United States District Court, D. Massachusetts
ORDER ON DEFENDANT SCHEPENS EYE RESEARCH
INSTITUTE'S MOTION TO DISMISS (DOC. NO. 19)
Sorokin United States District Judge.
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
seeks dismissal, contending Daley has no plausible legal
claim against it arising from the events described in her
amended complaint. 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.
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.
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. 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.
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).
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). Claim I, therefore, is not subject to
strict liability and failure to warn claims against SERI rely
on a theory of concerted action between SERI and
Mira. 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. 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
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
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).
 Mira has answered the complaint and is
now participating with Daley in mediation of her claims
against it. ...