Cruz v. The American National Red Cross

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 19, 2022
• Docket: 21-3105
• Status: Unpublished

Opinion

Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 19, 2022 _________________________________ Christopher M. Wolpert Clerk of Court THERESE CRUZ,

Plaintiff - Appellant,

v. No. 21-3105 (D.C. No. 6:19-CV-01107-EFM) THE AMERICAN NATIONAL RED (D. Kan.) CROSS, d/b/a American Red Cross,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, KELLY, and CARSON, Circuit Judges. _________________________________

Therese Cruz asserted a negligence claim in Kansas state court against The

American National Red Cross alleging that she was injured during a blood donation.

Following removal of the case to the United States District Court for the District of

Kansas pursuant to 28 U.S.C. § 1332 on diversity of citizenship, the district court

granted summary judgment for the Red Cross because Ms. Cruz failed to establish a

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 2

triable question as to whether the Red Cross violated the applicable standard of care.

She now appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

Ms. Cruz donated blood at a Red Cross blood drive. She alleged that when the

phlebotomist inserted the needle in her arm she felt a sharp pain. During the blood

donation procedure, she also experienced dizziness, nausea, and swelling, tingling,

and numbness in her arm. Based on these reactions, the phlebotomist terminated the

blood draw early. She bandaged Ms. Cruz’s arm and told her to lie down.

Ms. Cruz’s side effects continued, so she was transported to a hospital.

About a year later, Ms. Cruz went to a hospital complaining of right arm pain.

After another hospital visit and a nerve conduction study that “show[ed] the presence

of an entrapment of the median nerve at wrist level,” she was diagnosed with carpal

tunnel syndrome. Suppl. App., vol. I, at 31.

In her complaint, Ms. Cruz alleged that the Red Cross phlebotomist was

negligent during the blood donation procedure, missing Ms. Cruz’s vein, puncturing

an artery, and damaging her median and radial nerves. She also alleged that the

phlebotomist was negligent because she failed to immediately stop the blood draw

and provided incorrect treatment after the procedure. Ms. Cruz’s only expert offered

opinions about the nature of her alleged injuries, but he offered no opinions as to the

standard of care the Red Cross and its phlebotomists must follow during a blood

donation procedure, or whether any deviation from that standard occurred during

Ms. Cruz’s blood draw. In fact, he testified that he thought “the act of drawing the

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blood” resulted in some injury but that he had no “opinion specifically that there was

a person who did this that in some way was negligent . . . in the manner [the blood

draw] was done.” Id., vol. II, at 74.

After the close of discovery, the Red Cross moved for summary judgment,

arguing that Ms. Cruz’s failure to provide an expert opinion about the applicable

standard of care was fatal to her claims because without an expert, she could not

show either that it breached any duty of care or deviated from the applicable standard

of care for performing blood donations or that its alleged negligence proximately

caused her injuries. In opposing the motion, Ms. Cruz argued that the applicable

standard of care was established by the Red Cross’s internal standards for

phlebotomy, which stated that blood is to be drawn from a vein, not an artery, and

her expert opined that Ms. Cruz’s blood was drawn from an artery.

The district court granted the motion, concluding that Ms. Cruz was required

to present expert testimony to establish the applicable standard of care. The court

explained that determining whether the phlebotomist’s actions fell below the relevant

standard of care and proximately caused Ms. Cruz’s injuries is beyond the knowledge

and experience of a lay jury and required the application of special experience and

training.

STANDARD OF REVIEW

Kansas law governs the substantive legal issues presented in this diversity

action, but federal law governs the standard for granting summary judgment. Stickley

v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). A court

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must “grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). We review the district court’s grant of summary judgment de

novo, applying that same standard and viewing the evidence in the light most

favorable to Ms. Cruz as the non-moving party. See Janny v. Gamez, 8 F.4th 883,

898-99 (10th Cir. 2021).

DISCUSSION

To recover for negligence under Kansas law, “the plaintiff must prove the

existence of a duty, breach of that duty, injury, and a causal connection between the

duty breached and the injury suffered.” Nero v. Kan. State Univ., 861 P.2d 768, 772

(Kan. 1993) (internal quotation marks omitted). “[N]egligence is never presumed”

from injury. Nold ex rel. Nold v. Binyon, 31 P.3d 274, 285 (Kan. 2001).

One purpose of the “requirement of expert testimony is to educate the fact

finder as to otherwise alien terminology and technology and thus preclude his

rendering judgment on something he knows nothing about.” McKee ex rel. McKee v.

City of Pleasanton, 750 P.2d 1007, 1011 (Kan. 1988) (internal quotation marks

omitted). Thus, whether expert testimony is necessary to prove negligence depends

on whether the fact finder can understand “the nature of the standard of care required

of [the] defendant and the alleged deviation from the standard” without expert

testimony. Gaumer v. Rossville Truck & Tractor Co., 202 P.3d 81, 84 (Kan. Ct. App.

4 Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 5

2009), aff’d on other grounds, 257 P.3d 292 (Kan. 2011).1 When a plaintiff is

attempting to establish negligence based on a departure from the reasonable standard

of care in a profession that requires technical skill or training, expert testimony is

required to establish such a departure. See McKee, 750 P.2d at 1012-13 (standard-of-

care expert required in negligence case against architect and contractor); Bacon v.

Mercy Hosp. of Ft. Scott, 756 P.2d 416, 420, 424 (Kan. 1988) (standard-of-care and

causation expert required in medical malpractice case); Smart v. BNSF Ry. Co.,

369 P.3d 966, 977 (Kan. Ct. App. 2016) (expert testimony required to prove railroad

breached duty of care to electrician in negligence case involving workplace exposure

to unreasonable ergonomic risk factors); Gaumer, 202 P.3d at 84 (standard-of-care

expert required in negligence suit involving sale of complex farm machinery).

Ms. Cruz acknowledges that phlebotomy is a profession that requires technical

skill and training, and she describes in detail the extensive training the Red Cross

requires its phlebotomists to complete before performing blood draws. But she

contends expert testimony was unnecessary to establish the applicable standard of

care because that standard is determined by the Red Cross’s own policies and

procedures for blood draws, which provide that blood should be drawn from a vein,

not an artery. Operating from the assumption that the Red Cross’s internal policies

and procedures establish the appropriate industry standard, Ms. Cruz maintains that

1 We need not decide whether Ms. Cruz’s claims were for ordinary negligence or medical malpractice, because classification of the claim does not determine whether expert testimony is required to establish the applicable standard of care. See Tudor v. Wheatland Nursing L.L.C., 214 P.3d 1217, 1221-22 (Kan. Ct. App. 2009). 5 Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 6

its phlebotomist deviated from that standard by drawing blood from her artery. And,

because the parties disputed the material fact whether the phlebotomist drew blood

from an artery instead of a vein, Ms. Cruz maintains that the district court erred by

granting summary judgment.

But the question here is not whether there was a genuine factual dispute about

whether the Red Cross phlebotomist drew blood from Ms. Cruz’s artery. Rather, the

issue is whether Ms. Cruz showed she could give the jury the tools it needed to

decide whether the phlebotomist deviated from the applicable standard of care in

performing her blood draw. The district court concluded that she failed to do so,

explaining that “[t]he phlebotomy process is extremely complex and involves

language that is alien and technical.” Aplt. App. at 238. Thus, “[t]his process is not

within the general purview of a common juror’s knowledge, and without expert

testimony on the standard of care common to the phlebotomy process, a trier of fact

would not be able to understand the nature of the standard of care” by which to

measure Ms. Cruz’s blood draw. Id. at 238-39.

We agree with the district court’s determination that, under Kansas law,

Ms. Cruz was required to offer expert opinion testimony to establish the applicable

standard of care and that her failure to do so entitled the Red Cross to judgment as a

matter of law. See McKee, 750 P.2d at 1012-13 (affirming summary judgment based on

lack of expert architectural standard-of-care testimony); Bacon, 756 P.2d at 420, 424

(affirming summary judgment in medical malpractice case for lack of expert standard-of-

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care testimony); Gaumer, 202 P.3d at 84 (affirming summary judgment for failure to

provide expert testimony on standard of care applicable to seller of used hay baler).

We are not persuaded otherwise by her insistence that the Red Cross’s internal

policies and procedures established the applicable standard of care. She cites no

authority, and we are aware of none, holding that a plaintiff can avoid her burden to

produce expert standard-of-care testimony by relying on the defendant’s alleged

violation of its own policies and training materials. Such policies may be relevant in

determining whether a defendant’s employee was negligent in a particular case, but

they do not establish a legal duty or the applicable industry-wide standard of care.

See McKee, 750 P.2d at 1012 (holding that contractor’s deviation from project plans

and specifications did not “automatically render[] [it] liable for negligence” and that

the plaintiff had to prove it was an unreasonable deviation from the applicable

professional standard of care); see also Therrien v. Target Corp., 617 F.3d 1242,

1256 (10th Cir. 2010) (recognizing that “a company’s internal policies do not alter

the applicable standard of care” but may be admitted to show negligence if “the jury

is instructed that they are not admitted as legal standards of duty, but as evidence of

the measure of caution which ought to be exercised in situations to which the

[policies] apply” (internal quotation marks omitted)).

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CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Joel M. Carson III Circuit Judge