Seventh Circuit Explains the Standard for Certification of a Question of State Law

Seventh Circuit Rule 52 allows the U.S. Court of Appeals for the Seventh Circuit, when faced with “questions arising under the laws of [a] state which will control the outcome of a case pending in the federal court” to “certify such a question to the state court in accordance with the rules of that court” and to “stay the case . . . to await the state court’s decision.”

The Seventh Circuit has explained in Cleary v. Philip Morris Inc. that certification of a question of state law is appropriate only if the court is “genuinely uncertain about a question of state law that is vital to a correct disposition of the case.” 656 F.3d 511, 520 (7th Cir. 2011).

Don’t confuse “novel” or “unresolved” with “genuinely uncertain,” however. Federal courts frequently answer questions of state law in the absence of controlling authority—making what is sometimes referred to as an “Erie guess.” (Erie Railroad Co. v. Tompkins is the landmark decision issued by the Supreme Court in which it required federal courts to apply the law of the state’s highest court when hearing state-law claims under their diversity jurisdiction. 304 U.S. 64 (1938).)

The Seventh Circuit’s recent decision in In re: Zimmer NexGen Knee Implant Products Liability Litigation, No. 16-3957 (7th Cir. 2018), written by Judge Diane Sykes, is illustrative of the standard and the high bar for certification.

Theodore Joas’s products-liability lawsuit against Zimmer, which had manufactured Joas’s knee implant, was a bellwether case in the multi-district litigation venued in the U.S. District Court for the Northern District of Illinois. It raised two previously unresolved questions of Wisconsin law: (1) whether a Wisconsin court would use the “learned intermediary doctrine” and (2) whether a Wisconsin court would apply the “heeding presumption.” The learned-intermediary doctrine “holds that the manufacturer of a prescription drug or medical device fulfills its duty to warn of the product’s risks by informing the prescribing physician.” Slip op. 5. The heeding presumption allows a fact-finder to “presume, in the absence of proof, that a proper warning would have been read and heeded.” Id. at 12.

No Wisconsin appellate court has considered either doctrine, which put the Seventh Circuit in the position of “determin[ing] how the state’s highest court would rule.” Id. at 6.

Joas had asked, as a fallback position, that the court certify these questions to the Wisconsin Supreme Court, but the Seventh Circuit declined. There was “good reason,” the court held, “to think that given the opportunity, the Wisconsin Supreme Court would . . . adopt . . . the learned-intermediary doctrine” based on the number of other states that have adopted the doctrine. Id. at 8. As for the heeding presumption, the court thought that its use would be inconsistent with a recent decision of the Wisconsin Court of Appeals. Id. at 12-13. Not being “genuinely uncertain,” the Seventh Circuit relied on its own judgment about how the Wisconsin Supreme Court would answer these questions.

Disclaimer

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.