Borzillieri v. American National Red Cross

139 F.R.D. 284, 23 Fed. R. Serv. 3d 795, 1991 U.S. Dist. LEXIS 15757, 1991 WL 224093
CourtDistrict Court, W.D. New York
DecidedOctober 31, 1991
DocketNo. CIV-89-1296C
StatusPublished
Cited by8 cases

This text of 139 F.R.D. 284 (Borzillieri v. American National Red Cross) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borzillieri v. American National Red Cross, 139 F.R.D. 284, 23 Fed. R. Serv. 3d 795, 1991 U.S. Dist. LEXIS 15757, 1991 WL 224093 (W.D.N.Y. 1991).

Opinion

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 appearance. 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.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 [287]*287placed 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, 125-26 (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, 559-60 (Tex.Ct.App. 1988); Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675, 678-79 (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, 1384 (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).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).

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139 F.R.D. 284, 23 Fed. R. Serv. 3d 795, 1991 U.S. Dist. LEXIS 15757, 1991 WL 224093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borzillieri-v-american-national-red-cross-nywd-1991.