Colavito v. New York Organ Donor Network, Inc.

• Decision Date: 15 February 2005
• Docket Number: No. 03-CV-4187(DLI).,03-CV-4187(DLI).
• Citation: 356 F.Supp.2d 237
• Parties: Robert COLAVITO, Plaintiff, v. NEW YORK ORGAN DONOR NETWORK, INC., Robert Kochik, Spencer Hertzel, Dr. Doe I, M.D., and Dr. Doe II, M.D., Defendants.
• Court: U.S. District Court — Eastern District of New York

356 F.Supp.2d 237

Robert COLAVITO, Plaintiff, v. NEW YORK ORGAN DONOR NETWORK, INC., Robert Kochik, Spencer Hertzel, Dr. Doe I, M.D., and Dr. Doe II, M.D., Defendants.

No. 03-CV-4187(DLI).

United States District Court, E.D. New York.

February 15, 2005.

Victor M. Serby, Victor M. Serby, Esq., Woodmere, NY, for Plaintiff.

Richard E. Lerner, Robin Nemia, Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, Peter R. Bower, Bower, Sanger & Lawrence, P.C., New York City, for Defendants.

OPINION AND ORDER

IRIZARRY, District Judge.

This lawsuit raises certain legal issues of first impression. It arises out of an organ donation made by Debra Lucia to plaintiff Robert Colavito upon the death of her husband, Peter Lucia. Based on the alleged misdirection of one of the kidneys intended for him, plaintiff seeks damages against the New York Organ Donor Network ("NYODN"), its Director of Clinical Operation, Robert Kochik, and Spencer Hertzel, who assisted Mrs. Lucia in coordinating the organ donation.¹ Plaintiff claims fraud, conversion, and violation of N.Y. Public Health Law Articles 43 and 43-A. For the following reasons, the court grants summary judgment in favor of defendants on all claims and denies plaintiff's cross-motion for summary judgment.

I. FACTS

Mr. Colavito, a longtime friend of Peter Lucia, has been suffering from End Stage Renal Disease, for which he has been receiving dialysis treatment and on a kidney transplant waiting list. On August 21, 2002, doctors tentatively determined Peter Lucia to be brain dead, after he suffered a massive intra-cranial bleed, and pronounced him dead the following morning.

Sometime during the morning of August 22, 2002,² Mrs. Lucia asked a nurse at the Good Samaritan Hospital³ about the possibility of donating her husband's kidneys to Mr. Colavito. Mrs. Lucia then spoke to defendant Spencer Hertzel, a transplant coordinator, who asked Mrs. Lucia questions about her husband's medical history. At her deposition, Mrs. Lucia also recalled discussing the organ donation with an unidentified woman at the hospital. Although she originally wanted to donate one kidney, after discussing the procedure with the woman, she decided to have both kidneys taken out together as a block. Mrs. Lucia testified that she did not authorize the kidneys to be used for medical research and had made it clear to Mr. Hertzel that both kidneys were intended for Mr. Colavito: "I just wanted to be assured that [the] kidneys were going to just go to Bobby [Mr. Colavito].... They were not for anyone else and I told him [Mr. Hertzel] that specifically."⁴ (Debra Lucia Dep. at 38.)

Mrs. Lucia signed a consent form from the NYODN, which she acknowledges having read. On the consent form, Mrs. Lucia checked "Yes" for "Directed Donation" and specified "Kidney" as the "Organ/tissue to be directed" to Mr. Colavito, a "Friend." Below the lines for directed donation, the form states: "If it is not feasible for medical or logistical reasons for the donated organs/tissue to be used by the person to whom I direct it, the NYODN may allocate the organs/tissue as if I had not made a directed donation" (alterations in original). Mrs. Lucia testified that when she signed this form, she understood from Mr. Hertzel that the kidneys were transplantable and compatible with Mr. Colavito and that her husband had type O negative blood, the universal blood type. According to Mrs. Lucia, Mr. Hertzel told her son: "They [the kidneys] are not a perfect match, but they are good enough." (Debra Lucia Dep. at 63;see also Peter Lucia Decl. ¶ 50.) Mrs. Lucia stated that her main concern was for Mr. Colavito to receive a functioning kidney, but she acknowledged that the other kidney could be given to someone else as long as Mr. Colavito's transplant was a success.⁵ (Debra Lucia Dep. at 64-65.)

On the morning of August 23, 2002, plaintiff Robert Colavito reported to Jackson Memorial Hospital in Miami. At the hospital, Mr. Colavito signed several consent forms and was fully prepared for surgery, which included the administration of intravenous fluid. He was then told by Dr. George Burke,⁶ Director of Kidney-Pancreas Transplantation at the University of Miami, who was called in to assess suitability for transplant, that only one kidney had been received and that an aneurysm found in the renal artery rendered it unfit for transplant. Mr. Colavito claims Robert Kochik, Director of Clinical Operation at NYODN, told him that the second kidney had been allocated to someone else around the same time that the first kidney was sent to Florida and that it had been successfully transplanted. In view of this situation, Mr. Kochik offered to put Mr. Colavito at the top of the NYODN kidney donation list.

In addition to the aneurysm problem, defendants assert that the kidney was not a match for Mr. Colavito. Plaintiff does not outright dispute this but instead argues that incompatibility has no bearing on the fact that defendants misappropriated the second kidney that was gifted to him. Plaintiff also characterizes the incompatibility determination as belated and suspect. Mr. Colavito claims he first heard about an incompatibility problem about a month after Mr. Lucia's death. Mrs. Lucia claims she did not hear of any compatibility problem until she received a letter from Mr. Kochik, dated October 16, 2002, on behalf of NYODN, stating: "The crossmatch between Mr. Colavito and your husband's kidneys was incompatible as well. This means he could not have accepted either of your husband's kidneys." Dr. Burke testified that he learned of the incompatibility (positive B and T cell crossmatches) around twelve hours after he discovered the aneurysm.

II. AMOUNT IN CONTROVERSY

Defendants argue that plaintiff has not met the $75,000 amount in controversy requirement, pursuant to 28 U.S.C. § 1332(a), because kidneys cannot be given an economic value. Defendants attempt to support this argument by citing N.Y. Public Health Law § 4307, which prohibits the sale of human organs. The amount in controversy alleged in the complaint is considered presumptively correct, and a defendant has a high bar to overcome in challenging the amount. Scherer v. Equitable Life Assurance Soc'y, 347 F.3d 394, 397 (2d Cir.2003). Indeed, the defendants would have to show "`to a legal certainty' that the amount recoverable does not meet the jurisdictional threshold." Id. In determining whether plaintiff has met the amount in controversy requirement, the court may aggregate plaintiff's claims. See Wolde Meskel v. Vocational Instruction Project Cmty. Services, Inc., 166 F.3d 59, 62 (2d Cir.1999).

Without deciding whether defendants' argument as to § 4307 is persuasive, which would engage the court in an ethical debate, the court finds that plaintiff's fraud claim is enough to satisfy the amount in controversy. Plaintiff claims that, as a result of defendants' actions, he continues to suffer from End Stage Renal Disease and remains on dialysis. On his fraud claim, plaintiff seeks $10 million in unspecified damages⁷ and $30 million in punitive damages. Punitive damages are only available for fraud claims where the fraud alleged "is gross and involves high moral culpability." Shanahan v. Vallat, 2004 WL 2937805, at *11 (S.D.N.Y.2004) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 491, 179 N.E.2d 497 (1961)). On the face of the complaint, plaintiff's allegations concerning the alleged purposeful misdirection of an organ donation are sufficient for meeting this standard. The court cannot say to a legal certainty that plaintiff has not met his jurisdictional burden. Therefore, the court finds plaintiff's complaint sufficient with respect to amount in controversy.

III. FRAUD

To establish a claim for fraud, plaintiff must show that (1) the defendants misrepresented a material fact; (2) the defendants knew they were making a false misrepresentation; (3) Mr. Colavito justifiably relied on such misrepresentation; and (4) he suffered harm as a result. See Cohen v. Houseconnect Realty Corp., 289 A.D.2d 277, 734 N.Y.S.2d 205, 206 (2d Dep't 2001). Plaintiff claims that defendants NYODN and Mr. Hertzel intentionally misrepresented to plaintiff that both kidneys would be sent to him when in fact they intended to divert the second kidney to another recipient. Plaintiff claims that he relied on this misrepresentation and that it was the defendants' actions that proximately caused him loss of a transplantable kidney. Unfortunately, the court is unable to afford relief under this theory.

The problem with plaintiff's analysis is the issue of causation, which is central to assessing fraud:

Reliance is to fraud what proximate cause is to negligence; that is to say, without reliance, there can be no recovery for fraud. It is not necessary for the representation to have been the exclusive cause of plaintiff's action or non-action; it is sufficient that but for the representation plaintiff would not have acted or refrained from acting, that is, that the representation was a substantial factor in inducing plaintiff to act or refrain from acting.

In re Fifth Judicial Dist. Asbestos Litigation, 6 Misc.3d 176, 784 N.Y.S.2d 829, 833 (2004) (quoting N.Y. Pattern Jury Instructions 3:20 [Intentional Torts, Fraud and Deceit] (West 2004)) (internal citations omitted). In further explanation: "Causation, in relation to losses incurred by reason of a misrepresentation, is a matter of the recipient's reliance in fact upon the misrepresentation in taking some action or in refraining from it." RESTATEMENT (SECOND) OF TORTS § 548A cmt. a (1977) (emphasis added). Therefore, to succeed on a claim for fraud, there must be some action the plaintiff took because of the defendants' alleged misrepresentations that caused him harm.

The sole actions that plaintiff claims to have taken because of the alleged misrepresentations are going to the hospital and preparing for surgery. But the actions Mr. Colavito took...