Whether a federal court may determine negligence and strict liability claims in a diversity action involving novel claims of abnormally dangerous research activity, and whether the Second Circuit contravened Erie Railroad precedent by refusing to certify a novel state law question involving public health policy

When Petitioner’s husband died of COVID-19 in Colorado, she brought a wrongful death action into federal court, alleging novel tort claims against t he New York entity she judged in the best position to have protected her husband against SARS-CoV-2, the cause of COVID-19. Petitioner alleged that in the course of furthering the goals of its National Institutes of Health (NIH ) research grant, EcoHealth Alliance, Inc. knowingly funded risky gain-of-function research enhancing abnormally dangerous SARS viruses in a foreign lab beset by known biosafety issues, ultimately releasi ng SARS-CoV-2 and causing her vulnerable husband’s death. The Second Circuit affirmed dismissal of Petitioner’s novel claims by contravening the doctrine established in Erie Railroad Co. v. Tompkins , 304 U.S. 64 (1938). It misapplied state substantive law and refused to certify a novel question implicating public health policy to the state’s highest court. QUESTION ONE : In a diversity action raising novel claims involving abnormally dangerous research activity, may a federal court determine th e negligence and strict liability claims contrary to the substantive law of the State? QUESTION TWO : Did the Second Circuit contravene Erie Railroad Co. v. Tompkins , 304 U.S. 64 (1938) by refusing to certify a novel question o f New York law to the State’s highest court where the issue involves public health policy reserved to the States under the U.S. Constitution? – ii –