HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/KIRK-NEW.ASC

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/* This case is reported in 887 P.2d 857 (8th Cir. 1989).  This
decision is the appeal of the District Court opinion in this
matter, and reviews the law related to negligence in the delivery
of blood products. */

Ann KIRKENDALL, Individually & as Personal Rep. of Estate of Dee
Franklin Kirkendall, Deceased, Appellant,

v.

HARBOR INSURANCE COMPANY, Appellee.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 13, 1989.

Decided Oct. 10, 1989.

HEANEY, Senior Circuit Judge.

Dee Franklin Kirkendall contracted acquired immune deficiency
syndrome (AIDS) from a blood transfusion that he received during
heart surgery at Sparks Regional Medical Center in Fort Smith,
Arkansas. Kirkendall and his wife, Ann, commenced this action
against United Blood Services (UBS) in strict liability and
negligence for supplying the contaminated blood. [footnote 1]
The district court granted defendant's motion for summary
judgment on the strict liability claim because an Arkansas
statute treats the provision of blood as a service and does not
view the blood itself as a product.  Following a bench trial, the
district court found in the defendant's favor on the negligence
claim.  Ann Kirkendall appeals, and we affirm.



BACKGROUND

The unit of blood that Dee Kirkendall received on March 28, 1985,
had been donated on March 6, 1985. That unit initially had been
sent to Boone County Hospital in Harrison, Arkansas, but was
returned to UBS on March 19, 1985, because it had a "shelf life"
of only thirty-five days.  UBS shipped the unit to Sparks
Regional Medical Center in Fort Smith, its largest user of blood,
on March 20, 1985.  Kirkendall received the blood during surgery
at Sparks Regional Medical Center on March 28, 1985. The donor of
the unit of blood that Kirkendall received donated blood again on
April 23, 1986, at which time his blood tested positive for AIDS.
In October 1986, UBS notified Kirkendall's physician that
Kirkendall may have received contaminated blood in March 1985.
Kirkendall was diagnosed as having AIDS on November 2, 1986, and
died on April 23, 1987.



I.

[1]  Initially, Kirkendall appeals the dismissal of the strict
liability claim.  State substantive law governs this diversity ac
tion.  Under Arkansas law, the supplying of blood for
transfusions is a service rather than a product.  See
Ark.Stat.Ann.  4-88-102; 16-116-102(2); 4-2-316; 20-9-802 (1987).
The implied warranties of the Uniform Commercial Code therefore
do not apply to blood, and blood is not a "product" for purposes
of imposing strict liability in tort. See Ark.Stat.Ann.  20-9-802
(1987).

[2]  Plaintiff contends that section 262 of the Public Health
Service Act, 42 U.S.C.  201-300 (1982), preempts the Arkansas
statutes precluding strict liability for the furnishing of blood.
The Public Health Service Act makes it a misdemeanor to transport
in interstate commerce any blood or blood products prepared at a
facility unlicensed by the Secretary of Health and Human
Services.  Id. 262(a), (f).  The supremacy clause of the United
States Constitution operates only to the extent a conflict exists
between state law and a federal law or regulation.  Gorrie v.
Bowen, 809 F.2d 508, 520 (8th Cir.1987).  We find no conflict
between this statute and Arkansas's limitation on strict
liability for the provision of blood.  The district court cor
rectly determined that the federal statute and regulations on
which plaintiff relies pertain to the licensing of blood banks,
and do not preempt Arkansas tort law.  See also Abbot by Abbot v.
American Cyanamid Co., 844 F.2d 1108, 1111(4th Cir. 1988)
(concluding that in enacting the Public Health Service Act,
Congress did not expressly or impliedly intend to preempt state
law). Accordingly, we affirm the district court's dismissal of
Kirkendall's strict liability claim with prejudice.



II.

[3]  Kirkendall next contends that UBS was negligent in failing
to screen the donor of the blood unit that Kirkendall received
properly for possible exposure to AIDS. Testimony at trial
indicated that UBS promptly implemented all public health agency
and industry recommendations regarding the screening of blood
donors for exposure to AIDS. Although plaintiff suggests that
UBS's failure to inquire about male donors' sexual preference or
sexual contact with other males was negligent, placards posted in
UBS blood donation centers and handouts given to donors clearly
discouraged individuals who may have been exposed to AIDS from
donating blood. Additionally, plaintiff failed to prove that
specific, confrontational questioning of the donor whose blood
Dee Kirkendall received would have elicited any information that
would have disqualified him from donating blood.  The district
court correctly found that UBS's donor screening procedures did
not proximately cause Kirkendall's contraction of AIDS.



III.

[4] Next, Kirkendall contends that the district court erroneously
found that UBS  was not negligent in failing to test the unit
with which Dee Kirkendall was transfused for antibodies to the
AIDS virus. A careful examination of the chronology of events
surrounding Kirkendall's transfusion, however, indicates that
UBS's failure to test the unit in question was not negligent.

The medical community first reached a consensus that the AIDS
virus could be transmitted through blood transfusions in 1984.
See Kozup v. Georgetown University, 663 F.Supp. 1048, 1052
(D.D.C.1987), affd in part, remanded in part, 851 F.2d 437
(D.C.Cir.1988).  On March 2, 1985, the Food and Drug
Administration (FDA) licensed Abbott Laboratories to market en
zyme-linked immunosorbent assay (ELISA) test kits for the
detection of antibodies to the AIDS virus in donated blood. The
Department of Health and Human Services had notified registered
blood banks on February 19, 1985, that the ELISA test soon would
be licensed.  The Department of Health and Human Services
encouraged blood collection facilities to begin testing donated
blood as soon as the test kits be-came commercially available.

In October 1984, UBS issued a letter of intent to purchase 60,000
ELISA test kits from Abbott Laboratories when the test became
licensed by the FDA. On March 4, 1985, UBS ordered 400 ELISA test
kits from Abbott Laboratories.  These kits arrived on March 13,
1985, and UBS personnel were trained in their use on March 18-19,
1985.  An additional 400 test kits arrived at UBS on March 22,
1985. At that time, UBS inventory included approximately 1753
units of donated blood. UBS began testing newly donated blood on
March 23, 1985, but decided against testing blood units that it
already had in inventory.

The question before us thus is whether UBS was negligent in
failing to recall and test blood units in its inventory at the
hospitals it serviced between March 23, 1985 and March 28, 1985.
Testimony at trial showed that UBS would have needed 90
consecutive hours to recall and test the 1753 units of blood in
its inventory on March 23, 1985.  Of the 1753 units on hand, 193
consisted of red blood cells, which had a shelf life of only
thirty-five days.  Hospitals served by UBS used 349 units of
blood for transfusions from March 24 through March 27, 1985.
Plaintiff con-tends that the limited number of ELISA test kits
that UBS had following training of its  personnel  by  Abbott
Laboratories should have been allocated to the testing of the
perishable red blood cells in UBS's inventory rather than to the
testing of newly-donated blood. The district court concluded that
only by testing all whole blood and red blood cells in its
inventory and by de laying testing of newly donated blood, could
UBS have tested the blood unit that Dee Kirkendall received.
Because a recall of all blood in UBS's inventory may have
endangered the supply of blood available to local hospitals, the
district court concluded that UBS's decision not to test
inventory was reasonable in light of the foreseeable
consequences.  Additionally, the district court noted that
plaintiff offered no proof that even if UBS had tested the blood
unit that Dee Kirkendall received for antibodies to the AIDS
virus, such a test would have prevented Kirkendall's transfusion
with the unit of blood in question.

The district court found that the standard of care applicable to
Kirkendall's claim arises from contemporaneous blood testing
practices in the blood banking industry.  See Kirkendall v.
Harbor Ins. Co., 698 F.Supp. 768, 779 (W.D.Ark.1988). The
district court relied for its conclusion on Kozup v. Georgetown
University, 663 F.Supp. 1048,1052 (D.D.C.1987), affd in part,
remanded in part, 851 F.2d 437 (D.C.Cir.1988). That case is
inapposite for two reasons.  First, the blood transfusion in
Kozup occurred in January 1983, a time at which no consensus
existed in the medical community regarding the transmissibility
of the AIDS virus through blood transfusions. See id at 1053.
Second, the FDA issued a recommendation on February 19, 1985,
that all blood facilities voluntarily commence testing blood for
AIDS antibodies as soon as testing supplies became commercially
available. Because of this recommendation, industry practice at
the time of Kirkendall's transfusion does not govern UBS's
conduct with respect to blood that it had in inventory.  See
Texas & Pac. Ry.Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct  June
D. 622, 623, 47 L.Ed. 905 (1903) ("What usually is done may be
evidence of what ought to be done, but what ought to be done is
fixed by a standard of reasonable prudence, whether it usually is
complied with or not.") (citation omitted).

[5]  We believe that the FDA's recommendation of February 19,
1985, that blood facilities begin testing all donated blood as
soon as testing supplies became commercially available imposed a
duty on UBS to test all its blood supplies for antibodies to the
AIDS virus. The chronology of events surrounding Kirkendall's
transfusion, however, leads us to conclude that UBS did not
breach that duty in failing to test the blood unit that
Kirkendall received.

Although the blood unit in question was donated on March 6, 1985,
it was held in inventory at a Harrison, Arkansas hospital, rather
than at UBS's Fort Smith facility, between March 7 and March 19,
1985. The blood unit returned to UBS's facility on March 19,
1985, but was sent to Sparks Regional Medical Center on the
following day.  UBS personnel received training in performing the
ELISA blood test on March 1819, and UBS had only a limited number
of test kits available at that time, because the test kits were
on back order at their manufacturer, Abbott Laboratories.  The
unit of blood that ultimately was transfused into Dee Kirkendall
was present at UBS's Fort Smith facility for only one day during
which UBS had both the equipment and the trained personnel to
perform a test for the presence of AIDS antibodies. Under these
unusual circumstances, UBS's failure to recall and test the unit
of blood Kirkendall received between March 23 and March 28, 1985
was not negligent as a matter of law.  Consequently, we affirm.



FOOTNOTE:

1.   Kirkendall died of AIDS during the litigation's progress,
and Ann Kirkendall was substituted as administratrix of his
claim. Because UBS is a nonprofit corporation organized under
Arizona law, the district court substituted Harbor Insurance
Company, UBS's liability carrier, as a party defendant. Arkansas
law immunizes nonprofit corporations from tort liability, but
authorizes direct action against such a corporation's insurer as
defendant in a tort action. Ark.Stat.Ann.,  23-79-210 (1987).