DATE OF JUDGMENT: 12/20/2011.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JEFF WEILL, SR.
FOR APPELLANTS: DAVID NEIL McCARTY, FRANK G. VOLLOR, ALLEN AUSTIN VOLLOR.
FOR APPELLEE: CHRISTY VINSON MALATESTA, JOHN ALFRED WAITS, MARK C. CARLSON.
KING, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
¶1. Richard Palermo alleged tat he was injured by infected tissue surgically placed into his knee. He sued LifeLink Foundation, Inc., under, inter alia, the Mississippi Products Liability Act (" MPLA" ), Mississippi Code Section 11-1-63. The trial court and Court of Appeals both found that Mississippi Code Section 41-41-1, which defines the procurement, processing, storage, distribution, and use of human tissue as a " service," exempted LifeLink from liability under the MPLA. While we clarify the analysis surrounding this issue, we ultimately find no error, and thus affirm the trial court and the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
¶2. The recitation of facts is taken largely from the Court of Appeals opinion.
On March 2, 2005, Richard injured his right knee while working as an employee for Letourneau Technologies Inc. Richard sought treatment from Dr. Gene Barrett, an orthopedic surgeon at Mississippi Baptist Medical Center (MBMC). Dr. Barrett recommended surgery described as " anterior cruciate ligament construction and medical meniscus repair and the use of an allograft."
On March 22, 2005, LifeLink, a non-profit tissue bank, filled an order placed by Nu[T]ech Medical Inc. (" NuTech" ) for a tibialis tendon-anterior allograft. Prior to LifeLink's shipment of the allograft, it was tested and there were no findings of sepsis or medical infection in the medical history or autopsy of the allograft donor. LifeLink shipped the allograft to Nu[T]ech, where it remained for six days. On March 28, 2005, Nu[T]ech shipped the allograft to Medical Arts East Physician Surgery Center in Jackson, Mississippi. Dr. Barrett performed Richard's surgery with the allograft on April 5, 2005. After the surgery, Richard's knee began to exhibit signs of infection. Dr. Barrett removed the allograft from Richard's knee on May 11, 2005, and the infection subsided. After the allograft was removed from Richard's knee on May 11, 2005, further testing was done on the allograft. It showed that no bacteria was present.
The Palermos filed their first complaint in this action on March 7, 2007, against numerous defendants, including MBMC, Dr. Barrett, NuTech, and LifeLink. After the dismissal of several defendants, the Palermos filed a First Amended ...