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Daley v. Mira, Inc.

United States District Court, D. Massachusetts

February 8, 2019

NANCY DALEY, Plaintiff,


          Leo T. Sorokin United States District Judge.

         Nancy Daley has sued Mira, Inc. (“Mira”) and the Schepens Eye Research Institute, Inc. (“SERI”) for negligence and other claims arising from injuries she alleges resulted from a defective surgical implant. SERI designed and patented the implant, then licensed it to Mira to manufacture and market under the name MIRAgel. In 1986, Daley had surgery in New York to treat retinal detachment in her left eye; her physician implanted MIRAgel during the procedure. Daley alleges she began experiencing problems in 2015, requiring multiple surgeries and culminating in near-total loss of vision in her left eye. All of this, she claims, was caused by the untested long-term effects of MIRAgel.

         SERI seeks dismissal, contending Daley has no plausible legal claim against it arising from the events described in her amended complaint.[1] The parties agree that New York tort law governs Daley's claims, but that Massachusetts law governs interpretation of a license agreement between SERI and Mira. Doc. No. 33 at 2; Doc. No. 43 at 1; accord Doc. No. 20-2 at 21.[2]

         Daley concedes that her breach of warranty claim (Count IV) is time-barred, Doc. No. 48 at 16, that her punitive damages claim (Count V) is directed only at Mira, Doc. No. 54, and that her claim under Chapter 93A of the Massachusetts General Laws (Count VI) is eliminated by the application of New York substantive law, Doc. No. 33 at 2 n.1. Thus, SERI's motion to dismiss is ALLOWED as to these three claims.

         The amended complaint contains three other tort claims: negligent pre-market testing (Count I), strict products liability (Count II), and post-sale failure to warn (Count III). The Court applies the familiar standard in evaluating the sufficiency of the allegations underlying these claims.[3] See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (describing plausibility standard applicable to motions to dismiss under Fed.R.Civ.P. 12(b)(6)); Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (explaining complaint “must provide fair notice to the defendants and state a facially plausible legal claim”). SERI's challenge to Daley's tort claims turns on its belief that only Mira, the manufacturer of MIRAgel, owed Daley a duty for purposes of tort liability, and that New York law does not extend such liability to SERI. This view is not necessarily correct.

         In various circumstances, New York's highest court has determined that a defendant can owe a duty of care to a third party-even without a contractual or other direct relationship between the defendant and the third party-and, thus, may be liable to the third party for injuries resulting from a breach of that duty. E.g., Davis v. S. Nassau Cmtys. Hosp., 46 N.E.3d 614 (N.Y. 2015) (concluding hospital and doctors administering medication that could impair patient's ability to drive safely owe duty to third parties to warn patient of danger); Espinal v. Melville Snow Contractors, Inc., 773 N.E.2d 485 (N.Y. 2002) (allowing that liability to third party may arise where defendant's conduct “launched a force or instrument of harm” that caused foreseeable injury); Palka v. Servicemaster Mgmt. Servs. Corp., 634 N.E.2d 189 (N.Y. 1994) (reversing dismissal of negligence claim by nurse against company that contracted with hospital to provide maintenance services, where company's negligence in performing its services placed nurse in unreasonably risky setting and led to her injury).[4]

         Here, Daley has pled sufficient facts that, if true, would justify finding that SERI had a duty to patients like Daley arising from its pre-sale testing of MIRAgel. E.g., Doc. No. 8 ¶¶ 22-25, 30-32, 60-63, 66 (alleging SERI researched, designed, and tested the implant before it was marketed; Mira's staff was not qualified to perform such testing and never performed any testing; and neither defendant conducted adequate testing designed to determine how long the implant would remain safe once placed in the eye).[5] Claim I, therefore, is not subject to dismissal.

         Daley's strict liability and failure to warn claims against SERI rely on a theory of concerted action between SERI and Mira.[6] Under New York law, such a theory is viable where the defendants have “an understanding, express or tacit, to participate in a common plan or design to commit a tortious act, ” Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989), so long as “each defendant charged with acting in concert . . . acted tortiously and . . . one of the defendants committed an act in pursuance of the agreement which constitutes a tort, ” Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992). Daley has plainly alleged facts plausibly invoking this theory of liability against SERI.[7] E.g., Doc. No. 8 ¶¶ 52-56 (alleging that SERI played an active role in designing Mira's manufacturing equipment, overseeing the manufacturing process, responding to reports of adverse events, crafting warnings and marketing materials, and identifying surgeons as potential users of the product). Because the amended complaint describes “more than parallel activity” by SERI and Mira, Rastelli, 591 N.E.2d at 222, Claims II and III survive SERI's motion.

         Accordingly, the motion to dismiss (Doc. No. 19) is ALLOWED as to Counts IV, V, and VI insofar as they are directed at SERI, and is otherwise DENIED.

         The parties have agreed that no pretrial scheduling conference is necessary. Within thirty days of this Order, the parties shall confer and submit a joint scheduling proposal to govern pretrial proceedings in this case, including a discovery plan as required by Fed.R.Civ.P. 26(f), a briefing schedule for dispositive motions, and any other matters to be included in a scheduling order pursuant to Fed.R.Civ.P. 16(b)(3).

         SO ORDERED.



[1] Mira has answered the complaint and is now participating with Daley in mediation of her claims against it. ...

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