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.