HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/RA-CUT2.ASC

Text File | 1993-01-14 | 11KB | 233 lines

/* This case is reported in 754 F.Supp. 193 (M.D.Fla. 1991). In
this case the earlier Ray decision is reversed due to a change in
the state law. */

Clifford RAY and Louise Ray, individually and as the natural
guardians of their minor children, Randy Ray, Robert Ray and
Ricky Ray, Plaintiffs,

v.

CUTTER LABORATORIES, DIVISION OF MILES, INC., and Armour
Pharmaceutical Co., Defendants.

United States District Court. M.D. Florida, Tampa Division.

Jan. 10, 1991.



ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiffs' Motion for
Reconsideration of Order Granting Summary Judgment in Favor of
Defendants  and  Defendants'  responses thereto.  744 F.Supp.
1124.

Plaintiffs urge the Court to reevaluate the applicability to
their case of the causation principles outlined in Celotex Corp.
v. Copeland. 471 So.2d 533 (Fla.1985).  Additionally, Plaintiffs
urge a reversal of the Summary judgment Order in light of the
recent Florida Supreme Court decision in Conley v. Boyle Drug
Co., 570 So.2d 275 (Fla.1990); Ehrlich, Justice, which adopted
the market share theory of liability.

Defendants reiterate their earlier arguments that the holding of
Celotex did not abrogate the requirement that a plaintiff
identify the specific tortfeasor who caused the injury giving
rise to the action.  Further, Defendants contend that the Florida
Supreme Court's decision in Conley is limited only to DES
(diethylstilbestrol) litigation.

In its earlier Order Granting Motion for Summary Judgment, this
Court noted that a cause of action in negligence may only be
sustained when the plaintiff can prove injury proximately caused
by a breach of a duty owed by the defendant.  Order dated
September 7, 1990, p. 4.  In a products liability action, this
burden is met by proof that a manufacturer defendant produced the
product that caused the alleged injury.

Id. at 5. This identification requirement is neither eliminated
nor altered in Celotex where an asbestos worker and his wife
brought action against manufacturers of asbestos products for
damages arising out of asbestosis and asbestos-related cancer. In
fact, the Florida Supreme Court expressly refused to adopt the
market share theory of liability in Celotex because the
plaintiffs had "a proper cause of action against identified
manufacturers of asbestos products."  Emphasis in original)
Celotex, 471 So.2d at 521.

The Celotex plaintiffs were able to identify  many  of  the
manufacturers  who caused their injuries.  Id. at 537.
Conversely, assuming that the Rays are able to prove that
Defendants manufactured the Factor VIII which was subsequently
pre scribed and used by Plaintiffs, an inability to identify
which manufacturer's product actually infected the Ray boys with
the Acquired Immune Deficiency  Syndrome (AIDS.) virus would
still exist.

Plaintiffs' inability to identify the specific defendant that
manufactured the contaminated Factor VIII which allegedly
infected the Ray boys with the AIDS virus renders Counts I, II,
IV, and V of Plaintiffs' Third Amended Complaint inapplicable.

Similarly, Counts III and V1, which allege a claim under Florida
Statutes Section 672.316(5), must also fail.  The so-called
"blood shield" statute establishes a negligence criteria for
recovery.  As discussed above, Plaintiffs inability to identify a
specific tortfeasor precludes any cause of action based on
traditional negligence theory.

Counts VII, VIII, and IX seek to hold Defendants liable under
concert of action. alternate liability, and enterprise liability
theories. Florida does not recognize any of these theories of
liability.  Consequently, this Court refuses to consider causes
of action not yet approved by the Florida Supreme Court or
adopted by the Florida legislature.

Utilizing this same rationale, this Court, in its Order dated
September 7, 1990, granted summary judgment to Defendants on
Count X.  This count seeks to hold Defendants liable under the
market share theory of liability.  At the time of that order,
Florida had not adopted the market share theory.  The Court
noted, however.

that pending before the Florida Supreme Court was Conley v. Boyle
Drug Co., 477 So.2d 600 (Fla. 4th DCA 1985) which certified the
following question:

DOES  FLORIDA   RECOGNIZE  A CAUSE OF ACTION AGAINST A DEFENDANT
FOR MARKETING DEFECTIVE DES WHEN THE PLAINTIFF ADMITTED HE CANNOT
ESTABLISH THAT A PARTICULAR DEFENDANT WAS RESPONSIBLE FOR THE
INJURY?

The Florida Supreme Court has now spoken on this issue.  Its
decision must be examined to determine whether grounds exist for
a partial reversal of this Court's Order Granting Summary
Judgment.

Defendants argue that the Conley holding is expressly limited to
DES plaintiffs. Indeed, the question certified to the Supreme
Court focused narrowly on DES litigation.  Additionally. the
Court's discussion of the actual use of the market share theory
is tailored to the prerequisites which must be met by DES
plaintiffs.  However, it must be remembered that any judicial
decision is based on the precise facts before that given court.
One must look to a court's holding and the reasons given for that
holding to determine its applicability to other factual
scenarios.

In its decision. the Conley court expressly refers to its earlier
refusal in Celotex to adopt a market share theory of liability:

 Our holding was based primarily on the fact that Copeland was
able to identify  several of the manufacturers of the products to
which he was exposed. Recognizing that "[t]he market share theory
of  liability was developed to provide a remedy where there is an
inherent inability to  identify the manufacturer of the product
that caused the injury," we concluded  that Celotex was an
inappropriate case in  which to determine whether such a theory
of liability should be adopted in Florida.

Conley, 570 So.2d at 280. A logical conclusion is that, while
Celotex was inappropriate, the Florida Supreme Court considered
Conley an appropriate case to determine whether the market share
theory of liability should be adopted in Florida.  Conley
presented to the Court a situation where the plaintiff was unable
to identify the manufacturer of the product which caused her
injury. The Ray boys are faced with a similar dilemma.

The Florida Supreme Court cites other facts of the case which
make it appropriate for adoption of the market share theory of
liability.  The Court notes that DES created the same risk of
harm to all users because it was produced using the same formula.
Conley, 570 So.2d at 280, footnote C.  Unlike DES, Factor VIII
may differ from one batch to the next because its final
composition is reliant on the pool of donors whose plasma is
ultimately used in any given batch.  However, the methods used
to  manufacture  the  plasma into Factor VIII are virtually
identical.  Once produced, one manufacturer's Factor VIII product
may essentially be used interchangeably with another
manufacturer's product.  This is highlighted by the fact that the
bid invitation for Antihemophilic Factor Concentrates by the
State of Florida does not specify any unique characteristics of
the drug.  Further, while one Factor VIII product may have been
infected with the AIDS virus while another may not have been, the
risk that infection was present was the same from product to
product during the period of time prior to initiation of
screening for donors at risk of having AIDS.

The Conley court also recognizes the justice in relaxing the
identity requirement of traditional tort law in situations "where
the manufacturing and marketing practices involved and the
delayed harmful effect ... make identification impossible."
Conley, at 283.  The effects of DES are only apparent in the
generation subsequent to that of the original user. Though not
nearly as long, a person found to be infected with the AIDS virus
may have used Factor VIII for a period of several years before
the infection was detected. At the time the Ray boys allege they
were infected. not only did no test for AIDS exist, the AIDS
virus itself had not even been identified. Thus, it will never be
possible for the Plaintiffs to identify which particular batch or
batches of Factor VIII caused their respective AIDS infections.

The Court is aware that Defendants dispute whether Plaintiffs
infections were in fact caused by the use of infected batches of
Factor VIII rather than by other blood products used by
Plaintiffs during the relevant time period.  However, this is a
disputed issue of material facts.  Determination should
rightfully be left to a jury.

Finally, the precise language of the Florida Supreme Court's
holding in Conley does not limit the decision to DES cases.

Accordingly, we adopt the market-share alternate theory of
liability as formulated by the Washington Supreme Court.

However, as a prerequisite to its use, a plaintiff must make a
showing that she has made a genuine attempt to locate and to
identify the manufacturer responsible for her injury. We further
restrict this vehicle of recovery to those actions sounding in
negligence; it may not be used in conjunction with allegations of
fraud, breach of warranty or strict liability.

Conley, at 286.

All issues presented by Plaintiffs and Defendants have been
carefully considered. The Court finds no reason to deviate from
its initial analysis of traditional tort law. Additionally, there
has been no change in Florida law as to the concert of action,
alternate liability, and enterprise theories of liability since
this Court's initial order granting summary judgment. These
theories are not recognized in Florida. Accordingly, it is

ORDERED that Plaintiffs' Motion for Reconsideration of Order
Granting Summary Judgment as to Counts I, II, III, IV, V, VI,
VII, VIII, and IX of Plaintiffs' Third Amended Complaint is
denied.

In Conley, decided after this Court's summary judgment order
dated September 7, 1990, the Florida Supreme Court adopted the
market share theory of liability in cases where there is an
inherent inability to identify the manufacturer of the product
that caused the injury.  This Court finds that the holding in
Conley is applicable to Plaintiffs' case.  Accordingly, it is

ORDERED that summary judgment on Count X of Plaintiff's Third
Amended Complaint is reversed.

Motions are pending for assessment of attorneys' fees and costs.
Based on the reopening of this case, these motions are premature
and are therefore denied with leave to file when appropriate.

At the time the motions for summary judgment were originally
granted, this cause of action was set for trial and was trial
ready. Therefore, this cause of action will be set for trial on
the April, 1991 Visiting Judge calendar.  It is not necessary
that the cause be scheduled for a  second pre-trial conference.

DONE and ORDERED.