974 F.2d 482 (4th Cir. 1992), 91-2053, Watson v. Lowcountry Red Cross

Docket Nº:91-2053.
Citation:974 F.2d 482
Party Name:Cynthia E. WATSON, Plaintiff-Appellee, v. LOWCOUNTRY RED CROSS, Defendant-Appellant, and Medical University of South Carolina, Defendant.
Case Date:August 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 482

974 F.2d 482 (4th Cir. 1992)

Cynthia E. WATSON, Plaintiff-Appellee,

v.

LOWCOUNTRY RED CROSS, Defendant-Appellant,

and

Medical University of South Carolina, Defendant.

No. 91-2053.

United States Court of Appeals, Fourth Circuit.

August 28, 1992

Argued June 5, 1991.

As Amended Nov. 2, 1992.

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Fern Phillips O'Brian, Arnold & Porter, Washington, D.C., argued (Bruce M. Chadwick, Barry L. Johnson, Kathleen A. Behan, Arnold & Porter, Washington, D.C., Stephen G. Morrison, Stuart M. Andrews, Jr., Nelson, Mullins, Riley & Scarborough, Columbia, S.C., Edward L. Wolf, Associate General Counsel, American Red Cross, Washington, D.C., on brief), for defendant-appellant.

Bernard McIntyre, Moss, Dore, Kuhn & McIntyre, P.A., Beaufort, S.C., argued, for plaintiff-appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

OPINION

K.K. HALL, Circuit Judge:

The American National Red Cross Blood Services, Carolina Lowcountry Region ("Red Cross") brings this interlocutory appeal pursuant to 28 U.S.C. § 1292(b) to complain about the district court's order granting plaintiff Cynthia Watson's motion to compel certain discovery concerning a blood donor. We affirm.

I.

On February 10, 1985, Cynthia Watson gave birth to premature twins in Charleston, South Carolina. Trevor, one of the babies, received a number of blood transfusions through April, 1985. In 1986, he tested positive for HIV, and he later developed AIDS. He died in 1988.

Cynthia Watson was appointed administratrix of Trevor's estate. In December, 1988, she filed this wrongful death action against the Red Cross and the hospital at which Trevor received the blood transfusions following his birth. 1 The hospital

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used blood supplied by the Red Cross, and the Red Cross was able to determine that only one of the six donors whose blood was used in these transfusions might have been HIV-positive when the blood was donated. Watson sought to discover from this unidentified "implicated donor" information about his background and about the donation process itself. One theory of liability is that the screening process to which the implicated donor was subjected was inadequately and negligently carried out by the Red Cross employees at the donor station.

Extensive discovery has already taken place in this case. Both of the nurses on duty at the donation center on the day in question have been deposed. 2 Not surprisingly, neither was able to remember the implicated donor, whom they screened some five years earlier. The Red Cross has also provided Watson with many non-identifying pieces of information about the donor, including a redacted copy of the screening questionnaire completed by him on February 27, 1985. Watson persisted, however, in her request for the identity of the donor or, alternatively, for the opportunity to question him through a court-appointed intermediary. The Red Cross moved for a protective order, and the matter was referred to the magistrate judge.

The magistrate recognized that some discovery from the donor is crucial to Watson's case against Red Cross, at least insofar as the claims of negligence rest on how this particular donor was screened on the day in question. The magistrate dismissed as factually unfounded the Red Cross's claims that the invasion of the donor's privacy would seriously jeopardize the nation's blood supply. It was recommended that the donor's identity be divulged to the court and that a lawyer be appointed to represent the donor's interests. The lawyer's name would also remain confidential, known only to the court. Watson would be permitted to file proposed interrogatories 3 to which the Red Cross could object. The approved questions would then be given to the donor's lawyer to forward to his client, and the answers (with the donor's verification redacted) would then be delivered to the parties.

The Red Cross filed objections to the report, and argument was held before the district court. The district court accepted the recommendations, and in February, 1991, a set of interrogatories was approved. Essentially, these interrogatories delve into the donor's blood-donation history, with particular emphasis on the February 27 donation. Some of the interrogatories inquire into some limited aspects of the donor's personal history. The district court granted the Red Cross's motion for a stay and certification for permission to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). A panel of this court granted leave to file the appeal.

II.

The issues before us are well-defined, and the arguments for each side have been honed before a score of courts and analyzed in numerous law review articles. Yet the courts have been unable to reach a consensus on any of the major issues involved in such actions. As formulated by the district court, the precise "controlling question of law" certified for our review is "whether direct discovery from an anonymous volunteer blood donor should be prohibited under Federal Rules of Civil Procedure 26(c), and/or the Constitutions of the

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United States and the State of South Carolina." Watson v. Medical University of South Carolina, C/A 88-2844-18 (D.S.C. Feb. 25, 1991). Although couched in broad, general terms, the issues before us may only be meaningfully analyzed by reference to the particular discovery scheme embodied in the protective order. 4

A.

We begin by setting forth the pertinent legal standards under which the protective order should be reviewed. First, the district court is subject to the broad admonitions of Fed.R.Civ.P. 26(b) in fashioning discovery orders. All non-privileged information that is either admissible at trial or that "appears reasonably calculated to lead to the discovery of admissible evidence" should be discoverable. Fed.R.Civ.P. 26(b)(1). However, protection may be granted to any person from whom discovery is sought to prevent "annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). On appeal, Red Cross asserts that the only standard of review should be de novo for its "claims of legal errors." What are put forth as "legal errors," however, are more accurately characterized as matters involving either fact-finding or an exercise of discretion by the district court. The Red Cross's attempt to paint this case in stark, urgent colors is unsuccessful.

We will follow the established standards of review.

If the claim is of error in underlying factfindings which infected the ultimate decision, review must proceed under the clearly erroneous standard; if of error of law infecting the ultimate decision, under the de novo review standard. Only if the claim of error goes exclusively to the impropriety of an ultimate exercise of available discretion is review solely under the abuse of discretion standard.

United Food & Commercial Workers v. Marval Poultry Co., 876 F.2d 346, 351 (4th Cir.1989). The threshold task throughout is to properly categorize the various aspects of the lower court's order as findings of fact, conclusions of law, mixed fact-law rulings, or exercises of discretion.

B.

The Red Cross contends that Watson's interest in the discovery approved by the court is outweighed by two countervailing interests: the nation's interest in a safe and adequate blood supply and the implicated donor's privacy interests. We turn first to how the proposed discovery purported to pose a danger to the adequacy of the nation's blood supply.

The Red Cross's argument is that allowing plaintiffs to "enmesh" blood donors in tort actions of this kind will inevitably result in fewer persons willing to donate blood. As more cases of this type are publicized, potential donors will decide that the risk of becoming involved in litigation, with the possibility that their personal lives will be made public, outweighs the benefits of donating their blood. Although the Red Cross currently promises that the donors' records will remain confidential, such promises may not be able to be made if donor discovery is permitted in a sufficiently large number of cases like the instant one. Fewer donors, of course, means less blood.

Notwithstanding the Red Cross's repeated assertions to the contrary, however, the district court did not rule that Watson's interest in the contested discovery outweighed the public interest in maintaining an adequate supply of healthy volunteer blood. Rather, the court ruled that "there is not one shred of tangible evidence in the nature of hard statistical data to substantiate an otherwise speculative claim that the blood supply will be jeopardized." Watson v. Medical University of South Carolina, C/A No. 88-2844-18 (D.S.C. Feb. 7, 1991) (order). On appeal, the Red Cross attempts to deflect the impact of this ruling by pointing to a number of cases in which courts have denied discovery requests from similarly implicated donors. See, e.g., Rasmussen v. South Florida Blood Service, 500 So.2d 533, 538 (Fla.1987) ("[T]here is

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little doubt that the prospect of inquiry into one's private life and potential association with AIDS will deter blood donation...."); Coleman v. American Red Cross, 130 F.R.D. 360, 362 (E.D.Mich.1990) ("There is no question that court ordered disclosure will have a serious impact on volunteer blood donations."). In none of these cases, however, is there any mention of any statistical or empirical underpinning for the stated concerns about the effect on the blood supply.

Of course, the Red Cross offered the opinion testimony of an expert in the field. Again, however, Dr. Cannon's opinions are couched in conclusory terms. His proffered syllogism goes like this: donors desire anonymity and confidentiality; "donors would be much less likely to...

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