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In re New England Compounding Pharmacy, Inc. Products Liability Litigation

United States District Court, D. Massachusetts

April 24, 2017




         Plaintiffs' 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.[2] Docket # 3249.

         I. Legal Standard

         "[A] 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).

         II. Discussion

         The PSC 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.

         A. Comparative Fault Doctrine Under Tennessee Law

         I begin 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 immune non-parties).

         In 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 (Tenn. 2000).

         The 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.

         B. Public Duty Doctrine

         The PSC 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 ...

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