We don’t see many instances involving human tissue, however medical merchandise derived from human tissue are literally fairly widespread.  Pores and skin alternative merchandise, tissue-engineered cartilage, compounds for treating bone fractures and tumors.  These sorts of issues.  Simply yesterday in our annual Ten Greatest/Ten Worst Circumstances webinar we mentioned a case involving transplanted human eye tissue.  Medical merchandise based mostly on human tissue have been round for a very long time, and they’re regulated by the FDA. 

We should always not, nonetheless, throw across the phrase “product” too freely as a result of it begs the query of whether or not human tissue is, actually, a “product.”  The reply shouldn’t be at all times, and never underneath Illinois regulation on strict legal responsibility and guarantee.  That’s the holding of Zydek v. Aziyo Biologics, Inc., No. 23-C-3016, 2024 WL 197264 (N.D. In poor health. Jan. 18, 2024), which utilized the Illinois statute governing blood and organ transactions to dismiss strict legal responsibility and guarantee claims.

In Zydek, the plaintiff was handled with the defendants’ surgical bone restore product, which was produced from human tissue.  To make the product, the defendants acquired cadaver tissue from donor providers.  Sadly, the defendants obtained stories that a number of sufferers who obtained product produced from a specific donor lot got here down with tuberculosis, which led to a voluntary recall.  The plaintiff examined optimistic one month later.  Id. at *1.

The plaintiff sued for negligence, strict merchandise legal responsibility, and breach of varied warranties.  It seems, nonetheless, that the Illinois Blood and Organ Transaction Legal responsibility Act expressly bars strict legal responsibility and guarantee claims for “entities typically engaged in rendering providers for blood- and human-tissue associated surgical procedures.”  Id. at *2.  The plaintiff shrewdly identified that the Illinois statute utilized solely to “providers” or “service suppliers,” whereas the FDA and NIH have labeled the Defendant’s tissue-based bone restore compound as a “product.” 

That, nonetheless, was irrelevant.  It is a matter of state-law legal responsibility, and the Illinois legislature clearly shields “each individual, agency, or company” that participates in creating “blood merchandise, blood derivatives and merchandise, corneas, bones, or organs or different human tissue for the aim of injecting, transfusing or transplanting any of them within the human physique.”  Id. (citing 745 In poor health. Comp. Stat. § 40/2-3).  Furthermore, the Illinois Supreme Courtroom had beforehand made clear that the Illinois legislature didn’t incorporate the FDA or NIH definitions of “merchandise.”  Zydek, at *2 (citing Brandt v. Boston Scientific Corp., 204 In poor health. second 640, 653 (2003)).  Because the Illinois Supreme Courtroom held in reference to a tissue-based sling, use of the defendants’ product was incidental to the plaintiff’s surgical procedure.  “Therefore, the surgical objective of the Sling reworked what would possibly ordinarily be thought of a product right into a authorized service underneath the Act.”  Zydek, at *2.  The identical evaluation utilized right here.  The defendants developed the product from human tissue, and its use was incidental to the plaintiff’s surgical procedure.  Consequently, the product was “characteristically a service underneath the Act.”  Id.  The court docket dismissed the strict legal responsibility and guarantee claims, leaving solely negligence.  Defendants obtained all of the reduction they requested, and that looks as if the end result that the Illinois Legislature was aiming for.