We write at present with an replace on a case making use of the protection of illegality (or “in pari delicto”) to chop off product legal responsibility claims beneath Kansas regulation.  Messerli v. AW Distributing, Inc. is the unhappy case of somebody who handed away, allegedly on account of inhaling intoxicating fumes (or “huffing”) from laptop dusters, these cans of compressed air you utilize 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 a criminal offense in Kansas beneath 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 Courtroom.  The opposite defendants predictably filed “me too” motions in search of the identical end result 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 essentially the most fascinating 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 regulation on this method.  Heck, that was one of many main factors of our final put up and partly what made the case blogworthy within the first place.  Common readers additionally know that we frequently bemoan federal courts who make unfounded Erie predictions of state regulation. 

This Erie prediction, nonetheless, was exceptionally effectively supported, and an authorized query requires far more than what the plaintiff needed to provide.  The problem of whether or not illegality bars product legal responsibility claims met the naked standards for certification:  It was each (1) final result 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 regulation comes throughout [its] desk.’”  Id. at *10.  It’s inside a federal courtroom’s discretion to make an Erie prediction, moderately than certify, and that’s what this courtroom did.  It thought-about, for instance, choices from a number of different jurisdictions, in addition to Kansas choices recognizing the illegality protection typically.  The “weight and development” of the authorities supported the courtroom’s prediction, which the plaintiff solely strengthened by citing dissenting opinions urging a distinct end result.  Id. at *11-*13.  Plaintiffs have been additionally unable to supply any sign that the Kansas courts thought-about the query in any respect unsettled.  Id. at *16. 

In the long run, “[t]he questions at play right here aren’t as novel and vital 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 social gathering has acquired an opposed ruling.  Certainly, the plaintiff right here was principally asking the federal courtroom to submit its order to a state courtroom for evaluation.  That pathway usually runs by way of the USA Courtroom of Appeals, not a state courtroom.  And if the plaintiff actually thinks the Kansas Supreme Courtroom must weigh in right here, it could possibly renew its certification request on enchantment.  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 varied defendants.  On the contrary, the plaintiff alleged that each one the defendants’ merchandise have been “similar in composition,” and it introduced claims in opposition to the defendants indiscriminately.  The illegality protection due to this fact 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 could be the Tenth Circuit, and possibly even one other movement to certify questions.  We’ll hold you posted.