Minnesota’s High Court Says No “Duty to Train”

Today's post is by a guest blogger, Reed Smith's own Jobina Jones-McDonnell.

She gets all the credit, and you can just blame Bexis.

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This post discusses a recent Minnesota Supreme Court opinion rejecting a “duty to train” claim in a non-drug/device case.  The Court held that a manufacturer doesn't have a duty to train persons how to use its products, even where the manufacturer undertook to provide training as part of the purchase price of the product at issue.

The case, Glorvigen v. Cirrus Design Corp., ___ N.W.2d ___, 2012 WL 2913203 (Minn. 2012), decided on July 18, 2012, involved an airplane crash where the pilot/owner and his passenger died.  The estates of the pilot and passenger filed suit against (guess who?) the manufacturer and seller of the plane. The Minnesota Supreme Court was reviewing the appellate court's reversal of the jury's special verdict in plaintiffs' favor.  That procedural posture meant that, if the defendant was going to win on appeal, it essentially had to do it as a matter of law, and that's just what happened.

The pilot purchased the plane about a month prior to the crash.  As part of the purchase price, the manufacturer defendant provided a 2-day on the ground and in-flight transition training course.   Transition training is standard in the aviation industry.  It builds on the pilot’s previous experience and gives the pilot individualized training in the new plane.  We've seen similar programmes offered by makers of complex medical devices.

In addition to the training, the defendant in Glorvigen provided written materials, including an FAA-approved Pilot’s Operating Handbook.  Beyond that, although the FAA required most pilots to earn a “high performance aircraft endorsement” before flying the plane, the defendant marketed the plane to “pilots with a wide range of experience.”  In this case, the pilot sought a “high-performance aircraft endorsement” through the training.

The deceased pilot attended the 2-day training, although there was a dispute over whether the pilot completed the full training, including the section that would have taught him how to activate the autopilot-assisted recovery maneuver -- the specific maneuver the pilot needed to perform to avoid the fatal crash.  Hence, there was a direct connection between the omitted training and the accident.

Plaintiffs did not claim that any of the written instructions were inaccurate or incomplete.  Instead, plaintiffs argued that the written instructions could not adequately instruct the pilot in the safe use of the plane because it lacked the omitted training.  Glorvigen, 2012 WL 2913203, at *10.

In rejecting plaintiffs' theory, the Court held that while the defendant had a duty to warn, “[t]he duty to warn has never before required a supplier or manufacturer to provide training, only to provide accurate and thorough instructions on the safe use of the product...”  Id.  “[T]o hold now that [defendant] must provide training would either create a new common law duty to train or expand the duty to warn to include training … [which] would require an unprecedented expansion of the law.”  Id.

That it would indeed.

The Court went on to analyze whether the defendant, despite not having a duty to train, assumed the duty by undertaking to provide the training.  This "Good Samaritan" theory is based on the tort doctrine that one who voluntarily assumes a duty must exercise reasonable care, even if not otherwise obligated to provide the care.  Glorvigen, 2012 WL 2913203, at *11.  However, because the defendant undertook to provide the training as part of the purchase contract, the Court held that any breach of that obligation arose from the contract and plaintiffs could not recover in tort.  Id. at *12.

The “duty to train” comes up fairly frequently in drug/device cases, and this may be the first high court of any state to rule directly on the issue.  The Minnesota Court’s holding supports our current understanding of the viability of a “duty to train” claim in the drug/device context.  In the absence of any special FDA requirement, no separate “duty to train” doctors using prescription medical products has been recognized:

[T]he fact that individuals who have received training on medical equipment subsequently misuse the equipment to the detriment of a patient, standing alone, is insufficient to establish a breach of a duty to the injured patient on the part of the entity that provided the training. By providing training, [defendant] did not become a guarantor of the competence of [those it trained].

Chamian v. Sharplan Lasers, Inc., 2004 WL 2341569, at *7 (Mass. Super. Sept. 24, 2004).  “[A] manufacturer should be able to presume mastery of basic operations by experts or skilled professionals . . . and should not owe a duty to warn or instruct such persons on how to perform basic operations.”  Brown v. Drake-Willock International, Ltd., 530 N.W.2d 510, 515 (Mich. App. 1995) (plaintiff was a medical technician).  See Woodhouse v. Sanofi-Aventis U.S. LLC, 2011 WL 3666595, at *3 (W.D. Tex. June 23, 2011) (allegation that defendant “failed to train, warn or educate” physicians failed to state a plausible claim because no such duty exists); Lemon v. Anonymous Physician, 2005 WL 2218359, at *2 (S.D. Ind. Sept. 12, 2005) (a manufacturer “does not automatically have a duty to properly train, instruct or assist a physician on the surgical implantation and use of the device” but “can affirmatively undertake that duty”); Rounds v. Genzyme Corp., 2011 WL 692218, at *3 (M.D. Fla. Feb. 18, 2011) (“The difference between a ‘failure to train’ and a ‘failure to warn’ is semantic”; manufacturer who provided physician training was not liable where package insert provided an “ accurate, clear, and unambiguous warning”).

Since Minnesota is one of our more liberal tort states, its rejection of the duty to train is particularly noteworthy and may provide useful persuasive authority in other jurisdictions.

A Silver Lining?

We really don’t like it when state aspiring governors (that’s what “AG” stands for, isn’t it?) come after our clients − especially when our clients were merely exercising their First Amendment rights to make truthful statements about this or that off-label use.  But then, the state AGs never cared what we thought before, so why should they start now.


Stuff, like state AG litigation, happens.

But we’d like to let folks know about a possible silver lining around at least some of those big, dark, state AG clouds.  We’re talking about the recent Minnesota Supreme Court decision, Curtis v. Altria Group, Inc., No. A10-0215, slip op. (Minn. May 30, 2012).  It’s not a drug/device case (it involves cigarettes), but the legal principles should carry over with respect to at least some state AGs and their copycats who come to play in our sandbox.

The relevant legal rule recognized in Curtis is this: since a state AG acts on behalf of the citizens of that state (we lawyers call that “parens patriae”), the resolution (usually by settlement) of a state AG action precludes private copycat plaintiffs from later suing over the same allegations.

Here’s what happened in Curtis.  In 1994, the Minnesota state AG brought a consumer fraud action against the defendants over “light” cigarettes (but it could have been anything), seeking among other things, restitution and damages.  Slip op. at 4-5.  This AG action settled a few years later for over $100 million.  Id. at 6.  Not too long after that, copycat plaintiffs came to Minnesota and brought private suits under the same consumer protection statutes, alleging the same violations, and also seeking restitution and damages.  Id. at 7.

The issue before the Court was, can private plaintiffs get away with this kind of repetitive litigation?

Fortunately, the Minnesota Supreme Court said no.  We’ll spare you a lot of detailed discussion because the important points are well-encapsulated in the Court’s syllabus:

Under [the Minnesota act], the Minnesota Attorney General (State AG) has the authority to bring a lawsuit . . . and to seek not only the relief available to the State . . ., but also the relief available to a private litigant. . . . It logically follows that the State AG has the authority to settle and release a private litigant’s claims.

The 1998 Settlement Agreement entered into by the State AG and [defendant] expressly released and barred [copycat plaintiffs’] consumer protection claims . . . and is binding on [those plaintiffs].

Curtis, slip op. at 2-3, syllabus points 1, 3 (emphasis added).  Syllabus point 2 dealt with the reverse situation, and isn’t really relevant to this discussion.

What this means − at least in Minnesota − is that, if our clients have the misfortune to be sued by a state AG, and they settle the action, that settlement can preclude copycat private litigation involving the same allegations.  Given that the state AG can assert the public’s consumer protection rights, the Court concluded that private consumer protection litigation was merely “part of the broader authority of the State AG to bring a lawsuit . . . to enforce all remedies available to it,” including those remedies also provided to private litigants.  Curtis, slip op. at 11-12.  “[I]t logically follows” that since the AG can pursue private as well as public remedies, the AG “has authority to settle and release” those claims, including those of subsequent private litigants.  Id. at 14.

That “release,” moreover, was a nice, big, fat general one − including “all claims that the State of Minnesota made, or could have made.”  Curtis, slip op. at 17.  The release had the usual “broad and comprehensive” provisions we expect to see in general releases:  “any and all manner,” “known or unknown, suspected or unsuspected, accrued or unaccrued, whether legal, equitable or statutory,” “relating to the subject matter,” “directly or indirectly based on, arising out of or in any way related to” - that kind of thing.  Id. at 18.  The Court applied the general release generally.  The copycat plaintiffs’ claims easily satisfied the “related to” test since they “assert[ed] violation of the same consumer protection statutes arising from the same fraudulent and deceptive misrepresentations.”  Id. at 18-19 (emphasis original).

The copycats’ last stand was a provision in the settlement providing that “no portion . . . shall bind any non-party.”  Curtis, slip op. at 20.  Because the state AG was acting on behalf of the public, members of the public couldn’t claim to be “nonparties”:

We read the words “representatively” and “derivatively” to encompass [private copycats’] right as private litigants to bring [monetary] claims against [defendant].  Because the State AG brought and released those claims, including [monetary] consumer protection claims that could have been brought on behalf of private litigants, the release expressly determined [private copycats’] right to bring a [monetary] consumer protection claim.

Id. at 21.  Bingo.  The tagalongs got tagged out.

Since our clients are all too often on the receiving end of the same sort of litigation − both state AG actions and follow-up copycat litigation − Curtis suggests to us that the same silver lining might be available in elsewhere.  The relevant state law would have to allow the state AG to recover the same monetary damages as private litigants, but once that happens, the rest should flow.  Since the AGs almost always claim to act on behalf of the public, their monetary settlements using general release language should also bind individual copycat plaintiffs and thus preclude relitigation of those claims.

Thanks to Scott Smith at Nilan Johnson (who filed a amicus brief for the right side of the “v.”) for passing Curtis along.

Even in Minnesota, You Can't Do That

We're involved in HT litigation, so we can't comment much, but readers will want to look at Rick v. Wyeth, Inc., ___ F.3d ___, Nos. 3354, et al., slip op. (8th Cir. Oct. 25, 2011).  Trying to take advantage of Minnesota's notoriously long statute of limitations, the plaintiffs, who had originally filed in their home state (New York), filed diversity actions in the District of Minnesota, as soon as the defendant moved for summary judgment on the original, state court action based on their home state's statute of limitations.  The defendant won the summary judgment motion in the plaintiffs' home state.  In Minnesota federal court, the plaintiff argued that the home state ruling was "procedural" and didn't require dismissal.  The district court agreed with the defendant and held that the home state ruling required dismissal on grounds of res judicata.

Well, now the Eighth Circuit has affirmed, holding that, where the defendant has obtained a final order of dismissal of a plaintiff's original action under the plaintiff's home state statute of limitations, that order also requires dismissal of any subsequent action filed in Minnesota in an attempt to take advantage of the longer statute of limitations.  Rick, slip op. at 8-9.

The Rick ruling should put an end to at least one form of shennanigans involving the Minnesota statute of limitations (now changed by statute, by the way, but only prospectively) no matter what product is involved.