White v. Lenox Hill Hospital

Full title: LAURA DODD WHITE, Plaintiff, v. LENOX HILL HOSPITAL, and NEW YORK BLOOD…

Court: United States District Court, S.D. New York

Date published: Oct 18, 2004

02 Civ. 5749 (WHP) (S.D.N.Y. Oct. 18, 2004)

Opinion

02 Civ. 5749 (WHP).

October 18, 2004

Stephen T. Mitchell, Esq., Stephen T. Mitchell, P.C., New York, New York, Attorneys for Plaintiff.

Elliott J. Zucker, Esq., Aaronson, Rappaport Feinstein Deutsch, LLP, New York, New York, Attorneys for Defendant Lenox Hill Hospital.

Gregory Oliver Koerner, Hughes Hubbard Reed LLP, New York, New York, Attorneys for Defendant New York Blood Center.

MEMORANDUM AND ORDER

WILLIAM PAULEY, District Judge

Plaintiff Laura Dodd-White ("Plaintiff"), an African-American woman, brings this action alleging federal civil rights, state law and common law claims against defendants Lenox Hill Hospital ("Lenox Hill") and the New York Blood Center ("NYBC") for damages resulting from a transfusion of blood tainted with Hepatitis B virus ("HBV") in September 2000.

NYBC moves for summary judgment. It argues that the allegedly blood Plaintiff received at Lenox Hill was properly screened for HBV and that Plaintiff offers no evidence that NYBC was negligent. NYBC also seeks dismissal of Lenox Hill's cross-claims based on common law contribution and indemnity principles.

BACKGROUND

Blood Unit No. 7182385 was transfused to Plaintiff at Lenox Hill. (Defendant's Rule 56.1 Statement ("Def. 56.1 St.") ¶ 1.) That unit was tainted with HBV. (Def. 56.1 St. ¶ 2.) As a result of the blood transfusion, Plaintiff contracted HBV. (Def. 56.1 St. ¶ 2.)

Prior to Lenox Hill's use of Unit No. 7182385, NYBC had collected and screened it. (Def. 56.1 St. ¶ 3.) In addition to the tests performed by NYBC (Affidavit of Edwin W. Streun, dated Aug. 10, 2004 ("Streun Aff.") ¶ 7), the American Red Cross ("Red Cross") also screened Unit No. 7182385. (Def. 56.1 St. ¶ 4.) Based on the testing, NYBC determined that Unit No. 7182385 was HBV negative and fit for transfusion. (Streun Aff. ¶ 14.)

A blood donor gave units on fourteen occasions prior to donating United No. 7182385, and on one occasion after that donation. On each occasion, the donor's blood tested negative for HBV. (Streun Aff. ¶ 15.)

DISCUSSION

I. Summary Judgment Standard

A court may grant summary judgment only if "there is no genuine issue of material fact" and "the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant satisfies this requirement, the burden shifts to the non-moving party "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Although a court must resolve all ambiguities and draw all inferences in favor of the non-moving party, Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001), the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative, or not significantly probative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Indeed, it is well established that "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). An "opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions." Contemporary Mission v. United States Postal Serv., 648 F.2d 97, 107 n. 14 (2d Cir. 1981) (internal citations and quotation marks omitt).

II. New York Blood Center's Has Advanced Admissible Evidence

NYBC has offered an affidavit by Edwin W. Streun attesting that the blood in Unit No. 7182385, which was transfused to Plaintiff, was appropriately screened and tested prior to its being sent to Lenox Hill. However, Plaintiff contends that this Court should reject any evidence provided by Streun. (Pl. Mem. at 3-4.) She argues that the donor information sheet, relied upon by Streun, is inadmissible because it was not authenticated by "the person who allegedly prepared the document" or "a person who allegedly observed the document being prepared." (Pl. Mem. at 3.) Plaintiff is incorrect. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). Indeed, "[a]uthentication under this rule `does not erect a particularly high hurdle.'" SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 344 (2d Cir. 2004) (quoting United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001)). Here, Streun affirmed that the donor registration form is a "true and correct copy" and was "created for and maintained in the ordinary course of NYBC's business." (Streun Aff. ¶ 14.) Thus, these documents meet the requirements of Fed.R. Evid 901 and have been properly authenticated. See Commercial Data Servers, Inc. v. Int'l Bus. Machs. Corp., 262 F. Supp. 2d 50, 60 (S.D.N.Y. 2003).

Plaintiff also argues that information provided by Data Management System is inadmissible (Streun Aff. Ex. B), because it is hearsay and lacks authentication. (Pl. Mem. at 3-4.) However, NYBC submits affidavits by Streun and Mindy Greene, Director of Testing for the Red Cross' National Laboratory, attesting that the reports are records of regularly conducted activity. (Streun Aff. ¶ 14; Affidavit of Mindy Greene, dated Oct. 7, 2004 ¶ 3-4.) Thus, these laboratory reports are admissible evidence notwithstanding the unavailability of the record's author, since two qualified witnesses have testified that the document was "kept in the course of a regularly conducted business activity and also that it was the regular practice of that business activity to make the [record]." United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000).

Plaintiff also asserts that NYBC fabricated test results in the past in connection with the distribution of tainted blood. (Pl. Mem. at 4.) Therefore, she argues that this Court should reopen discovery to permit her to depose NYBC's blood donors prior to ruling on the summary judgment motion. (Pl. Mem. at 4-5.) However, Plaintiff offers no evidence that such a fabrication occurred here, and her allegations are pure speculation. Plaintiff's conjectures are insufficient to oppose summary judgment. Contemporary Mission, 648 F.2d at 107 n. 14. Furthermore, under New York law, NYBC is forbidden from revealing the information Plaintiff seeks. See 10 N.Y.C.R.R. 58-2.10(a) ("For all collected or distributed blood, blood components and derivatives, the donor's name, address, telephone number, social security number and any other information which would directly or indirectly identify the blood donor of any specific unit shall not be disclosed by the blood bank to any person or entity except upon the written consent of the donor or except to the department and other agencies which issue clinical laboratory and/or blood bank permits to the facility whose records are requested."). Thus, Plaintiff may not learn the identities of NYBC's blood donors.

III. Parties' Failure to Establish Liability by New York Blood Center

Plaintiff has not provided any evidence to show that the blood in Unit No. 7182385 was contaminated with HBV. In contrast, NYBC offers ample evidence that the blood in Unit No. 7182385 was not contaminated. As such, Plaintiff cannot prove negligence by NYBC.See Hoemke v. New York Blood Ctr., No. 88 CIV. 9029 (RO), 1989 WL 147642, at *2 (S.D.N.Y. Nov. 28, 1989) ("[W]here blood banks and hospitals have undertaken to screen . . . donors, and have tested donated blood for disease in accordance with standard practices in the blood banking community, no negligence has been found.").

While conceding that there is no evidence to establish NYBC's negligence, Lenox Hill argues a strict liability theory. (Lenox Hill Mem. at 1-3.) However, that theory is barred by New York Law. See N.Y. Pub. Health Law § 580(4). In Mondello v. New York Blood Center, the New York Court of Appeals explained:

The delivery of medical services in hospitals is meticulously governed by a web of professional, legislative, judicial and regulatory precepts which assign duties and apportion liabilities. Because of its unique and critical nature, the handling of human blood has been treated with particularly close governmental scrutiny. Thus, despite the fact that modern rules of strict products liability in tort customarily apply when products, including medicinal products, are in commerce between manufacturers, suppliers, intermediaries and users, that has not been so in the case of the blood supply. Like a number of other States, New York has chosen to treat human blood differently. New York defines "[t]he collection, processing, storage, distribution or use of blood or a blood derivative" for medical purposes to be a "public health service". In so doing, the State shields blood providers and this uniquely different "service" from ordinary strict tort liability precepts and remedies.

604 N.E.2d 81, 85-86 (1992) (quoting N.Y. Pub. Health Law § 580(4)) (emphasis in original). Thus, Lenox Hill's strict liability theory is unavailing.

CONCLUSION

For the foregoing reasons, NYBC's motion for summary judgment is granted with respect to Plaintiff's and Lenox Hill's claims asserted against it.

SO ORDERED.