911 F.2d 374 (9th Cir. 1990), 89-15839, Smith v. Cutter Biological, Inc. a Div. of Miles Inc.

Docket Nº:89-15839.
Citation:911 F.2d 374
Party Name:John SMITH, Plaintiff-Appellant, v. CUTTER BIOLOGICAL, INC., A DIVISION OF MILES INC., Miles Laboratories, Inc., Travenol Laboratories, Inc., Armour Pharmaceutical Corporation, Alpha Therapeutics Corporation, and United States of America, Defendants-Appellees.
Case Date:August 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 374

911 F.2d 374 (9th Cir. 1990)

John SMITH, Plaintiff-Appellant,

v.

CUTTER BIOLOGICAL, INC., A DIVISION OF MILES INC., Miles

Laboratories, Inc., Travenol Laboratories, Inc., Armour

Pharmaceutical Corporation, Alpha Therapeutics Corporation,

and United States of America, Defendants-Appellees.

No. 89-15839.

United States Court of Appeals, Ninth Circuit

August 24, 1990

Appeal from the United States District Court for the District of Hawaii; Samuel P. King, District Judge Presiding.

Before NELSON and TROTT, Circuit Judges, and TASHIMA, District Judge. [*]

ORDER

CERTIFIED QUESTIONS

John Smith appeals the grant of summary judgment in favor of the manufacturers of a blood clotting product, Factor VIII,

Page 375

and in favor of the United States. Smith claims that he acquired AIDS from manufacturer-appellees' products. The district court found that appellant could not prevail on his claims as a matter of law. We certify several questions of state law to the Hawaii Supreme Court.

BACKGROUND

Appellant John Smith is a hemophiliac who has tested positive for the AIDS virus. He receives a clotting agent known as Factor VIII from Tripler Army Medical Center (TAMC). Factor VIII enables the blood of hemophiliacs to clot. Factor VIII is made and sold in the United States by the four appellees in this case, Alpha Therapeutic Corp. (Alpha), Cutter Biological (Cutter), Armour Pharmaceutical Company (Armour) and Baxter Hyland Healthcare Corp. (Baxter). Smith claims that he was infected with the AIDS virus from Factor VIII.

This case was originally filed in Hawaii state court and removed to federal district court. Smith sued the four manufacturers of Factor VIII for negligence and strict liability. In addition, Smith sued the United States for negligence and for failure of its duty to warn while he was treated at TAMC.

On May 18, 1989, the district court granted summary judgment in favor of defendants holding that Smith had failed to prove specifically which manufacturers' product caused his infection. The court also found that the United States was not liable because "until 1984 there was no medical consensus that AIDS was transmitted through blood." Smith v. Cutter, et al., Civ. No. 87-0891 at 8 (D.H. May 18, 1989). Therefore, Smith's treatment at TAMC was held not to have fallen below the proper standard of care.

Smith filed a...

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