Opinion
No. 90-0752-CV-W-1.
November 20, 1990.
George P. Coughlin, Gage Tucker, Kansas City, Mo., J. Patrick Shepard, Albert F. Kuhl, Gage Tucker, Overland Park, Kan., for plaintiffs.
Reed O. Gentry, Field, Gentry, Benjamin Robertson, Kansas City, Mo., for defendants.
ORDER
Before the court is Defendant Goldline Laboratories, Inc.'s ("Goldline") Motion to Dismiss, filed September 25, 1990, and Plaintiffs' Motion for Leave to File First Amended Complaint, filed October 17, 1990. Plaintiffs' complaint alleges that Goldline is liable to them for damages incurred by plaintiff Raymond E. Pruett as a result of ingesting the food supplement L-Tryptophan.
Plaintiffs will be allowed to amend their complaint since there is no opposition from defendants, and the court finds no reason to deny the motion.
Goldline argues that it should be dismissed from this lawsuit pursuant to § 537.762, R.S.Mo., which provides:
1. A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.
2. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff's claim.
Goldline states that it is a "seller in the stream of commerce" within the meaning of § 537.762 and that defendant Showa Denko America, Inc. is properly before the court and able to pay for all of plaintiffs' damages. The court need not address these issues since § 537.762 is a procedural provision and, therefore inapplicable to cases filed in federal court. See, Dobbles, Missouri Products Liability Law Revisited: A Look at Missouri Strict Products Liability Law Before and After the Tort Reform Act, 53 Mo.L.Rev. 227, 238 n. 42 (1988); See also, Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976).
Accordingly, it is
ORDERED that Defendant Goldline Laboratories, Inc.'s Motion to Dismiss, filed September 25, 1990 is denied. It is further
ORDERED that Plaintiffs' Motion for Leave to File First Amended Complaint, filed October 17, 1990 is granted. It is further
ORDERED that plaintiffs shall file their First Amended Complaint within five days of the date of this order.