Coleman v. American Red Cross

23 F.3d 1091, 1994 WL 185927

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 16, 1994
• Docket: No. 93-1130
• Status: Published

Opinions

GUY, Circuit Judge, delivered the opinion of the court, in which CONTIE, Senior Circuit Judge, joined. RYAN, Circuit Judge (pp. 1098-1101), delivered a separate dissenting opinion.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiffs, Cheryl and Gerry Coleman, appeal the district court’s dismissal of their negligence action under Federal Rule of Civil Procedure 41(b). The court dismissed their claim against the American Red Cross because it found that they had violated a discovery protective order. The plaintiffs also contend on appeal that the district court erred: (1) in applying the wrong standard to preclude the discovery of relevant information; and (2) in prohibiting the plaintiffs from obtaining discovery of documents located at the Red Cross’ national headquarters. For the reasons discussed below, we affirm in part, reverse in part, and remand.

I.

This case is now before us for a third time. See Coleman v. American Red Cross, 979 F.2d 1135 (6th Cir.1992); Coleman v. American Red Cross, No. 91-1421 (6th Cir. Aug. 12, 1991). The issues raised on appeal involve substantially the same events-that were outlined in Coleman, 979 F.2d at 1135. Thus, for purposes of this analysis, we only need to briefly summarize the facts.

On August 15, 1984, Cheryl Coleman received a blood transfusion at the University of Michigan Hospital. The blood Mrs. Coleman received had been donated to the Red Cross six days, earlier. That blood apparently contained the Human Immunodeficiency Virus (HIV), the virus .that causes Acquired Immune Deficiency Syndrome (AIDS). Mrs. Coleman’s blood tested .positive for HIV antibodies in September 1988.

The Colemans then filed an action, claiming that the Red Cross was negligent in failing to screen out the infected donor and in failing to test the donor’s blood after collecting it. During discovery, the Colemans requested the donor’s name and address, but the Red Cross refused to provide this information. Eventually, the district court ordered the Red Cross to furnish the donor’s records to the Colemans but with all information that would identify the donor redacted. Coleman v. American Red Cross, 130 F.R.D. 360, 363 (E.D.Mich.1990).

The Red Cross subsequently delivered several donor information cards to the Cole-mans. On one of the cards, the Red Cross inadvertently failed, to redact the donor’s social security number. The Coleman’s attorney immediately hired a private investigator who was able to determine the donor’s name and address from information he obtained as a result of having the social security number.

When the Red Cross learned of this, it moved for a protective order to prevent the Colemans and their attorney from using this information. The district court ordered the Colemans and their attorney to turn over any documents containing the donor’s name and enjoined them from using the information for any purpose, including using the name to bring an action against the donor.

The Colemans appealed this order, arguing that the district court erred by enjoining them from suing the donor. We agreed, finding that the district court had abused its discretion by prohibiting the Colemans from bringing a separate proceeding against the donor. Coleman, 979 F.2d at 1141. We remanded to the district court for further proceedings.

When the case returned to the district court, the Red Cross, filed a motion to dismiss pursuant to Rule 41(b). In support of its motion, the Red Cross claimed that it was substantially prejudiced by the .Colemans’ intentional violation of the protective order. The district court found that the facts supported this assertion and entered an order to dismiss the complaint.- The Colemans then filed this appeal.

II.

Under Rule 41(b) of the Federal Rüles of Civil Procedure, when a plaintiff fails to comply with any order of the court, the defendant may move for dismissal of the action.¹ Court orders imposing sanctions under this rule are reviewable only for abuse of discretion. Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir.1980).

In the past, we have upheld the use of “dismissals as a sanction for failing to comply with discovery orders because it accomplishes the dual purposes of punishing the offending party and deterring similar misconduct by future litigants.” Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir.1988) (citations omitted). In response to the argument that a party should not be required to suffer harm for an attorney’s derelictions, the Supreme Court stated:

There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexeused conduct imposes an unjust penalty on the client. Petitioner voluntarily ■ chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with oúr system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.”

Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (citation omitted).

Despite the Supreme Court’s unequivocal language, this court, like many others, has been extremely reluctant to uphold the dismissal of a case merely to discipline an attorney. Buck v. United States Dep’t of Agric., 960 F.2d 603, 608 (6th Cir.1992); Shepard Claims Serv. v. William Darrah & Assoc., 796 F.2d 190, 195 (6th Cir.1986). In Carter we stated that the “dismissal of an action for an attorney’s failure to comply is a harsh sanction which the court should order only in extreme situations showing ‘a clear record of delay or contumacious conduct by the plaintiff.’” 636 F.2d at 161 (emphasis added) (quoting Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir.1978)). We also noted in Carter that “[dismissal is usually inappropriate where the neglect is solely the fault of the attorney.” Id. See also Carver v. Bunch, 946 F.2d 451, 454 (6th Cir.1991); Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir.1985).

In Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.1985), we reversed a dismissal, adjudging that sanction to be “extremely harsh in that it deprives a plaintiff of his day in court due to the inept actions of his counsel[.]” Patterson relied upon Carter, which reversed a dismissal under Rule 41(b) because, while plaintiff’s counsel had been inept, the plaintiff was blameless. We implicitly found that a potential claim against the plaintiffs attorney did not overcome the harm that the plaintiff would suffer from dismissing the action. See also Lolatchy v. Arthur Murray, Inc., 816 F.2d 951 (4th Cir.1987) (reversing a default judgment, over a strong dissent, because the defendants did not contribute to their attorney’s dilatory conduct); Carter v. Albert Einstein Medical Cent., 804 F.2d 805 (3d Cir.1986) (reversing a dismissal because the plaintiff did not contribute to the attorney’s negligent conduct). Thus, although the Link principle remains valid, see National Hockey League v. Metro. Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.

Here, all of the wrongful conduct must be attributed to counsel; the Colemans did not engage in any culpable conduct themselves. Even the district court itself noted that the “[djefendants do not claim that plaintiffs participated directly in the investigation which culminated in discovering the identity of the purported donor.” (App. 64.) Admittedly, the attorney’s actions in this case were more egregious than in the cases previously discussed; however, this does not mandate that the attorney’s conduct be imputed to the Colemans.

The Red Cross argues that it was substantially prejudiced by the violation of the protective order. Previously, in reversing the district court’s order that prohibited the Colemans from suing the donor, we noted that “the district court did not commit error in concluding that donor disclosure could imperil the safety and adequacy of the national blood supply.” Coleman, 979 F.2d at 1139. The genesis of this observation, however, was whether or not the court could consider the impact on the blood supply in fashioning its order. In no way did we endorse any substantive finding as to whether donor disclosure would imperil the blood supply. Thus, we now look for the first time to see if the defendants actually were prejudiced when the Colemans learned of the donor’s identity.

There is no evidence that the Cole-mans have used, or could use, the donor’s identity to directly prejudice the Red Cross insofar as this litigation is concerned. As proof of its having been prejudiced, the Red Cross points to a drop in blood donations, which it attributes to the publicity surrounding our previous decision.² This publicity, it claims, spawned fear among the public; fewer people are donating blood because now they fear possible liability. In response, the Colemans noted that even prior to the publication of the supposedly damaging article, Red Cross donations in the Detroit area were reportedly down 11 percent. Even the district court questioned the Red Cross’ claim, stating that the Colemans’ “argument that further study is needed to ascertain the exact cause or causes for the drop in blood donations has merit.” (App. 61.) Similarly, we find that the evidence presented by the Red Cross does not establish a causal connection between the violation of the court’s protective order and a decrease in the number of people donating blood.

Nevertheless, the district court found that the Red Cross was prejudiced in other ways. The court noted that the original protective order was based upon specific findings that there could be harm to the blood supply if the donor’s identity became known to the public. The court also found that the defendants were prejudiced because they complied with the court’s order to produce the donor registration cards and did so relying on the court’s order to protect documents that they had objected to producing in the first place. Finally, the court noted that any party who complies with a court order to produce necessarily is prejudiced when another party abuses the judicial process to discover protected information.

In our opinion, these findings do not establish the type of prejudice that permits the dismissal of this case. There is no disputing that the Colemans’ attorney intentionally violated the district court’s protective order. Such behavior undermines the authority of the court and the attorney may be sanctioned accordingly; however, unless the Red Cross can articulate how it was prejudiced in this litigation, it was an abuse of discretion to dismiss this ease.

We note in this regard that the defendants did not seek dismissal as a sanction when plaintiffs’ counsel’s misconduct was first discovered. Nor did the court, sua sponte, consider such a sanction. The only significant event that occurred in the interim was our decision to reverse the earlier ruling of the district court. It was our decision that generated the news coverage about which the defendant complained to the district court. We do not think the individual plaintiffs should be held accountable for whatever flowed from such coverage, if anything.

We previously stated:

The donor’s privacy interests are substantial, as is the public interest in maintaining a safe and adequate blood supply. However, we believe that the Colemans’ right to litigate their claims against the donor substantially outweighs the competing interests, especially since there is significant evidence to suggest that the donor’s conduct was suspect. Accordingly, we conclude that the district court abused its discretion by enjoining the Colemans from bringing a separate action against the donor.

Coleman, 979 F.2d at 1141. Similarly, we find that the Coleman’s right to sue the Red Cross outweighs any harm demonstrated by the Red Cross.³

III.

The Colemans also raise two issues pertaining to the district court’s orders regarding discovery. The Red Cross asserts that this court lacks jurisdiction to review this claim because discovery orders are non-final decisions not subject to appeal. The law is well settled that an appeal from a final judgment draws into question all prior non-final rulings and orders. Cattin v. General Motors Corp., 955 F.2d 416, 428 (6th Cir.1992); McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir.1985). Rule 41(b) of the Federal Rules of Civil Procedure specifically provides: “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.” Moreover, the defendants concede that “the order of dismissal presently on appeal is final because it ends the litigation on the merits[.]” (Defendant’s Brief at 41.) Thus, we have jurisdiction to resolve the issues concerning the pri- or discovery orders.

“[I]t is well established that the scope of discovery is within the sound discretion of the trial court.” United States v. Guy, 978 F.2d 934, 938 (6th Cir.1992) (citations omitted). Accordingly, we review discovery matters under an abuse of discretion standard. Id. at 939.

In their first contention of error, the Cole-mans argue that the district court improperly applied an “admissibility” standard rather than a “relevance” standard in precluding the discovery of certain information. The information sought to be discovered relates to one of the claims of negligence against the Red Cross: The Red Cross failed to use the hepatitis B core antibody test in screening the blood of the implicated donor.

The Colemans note that in a meeting held at the Center For Disease Control on January 4, 1983, it was reported that 90 percent of known AIDS cases were positive for the antibody to the core antigen of the hepatitis B virus (anti-HBc) and would be excluded as blood donors if the presence of hepatitis B core antibody was used as a laboratory surrogate screening test. The anti-HBc test was so successful because hepatitis B is prevalent in the same populations that are at high risk for AIDS.

Approximately one year later, the Red Cross’ San Jose Region advised headquarters that its Medical Advisory Committee had approved the implementation of hepatitis B core antibody testing. In response, headquarters indicated that the test would not be performed in other regions as there was no evidence that such testing would reduce the number of cases of transfusion-associated AIDS.

On June 11, 1984, the Red Cross implemented the test at its San Jose, California, based region. The test, or other surrogate tests, were also being used at other non-Red Cross blood banks. The test was used until the spring of 1985, when a test identifying HIV became available.

The Colemans sought data on the number of transfusions associated with AIDS/HIV infections that had been reported in blood recipients that received blood from the San Jose region during the time the hepatitis B core antibody test was being used. The Colemans, also inquired into the number of transfusion-associated AIDS/HIV infections from blood products produced by the Southeastern Michigan Region during the same period.

The Colemans contend that' this information was readily available, as the Red Cross’ “Look Back” program was used to identify units of blood that were contaminated with the AIDS virus and had been transfused prior to the .implementation of the AIDS testing.

The Red Cross objected to this motion on the grounds that it was unduly burdensome and expensive. Counsel for the Red Cross argued that they already had responded to over 300 interrogatories and over 140 separate document requests, and had produced over 1,500 documents. But rather than denying the Colemans’ motion on the grounds that it was overly burdensome, the district court stated:

I’m going to at this time deny the motion finding on this record that what is sought is really information relative to a procedure that has been identified as a test procedure being used on a relatively short-time based on ’counsel’s statement on this record. I’m relying on that and finding that if it were [to] be introduced into this record it would be speculative at best based on what I presently have before me. It is a matter that could be brought back if deemed appropriate. From what I have now it’s a different situation, a different setting, really a different population.

(Tr. 12-13, Nov. 27, 1990.) Thus, we must restrict our examination to this rationale in determining whether it was an abuse of discretion to deny the Colemans’ discovery motion.

It is axiomatic that the “discovery of evidence, whether hearsay or not, is permitted if it is at all possible that it will lead to the discovery of admissible evidence.” 4 James Wm. Moore, Moore’s Federal Practice § 26.56[4], Further, as we have previously noted, “[t]he scope of discovery is not limited to admissible evidence, but encompasses ‘any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ ” Marshall v. Bramer, 828 F.2d 355, 357-58 (6th Cir.1987) (quoting Fed.R.Civ.P. 26(b)(1)). A court is not permitted to preclude the discovery of arguably relevant information solely because, if the information were introduced at trial, it would be “speculative” at best. Accordingly, we find that it was an abuse of the district court’s discretion to deny the Colemans’ motion.

As to their second claim, the Cole-mans argue that the district court committed reversible error when it failed to consider and .balance the elements enumerated in Federal Rule of Civil Procedure 26(b)(1)⁴ in ruling that they were precluded from obtaining discovery of documents located at the Red Cross’ national headquarters.⁵ The Red Cross objected to this request on the basis of it being overly burdensome, since the request would have required the Red Cross to search every file that exists at National Headquarters for any documents that might be of any relevance to any matter in the case. The Red Cross also argued that the hundreds of interrogatory responses, numerous depositions, and thousands of pages of documents that already had been produced were sufficient. The district court agreed with the Red Cross, and denied the motion because it found it overly burdensome. We find nothing in the record that indicates that the district court abused its discretion in refusing to grant this request.

'For the reasons stated, we AFFIRM in part, REVERSE in part, and REMAND.

1 . The dissent would decide this case based upon an inherent power analysis and takes issue with our analysis under Rules 41(b) and 37(b). We do not dispute a court's inherent power to dismiss a case; however, we note, as other circuits have found, that the factors considered when reviewing a dismissal under Rule 41(b), Rule 37(b), or a court's inherent power are largely the same. See, e.g., United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir.1993) (listing six factors a court should consider before exércising its inherent power to dismiss a case, including the prejudice to the victim); Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988) ("Dismissals trader a court's inherent powers Eire subject to much the same considerations as those under the Federtil Rules of Civil Procedure.''). Therefore, even if we were to make an inherent power analysis, our holding would not change.

2 . On August 27, 1992, following our previous decision, which held that the district court had abused its discretion by enjoining the Colemans from bringing a second action against the donor, the Detroit Free Press published an article describing the case and the opinion of this court under the headline "Pair Can Sue Donor of AIDS Blood.”

3 . The donor involved in this case is now deceased.

4 . Federal Rule of Civil Procedure 26(b)(1) provides:

The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that ... (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.

5 . The Colemans sought information by way of interrogatories and document requests that included the following: (1) identification and production of documents relating to the decision to implement and relating to the use of the hepatitis

B core antibody test in Central Region; (2) identification and production of documents relating to a December 1983 meeting which discussed the use of the hepatitis B core antibody test to screen blood; (3) documents relating to the use of a screening procedure whereby donors could designate their blood for non-transfusion or laboratory use; (4) documents which discussed the plasma industry’s decision to exclude homosexuals from the donor pool; and (5) documents relating to donors sexual orientation as part of donor screening.