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CUTLER-G.ASC
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1993-01-14
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/* This case is reported in 717 F.Supp 338 (E.D.Penn.
1989). This case construes Pennsylvania's changes to the
UCC to make blood products a service rather than a sale and
finds strict liability unavailable to the plaintiffs in
this contaminated blood case. */
Harry CUTLER and Betty Cutler
v.
GRADUATE HOSPITAL, Dr. Duca, the American National Red
Cross, American Red Cross Blood Services, Penn- Jersey
Region, and William C. Sherwood, M.D.
United States District Court, E.D. Pennsylvania.
Aug. 1, 1989.
MEMORANDUM OPINION
AND ORDER
WEINER, District Judge.
Presently before the court is a motion of defendants American
Red Cross and William C. Sherwood, M.D., to dismiss Counts
three (strict liability) and Four (breach of implied warranty)
of plaintiffs, Harry and Betty Cutler's complaint. For the
following reasons, we grant defendants' motion.
Plaintiffs filed their complaint on April 28, 1989, seeking
damages for personal injuries allegedly sustained by Harry
Cutler subsequent to his receipt of an AIDS-tainted blood
transfusion in June, 1981, while he was a cardiac patient at
defendant Graduate Hospital. Plaintiffs' complaint alleges
negligence (Count One) and conspiracy to commit a tort (Count
Seven), in addition to the strict liability and breach of
implied warranty counts. The defendants have filed their
motion pursuant to Fed.R.Civ.P. 12(b)(6), contending Counts
Three and Four fail to state a claim upon which relief may be
granted.
[1, 2] The defendants allege the claims are barred by the
Pennsylvania Blood Shield statute, 42 Pa. Cons.Stat.Ann.
Section 8333 (Purdon 1976) which provides:
No person shall be held liable for death, disease or injury
resulting from the lawful transfusion of blood, blood
components or plasma derivatives, or from the lawful
transplantation or insertion of tissue, bone or organs, except
upon a showing of negligence on the part of such person.
Specifically excluded hereunder is any liability by reason of
any rule of strict liability or implied warranty or any other
warranty not expressly undertaken by the party to be charged.
The defendants contend this statute bars the strict liability
and breach of warranty counts. Plaintiffs claim that dismissal
of the strict liability and implied warranty Counts would be
premature because there are no cases construing the term
"person" as used in 42 Pa.Con.Stat.Ann. 8333. They argue that
this absence of cases creates ambiguity regarding the meaning
of the term. We disagree.
The Commonwealth's general definitional statute, Pa.Cons.Stat.
Ann. 1991 (Purdon 1972), provides a meaning for the term
"person" as it is used in the Blood Shield law. The section
provides that in any statute enacted after 1937, unless the
context clearly
indicates otherwise, "person" includes corporations,
partnerships and associations. Just as there is no genuine
question that defendant William C. Sherwood, M.D. is a person
within the meaning of the statute, neither can there be a
genuine conflict as to whether the American National Red Cross
and American Red Cross Blood Services, Penn-Jersey Region can
be characterized as persons.
[3] Plaintiffs assert, with respect to 42 Pa.C.S.A. 8333 that
the legislature did not intend to provide protection from
liabili ty to hospitals and blood banks. They base their
assertion upon the inclusion of the words "hospital" and "blood
bank" in the statute which predated 42 Pa.C.S.A. 8333, the
Blood Transfusion Act of January 28, 1972, 35 P.S. 10021
(repealed) [footnote 1] and upon cases interpreting that
statute. In addition, plaintiffs find significance in the fact
that when 35 P.S. 10021 was first enacted in 1972, the
definitional statute then in effect provided a definition of
"person" which was the same as the present definition.
[footnote 2] Plaintiffs claim that despite that definition,
the legislators still found it necessary to include the words
"hospital" and "blood bank." Thus, the omission of those words
in the current statute, they argue, indicates that hospitals
and blood banks are not "persons."
Plaintiffs assert that the omission of the words "hospital" and
"blood bank" in the later Blood Shield statute indicates a
legis lative intention to change the statute's meaning.
However, our review of the legislative history provides no
verification of plaintiffs' hypothesis regarding the intentions
of the legislature. True, plaintiffs' explanation is not
entirely implausible. Neither, though, is the possibility that
the omission of the words "hospital" and "blood bank" resulted
from completely divergent reasoning. Accordingly, as we find
the current wording of the statute to be unambiguous, we will
not speculate as to the legislature's intent in amending the
statute to its present form.
[4, 5] Finally, plaintiffs contend that be cause AIDS was not
recognized as a threat to patients receiving blood transfusions
in 1976- the year in which the current blood shield statute was
enacted-the legislature could not have intended to limit
liability in cases of AIDS-tainted blood. We disagree. The
statute plainly applies to "disease . . . resulting from the
lawful transfusion of blood . . . . It is not limited to any
particular diseases, nor to diseases known to medical science
when it was enacted. In addition, the common law of
Pennsylvania with respect to prospective operation of statutes
has been stated by the Supreme Court in the case of
Philadelphia Retail Liquor Dealers Association, et al v.
Pennsylvania Liquor Control Board, et al, 360 Pa. 269, 62 A.2d
53 (1948):
A general law may, and frequently does, originate in some
particular case or class of cases which is in the mind of the
legislature at the time, but so long as it is expressed in
general language the courts cannot, in the absence of express
restrictions, limit its application to those cases, but must
apply it to all cases that come within its terms and its
general purpose and policy. It is a rule of statutory
construction that legislative enactments in general and
comprehensive terms, prospective in operation, apply alike to
all persons, subjects and business within their general purview
and scope coming into existence subsequent to their passage.
360 Pa. at p. 274, 62 A.2d 53, citing Commonwealth v. Quaker
City Cab Co., 287 Pa. 161, 166, 134 A. 404 (1926), rev'd on
other
grounds, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927 (1928).
This is precisely the task faced by the court in the case
subjudice. Although the AIDS virus was unknown to medical
science when the Blood Shield law was enacted, as a general
enactment, it must be applied to just this sort of subsequently
developing scenario. The general purpose and policy evident in
the statute was to protect the system by which blood products
are made available for use by hospitals for both emergency and
routine uses. The onslaught of the AIDS virus has, if anything,
made this purpose more significant. Were courts to ignore the
intent of the legislature and allow actions for damages to
proceed against the blood delivery system on theories not
requiring some proof of fault, the system would surely
collapse.
For the reasons stated, we grant defendants' motion to dismiss
Counts Three and Four of plaintiffs' complaint against the
moving parties.
FOOTNOTES:
1. 35 p.s 10021 states:
Notwithstanding any other law, no hospital, blood bank, or
other entity or person shall be held liable for death or injury
resulting from the lawful transfusion of blood, blood
components or plasma derivatives, or from the lawful
transplantation or insertion of tissue, bone or organs, except
upon a showing of negligence on the part of such hospital,
blood bank, entity or person. For the purposes of this act
negligence shall include but not be limited to any failure to
observe accepted standards in the collection, testing.
processing, handling, storage, transportation, classification,
labelling, transfusion, injection, transplantation or other
preparation or use of any such blood, blood components, plasma
derivatives, tissue, bone or organs. Specifically excluded
hereunder is any liability by reason of implied warranty or any
other warranty not expressly undertaken by the party to be
charged.
2. Pa.Stat.Ann. tit. 46 601 (Purdon 1937) recodified at 1
Pa.Cons.Stat.Ann. 1991 (Purdon 1972).