(AP Photo/The Boston Globe, Frank O’Brien) 

In a unanimous decision, a three-judge panel of the Massachusetts Appeals Court affirmed summary judgment against the estate of former Detroit Tigers’ pitcher, Mark Fidrych, in Pantazis v. Mack Trucks, Inc., Mass. App. Ct., No. 16-P-1497 (Nov. 27, 2017).  On appeal, the Court rejected the Estate’s argument that a component part manufacturer had a duty to warn end-users of foreseeable hazards and risks associated with a non-defective component part installed into a completed end product.

In April of 2009, approximately 30 years after throwing his last pitch in Major League Baseball, Fidrych’s lifeless body was found under a dump truck at his farm in Massachusetts. A witness had observed Fidrych working under the truck, and a medical examiner later determined the cause of death to be accidental asphyxiation.

Mack Trucks, Inc. (“Mack”) had manufactured an incomplete vehicle, consisting only of a chassis, cab, and engine. Fidrych purchased that incomplete vehicle and later converted it into a dump truck by installing a piece of equipment manufactured by a co-defendant. That second piece drew power from the vehicle’s power system to raise and lower the truck bed.

Ann Pantazis, executrix of Firdych’s estate, filed a wrongful death lawsuit against the two entities, among others, alleging that both entities failed to adequately warn end-users about foreseeable risks posed by certain components. She argued that both defendants knew of the dangers posed by unguarded drive shifts, but failed to provide adequate warnings to end users.

Both defendants conceded that the truck’s power system could have been designed and installed differently to avoid certain potential dangers. Nevertheless, the Court held that the “potential dangers…arose from the assembly of the component parts into the finished auxiliary power system. As the manufacturers of mere components that were not themselves defective, the defendants had no duty to warn assemblers or end users of the risks presented by such systems.” In citing the seminal case of Mitchell v. Sky Climber, Inc., 396 Mass. 629 (1986) (adopting the component parts doctrine), the Court expressly rejected the plaintiff’s foreseeability argument and held that the validity of the component part doctrine does not turn “on the factual unforeseeability of such harms.”

In summary, the Court declined to read a foreseeability exception into the component parts doctrine and affirmed the vitality of the doctrines efficacy as a defense for manufacturers of non-defective component parts.  As stated by the Pantazis Court, there is “no underlying duty to warn of risks posed by the assembled product that arose out of the addition of other components and the decisions made, and actions taken, by downstream actors.”  While Pantazis breathes fresh air into the component parts doctrine, the Court left future challenges open by noting, in dicta, “[n]one of this is to say that appellate courts should never recognize exceptions to the component parts doctrine.”
Continue Reading Appeals Court Strikes Out Products Claim Filed by Estate of Former American League Rookie of the Year Mark “The Bird” Fidrych

This article is Part Three of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series.

A few months before the Barbuto opinion, see Parts 1 and 2, a Rhode Island court issued a summary judgment ruling making it easier for employees to claim employment discrimination resulting from their status as qualifying medical marijuana patients.  See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. May 23, 2017).  Judge Licht of the Rhode Island Superior Court issued an opinion in which he discussed the intent of Rhode Island’s General Assembly in enacting the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 §§ 21-28.6-1 et seq. (the “Hawkins-Slater Act” or “RIMMA”).  Plaintiff Christine Callaghan alleged that because she held a medical marijuana card, Defendants Darlington Fabrics Corporation (“Darlington”) and the Moore Company (collectively, “Defendants”) had discriminated against her with respect to hiring for an internship position.  See id. at 1.

The material facts forming the foundation of Ms. Callaghan’s claims were not disputed by the parties.  Plaintiff needed to complete an internship to fulfill the requirements of her Master’s program at the University of Rhode Island.  Id.  Ms. Callaghan’s professor directed her to Darlington, a division of Moore Company, where Plaintiff met with Darlington’s Human Resources Coordinator, Karen McGrath, on June 30, 2014.  Id.  After Plaintiff was required to sign a Fitness for Duty Statement, which acknowledged that she would have to take a drug test before being hired, Plaintiff advised Ms. McGrath that she held a medical marijuana card authorized by the RIMMA.  Id.

During a conference call on July 2, 2014, Ms. McGrath and a colleague asked Plaintiff whether she was currently using medical marijuana.  Plaintiff responded affirmatively, explained that she would test positive for marijuana, and informed Darlington’s employees that she was allergic to other pain medications and would neither use nor bring medical marijuana with her into the workplace.  Plaintiff did not receive an internship.

Plaintiff then filed a three-count complaint on November 12, 2014. Count I sought a declaration that the “failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the” Hawkins-Slater Act.  See id. at 2 Counts II and III sought damages: Count II alleged Defendants’ conduct violated the Rhode Island Civil Rights Act (RICRA), G.L. 1956 §§ 42-112-1 et seq.; and Count III alleged violations of the Hawkins-Slater Act due to employment discrimination.  See id.   Defendant moved for summary judgment on all three counts under Superior Court Rules of Civil Procedure 56.  Plaintiff filed a cross-motion for summary judgment on Counts I and III, and otherwise opposed Defendants’ motion on Count II.  See id. at 1.

The Court first endeavored to determine whether § 21-28.6-4(d) of the RIMMA, which provides that “No school, employer, or landlord may refuse to enroll, employ,
Continue Reading RI Superior Court Finds Implied Private Cause of Action Within the State’s Medical Marijuana Law for Adverse Action Taken Against Qualifying Patients & Recognizes that the RICRA Provides Similar Protections for Qualifying Patients Faced with Workplace Discrimination

This article is Part Two of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. Read Part One here.

The Supreme Judicial Court’s ruling in Barbuto marks a significant departure from case law arising under the medical marijuana laws of other states, and in particular, the way in which other courts have interpreted conflicting federal law related to the possession, use, cultivation or sale of marijuana.

The Federal Controlled Substances Act (“FFCSA”) prohibits any and all use of marijuana.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances, which includes all Schedule I drugs).  All elements of marijuana are encompassed within the FCSA’s definition of marijuana.  See 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”).  Significantly, the FCSA does not provide an exception for the use of medical marijuana or medical marijuana derivatives. Ergo, the use of medical marijuana and all associated materials, in any form whatsoever, are illegal under federal law.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances for all Schedule I drugs).

The FCSA’s blanket proscription of marijuana also carries over to federal disability law. The FCSA precludes employees (regardless of whether they are qualifying medical marijuana patients under state law) from commencing discrimination claims under federal law for adverse actions taking by employers as a result of medical marijuana use.  See 42 U.S.C. § 12210(a) (2012) (“For purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”); see also 21 U.S.C §§ 802(16), 812(c), 844(a) (establishing illegality of marijuana in any form).  If not for this clear federal embargo on such claims, employees would most likely seek relief through the Americans with Disabilities Act (“ADA”).  See 42 U.S.C. § 12112(b)(5)(B) (2012) (creating private cause of action arising under federal law for an individual with a disability who is denied “employment opportunities and is an otherwise qualified individual”).

The ADA provides a federal claim for disabled employees who are discriminated against in their place of employment because of a disability.  See 42 U.S.C. § 12102 (2012) (defining “disability” as
Continue Reading Supreme Judicial Court’s Decision in Barbuto vs. Advantage Sales & Marketing LLC and Another is Contrary to Federal Law, Marks Significant Departure from Rulings in Other States

This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series

In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint.  The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test.  See id. at 4.

Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014.  See id. at 3.  After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test.  See id.  Ms. Barbuto advised the ASM employee that she would test positive for marijuana.  See id.  She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law.  See id.  Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.

Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company.  See id. at 4

On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift.  See id.  Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”  See id.

After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court.  See id. at 4-5.  The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her
Continue Reading Ogletree, Deakins & Nash Attorneys Get Smoked by Supreme Judicial Court of MA: Employer’s Termination of Employee For Failing Drug Test for Use of Medical Marijuana States a Claim for Workplace Discrimination

Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of
Continue Reading Bulk Supplier, Sophisticated User, and Component Parts Doctrines May Provide Effective Defense to Talc Suppliers Whose Products are “Inherently Safe”