We write right now with an replace on a case making use of the protection of illegality (or “in pari delicto”) to chop off product legal responsibility claims underneath Kansas legislation.  Messerli v. AW Distributing, Inc. is the unhappy case of somebody who handed away, allegedly on account of inhaling intoxicating fumes (or “huffing”) from pc dusters, these cans of compressed air you employ to blow away mud.  As we wrote right here, a federal district courtroom in Kansas granted one defendant’s movement to dismiss on the premise that the decedent had engaged in unlawful conduct, which supported an entire protection.  To summarize, Kansas’s illegality protection bars claims arising from a plaintiff’s unlawful conduct, and huffing is against the law in Kansas underneath legal guidelines in opposition to “the illegal abuse of poisonous vapors.”

This was the primary courtroom to rule that Kansas’s illegality protection applies in a product legal responsibility case, so the plaintiff requested the federal courtroom to certify inquiries to the Kansas Supreme Court docket.  The opposite defendants predictably filed “me too” motions in search of the identical consequence for themselves. 

The courtroom’s order on these motions is Messerli v. AW Distributing, Inc., No. 22-2305, 2023 U.S. Dist. LEXIS 188974 (D. Kan. Oct. 20, 2023), and the protection once more got here out on prime.  First, the district courtroom denied the plaintiff’s request to certify questions.  That is probably the most attention-grabbing a part of the order as a result of, in spite of everything, this was a federal courtroom, and it was the primary to use Kansas legislation on this method.  Heck, that was one of many main factors of our final submit and partly what made the case blogworthy within the first place.  Common readers additionally know that we regularly bemoan federal courts who make unfounded Erie predictions of state legislation. 

This Erie prediction, nonetheless, was exceptionally effectively supported, and a licensed query requires far more than what the plaintiff needed to provide.  The difficulty of whether or not illegality bars product legal responsibility claims met the naked standards for certification:  It was each (1) consequence determinative and (2) unprecedented within the Kansas appellate courts.  Even so, “[a] federal courtroom needn’t certify ‘each time an arguably unsettled query of state legislation comes throughout [its] desk.’”  Id. at *10.  It’s inside a federal courtroom’s discretion to make an Erie prediction, fairly than certify, and that’s what this courtroom did.  It thought of, for instance, choices from a number of different jurisdictions, in addition to Kansas choices recognizing the illegality protection usually.  The “weight and development” of the authorities supported the courtroom’s prediction, which the plaintiff solely bolstered by citing dissenting opinions urging a special consequence.  Id. at *11-*13.  Plaintiffs have been additionally unable to offer any sign that the Kansas courts thought of the query in any respect unsettled.  Id. at *16. 

Ultimately, “[t]he questions at play right here aren’t as novel and necessary as plaintiff would have the courtroom consider.”  Id. at *17.  The district courtroom additionally famous that requests to certify are notably disfavored after the requesting occasion has acquired an adversarial ruling.  Certainly, the plaintiff right here was mainly asking the federal courtroom to submit its order to a state courtroom for overview.  That pathway usually runs via the USA Court docket of Appeals, not a state courtroom.  And if the plaintiff actually thinks the Kansas Supreme Court docket must weigh in right here, it could renew its certification request on attraction.  Id. at *17-*20.  The plaintiff’s request for certification was too little, too late.

Second, the district courtroom dismissed the claims in opposition to the opposite defendants.  The grievance didn’t distinguish between the assorted defendants.  On the contrary, the plaintiff alleged that each one the defendants’ merchandise have been “equivalent in composition,” and it introduced claims in opposition to the defendants indiscriminately.  The illegality protection subsequently barred the claims in opposition to the opposite defendants, too. 

This order terminated all claims within the case, so we the suppose the following cease often is the Tenth Circuit, and possibly even one other movement to certify questions.  We’ll preserve you posted.