HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BORZILLI.ASC

Text File | 1993-01-14 | 24KB | 468 lines

/* This case is reported in 139 F.R.D. 284 (W.D.N.Y 1991) */



Barbara A. BORZILLIERI, As Executrix of the Estate of Barbara
Babcock, Plaintiff,

v.

/* In this blood contamination case, the court permits, under
restrictive conditions, questioning of the donor regarding the
processes used to screen them when donating blood. */

AMERICAN NATIONAL RED CROSS, Greater Buffalo Chapter of the Ameri
can National Red Cross, and New York Plasma, Inc., Defendants.

United States District Court, W.D. New York.

Oct. 31, 1991.

Protected Order Vacated March 10, 1992.



BACKGROUND

CURTIN, District Judge.

This suit is brought by the executrix of Barbara Babcock, who
died on July 5,1989, of Acquired Immune Deficiency Syndrome
("AIDS") allegedly as a result of receiving tainted blood from
defendants on April 23, 1984. Plaintiff claims the blood
transfused to Mrs. Babcock-unit 31F69863 was infected with the
Human Immunodeficiency Virus ("HIV"), the causative agent of
AIDS.  Unit 31F69863 was supplied to defendants by an
unidentified donor ("donor X") on March 26,1984.

At the time donor X's blood was taken, the cause of AIDS had not
been isolated. Ironically, on the very day Mrs. Babcock received
her transfusion, a team of scientists from the National Cancer
Institute announced their findings identifying the HIV virus as
the cause of AIDS.  It was not until the spring of 1985, however,
that a test was available to screen donated blood for the HIV
virus. Prior to the time that  test  was  available,  defendants
screened blood donors for the possibility of AIDS infection by
asking personal history questions and by observing the donor's ap
pearance.  Plaintiff argues that the defendants were negligent in
conducting this screening process for donor X. This is the
central issue in the case.

A modicum of discovery has already been completed about the
procedures used by defendants to screen donor X's blood. There is
some question, however, as to whether this discovery has yielded
sufficient information for plaintiff to bring her case.
Defendants have supplied plaintiff with the medical donor card,
with name and address redacted, which was filled out by Nurses
Trapasso and Strough prior to drawing donor X's blood.  See Item
31, Exh. B.  Plaintiff has also taken the deposition of Nurse
Strough, who was the medical history nurse responsible for
inquiring into donor X's medical condition and for giving the
donor a mini-physical. [footnote 1]  Nurse Strough, who has taken
thousands of blood samples over the years, was able to recount
the general procedures used to screen blood donors, but was
unable to recall any specifics about taking donor X's blood, even
after reviewing an unredacted copy of the medical history card
she prepared.  See Item 31, Exh. A at 59-62.

Plaintiff argues that it is necessary to depose and/or serve
interrogatories upon donor X, the only other person present at
the time his or her medical history was taken, to determine what
procedures were actually followed by defendants before drawing
his or her blood. Defendants have moved for a protective order
under Fed. R.Civ.P. 26(c) to bar plaintiff's request to question
donor X under oath.  Defendants argue that deposing donor X, even
if done without revealing his or her identity, would violate his
or her state and constitutional rights of privacy.  Defendants
also argue that permitting discovery from blood donors offends
public policy because it will lead to a dramatic drop-off in
already low volunteer blood donations.  Plaintiff does not seek
the identity of the donor.  She merely wants to question him or
her about the procedures used by defendants on March 26, 1984.

Donor X donated blood again on October 9, 1985.  He or she once
again was asked questions about his or her medical history and
was observed by the nurses present. This unit of blood -- #
31F76951 -- was tested for the presence of HIV antibodies. The
test was positive.  Defendants then commenced  "look back"
procedures  to trace any prior donations by donor X.  After
defendants notified Sisters of Charity Hospital in Buffalo, the
hospital identified Mrs. Babcock as the recipient of the earlier
blood.  Mrs. Babcock tested positive for HIV antibodies in
November, 1986, and died on July 5,1989. Defendants also notified
donor X of the positive HIV test and placed his or her name on a
list of persons who are deferred from donating.  Defendants have
agreed to supply plaintiff with redacted versions of the October
9, 1985, medical donor card and the letter notifying donor X of
his or her test results.



DISCUSSION

On March 27, 1991, the court met with counsel on this motion.  At
that meeting, the court directed defendants to make discreet
inquiries and to inform the court whether donor X is still alive
and able to answer discovery should this court direct it. On May
8, 1991, the court was informed that donor X was, as of that
time, still alive and apparently capable of being deposed or
answering interrogatories.  Item 27.  Assuming that that is still
the case, the court will now address the merits of defendants'
motion.

The question whether to permit limited discovery from blood
donors whose blood has infected another person with AIDS has been
addressed by numerous courts.  The decisions have been about
equally divided. Where discovery has been permitted, it has been
under restrictive conditions designed to protect the
confidentiality of the donor. See, e.g., Boutte v. Blood Sys.,
Inc., 127 F.R.D. 122, 12526 (W.D.La.1989); Mason v. Regional
Medical Ctr. of Hopkins County, 121 F.R.D. 300, 303 (W.D.Ky.
1988); Snyder v. Mekhjian, 125 N.J. 328, 593 A.2d 318 (1991) (per
curiam); Belle Bonfils Memorial Blood Ctr. v. District Court, 763
P.2d 1003, 1013 (Colo.1988); Gulf Coast Regional Blood Ctr. v.
Houston, 745 S.W.2d 557, 55960 (Tex.Ct.App. 1988);  Tarrant
County Hosp. Dist. v. Hughes, 734 S.W.2d 675, 67879 (Tex.Ct.
App.1987); Stenger v. Lehigh Valley Hosp. Ctr., 386 Pa.Super.
574, 563 A.2d 531, 539 (1989), appeal granted, 577 A.2d 890, 891
(Pa.1990).  Where discovery has been denied, it has often been,
at least in part, because  plaintiffs  have  requested  the names
and addresses of large numbers of donors. See, e.g., Krygier v.
Airweld, Inc., 137 Misc.2d 306, 520 N.Y.S.2d 475, 477
(N.Y.Sup.Ct.1987); Bradway, v. American Nat'l Red  Cross,  132
F.R.D.  78,  80 (N.D.Ga.1990); LaBurre v. East Jefferson Gen.
Hosp., 555 So.2d 1381, {384 (La.1990); Rasmussen v. South Fla.
Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987).  Some courts,
however, have denied discovery on facts very similar to those
here. See, e.g., Coleman v. American Red Cross, 130 F.R.D. 360,
361 (E.D.Mich.1990); Doe v. American Red Cross Blood Serv., 125
F.R.D. 646, 647-49 (D.S.C.1989); Doe v. University of Cincinnati,
42 Ohio App.3d 227, 538 N.E.2d 419, 420-21 (1988). [footnote 2]
This court may take guidance from these decisions, but ultimately
must conduct its own balancing.

Discovery under Federal Rule of Civil Procedure 26 is very broad.
See Fed. R.Civ.P. 26(b).  It may be limited in any number of ways
on order of the court. Fed.R.Civ.P. 26(c).  The party seeking to
limit discovery, however, has the burden to show good cause.



I.   CONSTITUTIONAL RIGHT TO PRIVACY

[1]  Defendants raise three central arguments in support of
limiting discovery. Defendants' last argument, which the court
will address first, is that permitting discovery from the donor
will violate his or her constitutional right to privacy.  In
Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977),
the Court identified two interests protected by the right to pri
vacy.  "One is the individual interest in avoiding disclosure of
personal matters, and another is the interest in independence in
making certain kinds of important decisions." Id. at 599-600, 97
S.Ct. at 87677. In Whalen, plaintiffs had challenged a New York
statute which directed that names and addresses of individuals
who obtained prescription drugs for which both a legal and
illegal market existed be compiled in a centralized database to
aid in law enforcement.  Plaintiffs argued that the accumulation
of this data, and its potential release to the public, violated
their constitutional right to privacy.  Id. at 600, 97 S.Ct. at
877.  The Court found, however, that given the confidentiality
protections embraced in the law, the statute did not infringe
upon plaintiffs' privacy sufficiently to establish a
constitutional violation.  Id. at 603-04, 97 S.Ct. at 878-79.

The right to avoid disclosure of personal matters was reaffirmed
by the Court in Nixon v. Administrator of Gen. Serv., 433 U.S.
425, 457, 97 S.Ct 2777, 2797, 53 L.Ed.2d 867 (1977). Nixon
involved a suit by the former President to strike down a
congressional statute authorizing archival review of a mountain
of Presidential materials, including some personal documents. The
Court held that the President's claim of invasion of his privacy
[could] not be considered in the abstract; rather, the claim must
be considered in light of the specific provisions of the Act, and
any intrusion must be weighed against the public interest in
subjecting the Presidential materials of appellant's adminis
tration to archival screening.

Id. at 458, 97 S.Ct. at 2797-98.  Balancing these interests, the
Court held that given the important public interest in preserva
tion of the President's papers, the appellant's status as a
public figure, and the limited intrusion of the archival
screening, the President's constitutional right to privacy was
not abridged. Id. at 465, 97 S.Ct. at 2801.

Lower court decisions adopted since Whalen have held that the
constitutional right to privacy includes protection against
unwarranted disclosure of one's medical records or condition.
See, e.g., Schaill ex rel. Kross v. Tippecanoe County Sch. Corp.,
864 F.2d 1309, 1322 n. 19 (7th Cir. 1988); In re Search Warrant
(Sealed), 810 F.2d 67, 71 (3d Cir.), cert. denied sub nom.,
Rochman v. United States, 483 U.S. 1007, 107 S.Ct. 3233, 97
L.Ed.2d 739 (1987); Trade Waste Management Ass'n, Inc. v. Hughey,
780 F.2d 221, 233-34 (3d Cir.1985); United States  v.
Westinghouse  Elec. Corp., 638 F.2d 570, 577-78 (3d Cir.1980).
Other courts have recognized the right protects nondisclosure of
analogous personal information. See, e.g., Pesce v. J: Sterling
Morton High Sch. Dist. 201, 830 F.2d 789, 796-97 7th Cir.1987);
Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir.1981).  In each case,
however, these decisions have balanced an individual's privacy
right against the interests of the state in obtaining personal
information  and  the  protections against dissemination of that
information. See, e.g., Pesce, 830 F.2d at 79697; In re Search
Warrant (Sealed), 810 F.2d at 71-72.

Applying these principles here, this court concludes that a
properly framed protective order will permit plaintiff to
question donor X without at the same time violating his or her
constitutional right to privacy.  Plaintiff apparently will seek
information about two things from donor X. Plaintiff's most
important questions are about the methods used by defendants to
screen donor X on March 26, 1984, the day unit 31F69863 was
donated.  These questions implicate donor X's privacy the least
because they are not really about donor X.  But plaintiff may
also seek information to determine whether, at the time donor X
donated blood, he or she was a member of a group at risk for
AIDS. These questions have the potential to be much more
intrusive of donor X's privacy. The question is whether this
potential intrusion rises to a constitutional violation.

In Whalen, the Court rejected the contention that disclosure of
the identity of persons receiving prescription drugs to health
department personnel was a violation of privacy.  Whalen, 429
U.S. at 602, 97 S.Ct. at 878. The Court noted that this limited
disclosure was not "meaningfully distinguishable" from
"disclosures of private medical information to doctors, to hos
pital personnel, to insurance companies and to public health
agencies ...  Id.  Similarly, in Nixon, the Court found no consti
tutional violation in the disclosure of personal information to
archivists, given their unblemished record of discretion.  Nixon,
433 U.S. at 460, 462, 97 S.Ct. at 2799, 2800. Thus, limited
disclosure of personal information to discretionary personnel
does not violate the constitution.  It is widespread, unwarranted
disclosure that is prohibited.

[2, 3]  Plaintiff does not seek the identity of donor X, nor is
there any reason to reveal it.  Defendants, including at least
one of defendants' attorneys, are already aware who donor X is.
Defendants also know that donor X's blood has tested positive for
HIV. Were this information to be publicly revealed, donor X's
privacy rights might be invaded.  Under the protective order this
court adopts today, however, this information will not be
publicly revealed. Only defendants, who are already sworn to
protect donor X's confidentiality, will be able to couple the
information plaintiff seeks with a specific person. For all
others donor X's identity will remain a secret. It is the
coupling of personal information with a person's identity, plus
the release of this information, that is intrusive of privacy.
Where identity is protected, a blood donor's privacy is not
seriously implicated.

Balanced against this limited intrusion is plaintiff's need to
question the donor. Barbara Babcock is dead.  It is alleged that
she died because defendants put into the blood supply blood that
was HIV-contaminated. The proliferation of cases like this
indicates, tragically, that Mrs. Babcock has not been the only
person to die from tainted blood. To have an opportunity to seek
recompense for this loss, plaintiff has an absolute need to
question the donor about the procedures used by defendants to
screen donor X.  There is simply no other adequate way to test
defendants' contention that its normal screening procedures were
used on the day in question.  Aside from the donor, only the
nurses were present, and Nurse Strough, who did the questioning,
has no recollection of taking donor X's blood.

[4]  The method by which plaintiff may question donor X without
learning of his or her identity remains to be determined. At
least two courts considering this question have permitted the
donor to be deposed by written questions.  Boutte, 127 F.R.D. at
126; Belle Bonfils Memorial Blood Ctr., 763 P.2d at 1013.  Other
courts have suggested "veiled" depositions, Snyder, 593 A.2d at
320 (Pollack, J. concurring), or telephone depositions, United
Blood Serv. v. Second Judicial Dist. Court of State of Nevada,
Civ. No. 20375, slip op. at 2 (Nev. Dec. 20,1989), [105 Nev.
1050, 810 P.2d 344 (table)], or other measures designed to
protect the identity of the donor, see Mason, 121 F.R.D. at 303-
O4; Stenger, 563 A.2d at 539. At oral argument plaintiff's
attorney said that he would be willing to submit written
interrogatories to the donor, to be transmitted through defense
counsel.  See Fed.R.Civ.P. 31.  This appears to be the least
intrusive method of questioning, and the court shall therefore
order such questioning to go forward.

It must be understood that this questioning is being permitted
under order of this court after careful analysis of the Red
Cross's position.  Plaintiff is directed to prepare the written
interrogatories and submit them  to defendants  for transmission
to and answer by donor X.  If defendants object to any questions,
the court should be notified immediately and a meeting will be
held.

The order of confidentiality now in effect shall remain. Neither
party, nor attorneys nor employees, shall reveal the identity of
the donor.  The donor is forbidden to reveal to others the fact
that he or she has been directed to answer the written questions.
If, upon receiving answers to the written interrogatories,
plaintiff seeks answers to additional questions, plaintiff may
submit a second round of questions under the same procedure.  See
Fed.R.Civ.P. 31.

Plaintiff and defendant shall promptly move to complete this
interrogatory procedure.  If at any stage of the process the
court's assistance is required, the court shall be notified
immediately.

Finally, the court again notes that plaintiff does not seek the
identity of donor X and is directed to avoid questions which
would reveal that identity. The court also notes that plaintiff
has stipulated it will not use any of the information discovered
through this procedure to initiate any legal proceedings against
donor X.  The court concludes that deposing donor X under these
restrictive conditions will not violate his or her constitutional
right to privacy. See Mason, 121 F.R.D. at 303.



II.  NEW YORK STATE PRIVACY RIGHTS

[5]  Defendants also argue that this court is precluded from
issuing an order permitting discovery from the donor except on a
finding of "compelling need."  See N.Y.Pub.Health Law  2785
(McKinney 1991 Supp.).  The State of New York has passed a very
strong confidentiality law to prevent HIV carriers from having
their HIV status revealed. N.Y.Pub.Health Law  2780 et seq.
Among the provisions of that law is  2785, which provides in
part:

1.   Notwithstanding any other provision of law, no court shall
issue an order for the disclosure of confidential HIV related
information, except a court of record of competent jurisdiction
in accordance with the provisions of this section.

2.   A court may grant an order for disclosure of confidential
HIV related information upon an application showing: (a) a
compelling need for disclosure of the information for the
adjudication of a criminal or civil proceeding...

Id.,  2785.   The statute also defines "confidential HIV related
information" as follows:

"Confidential  HIV-related  information" means any information,
in the possession of a person who provides health or social
services or who obtains the information pursuant to a release of
confidential HIV-related information, concerning whether an
individual has been the subject of an HIV-related test, or has
HIV infection, HIV-related illness or AIDS, or information which
identifies or reasonably could identify an individual as having
one or more of such conditions, including information pertaining
to such individual's contacts.

Id.,  2780(7). If we assume without deciding that  2785 is
applicable to this court, we must look more closely at the
statute. Section 2785 prevents a court from ordering disclosure
of confidential HIV-related information, except on a finding of
compelling need or other findings not relevant here. !d.,  2785.
"Disclosure" is not specifically defined in the statute, but it
is apparent from the definition of "confidential HIV related
information" that the disclosure that is barred is disclosure
that would identify a particular person as having been the
subject of an HIV-related test, or '[an] HIV infection, HIV-
related illness or,' AIDS...." Id.,  2780.

The information sought by plaintiff in this case, pursuant to
this court order, will not permit plaintiff, nor any other person
other than defendants (who have already had donor X's HIV status
disclosed to them), to identify donor X.  As such, no
"information which identifies or reasonably could identify an
individual as ... [HIV positive], including information
pertaining to such individual's contacts" will be disclosed. id.
Accordingly, the limited questioning which will be permitted
pursuant to this order does not run afoul of  2785.

[6]  Even if we further assume, however, that disclosure is
implicated by this order, the court also concludes that plaintiff
has a "compelling need" for this information.  See id.,
2785(2).  Although there is no certainty that by questioning
donor X plaintiff will have a meritorious case, without this
information, it seems very likely that plaintiff's case may fail
for lack of proof. See Tarrant County Hosp. Dist., 734 S.W.2d at
678.  To have an opportunity to remedy the alleged wrong
committed against Mrs. Babcock, plaintiff must be permitted
access to the limited information which she seeks.



III. IMPLICATIONS FOR SAFE AND ADEQUATE BLOOD SUPPLY

[7]  Finally, defendants argue that this court should exercise
its discretion under Rule 26 to bar discovery.  Fed.R.Civ.P.
26(c).  Defendants contend that if volunteer donors become
subject to questioning about personal matters, they will be less
likely to step forward to give blood, thus further heightening
the crisis over the nation's blood supply.  Moreover, defendants
suggest that the prospect of later questioning will lead
potential donors to conceal important information during the
screening process.  Although the court is sensitive to
defendants' legitimate concerns, on balance it would appear that
public policy favors limited discovery under these circumstances.

One consideration that is paramount is ensuring a safe blood
supply.  Defendants stress the need for a plentiful blood supply,
but it is equally, if not more important to ensure that the blood
that is donated is healthy. Boutte, 127 F.R.D. at 126; Belle
Bonfils Memorial Blood Ctr., 763 P.2d at 1011.  Unlike the
suggested inquiries in Krygier 520 N.Y.S.2d at 477; Bradway, 132
F.R.D. at 80; LaBurre, 555 So.2d at 1384; and Rasmussen, 500
So.2d at 536, where the names and addresses of large numbers of
donors was sought, plaintiff in this case only seeks information
from a donor known to be HIV-positive.  There is no harm to
society's interests from discouraging persons infected with this
virus from donating blood. Boutte, 127 F.R.D. at 126; Snyder 593
A.2d at 324 (Pollack, J. concurring).

Second, this case involves a blood donor who donated blood prior
to the 1985 introduction of the ELISA test that screens out HIV-
positive blood.  Although this test may not be foolproof, it
reduces the importance of the verbal screening process that took
place here.  See id. Thus, over time there will likely be many
fewer instances where plaintiffs seek the kind of information
sought in this case. Accordingly, any impact such questioning may
have on the blood supply will be only temporary.

Balanced against these limited harms to defendants' interests is
society's interest in permitting injured persons at least some
redress for their injuries.  See id.  Plaintiffs must be
permitted to pursue their claims against blood centers to ensure
that tragedies such as befell Mrs. Babcock are less likely to
occur in the future.  See Boutte, 127 F.R.D. at 126; Snyder, 593
A.2d at 324 (Pollack, J. concurring); Gulf Coast Regional Blood
Ctr., 745 S.W.2d at 559;  Tarrant County Hosp. Dist., 734 S.W.2d
at 678; Stenger, 563 A.2d at 537.

Accordingly, the court hereby issues a protective order
permitting discovery under the restrictive conditions outlined
above.

So ordered.

ORDER

March 10,1992.

IT IS ORDERED, that the Court's prior orders granted on October
31, 1991 and January 10,1992 hereby are vacated.



FOOTNOTES

1.   Nurse Trapasso, who actually drew the blood, has moved to
California. Plaintiff does not feel that her testimony would be
useful.

2.   Defendants have also supplied the court with several
unpublished decisions which have barred discovery.  See Item 15a,
Exhs. 2-7; Item 21, Exh. 1. The court has reviewed these cases
but does not feel that they add appreciably to the comprehensive
discussions found in the cited cases.