Spence v. Miles Laboratories, Inc.

• Decision Date: 19 October 1994
• Docket Number: Nos. 93-5073,93-5074,s. 93-5073
• Citation: 37 F.3d 1185
• Parties: Jennifer SPENCE, individually and as surviving spouse of Wynne Spence, deceased, Plaintiff-Appellant, Cross-Appellee, v. MILES LABORATORIES, INC., individually and doing business as Cutter Laboratories, Defendant-Appellee, Cross-Appellant, Attorney General, State of Tennessee, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1185

37 F.3d 1185

Jennifer SPENCE, individually and as surviving spouse of Wynne Spence, deceased, Plaintiff-Appellant, Cross-Appellee, v. MILES LABORATORIES, INC., individually and doing business as Cutter Laboratories, Defendant-Appellee, Cross-Appellant Attorney General, State of Tennessee, Intervenor.

Nos. 93-5073, 93-5074.

United States Court of Appeals Sixth Circuit.

Argued May 3, 1994.

Decided Oct. 19, 1994.

Jerry H. Summers, Summers, McCrea & Wyatt, Jeffrey D. Boehm (argued and briefed), O'Neal, Walker & Boehm, Chattanooga, TN, for plaintiff-appellant, cross-appellee.

Louis J. Miller (briefed), Louis F. Allen (briefed), Waring Cox, Memphis, TN, Terry O. Tottenham (argued and briefed), Fulbright & Jaworski, Austin, TX, Geoffrey R.W. Smith (briefed), McDermott, Will & Emery, Washington, DC, for defendant-appellee, cross-appellant.

Jennifer Helton Small, Asst. Atty. Gen. (briefed), Sue A. Sheldon (argued), Office of the Atty. Gen., Gen. Civ. Div., Nashville, TN, for intervenor.

Before: KEITH and SUHRHEINRICH, Circuit Judges; and JOINER, District Judge. ^*

SUHRHEINRICH, Circuit Judge.

I. Introduction

In March of 1990, Wynne Spence, a hemophiliac, was diagnosed with AIDS. Wynne and his wife Jennifer brought suit against defendant Miles Laboratories, Inc., individually and doing business as Cutter Laboratories, claiming Wynne had contracted the disease from a blood-clotting factor manufactured by Miles. The district court granted summary judgment to Miles, ruling that the Tennessee AIDS statute could not be applied retroactively to hold Miles liable; and assuming it did apply, this claim, and the alternative claim of negligently manufacturing and distributing a defective product, were time-barred. Plaintiff appeals these rulings. Defendant Miles has filed a protective cross-appeal regarding the district court's denial of summary judgment on the issue of plaintiff's ability to prove causation. Assuming, without deciding, that the Tennessee AIDS statute applies, we likewise hold that both the statutory and the common-law claims are time-barred by the applicable statute of repose. We therefore do not reach the issue raised in Miles' cross-appeal.

II. Facts

The facts are thoroughly set forth in the district court's opinion at 810 F.Supp. 952 (E.D. Tenn.1992), and will be merely capsulized here. Wynne Spence was born with Hemophilia B, involving a Factor IX deficiency, an inherited disorder in which his blood lacks certain key "clotting factors" which are essential to normal blood clotting. Spence was first diagnosed as a hemophiliac in 1977, following an automobile accident. At the time he received fresh frozen plasma and a Factor IX blood-clotting factor concentrate manufactured by Hyland known as Proplex. Spence again received Factor IX blood-clotting factor concentrates in January 1981, while undergoing oral surgery for the removal of wisdom teeth, and in September 1982, while being treated for a knee injury. In July and August 1986, following another knee injury, Spence received Konyne-HT, a blood-clotting factor concentrate manufactured by Miles. The Konyne-HT which Spence received originated from Lot. No. 20P010.

Konyne-HT was first licensed by the United States Food and Drug Administration in October 1984. Konyne-HT is a Factor IX concentrate derived from human plasma which has undergone heat treatment during its processing. The plasma from which Lot. No. 20P010 was derived was collected between October 1984 and early March 1985. Miles processed the plasma beginning on March 18, 1985, continuing through April 3, 1985. The derivative Konyne-HT was heat-treated in late May and early June 1985, and released by Miles for distribution on July 16, 1985. It was shipped to Erlanger Hospital in Chattanooga, Tennessee, on October 1 and 9, 1985.

It is now widely-accepted (and the parties do not disagree) that the medical and scientific communities did not reach a consensus that AIDS could be transmitted by blood until 1984, see, e.g., McKee v. Miles Labs., Inc., 675 F.Supp. 1060 (E.D.Ky.1987), aff'd, 866 F.2d 219 (6th Cir.1989); Kozup v. Georgetown Univ., 663 F.Supp. 1048, 1051-53 (D.D.C.1987), aff'd in relevant part, 851 F.2d 437, 438 (D.C.Cir.1988); Note, Dana J. Finberg, Blood Bank and Blood Products Manufacturer Liability in Transfusion-Related AIDS Cases, 26 U.Rich.L.Rev. 519 (1992), and identified the virus HTLV-III as the cause of AIDS. McKee, 675 F.Supp. at 1063; Kozup, 663 F.Supp. at 1052. By May 1985, an enzyme-linked immunosorbant assay ("ELISA") test, which screens for the antibodies sensitive to HTVL-III, was made commercially available. McKee, 675 F.Supp. at 1063; Kozup, 663 F.Supp. at 1052.

In 1986, the Tennessee legislature enacted a statute which requires all facilities collecting fresh human blood or plasma from individual donors to test for the potential presence of the causative agent for AIDS; and authorizes any person who contracts AIDS from contaminated blood or blood products to sue for damages. See Tenn.Code Ann. Sec. 68-32-102 (1992). The statute took effect March 26, 1986.

Plaintiff was diagnosed with AIDS on March 27, 1990. Spence and his wife filed suit against Miles in the Circuit Court of Hamilton County, Tennessee, on March 20, 1991. Spence complained that Miles was negligent in not withdrawing the untested Konyne-HT from the market, and also negligent in failing to warn that the plasma used to manufacture the blood product administered to Spence had not been tested for the presence of the AIDS virus. Alternatively, Spence asserted that Miles was liable under the Tennessee AIDS statute. Miles timely removed the case to federal court on diversity grounds. Spence died of health complications associated with AIDS on March 24, 1992. This suit is currently being carried on by his surviving spouse pursuant to Tenn.Code Ann. Sec. 20-5-106(a).

The district court initially denied Miles' motion for summary judgment, rejecting defendant's claim that plaintiff had failed to create a question of fact as to causation. On reconsideration, however, the court ruled that (1) the Tennessee AIDS statute could not be applied retrospectively to hold Miles liable; (2) assuming it did apply, the most applicable statute of limitations, the statute of repose for products liability actions, barred the statutory claim as well as plaintiff's negligence claims; and (3) the statute of repose does not violate equal protection by differentiating between asbestos and AIDS-related claims. This timely appeal followed.

III. Standard of Review

Because this is a diversity action, we look to the forum state's choice of law provision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Electric Power Bd. of Chattanooga v. Monsanto Co., 879 F.2d 1368, 1375 (6th Cir.1989); cert. denied, 493 U.S. 1022, 110 S.Ct. 724, 107 L.Ed.2d 743 (1990); Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1057 (6th Cir.1983). Here, the parties agree that the substantive law of Tennessee applies. If the state courts have not addressed the issues presented, "a federal court is obligated to express its best judgment, based on all the available information, as to what the courts in that state would hold if they were faced with the issue." Eichleay Corp., 708 F.2d at 1057 (citations omitted). Further, the procedural law of the forum generally applies, including its statute of limitations. Electric Power Bd., 879 F.2d at 1375.

We review the district court's grant of summary judgment de novo. Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 912 (6th Cir.1991). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A district court's determinations of state law are reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

IV. Analysis

The first issue presented on appeal concerns the applicability of the Tennessee AIDS statute, Tenn.Code Ann. Sec. 68-32-102, to plaintiff. It provides in part:

68-32-102. Facilities to test for AIDS--Contaminated blood--Cause of action for AIDS from untested blood.--

(a) All facilities collecting fresh human blood or plasma directly from an individual donor shall have such blood or plasma tested for the potential presence of the causative agent for Acquired Immune Deficiency Syndrome (AIDS).

(b) Any blood shown by appropriate medical testing to be potentially contaminated by the causative agent for AIDS shall not be used for transfusions, or for any other purposes which may pose a threat of transmission of the virus.

(c) Any person who contracts AIDS from any contaminated blood or blood product shall have a cause of action for damages, including all medical expenses, against any facility supplying untested blood, if such person can establish that such person received any untested blood, or blood product derived therefrom, from such supplier.

Tenn.Code Ann. Sec. 68-32-102 (1992). The statute was enacted by the General Assembly of the State of Tennessee, effective March 24, 1986. The district court ruled that the AIDS statute did not apply to Miles because Miles had collected the plasma and processed it, and manufactured and distributed the Konyne-HT Lot. No. 20P010 before Sec. 68-32-102 became effective. Alternatively, plaintiff argued that even though Miles had supplied the Konyne-HT to the hospital before the effective date of Sec. 68-32-102, plaintiff was not supplied with the blood until four months after the effective date of the statute, and that subsection (c) should therefore apply. The district court also rejected this argument, stating that "nothing in the language of the statute [ ] evidences an intent to require manufacturers and suppliers of blood products to recall and test a product already on the market before the statute took effect." Spence v. Miles Labs., Inc., 810...