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JERRY L. MURPHY v. SHILEY (07/24/91)

filed: July 24, 1991.

JERRY L. MURPHY, ET. UX., PLAINTIFFS-APPELLANTS,
v.
SHILEY, INC., ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court For the Western District of Washington; John C. Coughenour, District Judge, Presiding; USDC No. CV-89-1711-JCC.

D.w. Nelson, Noonan, T. G. Nelson, Circuit Judges.

MEMORANDUM

Murphy and his wife appeal the summary judgment dismissal of their complaint against Shiley for emotional distress and other injuries arising from the fear that Mr. Murphy's prosthetic heart valve may malfunction. We affirm the summary judgment for Shiley.

The Washington Products Liability Act governs the Murphys' product liability claim. Wash. Rev. Code § 7.72.010-7.72.060 (1991). Neither this statute nor any Washington cases allow recovery absent product failure, malfunction, or product caused accident. Mr. Murphy's heart valve continues to function properly. Therefore the district court correctly determined that the Murphys lacked viable grounds for relief under state law.

A ruling approving the Murphys suit would validate a novel cause of action. Notions of federalism discourage courts with diversity jurisdiction from pioneering such changes in state law. See Brown v. Link Belt Corp., 565 F.2d 1107, 1111 (9th Cir. 1977).

Summary judgment dismissal AFFIRMED.

19910724

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