of a motion for judgment on the
pleadings, "the court must view the facts contained in
the pleadings in the light most favorable to the nonmovant
and draw all reasonable inferences therefrom to the
nonmovant's behoof." R.G. Fin. Corp. v.
Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).
argues that under Tennessee's public duty doctrine
Defendants cannot establish a prima facie case of negligence
against those non-party governmental entities, and as a
result, they cannot establish comparative fault of the
non-party governmental entities. In response, Defendants
contend that Tennessee law allows for fault to be allocated
to immune non-parties even if they are immune from liability
under the public duty doctrine.
Comparative Fault Doctrine Under Tennessee Law
by reviewing the law of comparative fault under Tennessee
law. In Mclntyre v. Balentine, the Tennessee Supreme
Court "replace[d] the common law defense of contributory
negligence with a system of comparative fault." 833
S.W.2d 52, 53 (Tenn. 1992). In adopting this modified system
of comparative fault, the court explained that:
[F]airness and efficiency require that defendants called upon
to answer allegations in negligence be permitted to allege,
as an affirmative defense, that a nonparty caused or
contributed to the injury or damage for which recovery is
sought. In cases where such a defense is raised, the trial
court shall instruct the jury to assign this nonparty the
percentage of the total negligence for which he is
responsible. However, in order for a plaintiff to recover a
judgment against such additional person, the plaintiff must
have made a timely amendment to his complaint and caused
process to be served on such additional person.
Id. at 58. In Carroll v. Whitney, the
Tennessee Supreme Court interpreted this language and
explained that "[a] plaintiff's ability to bring a
cause of action was only important-to the extent that it
mattered at all [to the Mclntyre court's
analysis]-in determining whether the plaintiff could recover
damages, not whether a jury could apportion fault to a
nonparty." 29 S.W.3d 14, 17 (Tenn. 2000). Accordingly,
the court in Carroll held that in general, a
defendant may assert comparative fault against a nonparty who
is immune from suit. Id. at 19 (holding that lower
court did not err in allowing jury to apportion 100% fault to
order to assert this defense, however, Defendants are
"required to prove a prima facie case of negligence
against the nonparty [they] contend was negligent."
Free v. Carnesale, 110 F.3d 1227, 1231 (6th Cir.
1997). "To bring a successful negligence claim, [the
party asserting the claim] must establish each of the
following elements: (1) a duty of care owed by the
[non-party] to the plaintiff; (2) conduct by the [non-party]
falling below the applicable standard of care that amounts to
a breach of that duty; (3) an injury or loss; (4) causation
in fact; and (5) proximate, or legal, causation."
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89
central issue here is whether Defendants can meet the first
element to assert a negligence claim against the governmental
entities; namely, whether the governmental entities owed a
duty of care to plaintiffs.
Public Duty Doctrine
alleges that Defendants cannot assert comparative fault
against the non-party governmental entities because
Tennessee's public duty doctrine eliminates the required
element of a legal duty. "The public duty doctrine
'shields a public employee from suits for injuries that
are caused by the public employee's breach of a duty owed
to the public at large.'" Holt v. City of
Fayetteville, No. M2014-02573-COA-R3-CV, 2016 WL
1045537, at M (Tenn. Ct. App. 2016) (quoting Ezell v.
Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995)). Under
Defendants' interpretation of this doctrine, a duty still
exists-albeit a general one owed ...