438 F.3d 214 (2nd Cir. 2006), 05-1305, Colavito v. New York Organ Donor Network, Inc.

Docket Nº:05-1305 CV.
Citation:438 F.3d 214
Party Name:Robert COLAVITO, Plaintiff-Appellant, v. NEW YORK ORGAN DONOR NETWORK, Inc., Rob Kochik, Spencer Hertzel, Good Samaritan Hospital Medical Center, Doe, I and II, M.D. Dr., Defendants-Appellees.
Case Date:February 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit


438 F.3d 214 (2nd Cir. 2006)

Robert COLAVITO, Plaintiff-Appellant,


NEW YORK ORGAN DONOR NETWORK, Inc., Rob Kochik, Spencer Hertzel, Good Samaritan Hospital Medical Center, Doe, I and II, M.D. Dr., Defendants-Appellees.

No. 05-1305 CV.

United States Court of Appeals, Second Circuit.

February 23, 2006

Argued: Oct. 18, 2005.

Appeal from an opinion and order of the United States District Court for the Eastern District of New York (Dora L. Irizarry, Judge) granting summary judgment to the defendants on the plaintiff's claims for fraud, conversion, and violations of the New York Public Health Law arising from the defendants' alleged misappropriation of a human kidney directed for transplantation to the plaintiff. Affirmed in part, questions certified to the New York Court of Appeals, and decision reserved in part pending the response of that Court.

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VICTOR M. SERBY (Denise Winter Luparello, of counsel), Woodmere, NY, for Plaintiff-Appellant.

RICHARD E. LERNER, Wilson, Elser, Moskowitz, Edelman & Dicker P.C., New York, NY, for Defendants-Appellees New York Organ Donor Network, Inc., Robert Kochik, and Spencer Hertzel.

Before: JACOBS, CABRANES, and SACK, Circuit Judges.

SACK, Circuit Judge:

When, in August 2002, Peter Lucia died in a Long Island, New York, hospital of intra-cranial bleeding, his widow decided to donate both of his kidneys to his long-time friend, the plaintiff Robert Colavito, who was suffering from end-stage renal disease. Peter Lucia's left kidney was therefore airlifted to a hospital in Miami, Florida, where Colavito was waiting for its implantation. Lucia's right kidney remained in New York.

While Colavito was being prepared for surgery, his surgeon, Dr. George W. Burke, discovered that Lucia's left kidney was irreparably damaged by aneurysms and therefore unfit for implantation. When a member of Burke's staff called the New York Organ Donor Network ("NYODN") to ask for delivery of the second kidney, he was told that it had already been delivered to and implanted in another patient. As the intended donee, Colavito brought this lawsuit in the United States District Court for the Eastern District of New York for fraud, conversion, and violations of New York Public Health Law Articles 43 and 43-A, invoking the court's diversity jurisdiction.1

The district court (Dora L. Irizarry, Judge) granted summary judgment to the defendants, rejecting Colavito's fraud claim on the merits, and concluding that his remaining claims were barred by a common-law public policy against recognizing property rights in human corpses. Colavito v. N.Y. Organ Donor Network, Inc., 356 F.Supp.2d 237 (E.D.N.Y. 2005). We affirm the dismissal of Colavito's fraud claim, but reserve judgment as to those portions of plaintiff's appeal that pertain to the remainder of the district court's rulings. We think that New York public policy respecting organ donations is more likely to be properly determined by reference to its current relevant statutory law than common-law principles. New York Public Health Law Article 43 codifies New York's version of the Uniform Anatomical Gift Act, and New York Public Health Law Article 43-A, establishes "duties of hospital administrators, organ procurement organizations, eye banks and tissue banks." In light of our decision to certify substantive law questions to the New York Court of Appeals, however, we leave that ultimate determination of New York public policy to that court. Because Colavito's claims raise novel questions of statutory interpretation that have not yet been addressed by the New York courts, we will certify the following questions to the New York Court of Appeals: 1) Do the applicable provisions of the New York Public Health Law vest the intended recipient of a directed organ donation with rights that

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can be vindicated in a private party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the New York Public Health Law? 2) Does New York Public Health Law immunize either negligent or grossly negligent misconduct? 3) If a donee can bring a private action to enforce the rights referred to in question 1, may the plaintiff recover nominal or punitive damages without demonstrating pecuniary loss or other actual injury?


In setting forth the facts underlying this appeal from the district court's grant of summary judgment to the defendants, we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in his favor. See LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005).

The Attempt at a Transplant

On August 21, 2002, Peter Lucia died from intra-cranial bleeding at Good Samaritan Hospital, in West Islip, New York. Joint Appendix ("J.A.") at 122. His widow, Debra Lucia, and their sons, decided to donate one of Peter's kidney to his friend, Robert Colavito, a resident of Coral Springs, Florida, who was suffering from end-stage renal disease. J.A. at 10, 129.

The Lucias first told a hospital nurse about their decision. Defendant Spencer Hertzel, an NYODN official, was then summoned to meet with the Lucias. J.A. at 132. Hertzel told Debra Lucia that her husband had had a "universal blood type," which made him a "universal donor." J.A. at 134-35. Hertzel then helped her fill out a printed organ-donor form by reading aloud questions from the form and writing down her answers. J.A. at 137. Sometime thereafter, she signed the donor form.2

One Carrie Comellas joined the meeting.3 She said that to avoid damaging a donated kidney, both kidneys are usually removed from the donor's body together, as a unit. J.A. at 140-41, 255. Hertzel and Comellas offered Debra Lucia the option of separating the kidneys after their removal from Peter Lucia's body and returning the one not donated to his body for burial. Instead, Lucia "decided to send the both of them [to Colavito] for fear of something going wrong with them damaging one of the kidneys." Dep. of Debra Lucia, June 17, 2004 (Lucia Dep.), at 30; J.A. at 144.

The donation form contained a printed list of possible organs for donation. Def.'s Mot. for Summ. J., Aug. 6, 2004, Ex. G.; J.A. at 110. Hertzel placed a check mark next to the entry for "Kidneys." Id. In response to the form's question whether the non-transplanted organs could be used for medical research, Hertzel placed a check mark next to "no." Id. Next to an entry for "Directed Donation," Hertzel placed a check mark next to "yes." Id. And next to "Organ/tissue to be directed," he wrote the word "KIDNEY." Id. Upon completion, the form also stated: "If it is not feasible for medical or logistical reasons for the donated organs/> to be used by the person to whom I direct it, the NYODN may allocate the organs/> as if I had not made a directed donation," with the word "tissue" thus crossed out by hand in two places. Id.

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Debra Lucia told Hertzel that the kidneys were a directed donation specifically for Colavito. Lucia testified that "[t]hey were not for anyone else and I told him that specifically." Lucia Dep. at 38; J.A. at 152. Had Lucia known that the kidneys could not be used by Colavito, she said, she would never have consented to their removal: "There was no question about them being not transplantable. [Colavito] was a universal blood type, and therefore, he was compatible. Had [Hertzel] told me any other thing, I would not have donated them." Id. at 39; J.A. at 153.

Debra Lucia testified that she never discussed with Hertzel what would happen to the second kidney if the first one were transplanted successfully. But her understanding was that "[a]s long as Bobby [Colavito] was taken care of and he was fine, then the kidney could be given to another person."4 Id. at 64- 65; J.A. at 178-79. Lucia testified that "[w]hat I wanted more than anything was for Bobby to get a functioning kidney. If they needed both of them, that would have been fine. If they needed one, that would have been fine also. But he was to be taken care of." Id. at 64; J.A. at 178.

Colavito was a resident of South Florida. Debra Lucia asked whether Colavito should come to New York for the transplant, but Comellas told her that it would be easier to ship the kidneys interstate by airplane than to transport them across town for implantation. J.A. at 141. Peter Lucia's left kidney was therefore sent by air to Miami.

On August 23, 2002, two days after Peter Lucia's death and at about the time his left kidney arrived in Miami, Colavito was admitted to Jackson Memorial Hospital in Miami. J.A. at 233. The hospital staff prepared him for surgery. He was then taken to the surgical waiting area and told, "We go in 5 minutes." Decl. of Robert Colavito dated Sept. 4, 2004, ¶32; J.A. at 235. When Colavito asked a hospital nurse for confirmation that the kidney was compatible, he was told: "We wouldn't be here if it wasn't compatible." Id. at ¶31; J.A. at 235.

But before the five minutes had elapsed, Dr. Burke told Colavito that there was a problem. J.A. at 235. While inspecting the kidney, the surgeon had discovered that renal arteries on the kidney were damaged by aneurysms, rendering the kidney transplant medically untenable. J.A. at 88, 236. A member of Burke's staff therefore called the NYODN and asked that Peter Lucia's other kidney be sent. The person speaking for NYODN replied that the organ had already being used for another patient. J.A. at 83. NYODN organ placement documents indicate that a call was placed from Jackson Memorial Hospital in Miami asking for the right kidney at 1:00 p.m. and that the right kidney had already been directed to another patient, Edith Bravo, at 11:25 a.m.5

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J.A. at 241. Dr. Burke did not relay to Colavito what he had learned from the NYODN regarding the second...

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