Can Daredevil Sue Iron Man on Behalf of the FDA?

Superior Iron Man #4 had the bombshell that Tony Stark had poisoned everyone in San Francisco by contaminating the water supply with Extremis 3.0. This makes sense, because how could an app physically change people?

Tom Taylor gave every geek lawyer a wonderful gift with Stark adding Extremis 3.0 to what had to be the Hetch Hetchy Regional Water System. It is fun to imagine Stark drones dumping 55-gallon drums of Extremis into Pilarcitos Reservoir in a toxic tort case. Moreover, it is very easy to envision Matt Murdock re-enacting A Civil Action to take on Tony Stark.

Josh_PrivateRightDaredevil confronted Tony Stark and threatened to represent the FDA in a case against Stark for adding an untested virus to San Francisco’s water supply?

Could Matt Murdock represent the FDA in such a case?

No, for a variety of reasons.

First, the FDA would have government lawyers represent the Government. Secondly, Murdock could not sue on behalf of the FDA on a private right of action for violating FDA regulations. (See, generally, Talbott v C.R. Bard, Inc., 865 F Supp 37, 39-40 [D Mass 1994]). Third, the fact Murdock heard the app trigger the virus makes Murdock a witness to the crime that would require testimony. Lawyers are not supposed to be their own witnesses in a lawsuit.

However, there is an interesting theory with state law. California law is specifically designed to give legal effect to the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings. Cal Health & Saf Code § 24171. A lawyer could successfully argue that adding an untested virus to the water supply violated the California statute incorporating the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki.

Could Murdock bring a private right of action against Stark for violating the Nuremberg Code of Ethics in Medical Research for conducting nonconsensual medical experiments?

Most likely no, but there is a small “maybe.”

Federal law likely would preempt California law if the focus of the case was on FDA violations. Moreover, no Federal Court has found a private right of action exists for violating the Nuremberg Code and international law. See, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 175-176 (2d Cir. N.Y. 2009) and Robertson v. McGee, 2002 U.S. Dist. LEXIS 4072, 9-10 (N.D. Okla. Jan. 28, 2002).

No California Court has found a private right of action for violating Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki, as given force by Cal Health & Saf Code § 24171. As one California Court stated on private rights of action:

The issue in a case such as this is primarily one of legislative intent. If the Legislature intended a private right of action, that usually ends the inquiry. If the Legislature intended there be no private right of action, that usually ends the inquiry. If we determine the Legislature expressed no intent on the matter either way, directly or impliedly, there is no private right of action… with the possible exception that compelling reasons of public policy might require judicial recognition of such a right.

Animal Legal Defense Fund v Mendes, 160 Cal App 4th 136, 142, [2008].

Would a California Judge find “compelling reasons of public policy,” that would require recognition of a private right of action? Most likely no, but if a Judge was ticked off enough by the population of San Francisco being infected with a virus on purpose, it certainly is possible for a Judge to empower Matt Murdock sue Tony Stark for playing Dr. Mengele on a private right of action.

Just because Matt Murdock cannot sue on behalf of the US Government or (most likely) the State of California, does not mean Tony Stark gets to infect people with a virus. The US Government and the State of California can prosecute Stark for violating the different state and Federal laws. Moreover, Matt Murdock can represent victims from San Francisco in what would be one of the biggest class actions ever.

Tony Stark would also have more to worry about then the FDA. The Environmental Protection Agency does not look kindly on chemicals being dumped in drinking water. Fish and Wildlife would also likely take aim for potentially infecting fish and animals with Extremis. The FBI would likely consider poisoning the water supply with an addictive virus an act of terrorism. That is just the beginning of Federal Agencies that would go after Stark in what would be one of the largest mass tort case against one person in fictional history.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.