Full opinion text
OPINION QUIST, District Judge. Table of Contents I. Background.852 II. Standard of Review.853 III. Discussion GO cn A. Defendants Michigan Department of Public Health and Michigan Biologic Products Institute: Eleventh Amendment Sovereign Immunity. (1) Source of Funds to Pay Judgment Against MDPH-MBPI.... (2) Nature of MDPH-MBPI Under State Law. (3) Degree of State Control Over MDPH-MBPI. (4) Performance of Government Functions.. (5) Source of Funding; Destination of Revenues . B. Defendant Dr. Myers. (1) Official Capacity — Eleventh Amendment Sovereign Immunity (2) Individual Capacity. (a) Federal Law Claims. (b) State Law Claims . C. Defendant BioPort — Successor Liability; Supplemental Testing (1) Successor Liability — Continuity of Enterprise Theory. (a) Second Turner Prong .. (b) Fourth Turner Prong. (2) Assumption and Retention of Liabilities — Asset Purchase Agreement. 00 (3) Supplemental Testing Program. 00 D. Other Claims. 00 (1) Federal Law Claims. 00 (a) Bodily Integrity. 00 (b) Human Dignity. 00 (2) Fraud Claims. 00 E. Other Defenses . 00 (1) BioPort — Inheriting the State’s Sovereign Immunity. CO 00 (2) Michigan Drug Manufacturers Products Liability Immunity Statute . CO 00 (a) Choice of Law. ^ t-00 (b) Application of Statute . l> 00 (3) Feres Doctrine. t> t-00 (4) Government Contractor Defense. t-00 (a) Prong 1: Government Approval of Reasonably Precise Specifications. CCO (b) Prong 2: Product’s Conformity to Government Specifications GO t>-00 (c) Prong 3: Contractor Warning Government About Known Dangers . O t-00 IV. Conclusion. .879 Plaintiffs in this matter are current or former military members, government contract employees, and spouses who allege harms caused by anthrax vaccine administered under the Department of Defense (“DOD”) immunization program. Defendants are the Michigan Department of Public Health (“MDPH”), the Michigan Biologic Products Institute (“MBPI”) (together, “MDPH-MBPI”), BioPort, Inc. (“BioPort”), and Dr. Robert C. Myers (“Dr. Myers”). Each Defendant was associated with manufacturing anthrax vaccine. Plaintiffs set forth claims of negligence, breach of warranties, breach of the right to be treated with essential human dignity, strict products liability, fraud, deprivation of civil rights pursuant to 42 U.S.C. § 1983, and loss of -consortium. Now before the Court are Defendants’ motions to dismiss. For the reasons stated below, the Court will dismiss all claims against MDPH-MBPI, grant in part and deny in part BioPort’s motion to dismiss, and grant in part and deny in part Dr. Myers’ motion to dismiss. I. Background This matter consists of three consolidated cases, each brought by different groups of Plaintiffs but asserting similar claims against the same Defendants. Allaire, et al. v. BioPort, et al. (“Allaire ”) originally filed in the United States District Court for the District of Columbia. Judge Kol-lar-Kotelly granted Defendants’ motion to transfer Allaire to this District due to insufficient contacts to establish personal jurisdiction under the District of Columbia’s long-arm statute. Fleming, et al. v. BioPort, et al. (“Fleming ”) was originally filed in the United States District Court for the Western District of Louisiana. Judge James granted Defendants’ motion to transfer Fleming to this District for lack of personal jurisdiction over all Defendants. Allaire and Fleming have been combined with this case, Ammend, et al. v. BioPort, et al., which was originally filed in this District. Anthrax is a lethal disease caused by bacteria that can be delivered by biological weapon systems. In 1965, researchers at the U.S. Army Biological Laboratories in Fort Detrick, Maryland designed and patented the process for producing a vaccine known as Anthrax Vaccine Adsorbed (“AVA”) (hereafter referred to as “anthrax vaccine” or “vaccine”). In 1970, the federal government issued a license to manufacture anthrax vaccine to MDPH. Since that time, MDPH and its successors were the only licensed anthrax vaccine producers in the U.S. Beginning in 1988, the Department of Defense (“DOD”) awarded MDPH a series of contracts for the production and sale of anthrax vaccine. The DOD began considering a mass anthrax vaccination program in the early 1990s. In 1997, the DOD announced plans to vaccinate U.S. military personnel under the Anthrax Vaccine Immunization Program (“AVIP”) in order to protect the force from biological attacks. The program required that all military personnel would receive a six-shot series of anthrax vaccine. Inoculations were mandatory, and any servicemember who refused the shots was disciplined. Dr. Myers first became an employee of MDPH in 1978. In 1990, he became Chief of the Biologies Division of MDPH. The Biologic Products Division of MDPH was transferred to MBPI in 1996, at which time Dr. Myers .became MBPI’s Director. In 1998, the U.S. Food and Drug Administration (“FDA”) inspected and shut down MBPI’s production facility after finding problems in the anthrax vaccine manufacturing, production, storage, and testing processes. On July 8, 1998, BioPort entered into an agreement with the State of Michigan for the purchase of substantially all of MBPI’s assets. The transaction closed on September 4, 1998. A novation agreement transferred MBPI’s anthrax vaccine production contract with the federal government to BioPort, and BioPort later was awarded additional contracts. Dr. Myers began working for BioPort following the asset sale. Anthrax vaccine at BioPort later underwent supplemental testing and the production line eventually reopened. The primary Plaintiffs in this case received mandatory anthrax inoculations while on military duty. They or their representatives claim that the vaccine caused physical ailments and in some cases death. Alleged symptoms include nausea, fatigue, joint pain, memory loss, cognitive impairment, abdominal pain, migraines, seizures, tremors, insomnia, shooting pains, difficulty hearing, earaches, poor balance, vision problems, digestive problems, numbness, and hypersensitivity to smells, chemicals, and light. Plaintiffs argue that the anthrax vaccine with which they were injected was an unreasonably dangerous, defective, and experimental drug. They contend that Defendants produced and manufactured the vaccine in violation of numerous federal regulations and standards, and also misrepresented and withheld information about the vaccine’s risks. Based on these allegations, the Complaint sets forth the aforementioned series of claims against the various Defendants and seeks damages. II. Standard of Review An action - may be dismissed if the complaint fails to state a claim upon which relief can 1 be granted. Fed.R.Civ.P. 12(b)(6). The moving party has the burden of proving that no claim exists. Although a complaint is to be liberally construed, it is still necessary that the complaint contain more than bare assertions of legal conclusions. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993) (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). All factual allegations in the complaint must be presumed to be true, and reasonable inferences must be made in favor of the non-moving party. 2 Moore’s Federal Practice, § 12.34[l][b] (Matthew Bender 3d ed.2003). The Court need not, however, accept unwarranted factual inferences. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Dismissal is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). III. Discussion BioPort, MDPH-MBPI, and Dr. Myers have each filed separate motions to dismiss. BioPort’s motion sets forth the following arguments: (1) Plaintiffs’ claims are barred by the Feres doctrine; (2) Plaintiffs’ claims are barred by the government contractor defense; (3) Plaintiffs’ claims are barred by Michigan’s drug product liability immunity statute; and (4) Plaintiffs fail to state a claim for fraud. BioPort also argues that it incurs no successor liability from MDPH-MBPI. MDPH-MBPI base their motion to dismiss on the following arguments: (1) they were state agencies entitled to sovereign immunity under the Eleventh Amendment; (2) the Court lacks diversity jurisdiction over MDPH-MBPI because as state agencies they are not citizens for diversity purposes; (3) the Court lacks federal question jurisdiction over MDPH-MBPI because there is no valid federal claim as to them; and (4) the Court lacks pendent jurisdiction over Plaintiffs’ state law claims against MDPH-MBPI. Dr. Myers adopts and incorporates the arguments offered by BioPort and MDPH-MBPI and also asserts the following additional grounds for dismissal: (1) no cognizable cause of action exists against Dr. Myers for actions in his official capacity as an agent of a state sovereign; and (2) Plaintiffs fail to plead a viable claim against Dr. Myers for personal liability in his individual capacity. Part A of the discussion that follows concludes that all claims against MDPH-MBPI must be dismissed because these Defendants were state agencies and as such are entitled to sovereign immunity under the Eleventh Amendment. Part B addresses the claims against Dr. Myers, concluding that the official capacity and federal law individual capacity claims against him must be dismissed, but that the state law individual capacity claims survive. Part C examines whether Bio-Port incurs potential liability as a successor to MDPH-MBPI and finds that although successor liability does not attach under the rule announced in Turner v. Bituminous Cas. Co., 397 Mich. 406, 244 N.W.2d 873 (1976), a fact issue remains regarding whether BioPort may have assumed successor liability pursuant to the agreement by which it purchased MDPH-MBPI’s assets. Part C also concludes that whether BioPort may have incurred potential liability by conducting supplemental testing of the vaccine remains a disputed issue. Part D addresses various other claims, concluding that Plaintiffs’ federal law claims for violations of the right to human dignity and bodily integrity must be dismissed for failure to state a claim and that Plaintiffs have conceded their fraud claims. Finally, Part E turns to other defenses and finds that: BioPort does not inherit MDPH-MBPI’s sovereign immunity; the applicability of Michigan’s drug product manufacturers liability immunity statute has not been conclusively established; the Feres doctrine does not provide a defense in this case; and the requirements of the government contractor defense have not been conclusively established. A. Defendants Michigan Department of Public Health and Michigan Biologic Products Institute: Eleventh Amendment Sovereign Immunity Defendants MDPH-MBPI argue that they were state government entities and therefore are immune from suit pursuant to the Eleventh Amendment. Plaintiffs counter that state sovereign immunity does not apply to these defendants because they were not acting as arms of the state and were not performing government functions when manufacturing and selling anthrax vaccine. Instead, Plaintiffs contend, MDPH-MBPI acted as autonomous, for-profit, private enterprises to which the Eleventh Amendment renders no protection. The Court finds that MDPH-MBPI were arms of the State of Michigan and as such enjoy sovereign immunity. Therefore, the claims against MDPH-MBPI will be dismissed. The Eleventh Amendment to the United States Constitution embodies the concept of state sovereign immunity, stating: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Supreme Court interpretations of the Eleventh Amendment clarify that it bars individuals from suing states in federal court unless the state consents to be sued or Congress overrides such immunity. See Hans v. Louisiana, 134 U.S. 1, 15-18, 10 S.Ct. 504, 507-508, 33 L.Ed. 842 (1890) (Eleventh Amendment bars suits against a state by its own citizens); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974) (Eleventh Amendment bars suits against a state by citizens of another state); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984) (sovereign immunity bars suits against state on both federal and state law grounds); Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61 (states may waive sovereign immunity by unequivocally expressing an intent to do so); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 59, 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996) (Congress may abrogate Eleventh Amendment immunity with unmistakably clear language in a statute passed pursuant to Section 5 of the Fourteenth Amendment). Plaintiffs in this case, who are individual citizens of Michigan and other states, make no argument that Michigan has waived sovereign immunity or that Congress has abrogated it. State sovereign immunity under the Eleventh Amendment extends to suits brought against state departments and agencies. “It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908. See also Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 3314, 73 L.Ed.2d 1057 (1982) (“A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.”). The question, then, is whether MDPH-MBPI were departments or agencies of the state government. If they were, they cannot be sued and Plaintiffs’ claims against them must be dismissed. See Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 766, 122 S.Ct. 1864, 1877, 152 L.Ed.2d 962 (2002) (“Sovereign immunity does not merely constitute a defense to monetary liability or even all types of liability. Rather, it provides an immunity from suit.”). An entity enjoys state sovereign immunity under the Eleventh Amendment if it is deemed an “arm of the state” government. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). The Supreme Court has not formulated a precise rule to determine whether an entity is an “arm of the state.” Instead, the determination is made on a case-by-case basis, with various courts taking into account factors such as: (1) whether state funds would be used to pay a judgment against the entity; (2) the nature of the entity as created by state law; (3) whether the state intended to confer Eleventh Amendment immunity on the entity; (4) whether the entity exercises the state power and is under state control; (5) whether the entity performs functions typically performed by a state government; (6) whether the entity has the right to sue in its own name; and (7) whether the entity has the power to hold property in its own name. 17A Moore’s Federal Practice, § 123.23[4][b][i] (Matthew Bender 3d ed.2003). While most circuits have enunciated their own multi-factor tests for the “arm of the state” analysis, the Sixth Circuit has not. However, the Sixth Circuit discussed with approval other circuits’ tests in Brotherton v. Cleveland, 173 F.3d 552 (6th Cir.1999): Most of our sister circuits undertake a multi-factor analysis to decide whether an entity is an arm of the state. See, e.g., Duke v. Grady Mun. Schs., 127 F.3d 972, 974 & n. 4 (10th Cir.1997) (compiling cases and tests from the Second, Third, Fourth, Eighth, and Tenth Circuits.) The Eleventh Circuit’s test is illustrative; in Hufford v. Rodgers, 912 F.2d 1338 (11th Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991), it listed four factors relevant to its inquiry: “how state law defines the entity, what degree of control the state maintains over the entity, where funds for the entity are derived, and who is responsible for judgment against the entity.” Id. at 1341 (quoting Tuveson v. Florida Governor’s Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984)). The Tenth Circuit provides a helpful overview by categorizing its factors as broadly reflecting “the degree of autonomy of the particular entity ... and the source from which the entity receives its funds, and in particular, whether a money judgment against the entity would be satisfied out of the state treasury.” Duke, 127 F.3d at 974 n. 3. Id. at 560. In the explanation that follows, the Court applies the aforementioned factors and other indicia to explain its rationale for concluding that MDPH-MBPI were “arms of the state.” (1) Source of Funds to Pay Judgment Against MDPH-MBPI The most important factor in the “arm of the state” analysis is whether state funds would be used to pay any judgment resulting from a suit against the entity. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430, 117 S.Ct. 900, 904, 137 L.Ed.2d 55 (1997); Alkire v. Irving, 330 F.3d 802, 811 (6th Cir.2003). Indeed, protecting the solvency of state treasuries is one of the Eleventh Amendment’s primary goals, the other being to preserve the dignity and autonomy of state governments. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994). Plaintiffs point to agreements whereby either BioPort or the federal government has promised to indemnify MDPH-MBPI for any money judgments. Because of these indemnification agreements, Plaintiffs ' contend, the state’s purse risks no danger of being depleted. MDPH-MBPI counter that the agreements provide only “possible indemnification,” and that in any event, the State of Michigan may have to enforce the indemnity agreements in federal court, thus subjecting the state twice to suit in federal court. The dispute over indemnity misses the point. Whether or not BioPort or the federal government will indemnify MDPH-MBPI in the event of an adverse judgment is irrelevant to the “arm of the state” analysis. What matters is the state’s potential for legal liability. A state may be legally liable even though in actually it will not pay due to reimbursement or indemnification from a third party. See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 431, 117 S.Ct. 900, 904, 137 L.Ed.2d 55 (1997) (state’s potential legal liability rather than actual liability determinative; fact that Department of Energy would pay damage award does not affect Eleventh Amendment analysis; an agreement by the federal government to indemnify a state instrumentality against an adverse judgment does not divest a state agency of Eleventh Amendment immunity); Shands Teaching Hosp. & Clinics, Inc. v. Beech St Corp., 208 F.3d 1308, 1311-13 (11th Cir.2000) (provisions indemnifying state are irrelevant to determination of whether entity is entitled to state immunity). Thus, the real question is whether the state treasury would have to pay if the indemnification provisions were inoperative. Because the answer to that question in this case is yes, the source of payment factor favors a conclusion that MDPH-MBPI were “arms of the state.” (2) Nature of MDPH-MBPI Under State Law Another factor in the “arm of the state” analysis requires examining the nature of the entity under state law. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). The following discussion reviews the legal context in which MDPH-MBPI came into being, evolved, and operated. It shows that state law treated MDPH-MBPI as state government entities up to the time of the asset sale to BioPort. Accordingly, this factor suggests that they were “arms of the state.” The constitution of the State of Michigan divides the state government into the Executive, Legislative, and Judicial branches. Mich. Const. art. III, § 2. The Executive branch consists of principal departments. Mich. Const. art. V, § 2. Michigan law defines these departments, as well as other state-affiliated organizations, to be part of the State of Michigan. See M.C.L. § 691.1401(c) (defining “state” to mean “the state of Michigan and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces and includes every public university and college of the state, whether established as a constitutional corporation or otherwise”). The Michigan Department of Public Health (MDPH) was one of the principal departments designated by the Executive Reorganization Act of 1965, M.C.L. § 16.104. A state statute authorized the MDPH to “develop and produce pharmaceutical, biologic, and diagnostic products and by-products for human, veterinary, or agricultural use for distribution or sale outside this state for both public and private use....” M.C.L. § 333.9111(2). A 1978 statute established the Michigan Biologic Products Division within the MDPH. The Michigan Constitution authorizes the establishment of temporary commissions or agencies for special purposes with a life of no more than two years and provides that such temporary commissions or agencies need not be allocated within a principal department. Mich. Const, art. V, § 4. Pursuant to this constitutional provision, the Michigan Biologic Products Division of MDPH was transferred in its entirety out of the MDPH and renamed the Michigan Biologic Products Institute (MBPI) in 1996 by Executive Reorganization Order (E.R.O.) No.1995-20, M.C.L. § 333.26323. The E.R.O. established MBPI as a “temporary agency,” and also established the Michigan Biologic Products Commission as a “temporary agency” to supervise MBPI. M.C.L. § 333.26323(I)(A). The E.R.O. mandated that both MBPI and the Michigan Biologic Products Commission have a life of no more than two years. M.C.L. § 333.26323(I)(B), (C). MBPI was to be independent and autonomous of other state departments or agencies: “The Institute shall be an independent and autonomous entity with the intent that its authority, powers, duties and responsibilities and the authority, powers, duties, and responsibilities of the Director, including personnel, budgeting, procurement and management-related functions, be exercised free from the direction and supervision of the principal departments in the Executive Branch.” M.C.L. § 333.26323(I)(B)(2). MBPI employees were designated public servants working at a public entity, subject to applicable Civil Service Commission rules and ' regulations. M.C.L. § 333.26323(IV). MBPI was permitted to transact with “other state departments or individuals” for services such as personnel, security, and maintenance. M.C.L. § 333.26323(V). The Governor appointed the members of the Commission tasked with overseeing MBPI, and their meetings were subject to the state Open Meetings Act. M.C.L. § 333.26323(I)(C). The Commission was ordered to come up with a plan describing the means by which MBPI would be “transferred out of state government and into the private sector” within two years. M.C.L. 333.26323(H)(1). In 1997, the Michigan Biologic Institute Transfer Act, M.C.L. § 333.26331, et seq., transferred MBPI out of the MDPH and established it as an independent, autonomous entity within the Michigan Department of Community Health (MDCH). M.C.L. § 333.26333a. As a rationale for this move, the legislature expressed its determination that increased costs “adversely affected the ability of the state to sustain [MBPI as] a viable, self-supporting operation.” M.C.L. § 333.26332(a). MBPPs transfer to MDCH served the purpose of preparing MBPI either “to be conveyed to a private enterprise” or to be “discontinued.” M.C.L. 333.26332(b), (c). In 1998, MBPI was dissolved and its assets were sold to a private company, BioPort. (3) Degree of State Control Over MDPH-MBPI An entity’s degree of autonomy from or, alternatively, control by, the state comprises another factor in the “arm of the state” analysis. An entity is more likely to be acting as an arm of the state if the state government appoints its executives and directs, guides, regulates, or vetoes its activities. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994). Conversely, an entity is more likely to be autonomous of the state if it has the right to sue and be sued in its own right. See Callahan v. City of Philadelphia, 207 F.3d 668, 670 (3d Cir.2000). An entity’s ability to hold property in its own name also suggests autonomy. See Skelton v. Camp, 234 F.3d 292, 297 (5th Cir.2000). The Court determines that MDPH-MBPI’s connection to and control by the state government supports a conclusion that they were “arms of the state.” As the preceding discussion of MDPH-MBPI’s status under state law shows, state law accorded the Michigan government extensive control over these organizations. MDPH existed as a principal department of the executive branch. When MBPI later came into being, the state governor appointed its administrator and oversight commission. M.C.L. § 333.26323(1), 333.26333b. The nature of the state’s control over MDPH-MBPI differed from state control over organizations such as municipalities and multi-state bodies created by interstate compacts, which may receive no Eleventh Amendment immunity even though they are subject to some state control. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994) (multi-state organization); Lake Country Estates, Inc., v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979) (multi-state agency); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977) (local school board). In contrast to the entities considered in these cases, no external authority other than the State of Michigan exerted control over MDPH-MBPI. These cases and others suggest that the autonomy inquiry largely turns on comparing the state’s control to another governing body’s, such as a municipality or another state. In this case, however, there is no such competing controlling entity. Under an umbrella of government oversight, MDPH-MBPI exercised some degree of operational autonomy. For example, the entities apparently controlled their manufacturing operations and had the power to make and execute contracts, acquire property, and sue and be sued in their own names. These independent powers weigh against deeming MDPH-MBPI arms of the state, but not strongly. Other indicia show that despite having a degree of independent identity, MDPH-MBPI were state agencies. For example, the agreement whereby BioPort acquired MBPI’s assets is captioned as follows: “ASSET PURCHASE AGREEMENT between STATE OF MICHIGAN, Seller and BIOPORT CORPORATION, a Michigan corporation, Purchaser.” (Ammend Compl. Ex. H.) (italics added). The fact that the Attorney General of the State of Michigan represents MDPH-MBPI in this matter further manifests these entities’ close ties to the state. Cf. Ram Ditta v. Md. Nat’l Capital Park & Planning Comm’n, 822 F.2d 456, 458-59 (4th Cir.1987) (entity found not to be an arm of the state where it was not represented by the state attorney general, as state law required of state agencies). The real party of interest behind MDPH-MBPI is the State of Michigan. (4) Performance of Government Functions Another factor in the “arm of the state” analysis addresses whether the entity performs functions typically conducted by a state government. Plaintiffs argue that MDPH-MBPI were not performing state government functions when manufacturing and selling anthrax vaccine, but instead engaged in a for-profit commercial enterprise. In support of this view, Plaintiffs state that MDPH-MBPI sold vaccine to various corporations, non-profit organizations, and government agencies. Additionally, MDPH-MBPI allegedly asked for indemnification against product liability lawsuits stemming from the anthrax vaccine and paid for product liability insurance. Plaintiffs further contend that the State of Michigan admitted that MBPI did not fulfill a state government function when it announced plans to sell MBPI’s assets to a private firm. Finally, Plaintiffs argue that the vaccine MDPH-MBPI manufactured was not intended for State of Michigan citizens unless they coincidentally happened to be in the military. The Court concludes that although state governments typically do not make and sell anthrax vaccine, MDPH-MBPI did perform a government function in light of the circumstances in which they operated. Several cases have considered the question of what constitutes a government function. Two of these cases involved entities which, in light of the other “arm of the state” factors, would probably have been deemed business enterprises separate from the state, but which performed roles so essential that they were given “arm of the state” status. First, in Alaska Cargo Transport, Inc. v. Alaska Railroad Corp., 5 F.3d 378 (9th Cir.1993), the court decided that the Alaska Railroad Corporation was an arm of the state. Even though a state statute provided that the corporation, and not the state, would be liable for any judgments against the Corporation, the Court determined that the Alaska Railroad Corporation performed a vital, essential state function by operating a critical, statewide transportation, supply, and communication network. Id. at 380-83. Second, in Shands Teaching Hospital & Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308 (11th Cir.2000), the court listed numerous cases extending Eleventh Amendment protection to private corporations acting as fiscal intermediaries in actions relating to Medicare reimbursement. “[Ajlthough these are private corporations that are neither controlled nor funded by the state, they are protected by governmental immunity when they are clearly acting as agents of the state .... immunity has been granted only to the extent that a judgment would expose the government to financial liability or interfere with the administration of government programs.” Id. at 1311. “Thus the question in this case is whether and to what extent these corporations are contractually acting as representatives of the State.” Id. In contrast, Teichgraeber v. Memorial Union Corp. of the Emporia State University, 946 F.Supp. 900 (D.Kan.1996) decided that a non-profit student union on a state university lacked Eleventh Amendment immunity, in part because it failed to prove that it performed an “essential and traditional” government function. Id. at 905. Application of these cases would seem to point to a conclusion that MDPH-MBPI did not perform a government function. Over time, MDPH-MBPI’s functions resembled less those of a state government and more those of a private concern. In addition, production of anthrax vaccine cannot plausibly be characterized as essential to the state. Indeed, the State of Michigan recognized this to be the case when it mandated the sale of MBPI’s assets out of state government to a private firm. A report on the MBPI “FY 97 Executive Budget” posted on a state web site states: The change in the market for pediatric vaccines and the growth of the division’s relationships with outside customers made it clear that the division no longer fulfilled a state government function and that the new institute could become a self sustaining enterprise. In keeping with the vision of this institute as a self-sustaining enterprise, the Governor’s fiscal year 1997 recommendation reflects a budget which is totally supported by outside revenues and totals $16.3 million, thereby eliminating all general fund support. CAmmend Compl. Ex. J.) (emphasis added) Plaintiffs claim that this statement constitutes the State of Michigan’s admission that MBPI did not perform a government function and thus should not be considered an “arm of the state.” However, up to the time of the BioPort purchase, the production and sale of anthrax vaccine constituted, at least formally, a state government function, albeit an atypical one. The web site excerpt above shows that vaccine production was not a government function in the sense of meeting an essential state-wide need, but the activity nevertheless comports with the meaning of a government function under Michigan law. A state statute defines “governmental function” as “an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.” M.C.L. § 691.1401(f). Furthermore, the Michigan Supreme Court has defined the term “governmental function” to mean “an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.” Ross v. Consumers Povoer Co., 420 Mich. 567, 620, 363 N.W.2d 641, 661 (1984). A state statute expressly authorized MDPH to develop, produce, and distribute anthrax vaccine: “The department [MDPH] may develop and produce pharmaceutical, biologic, and diagnostic products ... for distribution or sale outside this state for both public and private use.” M.C.L. § 333.9111(2). This authorized function of the Biologic Products Division of MDPH was transferred to MBPI in 1996. Later, MBPI, along with its statutory functions, was transferred to MDCH in 1997. In light of the aforementioned definitions and statutory authorizations, there can be no question that MDPH-MBPI performed a government function in manufacturing and selling anthrax vaccine. (5) Source of Funding; Destination of Revenues An entity’s source of funding is another relevant factor in the determination of whether it is an “arm of the state.” The more an entity’s funding comes from the state, the more likely it will be deemed a state government entity with Eleventh Amendment immunity. See, e.g., Anderson v. Red River Waterway Comm’n, 231 F.3d 211, 214 (5th Cir.2000). However, the case law makes clear that an entity’s source of operational funding is less important than the source of payment for a judgment against the entity. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430, 117 S.Ct. 900, 904, 137 L.Ed.2d 55 (1997); Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir.1999). In this case, it appears that MDPH-MBPI generated at least a significant portion if not all of their of their funding on their own by selling vaccine, requiring them to draw little if anything out of the state budget. However, MDPH-MBPI received no funding from other sources. It also appears that revenues from vaccine sales in excess of MDPH-MBPI’s costs went to the state treasury. On balance, this factor favors deeming MDPH-MBPI to be “arms of the state.” Court decisions illustrate the application of this factor. See, e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401-402, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979) (mentioning that a regional planning agency-found not to be immune was funded by counties, not states); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 573, 50 L.Ed.2d 471 (1977) (finding that a local school district was not an arm of the state, in part because although it received a significant amount of state money, it also had its own extensive taxing and borrowing powers); Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir.1999) (determining that a nonprofit eye bank was not an arm of the state, in part because it was unlikely that the state had “any financial involvement” with the entity, as state laws did “little more” than give the eye bank “permission to harvest corneas”). Plaintiffs allege that at least in the years leading up to the sale to BioPort, MDPH-MBPI were self-sustaining enterprises with budgets totally supported by outside revenues and receiving no general fund support from the state. Plaintiffs state that MDPH-MBPI’s customers included SmithKline Beecham, North American Biologies, the American Red Cross, and the United States military. MDPH-MBPI offer little in response. In fact, the budget appropriation act for the fiscal year ending September 30, 1998, allocated no state funds to MBPI and acknowledged that MBPI would receive $15,000,000 in “biologic product sales and other revenues.” M.C.L. § 333.26336c. It appears, though, that MDPH-MBPI’s revenues in excess of costs went to the Michigan state government. The statute authorizing the MDPH also created the Pharmaceutical Products Fund (PPF), a fund administered by the MDPH but located “in the state treasury.” M.C.L. § 333.9112(1). “[A]ll revenues received” by the MDPH were placed in the PPF. M.C.L. § 333.9112(2). The PPF was used “to update and improve the facilities used to develop and produce pharmaceutical, biologic, and diagnostic products ... or to otherwise improve the biologies products program.” M.C.L. § 333.9112(3). The 1996 transfer of the Biologic Products Division of MDPH to MBPI included the transfer of the administration of the PPF, but the fund remained within the state treasury. M.C.L. § 333.26323(I)(B)(4). These facts indicate that MDPH-MBPI’s financial connections to the State of Michigan were sufficiently strong to warrant deeming them “arms of the state.” B. Defendant Dr. Myers Dr. Myers was formerly the Chief of the Biologies Division of MDPH and the Director of MBPI. He currently serves as BioPort’s Executive Vice President. Plaintiffs have sued Dr. Myers both in his official capacity based on his positions at MDPH-MBPI and in his individual capacity. For the reasons stated below, the Court will dismiss the official capacity and federal law individual capacity claims against Dr. Myers but permit the state law individual capacity claims to go forward. (1) Official Capacity — Eleventh Amendment Sovereign Immunity The claims against Dr. Myers in his official capacity must be dismissed because the Eleventh Amendment immunizes him from suit in his official status. Lawsuits against state officials in their official capacity are deemed to be lawsuits against the state itself. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The Court has already determined that MDPH-MBPI were state government entities. A state agency official such as Dr. Myers during his tenure at MDPH-MBPI receives the same sovereign immunity as the state agency itself. See Wells v. Brown, 891 F.2d 591, 592 (6th Cir.1989) (“state officials sued in [their] official capacity for damages are absolutely immune from liability under the Eleventh Amendment”). Plaintiffs’ effort to avoid sovereign immunity by invoking Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is unavailing. Under the Ex parte Young doctrine, a state official who violates federal law is stripped of his official or representative character; the state cannot cloak the officer in its sovereign immunity under such circumstances. Id. at 159-60, 28 S.Ct. at 454. In this case, however, no federal law claims survive. Plaintiffs assert federal claims under § 1983 for violations of purported constitutional rights to bodily integrity and human dignity. The Court addresses these constitutional allegations infra, concluding that they fail to state a claim upon which relief can be granted and thus must be dismissed on their merits. With the federal claims thus dismissed, Ex parte Young becomes irrelevant. Dr. Myers remains immune from all claims brought against him in his official capacity. (2) Individual Capacity (a) Federal Law Claims Dr. Myers argues that the federal doctrine of qualified immunity warrants dismissal of the § 1983 constitutional claims brought against him in his individual capacity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation. Klein v. Long, 275 F.3d 544, 550 (6th Cir.2001). As the Court discusses infra, the Complaint fails to adequately state federal constitutional claims in the first place, requiring dismissal of those claims. It is therefore unnecessary to determine whether Dr. Myers has qualified immunity to those claims. (b) State Law Claims Dr. Myers argues that insofar as the Complaint can be construed to assert state law claims against him in his individual capacity, these claims should be dismissed as well. Dr. Myers first contends that the Complaint is devoid of allegations which, even if true, could serve as a basis for personal liability. The Court disagrees. The Complaint includes several state law claims against Dr. Myers, including negligence, breach of warranties, and fraud. Whether or not Plaintiffs will be able to prove these claims remains to be seen, but the Court is not prepared to dismiss them on the merits at this stage. Next, Dr. Myers argues that even if Plaintiffs’ state law claims are viable, Michigan law provides him absolute immunity from personal liability for actions while he worked at MDPH-MBPI. In Michigan, certain of the state’s “highest executive officials” are absolutely immune from personal liability for claims arising out of acts or omissions relating to the performance of their jobs. See Ross v. Consumers Power Co., 420 Mich. 567, 633, 363 N.W.2d 641, 667 (1984) (‘We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority.”). Ross thus requires the Court to make two determinations: first, whether Dr. Myers was a “highest executive official,” and second, whether he was acting within his “executive authority.” In order to be considered a “highest executive official,” an individual “should have broad-based jurisdiction or extensive authority similar to that of a judge or legislator.” Chivas v. Koehler, 182 Mich.App. 467, 471, 453 N.W.2d 264, 266 (1990). Chivas assessed whether absolute immunity attached to several state prison officials. The Director of the Michigan Department of Corrections (MDOC) qualified for absolute immunity because he was the highest executive in that state governmental department. Id. The Deputy Director of the MDOC in charge of the Bureau of Correctional Facilities (BCF) also received absolute immunity. He was responsible for approving the transfer of inmates out of the Michigan Intensive Program Center (MIPC), and no one else reviewed his approval decisions. Because he, too, “exercised broad-based jurisdiction and extensive authority as the administrator” of the BCF, the court deemed him “one of the ‘highest executive officials’ in his department of state government.” Id. However, lower-level officials such as the superintendent of the MIPC (a single facility) and prison wardens lacked the broad jurisdiction to entitle them to absolute immunity. Id. In this case, Dr. Myers first became an employee of MDPH in 1978. In 1990, he became Chief of the MDPH’s Biologies Division, occupying the top position in the Division and reporting to the Chief of the Bureau of Laboratory and Epidemiological Services of the MDPH. Dr. Myers filled MBPI’s highest position as Director of that entity from the time of its inception in 1996 until the sale of its assets to BioPort in 1998. Based on these positions, Dr. Myers asserts that he was among the “highest executive officials” of both MDPH and MBPI. However, Dr. Myers has not provided sufficient information regarding the scope of his jurisdiction and authority in these positions, especially with respect to his role as Chief of the MDPH Biologies Division. Moreover, he has provided no information relevant to the second inquiry under Ross, namely, whether he was acting within his “executive authority” in undertaking the conduct of which Plaintiffs complain. Accordingly, the Court cannot rule as a matter of law that Dr. Myers enjoys absolute immunity from Plaintiffs’ state law claims. C. Defendant BioPort — Successor Liability; Supplemental Testing As a general rule, a corporation that purchases the assets of another corporation does not, simply by virtue of the asset purchase transaction, become liable for the obligations of the seller. City Mgmt. Corp. v. U.S. Chem. Co., Inc., 43 F.3d 244, 251 (6th Cir,1994). However, the general rule is subject to four exceptions whereby successor liability may attach: (1) where the purchasing corporation expressly or impliedly agrees to assume the selling corporation’s liabilities; (2) where the transaction amounts to a consolidation or merger of the two corporations; (3) where the purchasing corporation is a “mere continuation” of the selling corporation; and (4) where the transaction is entered into fraudulently, in order to. escape liability for the obligations of the selling corporation. Id. The case at bar implicates the first and third exceptions, as the Asset Purchase Agreement includes a paragraph allocating assumed and retained liabilities for claims brought under products liability theories, and the parties contest whether BioPort shares continuity of enterprise with the seller of the assets it purchased. The Court addresses the continuity of enterprise issue first, concluding that Bio-Port has no successor liability by way of the continuity of enterprise theory. Next, the Court turns to the contractual allocation of liability issue, concluding that the terms of the Asset Purchase Agreement do not make clear whether the signatory parties intended for BioPort to assume potential liability for at least some lots of anthrax vaccine. And if BioPort has assumed liability, a fact issue remains regarding for which lots. The Court further concludes that whether potential liability attaches to BioPort based on its participation in the anthrax vaccine supplemental testing program remains unresolved. Accordingly, all claims against BioPort which are not dispensed with elsewhere in this Opinion survive the motion to dismiss. (1)Successor Liability — Continuity of Enterprise Theory In the seminal case of Turner v. Bituminous Casualty Company, 397 Mich. 406, 244 N.W.2d 873 (1976), the Michigan Supreme Court adopted the continuity of enterprise theory of successor liability in products liability cases. Turner held that despite the traditional rule against successor liability in asset purchase transactions, a corporate successor may be liable for injuries caused by its predecessor’s defective products if the totality of the acquisition demonstrates “a basic continuity of the enterprise” between the predecessor and successor corporations. Id. at 430, 244 N.W.2d at 883. This theory, the Turner court reasoned, better served the policy considerations underlying products liability law. Id. at 418-19, 244 N.W.2d at 878. See also Foster v. Cone-Blanchard Mach. Co., 460 Mich. 696, 703, 597 N.W.2d 506, 510 (1999) (“In the context of tort law, the traditional rule with its narrow exceptions has been criticized as an elevation of form over substance, that may leave victims of a defective product without recourse.”); Pelc v. Bendix Mach. Tool Corp., 111 Mich.App. 343, 352, 314 N.W.2d 614, 618 (1981) (“The Turner Court reasoned that the traditional corporate law approach was neither legally nor logically related to the policy considerations underlying the evolving law of products liability.”). Continuity of enterprise between a successor and its predecessor may force a successor to “accept the liability with the benefits” of such continuity. Turner, 397 Mich, at 430, 244 N.W.2d at 883. Turner held that a prima facie case of continuity of enterprise exists when a plaintiff establishes the following: (1) there is a basic continuation of the seller corporation’s enterprise reflected in a continuity of management, personnel, physical location, assets, and general business operations of the predecessor corporation; (2) the predecessor corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; (3) the purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the selling corporation. (4) the purchasing corporation holds itself out to the world as the effective continuation of the seller corporation. Turner, 397 Mich. at 430, 244 N.W.2d at 883-84. More than two decades after the Turner decision, the Michigan Supreme Court described the fourth item on the list above as “an additional principle relevant to determining successor liability.” Foster v. Cone-Blanchard Mach. Co., 460 Mich. 696, 703, 597 N.W.2d 506, 510 (1999). Foster explained: This principle has been called the fourth guideline of the Turner continuity of enterprise analysis. However, we note that a truer reading of Turner suggests that the first three guidelines were intended to complete the continuity of enterprise inquiry where there is a sale of corporate assets. Turner went on to identify as a separate and relevant inquiry whether a purchasing corporation holds itself out as the effective continuation of the seller. Id., 460 Mich. at 704 n. 6, 597 N.W.2d at 510 n. 6. According to BioPort, Plaintiffs cannot prove either the second or fourth Turner prongs. BioPort, in its estimation, need not and therefore does not contest the first and third prongs, which the Court thus understands BioPort to concede. This approach reflects BioPort’s erroneous assumption that Plaintiffs must satisfy each Turner factor in order to proceed with their case. BioPort is mistaken in positing that the Turner factors are independent predicate elements to a finding of successor liability under the continuity of enterprise doctrine such that a failure by Plaintiffs to demonstrate one of the Turner guidelines is fatal to a continuity of enterprise claim. Rather, the factors “are to be balanced and weighed ... to determine if the totality of the transaction preponderates in favor of imposing successor liability.” Pelc, 111 Mich.App. at 354-55, 314 N.W.2d at 619. “[T]hese criteria” are not “ironclad elements, each and every one of which must be present to find successor liability .... [t]hey are only guidelines .... all [are] relevant, with the first as perhaps of greatest significance.” Korzetz v. Amsted Indus., Inc., 472 F.Supp. 136, 143 (E.D.Mich.1979), recognized as overruled on other grounds by Johnson v. Ventra Group, Inc., 191 F.3d 732, 746 (6th Cir.1999). Accordingly, a proper application of Turner assesses whether the “totality of the transaction” suggests continuity of enterprise. (a) Second Turner Prong In spite of the overall balancing orientation of the Turner analysis, the second Turner guideline operates with dis-positive force in certain circumstances. Once again, the second guideline favors a finding of continuity of enterprise if the predecessor corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible. “[F]ailure of the predecessor to dissolve may not be fatal in every action for successor liability, especially, for example, where the predecessor continues as a shell or is otherwise underfunded.” Foster, 460 Mich. at 706, 597 N.W.2d at 511. However, there can be no continuity of enterprise and thus no successor liability if the “predecessor remains a viable source for recourse.” Id. Stated differently, “the availability of a predecessor is fatal to actions for successor liability.” Id. at 704 n. 7, 597 N.W.2d at 510 n. 7. This rule from Foster requires the Court first to identify BioPort’s predecessor and second to determine whether the predecessor remains available. As for the first inquiry, the Court concludes that BioPort’s predecessor was not MBPI, which undeniably ceased to exist after the asset purchase transaction, but rather the State of Michigan, which of course continues in existence. This conclusion comports with the Court’s preceding discussion of MDPH-MBPI’s immunity from suit under the Eleventh Amendment, in which the Court determined that MDPH-MBPI were state government entities. That the transaction involved the state as predecessor and BioPort as successor is evident in the first sentence of the Asset Purchase Agreement, which states: “This ASSET PURCHASE AGREEMENT ... is made and entered into by and among the STATE OF MICHIGAN (“Seller ”) and BIOPORT CORPORATION, a Michigan corporation (“Purchaser ”).” (Ammend Compl. Ex. L.) Having identified the State of Michigan as BioPort’s predecessor, the second inquiry is whether the state can be considered “available” as a “viable source for recourse.” Foster, 460 Mich, at 706, 597 N.W.2d at 511. This is a more difficult question. Although Michigan was Bio-Port’s predecessor and continues in existence, it is immune from suit by virtue of the Eleventh Amendment. Is the state an available, viable source of recourse if it is immune? Most cases in the Turner and Foster line discussing a predecessor’s continuing existence and availability are factually in-apposite to the instant case. Those cases generally involve private business predecessors and successors, where the predecessor was amenable to suit prior to the asset sale transaction. They hold that a products liability plaintiff may not sue a successor if the predecessor remains capable of being sued. If, however, the transaction deprives the plaintiff of an effective remedy against the predecessor, then the Court should consider imposing liability on the successor. See, e.g., Foster, 460 Mich. at 705-706, 597 N.W.2d at 511 (finding no successor liability under Turner when predecessor was available to suit, as evidenced by plaintiffs $500,000 settlement with predecessor; successor liability doctrine’s rationale is to provide a source of recovery for injured plaintiffs who have “no place to turn for relief except to the second corporation”) (quoting Turner, 397 Mich. at 419, 244 N.W.2d at 878); Santa Maria v. Owens-Illinois, Inc., 808 F.2d 848, 859 (1st Cir.1986) (“it is crystal clear that under [Turner ] ... it is absolutely essential for the broader exception to the rule of nonlia-bility in products liability cases to come to bear that the injured plaintiff must have been deprived by the asset transaction of an effective remedy against the predecessor corporation that actively manufactured the product causing the injury”) (emphasis in original). This case is different. Here, the predecessor has always been cloaked with sovereign immunity and has never been amendable to the type of suit Plaintiffs bring, whether now or before the asset sale. The asset sale therefore did not deprive Plaintiffs of an effective remedy against the predecessor; Plaintiffs never had such a remedy in the first place. Thus, this case fails to implicate the policy rationale behind the successor liability doctrine, which Turner explained to be the preservation of an injured person’s access to relief notwithstanding the occurrence of a corporate transfer between the time the predecessor makes a product and the time a person injured by the product files suit. In discussing the “underlying logic” of its holding, the Turner court explained how successor liability prevents changes in corporate forms from victimizing plaintiffs. Without successor liability, an injured person faces “the problem of recovery” when a predecessor “legally and/or practically becomes defunct.” 397 Mich. at 419, 244 N.W.2d at 878. The injured person “has no place to turn for relief except to the second corporation.” Id. Turner’s holding solves the problem of recovery, ensuring that plaintiffs do not lose access to a remedy they once had. Moreover, the successor liability doctrine avoids the “unfair and unbelievable” perverse incentive that would arise absent the Turner rule whereby businesses would engage in cash-for-asset transactions when “the only real reason is to avoid .products liability suits.” Id. at 422-23, 244 N.W.2d at 880. None of these policy concerns arise in this case. Indeed, to peg BioPort with successor liability for the actions of its immune predecessor would work an injustice on Bio-Port and deliver an unfair windfall to Plaintiffs. Rather than losing a remedy that they were once entitled to pursue, Plaintiffs in this case seek to gain a remedy which they never had prior to the asset sale. Such a result would be as unjust as the outcome Turner sought to prevent. Shielding BioPort from successor liability under the continuity of enterprise theory leaves Plaintiffs no worse off than they would be had the state never sold MBPI’s assets, and that is a fair result. (b) Fourth Turner Prong The fourth prong of the Turner inquiry favors a finding of successor liability if the purchasing corporation holds itself out to the world as the effective continuation of the seller corporation. In this case, Bio-Port never held itself out as a continuation of the State of Michigan or its agencies, MDPH-MBPI. This prong therefore strengthens the Court’s conclusion that successor liability should not attach to Bio-Port. Estoppel and fairness principles under-gird the fourth Turner guideline. “Justice would be offended if a corporation which holds itself out as a particular company for the purpose of sales, would not be es-topped from denying that it is that company for the purpose of determining products liability.” Turner, 397 Mich. at 426, 244 N.W.2d at 882. A buyer company “holds itself out” as a continuation of the seller when, for example, it attempts to capture the seller’s goodwill by retaining its name or otherwise identifying and representing itself as the seller. See, e.g., Fenton Area Public Schools v. Sorensen-Gross Constr. Co., 124 Mich.App. 631, 644, 335 N.W.2d 221, 226 (1983) (fourth Turner guideline established when buyer adopted seller’s name in order to take advantage of any good will associated with the name); Pelc, 111 Mich.App. at 354, 314 N.W.2d at 619 (finding satisfaction of the fourth Turner guideline when buyer listed itself under seller’s name in telephone directory, labeled products with seller’s name, and distributed literature to customers representing and identifying itself as a continuation of seller). There can be no doubt that neither Bio-Port’s customers nor the public nor any other interested party mistook BioPort to be a mere continuation of the state agencies from which it purchased assets. The sale was widely publicized in the press and on the internet both before and after its consummation, making it abundantly clear that BioPort was a new, private enterprise. The federal government, including the DOD and FDA, unquestionably understood BioPort not to be a mere continuation of MBPI. In fact, BioPort, the DOD, and the State of Michigan entered into a novation agreement to allow BioPort to assume the state’s government contracts. There could be no confusion regarding the separation between BioPort and the state. Accordingly, Plaintiffs cannot satisfy the fourth Turner guideline. (2) Assumption and Retention of Liabilities — Asset Purchase Agreement Another exception to the general rule against successor liability in asset purchase transactions arises when the purchasing corporation expressly or impliedly agrees to assume the sellin