of warranty theory is not available where “the predominant factor, thrust, or purpose” of the transaction is the “rendition of service, with goods incidentally involved.” Mattoon v. City of Pittsfield, 56 Mass.App.Ct. 124, 775 N.E.2d 770, 784 (2002). Additionally, a breach of warranty claim can only be brought against a “seller” of goods. Mass. Gen. Laws ch. 106, §§ 2-313, 2-314, 2-315. The dispositive issue before the Court is whether a hospital may be liable for breach of warranty for supplying a medical device to a patient as part of his or her treatment. The Court has discovered no Massachusetts case law that resolves that question. When a federal court is applying state substantive law in a diversity action and the state courts have not add 357, at *4 (S.D.Miss. Sept. 24, 2007) (<HOLDING>); Kavalir v. Medtronic, Inc., No. 07-0835, 2007
holding that a hospital had not been fraudulently joined because there was no definitive ruling from any oregon appellate court foreclosing a strict liability claim against a hospital holding that an action for breach of implied warranty of merchantability under the uniform commercial code is a product liability action within the meaning of the products liability act if as here the action is for injury to person or property resulting from a sale of a product holding that the hospital was fraudulently joined because it did not meet the definition of seller as defined by mississippis product liability statute or under the uniform commercial code holding that the hospital was fraudulently joined because hospitals are not sellers of medical devices and therefore there was no basis in illinois law to support the plaintiffs claims for strict liability and breach of implied warranty against the hospital holding that a hospital cannot be strictly liable under texas law for a defective catheter because a hospital is not a seller engaged in the business of selling the product