Opinion
Civil No. 03-1342 (PG).
February 3, 2005
OPINION AND ORDER
Before the Court is the Hon. Magistrate Judge Camille Velez-Rive's Report and Recommendation regarding defendants' motions for summary judgment, which ultimately proposes that the motions be granted, on account of plaintiff's failure to establish a causal nexus between the transfusions of blood received from defendants and his subsequent Hepatitis C infection. (Docket No. 96) Also before the Court are plaintiff's objections to the Report and Recommendation (Docket No. 98), as well as defendant the American Red Cross response thereto. (Docket No. 100)
I. BACKGROUND
The Court reviews the record in the light most favorable to plaintiff and draws all reasonable inferences in his favor. See e.g. LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). In August of 2001, plaintiff Matthew Nestor underwent surgery at the Hospital Pavia ("Pavia"), where he was transfused with seven units of blood. Of these seven units, two units were distributed by the American Red Cross ("Red Cross"), and the other five units by Banco de Sangre de Servicios Mutuos, Inc. ("Banco de Sangre")
Plaintiff was diagnosed in May of 2002 with the hepatitis C virus ("HCV"). Plaintiff maintains that prior to this diagnosis he never tested positive for HCV, that his wife tested negative for HCV, that he has never participated in illicit drugs, that he has never injected himself with a needle, that he has never had a tattoo or body piercing, and that he had never received another blood transfusion or had an organ transplant. (Docket No. 82, Ex. 1) In September of 2003, plaintiff sued Pavia, the Red Cross and Banco de Sangre, alleging that he became infected with HCV as a result of the transfusions received during his August 2001 hospitalization.
Both the Red Cross and Banco de Sangre screen donors through interviews and physical evaluations, as well as an alphanumeric plethora of scientific analyses of the donors' blood, in accordance with federal regulations. Each unit of blood is duly catalogued by donor and rigorously tested for viral agents. The test results for all of the units transfused to plaintiff returned HCV-negative. Moreover, following the lawsuit, both the Red Cross and Banco de Sangre retested those donors whose blood was supplied to plaintiff — all again tested HCV-negative. Plaintiff does not dispute these submissions.
Following the Red Cross and Banco de Sangre's motions for summary judgment, which were joined by Pavia, the Court referred these to a Magistrate Judge for a Report and Recommendation. Over plaintiff's protest, the Magistrate Judge determined that the applicable standard of care in the case is that of general medical malpractice. Applying this standard, the Magistrate Judge concluded that plaintiff failed to show that defendants caused his HCV infection and therefore recommended that the motions for summary judgment be granted.
Plaintiff timely objected to the Report and Recommendation, claiming that the Magistrate Judge erred by applying the wrong standard of care, and that she had usurped the role of the fact-finder by deciding that plaintiff failed to establish causation. Plaintiff further argues that the Magistrate Judge overlooked the curriculum vitae of plaintiff's expert. Defendant the Red Cross submits by way of riposte that plaintiff failed to refute the medical evidence, and that regardless of which standard of care applies, plaintiff's claims fail because he cannot establish causation.
II. DISCUSSION
Following the issuance of a Report and Recommendation, the Court reviews de novo the matters delimited by timely objections. See 28 U.S.C. § 636(b), Fed.R.Civ.P. 72(b), and Local Rule 72(d); see also Borden v. Secretary of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) ("Appellant was entitled to a de novo review by the district court of the [Magistrate's] recommendations to which he objected, however he was not entitled to a de novo review of an argument never raised.") (citation omitted). The Court thereafter "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." See 28 U.S.C. § 636(b), Fed.R.Civ.P. 72(b), and Local Rule 72(d). The Court accordingly reviews plaintiffs' objections de novo.
A. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is "material" if based on the substantive law at issue, it might affect the outcome of a case; and a fact is "genuine" if there is sufficient evidence to permit a reasonable trier of fact to resolve the issue in the non-moving party's favor. See Anderson v. Liberty Lobby Inc., 477, 242, 249 (1986).Once the moving party has satisfied this requirement, the nonmoving party has the burden of presenting any facts that demonstrate a genuine issue for trial. Fed.R.Civ.P. 56(e). The Court must construe the facts in the light most favorable to the opposing party, indulging all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). However, the nonmovant must do more than show "some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.
B. Applicable Standard of Care
Both parties concede that Puerto Rico law is silent as to the applicable standard of care in cases of blood transfusion, and that neither this District nor the Court of Appeals for the First Circuit has ruled upon the issue. Ordinarily, to establish a prima facie case of medical malpractice a plaintiff must prove (1) the duty owed, conveyed as the minimum standard of professional skill required under the circumstances; (2) breach of that standard of care; (3) a causal nexus between the breach and the claimed harm; and (4) harm. See e.g. McGraw v. United States, 254 F.Supp.2d 242, 245 (D.P.R. 2003).
Plaintiff maintains, however, that blood is a "product" and that he may therefore sue under a theory of strict products liability, such that he need only show defendants (1) placed a product on the market; (2) knowing it will be used without inspection for defects; (3) that it has a defect which (4) causes injuries. See e.g. Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991).
The Magistrate Judge weighed the contrasting characterizations of blood as a "product" or as a "service," and found that at least 48 states have either adopted "blood shield statutes," or rely on the common law to shield providers of blood from the stringent application of strict products liability. She concluded that while plaintiff argued for the application of strict liability, he provided no authority for the proposition, and failed to challenge the policy implications underlying the adoption of the general medical malpractice standard of care. The Magistrate Judge therefore applied the medical malpractice standard of care, noting that
The fundamental purpose underlying strict tort liability is to force hazardous products from the market. Conversely, blood and blood products are highly desirable medical products which cannot, with present scientific technology, be made completely safe. In recognition of the fact that blood is too essential a product to be forced from the market, legislatures have provided the blood industry with some immunity from liability.
Report and Recommendation at n. 4 (quoting Kathryn W. Pieplow, Comment, AIDS, Blood Banks and the Courts: The Legal Response to Transfusion-Acquired Disease, 38 S.D. L.Rev. 609, 622-625 (internal quotations and citations omitted); see also Doe v. Miles Laboratories, Inc., 927 F.2d 187, 191 (4th Cir. 1991).
Plaintiff objects anew to the Magistrate Judge's application of the medical malpractice standard. Having carefully limned the record, however, the Court finds that plaintiff again provided no authority for the application of strict liability and that he failed to refute both the analysis and conclusion of the Magistrate Judge. Although the Court finds the Magistrate Judge's recommendation eminently reasonable, the Court nonetheless declines to adopt it at this juncture.
It has come to light that the facts of this case render it unnecessary for the Court to determine the standard of care owed by the blood industry in Puerto Rico. Plaintiff's predilection for strict liability appears to stem from his erroneous belief that he need not prove a causal nexus under that theory. As glossed above, however, both of the standards submitted by the parties require plaintiff to prove causation and, therefore, the Court need not decide the standard of care owed by defendants.
Although some part of a judge's task may be to fill in the interstices of legislative enactments, the primary task of the judicial officer is to apply rules reflecting the policy choices made by, or on behalf of, those elected to legislative and executive positions.Gregory v. Ashcroft, 501 U.S. 452, 488 (1991) (Blackmun, J., dissenting). Here, the legislature has not spoken as to the standard of care owed by the blood industry, and given that the issue is not dispositive, as counseled by the dictates of judicial restraint, the Court accordingly declines to rule on the issue.
C. Causation
The Magistrate Judge concluded that plaintiff failed to establish causation, to which plaintiff objects on the ground that the Magistrate Judge failed to accord proper weight to the opinion of plaintiff's expert. Plaintiff further objects on the ground that causation is an issue of fact which should be reserved for the jury.
In order to establish a prima facie case in either negligence or strict liability, plaintiff must show that defendants' actions or omissions caused his HCV infection. See supra McGraw, 254 F.Supp.2d at 245; Malave-Felix, 946 F.2d at 971. Plaintiff does not quibble with the Magistrate Judge's extensive and well-supported analysis on the issue of causation. (Docket No. 96 at 16-23) Instead, plaintiff claims that the Magistrate Judge overlooked the qualifications of his expert, which were filed separately due to a "technical error."
Even if the Magistrate Judge had duly noted the qualifications of plaintiff's expert, however, these qualifications do not affect her conclusion that the expert failed to link any defendant with plaintiff's contraction of HCV. Although plaintiff states that it is "clear from Dr. Goldman's background that he is not merely tossing out conjectures but reaching sound scientific conclusions" (Docket No. 98 at 3), the Magistrate Judge determined that Dr. Goldman had not belied co-defendant the Red Cross' and co-defendant Banco de Sangre's undisputed evidence that at the time of the transfusion, the units of blood given plaintiff were HCV-negative, and subsequent to the transfusion, upon retesting, the same donors again tested HCV-negative. This objection is therefore wholly without merit.
Plaintiff also objects to the Magistrate Judge's conclusion that he failed to establish causation, arguing that this is an issue of fact which should be reserved for the jury. This objection fares no better. "`The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" DeNovellis v. Shalala, 124 F.3d 298, 305-06 (1st Cir. 1997) (quoting Fed.R.Civ.P. 56 advisory committee's notes, 1963 Amendment). In assessing this proof, Rule 56(e) charges the district court with ensuring that the evidence proffered in opposition to a motion for summary judgment has a foundation sufficient to allow it to reach a jury. Id. If the nonmoving party is unable to provide such admissible proof, then the Court is unable to say that there exists a "genuine need for trial." Id. Here, as the Magistrate Judge determined, plaintiff simply did not rebut defendants' evidence, which unimpeachably extricates them from the causal chain. There are thus no material issues of fact necessitating a trial.
III. CONCLUSION
The Magistrate Judge's Report and Recommendation is APPROVED AND ADOPTED IN PART. The Court declines to determine the applicable standard of care in the blood industry at this time, but having found no material issues of fact regarding causation, and defendants being entitled to a judgment as a matter of law, defendants' motions for summary judgment are hereby GRANTED. (Docket Nos. 60, 62 and 69) Judgment shall be entered accordingly.
IT IS SO ORDERED.