JKB, Sr. v. Armour Pharmaceutical Co.

660 N.E.2d 602, 1996 Ind. App. LEXIS 26, 1996 WL 22708
CourtIndiana Court of Appeals
DecidedJanuary 24, 1996
Docket49A02-9506-CV-341
StatusPublished
Cited by51 cases

This text of 660 N.E.2d 602 (JKB, Sr. v. Armour Pharmaceutical Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JKB, Sr. v. Armour Pharmaceutical Co., 660 N.E.2d 602, 1996 Ind. App. LEXIS 26, 1996 WL 22708 (Ind. Ct. App. 1996).

Opinions

OPINION

ROBERTSON, Judge.

JKB, Sr., and VB, personally and as surviving parents of JKB, Jr., Deceased [JKB], appeal the summary judgment entered against them on the product liability claim (strict liability in tort) in their lawsuit against Armour Pharmaceutical Company, Cutter Laboratories, Baxter Healthcare Corporation, and Alpha Therapeuties Corporation [Pharmaceutical Companies]. JKB raises several related issues with multiple subparts. We restate and consolidate JKB's issues as follows:

whether pharmaceutical companies are insulated from product liability claims arising out of the sale of the blood products under Indiana's blood shield statute.

We reverse.

FACTS

The dispositive facts are not disputed. JKB was born on February 21, 1977. He had hemophilia. From 1980 through 1986, JKB received blood clotting factor products, known as Factor VIII, produced and sold by the pharmaceutical companies to treat his hemophilia. Unfortunately, the products used by JKB had been contaminated by the virus that causes AIDS. JKB contracted AIDS from the blood products and died on December 31, 1991. Medical and technological advances since the advent of AIDS have now made such blood products safe.

The Factor VIII blood products produced by the pharmaceutical companies are derived from human blood and are produced by a process called "plasmapheresis." Blood is taken from a donor and spun in a centrifuge to separate the plasma from the red blood cells and the red blood cells are then returned to the donor. Because these extra steps are involved, giving blood for plasma-pheresis is much more time consuming than the donation of whole blood and donors must be compensated accordingly. The plasma is [604]*604then pooled with plasma from other donors and various chemical and physical processes are employed to extract the Factor VIII clotting factor from the plasma. Factor VIII is then concentrated, sterile filtered, placed into vials, and freeze-dried. It is sold, by prescription, in this freeze-dried, powdered form.

The pharmaceutical companies filed a motion to dismiss (which was later converted into a motion for summary judgment) with respect to the count in JKB's complaint alleging strict liability in tort arguing that, under Indiana's blood shield statute, the provision of Factor VIII constituted a rendition of a service and not the sale of a product and thus could not give rise to a product liability action. The pharmaceutical companies did not challenge the remaining counts in JKB's complaint which include allegations of negligent manufacture and the negligent failure to warn of the dangers associated with the blood products.

The trial court granted the pharmaceutical companies' motion. This discretionary, interlocutory appeal ensued.

DECISION

Summary judgment is appropriate only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Great Lakes Chemical Corp. v. International Surplus Lines Insurance Co. (1994), Ind.App., 638 N.E.2d 847, 849. In reviewing a motion for summary judgment, this court must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Cloverleaf Apartments, Inc. v. Town of Eaton (1994), Ind.App., 641 NE.2d 665, 667. A trial court's grant of summary judgment is "clothed with a presumption of validity," and the appellant bears the burden of demonstrating the trial court erred. Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434. Nevertheless, this court must carefully serutinize the trial court's decision to ensure that the losing party is not improperly denied his day in court. Oelling v. Rao (1992), Ind., 593 N.E.2d 189, 190.

The Blood Shield Statute, Ind.Code 16-41-12-11, reads as follows:

(a) The:
(1) procurement, processing, distribution, or use of whole blood, plasma, blood products, blood derivatives, or other human tissue, such as corneas, bones, or organs, by a bank, storage facility, or hospital;
is the rendition of a service and not the sale of a product. Such services do not give rise to an implied warranty of merchantability or fitness for a particular purpose, nor do the services give rise to strict liability in tort.

(Emphasis added). Under this chapter, the terms "bank," "storage facility," and "hospital" have the meaning set forth in Ind.Code 209-2-16-1. IC. 16-41-12-2, 3, 9. Indiana Code 29-2-16-1, which sets out these definitions reads in pertinent part as follows:

(a) "Bank or storage facility" means a facility licensed, accredited or approved under the laws of any state for storage of human bodies or parts thereof.
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(d) "Hospital" means a hospital licensed, accredited or approved under the laws of any state [including] a hospital operated by the United States government, a state or a subdivision thereof, although not required to be licensed under state laws.
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(b) "State" includes any state, district, commonwealth, territory, insular possession and any other area subject to the legislative authority of the United States of America.

The cause of action for strict liability in tort arose under common law. See Cornette v. Searjeant Metal Products, Inc. (1970), 147 Ind.App. 46, 258 N.E.2d 652, 656. Thus, the blood shield statute, which limits the ability to bring such a cause of action, is in derogation of the common law. As such, two rules of statutory construction apply:

First, a statute ... which is in derogation of the common law must be strictly construed against limitations on a claimant's right to bring suit. Secondly, when the legislature enacts a statute in derogation of [605]*605the common law, this Court presumes that the legislature is aware of the common law, and does not intend to make any change therein beyond what it declares either in express terms or by unmistakable implication.

Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, 800 (citations omitted).

When interpreting a statute, the foremost objective is to determine and effect legislative intent. Spaulding v. International Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307, 309. Statutes must be construed to give effect to legislative intent, and courts must give deference to such intent whenever possible. Indiana State Police Department v. Turner (1991), Ind.App., 577 N.E.2d 598, 601, trans. denied. Thus, courts must consider the goals of the statute and the reasons and policy underlying the statute's enactment. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
660 N.E.2d 602, 1996 Ind. App. LEXIS 26, 1996 WL 22708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jkb-sr-v-armour-pharmaceutical-co-indctapp-1996.