Gelley v. Astra Pharmaceutical Products Inc.

Decision Date18 December 1979
Docket NumberNo. 79-1170,79-1170
Citation610 F.2d 558
PartiesCarol A. GELLEY, Trustee for the Heirs of Richard Lawrence Gelley, Deceased, Appellant, v. ASTRA PHARMACEUTICAL PRODUCTS INCORPORATED, a New York Corporation; The United States of America; Hanson Dental Supplies, Inc., a North Dakota Corporation; Jerry K. Brunsoman, D.D.S., individually and as an employee or independent contractor for MacKay & Fuller, D.D.S. Professional Association; MacKay & Fuller, D.D.S. Professional Association, a Minnesota Corporation, its Employees and Agents, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Richard C. Smith, Minneapolis, Minn., for appellant.

James T. Martin, Gislason & Martin, P. A., Edina, Minn., argued, for appellees, Astra Pharmaceutical Products, Inc., and Hanson Dental Supplies, Inc. James T. Martin, Richard D. Allen, Richard D. Allen, Ltd., Minneapolis, Minn., on brief.

James P. Klapps, Asst. Director, Torts Branch, Civil Div., U. S. Dept. of Justice Washington, D. C., argued, remaining appellees; Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C.; Andrew D. Danielson, U. S. Atty., Minneapolis, Minn., Joanne S. Sisk, Associate Chief Counsel for Enforcement, Dept. of Health, Education and Welfare, Food & Drug Administration, Rockville, Md., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and REGAN, Senior District Judge. *

BRIGHT, Circuit Judge.

Carol A. Gelley, trustee for the heirs of Richard Lawrence Gelley, appeals the order of the district court 1 dismissing this wrongful death action for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(1) and 12(b)(6), respectively. Gelley argues that because the complaint states an actionable claim for negligence against a private person under Minnesota law, she may bring this action against the United States of America under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680. Gelley also asserts that no FTCA exception applies to exclude the government from liability. We disagree and hold that the complaint fails to state a cause of action cognizable under Minnesota law. Accordingly, we affirm.

The trial court adequately summarized the essential facts as pleaded and Gelley's theory of recovery:

Richard Gelley, plaintiff's decedent, died in 1973, allegedly as a result of an adverse reaction to lidocaine hydrochoride (trade name xylocaine), a local anesthetic drug manufactured by defendant Astra Pharmaceutical Products, Inc. (hereinafter Astra). The xylocaine was administered to plaintiff's decedent by Dr. Jerry K. Brunsoman, who was associated with defendant MacKay & Fuller D.D.S. Professional Association. The United States Food and Drug Administration (hereinafter FDA), an agency of the Department of Health, Education and Welfare, had previously found xylocaine "safe for use" and approved the introduction of the drug into interstate commerce.

This wrongful death action was instituted by plaintiff Carol Gelley, as trustee for the heirs of Richard Gelley, in this Court in 1974. The plaintiff's complaint alleges that FDA personnel, as well as the other defendants, were negligent, that some defendants are liable on a strict liability theory, and that defendant Astra is independently liable because it violated the Food, Drug and Cosmetic Act, 21 U.S.C. § 301, Et seq. Plaintiff has filed a "protective" action in the Ramsey County District Court against the same parties, except for the United States.

* * * Generally, plaintiff's theory of liability against the government is that the FDA negligently failed to withdraw its prior approval of xylocaine and negligently failed to enforce the provisions of the Food, Drug and Cosmetic Act and its own regulations relating to information collection and labeling changes, thereby allowing xylocaine to remain in interstate commerce in a misbranded and/or adulterated condition. See 21 U.S.C. §§ 351, 352. (Gelley v. Astra Pharmaceutical Products, Inc., 466 F.Supp. 182, 184-85 (D.Minn.1979) (footnote omitted) (hereinafter Gelley v. Astra ).)

Appellant claims the right to sue the Government under 28 U.S.C. §§ 1346(b) and 2674. 2 Under those sections, governmental liability turns on whether a private person under like circumstances would incur liability to the claimant "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The district court applied the law of the District of Columbia in dismissing the action:

As the law of the place where the act or omission occurred is the focal point with respect to whether liability may be imposed under the Act, the law of the District of Columbia governs the immediate question of whether the government, if a private individual, would be liable under like circumstances. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). (Gelley v. Astra, supra, 466 F.Supp. at 185 (footnote omitted).)

The district court, however, did not rely specifically on any cases arising in the District of Columbia. Rather, the court determined that under general tort law principles no right of recovery exists in the District of Columbia or elsewhere for an action against a private party similar in nature to Gelley's complaint. The district court stated:

The law of the District of Columbia does not impose a tort duty on private persons to perform activities required by the FDA regulatory scheme. Regulatory activity engaged in by FDA personnel simply has no counterpart in private activity and thus cannot give rise to liability under the common law of the District of Columbia or elsewhere. Therefore, as the law of the place where the act or omission occurred would not impose a duty upon a private person under these circumstances, FDA personnel similarly owed no actionable tort duty to the plaintiff's decedent. Davis v. United States, 536 F.2d 758 (8th Cir. 1976); Devlin Lumber & Supply Corp. v. United States, 488 F.2d 88 (4th Cir. 1973); In re Franklin National Bank Securities Litigation, 445 F.Supp. 723 (E.D.N.Y.1978). (Gelley v. Astra, supra, 466 F.Supp. at 185-86.)

Gelley correctly observes that under the FTCA the whole law of the place where the act or omission occurred becomes applicable, including its conflict of law principles. See Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Noting that the bulk of the FDA activity addressed in the complaint occurred in the District of Columbia, Gelley contends that the District, applying its conflicts principles, would look to Minnesota law to determine whether Gelley's complaint states a cause of action.

The District of Columbia has adopted an "interest analysis" approach to resolving conflict of law questions. See Semler v. Psychiatric Institute of Washington, D. C., 188 U.S.App.D.C. 41, 575 F.2d 922 (D.C.Cir.1978); Gaither v. Myers, 131 U.S.App.D.C. 216, 404 F.2d 216 (D.C.Cir.1968). The District of Columbia Circuit describes the interest analysis as follows:

Simply stated, the method of governmental interest analysis is (1) to identify the state policies underlying each law in conflict, and (2) to decide which state's policy would be advanced by having its law applied to the facts at bar. (Semler v. Psychiatric Institute, supra, 188 U.S.App.D.C. at 43, 575 F.2d at 924 (footnote omitted).) 3

We assume, without deciding, that under the interest analysis approach the District of Columbia would apply the substantive law of Minnesota. 4 That assumption, however, does not aid Gelley's cause. Minnesota recognizes no private cause of action for violations of governmental duties owed the public in general, similar to those duties performed by the FDA. Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979). 5

In Cracraft, a municipal fire inspector conducted a fire inspection on school premises as required by municipal ordinance. The inspector failed to notice a highly flammable liquid stored in drums on the school dock. Subsequently the drums of liquid exploded, causing injuries and death to school students. Parents of these children brought actions against the municipality, seeking damages for injuries or wrongful death. They alleged that the city fire inspector failed in his duty of due care in making the inspection.

The Minnesota Supreme Court sustained the summary dismissal of the suit, holding that

a municipality does not owe any individual a duty of care merely by the fact that it enacts a general ordinance requiring fire code inspections or by the fact that it undertakes an inspection for fire code violations. A duty of care arises only when there are additional indicia that the municipality has undertaken the responsibility of not only protecting itself, but also undertaken the responsibility of protecting a particular class of persons from the risks associated with fire code violations. (Id. at 806.)

The Minnesota court elaborated on the indicia needed to impose liability:

At what point, then, does the municipality assume to act for the protection of others as distinguished from acting merely for itself when it inspects the activities of third parties for fire code violations? There is no bright line. But, without intending to be exhaustive, there are at least four factors which should be considered. First, actual knowledge of the dangerous condition is a factor which tends to impose a duty of care on the municipality. Second, reasonable reliance by persons on the municipality's representations and conduct tends to impose a duty of care. Of course, reliance on the inspection in general is not sufficient. Instead, the reasonable reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves. Third, a duty of care may be created by an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons...

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