as to ARC's failure to screen out high risk donors.
Plaintiffs argue in addition that it was negligent for the ARC to fail to use surrogate laboratory tests to eliminate contaminated blood from the blood supply. Plaintiffs concede that during the relevant period, there was no test for AIDS itself, or even for exposure to AIDS. There is still no test for the former, and the test for the latter was not licensed for use until March, 1985. Plaintiffs argue, however, that AIDS and hepatitis were closely linked in the early years of research into the disease, and that those groups at risk for hepatitis were the same groups at risk for AIDS. Plaintiffs therefore suggest that the ARC should have implemented what is known as the Hepatitis B core antibody test, which plaintiffs contend would have screened out 90% or more of AIDS-contaminated blood while screening for hepatitis-B. Plaintiffs' Amended Complaint, para. 53(c); Plaintiffs' Opposition at 58, 94.
Plaintiffs are in error for two reasons. First, plaintiffs can point to no organization, governmental or medical, which advocated the use of this test as a means of screening blood for AIDS. Instead, plaintiffs offer testimony of two experts whose current opinion is that hospitals and blood banks should have used the core antibody test and should have screened gay men out of the donor pool. Deposition of Dr. E. Allen Griggs at 70-71, 167-168; Deposition of Dr. Donald Armstrong at 73, 96. Neither of these experts suggested either course of conduct in late 1982 or early 1983. Indeed, Dr. Armstrong was present at the January 4 meeting of the Public Health Service Committee, and did not then propose either as a strategy for combatting the disease. Neither expert's hospital had these safeguards in place during the relevant period. These two individuals' opinions cannot alone create a standard of care or a prima facie case of negligence, where they are entirely in opposition to the standard prevailing at every hospital and blood bank in the nation. To permit these hindsight opinions to preclude summary judgment would violate the United States Supreme Court's mandate that Rule 56 be construed with due regard to defendants who have shown by competent evidence that a plaintiff's claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). Thus, as with the issue of donor screening, plaintiffs cannot establish a standard of care regarding surrogate tests from which the ARC departed.
To some extent this is admitted by plaintiffs. However, they attempt to argue through their experts that the ARC, as a nationwide leader in the field of blood collection, should not be governed by a community standard of care, but should instead be held to a unique super-standard. While this argument would prove helpful to plaintiffs, who have no factual support for their allegations under traditional negligence principles, it would entirely undercut these traditional principles. It is difficult to conceive of a negligence system which would permit some members of a professional community -- those "on the cutting edge," as plaintiffs put it, Deposition of E. Allen Griggs at 62, -- to be held to a unique standard above that of other members of the same community. It is unclear how a court would define the qualities that would put an individual or organization above its peers for purposes of determining negligence, or how a court would give content to a standard of care that was defined simply as somewhere above that of the rest of the community. Traditional yardsticks of negligence such as industry practice or the standard of care of a reasonable practitioner in a given field would be of no use. Those members of the 'vanguard' would be measured against a unique standard, which is a contradiction in terms. The practical result of such a scheme would be to impose virtual strict liability on those in the 'vanguard' under the guise of negligence.
This is not, as plaintiffs contend, an instance where "what ought to be done is fixed by a standard of reasonable prudence" but is simply not complied with by an entire community. See Plaintiffs' Opposition at 46, quoting Texas & Pacific Ry. v. Behymer, 189 U.S. 468, 470, 47 L. Ed. 905, 23 S. Ct. 622 (1903) (Holmes, J.). In that situation, courts have not hesitated to compel an entire community to upgrade its standard of care. See, e.g., The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Learned Hand, J.) (requiring all tugboats to be equipped with radios although none were so equipped at the time). Instead, plaintiffs ask the court to find that what would clearly have been non-negligent conduct for any other member of the blood banking community is nonetheless negligence for the ARC. This result is both unfair and impractical of application. Accordingly, the court declines to accept plaintiffs' novel approach to negligence law.
The second insurmountable hurdle in plaintiffs' negligence case against the ARC is that the Hepatitis B core antibody test, which plaintiffs' experts advocate, would have proved inutile in screening out the donor whose contaminated blood Matthew received. That donor would have tested negative for hepatitis-B at the time of his donation. ARC Memorandum at 22, citing Answers to Plaintiffs' Second Set of Interrogatories, No. 4 (Mar. 30, 1987); Affidavit of S.G. Sandler, M.D., para. 5 (Apr. 14, 1987). Thus, the critical element of causation, wherein plaintiffs must show that the ARC's failure to implement this test caused Matthew to become infected, is absent. For this second reason, the ARC is entitled to summary judgment as to plaintiffs' negligence count (Count IV of Plaintiffs' Amended Complaint).
V. Strict Liability in Tort and Implied Warranties :
Plaintiffs seek relief under the theory of strict liability in tort for an unreasonably dangerous product, under the Restatement (Second) of Torts § 402A. Plaintiffs' Amended Complaint, Count VI. They also allege a cause of action for breach of the implied warranties of merchantability and fitness for a particular purpose under the Uniform Commercial Code, enacted in the District of Columbia at D.C. Code § 28:2-314, 315 (1981 & Supp. 1985). Plaintiffs' Amended Complaint, Count V. Both these theories are rooted in the conception of blood as a product and the ARC's provision of blood to Georgetown as a sale of a product. These conceptions are threshold requirements for application of the strict liability theories which plaintiffs allege in Counts V and VI of their Amended Complaint.
The District of Columbia's Court of Appeals has held that "the current doctrines of implied warranty and strict liability in tort are but two labels for the same legal right and remedy, as the governing principles are identical." Cottom v. McGuire Funeral Service, Inc., 262 A.2d 807, 808 (D.C. App. 1970), cited in Fisher v. Sibley Memorial Hospital, 403 A.2d 1130, 1133 (D.C. App. 1979). Thus, plaintiffs' two separate Counts may be viewed together in determining whether summary judgment for defendants is appropriate. Largely for the reasons stated in Fisher, supra, summary judgment for both Georgetown and the ARC is proper.
In Fisher, plaintiff sought relief from a hospital for infection with hepatitis as a result of a blood transfusion supplied by the hospital. Plaintiff alleged the same two causes of action alleged by plaintiffs here. The District of Columbia Court of Appeals rejected plaintiff's claims with respect to blood, finding that "characterizing blood plasma as a product governed by strict tort liability is as unnatural as forcing a blood transfusion into the commercial sales mold." 403 A.2d at 1134. Neither theory was justified by public policy, the court found.
The court noted that, rather than being an unreasonably dangerous product, giving rise to strict tort liability, blood should instead be viewed as unavoidably unsafe because the "scientific inability to screen all carriers of viral hepatitis despite due care," id. at 1133, combined with the "public interest in assuring the ready availability of blood," id., compelled such a result. Critical to the court's holding was "the difficulty of detecting hepatitis in blood given the current state of medical knowledge." Id. In addition, the court noted that under a strict liability regime, "the hospital, no matter how careful, would be held responsible, virtually as an insurer, if the patient were harmed as a result of impure blood." Id. For these reasons, the court concluded that strict liability theories should not be applied to a hospital's provision of blood to its patients.
Plaintiffs now seek to limit the holding of Fisher to hospitals. In so doing, plaintiffs must concede that Fisher controls the question of Georgetown's liability, thus making summary judgment for Georgetown appropriate on these two counts. Plaintiffs argue that Fisher's converse rule should apply to blood banks like the ARC, rather ingeniously focussing on the business aspects of blood banking in an attempt to show that the provision of blood to hospitals is a profitable transaction such that products liability theories and the warranties of the Uniform Commercial Code should be held to apply. Plaintiffs' Memorandum in Opposition to ARC's Motion for Summary Judgment at 87-88. Plaintiffs also note that the District of Columbia is one of only four jurisdictions that have not legislatively barred the application of products liability theories to blood and blood products. Plaintiffs' Opposition at 100. See supra, 23 San Diego L. Rev at 882 n.36 (citing statutes). They contend that in the absence of this legislative action, those theories should be applied.
Plaintiffs' arguments must be rejected, since there is no principled basis on which to limit Fisher's holding to hospitals alone. The Fisher case represents a reasoned public policy decision which applies with equal if not greater force to the facts of this case, and to the ARC as a defendant. Moreover, in searching for an appropriate public policy regarding liability of a blood bank for provision of blood to hospitals, the court should be guided by the fact that every state except one has barred such liability, based on a concern for the adequacy of the nation's blood supply. Rather than reaching a contrary result because the District of Columbia has no 'blood shield statute,' the court should clarify the Fisher holding to be coextensive with these 47 legislative and two judicial enactments of sound public policy.
To begin with, the scientific rationale for Fisher is squarely applicable here. The state of medical knowledge about AIDS at the time of Matthew's transfusion was even less advanced than was medical knowledge of hepatitis at the time of the Fisher opinion. See supra slip op. at 3-7. There was not even a consensus of the medical community as to the fact that AIDS was transmitted by a blood-borne viral agent, much less identification of that agent or of a test to screen it out of the blood supply. Thus, the Fisher court's emphasis on the "scientific inability to screen all carriers . . . despite due care," 403 A.2d at 1133, as a reason for refusing to label blood 'unreasonably dangerous' compels a similar result with respect to the ARC's provision of blood prior to the development of the ELISA test for exposure to AIDS. It is relevant that the court in Fisher applied Comment K to § 402A of the Restatement (Second) of Torts, which excludes from strict liability:
those products, drugs in particular, which in the present state of human knowledge, are incapable of being made safe for their intended and ordinary use (i.e. rabies vaccine), but where existing medical experience justifies the marketing and use of the product despite the risk.
403 A.2d at 1134. This language is in no way limited to hospitals as providers, and applies equally cogently to the ARC in the context of AIDS in blood in 1983.
The inability to detect the 'defect' in blood was also one of the Fisher court's grounds for rejecting plaintiff's conception of the provision of blood by plaintiff hospital as a sale. Id. The court plainly held that "the furnishing of blood is more in the nature of a service than of a sale of goods," in part because to hold otherwise would force the supplier of blood into the role of insurer, which the court declined to do. This reasoning again applies equally well to the ARC as to hospitals.
In sum, there is nothing in the language of Fisher to suggest that the court would have reached a different result had the defendant been a blood bank and not a hospital. The policy considerations are all relevant to the case before this court, and compel summary judgment for both Georgetown and the ARC. This result is consonant with that of nearly every jurisdiction, and avoids the aberrational result that the ARC would be strictly liable in the District of Columbia for conduct that would not be actionable in 49 of our 50 states.
In so holding, the court need not address the ARC's alternative theory of immunity from strict liability under federal law.
VI. The District of Columbia Consumer Protection Act
Finally, plaintiffs contend that defendants are liable under the District of Columbia Consumer Protection Procedures Act ("DCCPPA" or "the Act"), enacted at D.C. Code § 28-3901 et seq. (1981 & Supp. 1985). Plaintiffs' theory is that defendants' failure to warn them of the risk of AIDS, or to inform them that the blood Matthew received was "from a contaminated source and below [the expected] standard of quality" constituted an unfair trade practice within the ambit of the DCCPPA. Plaintiffs' Amended Complaint, Count VII.
In order to succeed on this theory, plaintiffs must surmount several threshold problems. First, plaintiffs must show that defendants are within the scope of the DCCPPA. To do so, plaintiffs must show that defendants are "merchants" under the Act, D.C. Code § 28-3901(a)(3), and that their activities constituted "trade practices." D.C. Code § 28-3901(a)(6). A "trade practice" is defined as:
any act which does or would create, alter, repair furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services
Id. (emphasis added). "Goods and services" are in turn defined as "any and all parts of the economic output of society." Plaintiffs must fit the acts of the ARC and Georgetown into these statutory definitions in order to prevail.
In addition, plaintiffs must overcome the holding of the District of Columbia Court of Appeals in Save Immaculata/Dunblane, Inc. v. Immaculata Preparatory School, 514 A.2d 1152 (1986). In that case, the court declined to apply the DCCPPA to defendant, a religious secondary school, reasoning that "clearly, a non-profit educational institution is not a 'merchant' within the context of the Consumer Protection Procedures Act." Id. at 1159. In its brief opinion, the court did not express a view on other types of non-profit entities, but did make clear that the DCCPPA was to be limited to "trade practices arising only out of consumer-merchant relationships." Id.
Plaintiffs contend that both defendants are "merchants" under the Act because the ARC charges Georgetown for the provision of blood, and Georgetown passes those charges on to its patients who receive blood in the course of their treatment. Once again, plaintiffs make much of the business aspect of the ARC, focussing on its management and balance sheets in order to convince the court that blood banking is a business, that the ARC is a merchant, and that blood is a part of the economic output of society.
This approach is strained and should be rejected. As the court noted in Fisher, when it declined to characterize the provision of blood as a sale of goods for warranty purposes, it is "unnatural" to "forc[e] a blood transfusion into the commercial sales mold." 403 A.2d at 1134. The type of injury which the DCCPPA seeks to redress is not the provision of blood by non-profit blood banks like the ARC. The holding of Save Immaculata is helpful in this context: just as a non-profit educational institution's conduct should not be forced into a commercial mold, so also the conduct of the ARC in supplying blood should not be considered covered by the Act.
That the ARC assesses charges for the provision of blood is not determinative of its identity as a "merchant" under the Act. Certainly, the Immacualta Preparatory School charges its students fees for attending, yet these fees did not make that otherwise non-profit entity into a "merchant." Plaintiffs' focus on the minutes of ARC board meetings and annual reports is also inapposite. Many if not all non-profit entities are organized and run with traditional principles of sound business management in mind, not to turn a profit, but to survive and continue to perform whatever functions they were founded to perform. That this is so does not alone make them "merchants," nor does it make application of the DCCPPA to their conduct appropriate, especially in light of Save Immaculata.
In addition, to the extent that plaintiffs' allegations under the DCCPPA incorporate previously discussed theories of lack of informed consent and negligence, they are equally unmeritorious in the context of this statute. It has already been shown that risk of AIDS was not a material risk at the time of Matthew's transfusion, thus failure to discuss it with the Kozups cannot make either defendant liable under the DCCPPA. Similarly, it has already been shown that the standard of care for hospitals and blood banks at the time of Matthew's transfusions did not require either defendant to screen donors or use surrogate laboratory tests to eliminate the risk of AIDS contamination. Because defendants are not liable under any of these common law theories, they are equally exempt from liability for the same conduct despite the special statutory provision on which plaintiffs rely. Thus, both as to threshold matters and on the merits, defendants are entitled to summary judgment on plaintiffs' DCCPPA claims (Count VII of Plaintiffs' Amended Complaint).
Because none of plaintiffs' substantive causes of action withstand defendants' Motions for Summary Judgment, the court need not address the question of plaintiffs' special damage allegations, in Counts VIII and XI.
In granting summary judgment, the court is mindful of the terrible personal tragedy that Matthew's struggle with AIDS must have been for the Kozup family. Theirs is an especially frustrating loss because it was not long after Matthew's infection with the disease that the medical community made a number of important AIDS-related breakthroughs in rapid succession. It can only be hoped that these discoveries will save others the pain that plaintiffs have suffered, and that, toward that end, the efforts of both defendants will play a significant role.
An appropriate Order accompanies this Memorandum.
This matter came before the court on the Motions of defendants Georgetown University and The American Red Cross for Summary Judgment. Upon consideration of the motions, the oppositions thereto, and the entire record herein, and for the reasons stated in the accompanying Memorandum, it is by the court this 7th day of July, 1987,
ORDERED that the Motion of Defendant Georgetown University for Summary Judgment is granted; and it is further
ORDERED that the Motion of Defendant The American Red Cross for Summary Judgment is granted; and it is further
ORDERED, ADJUDGED, AND DECREED that summary judgment be and hereby is entered in favor of defendant Georgetown University as to each count of Plaintiffs' Amended Complaint; and it is further
ORDERED, ADJUDGED, AND DECREED that summary judgment be and hereby is entered in favor of defendant The American Red cross as to each count of Plaintiffs' Amended Complaint.
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