Arnold v. Am. Natl. Red Cross

• Decision Date: 14 March 1994
• Docket Number: No. 65168,65168
• Parties: ARNOLD, Appellee, v. AMERICAN NATIONAL RED CROSS et al., Appellants; University Hospitals of Cleveland Blood Bank et al.
• Court: Ohio Court of Appeals

Page 564

93 Ohio App.3d 564

639 N.E.2d 484

ARNOLD, Appellee, v. AMERICAN NATIONAL RED CROSS et al., Appellants University Hospitals of Cleveland Blood Bank et al.

No. 65168.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided March 14, 1994.

James W. Burke, Jr., Peter Hull and Brian McNamee, Lafayette, for appellee.

Hugh E. McKay and Patricia A. Screen, Cleveland, James S. Oliphant and Joyce D. Edelman, Columbus, Bruce M. Chadwick, Fern P. O'Brian and L. Hope O'Keefe; and Edward L. Wolf, Associate General Counsel, American Red Cross, Washington, DC, for appellants.

NUGENT, Judge.

This is an appeal from the decision of the Cuyahoga County Court of Common Pleas compelling the defendant-appellant, American National Red Cross, to supply the plaintiff-appellee, Steven Arnold, the name of the donor of blood unit No. 42 FY-04453, also known as "donor 16," as well as the donor's last known address, Social Security number and date of death.

Appellee initiated the present action through the filing of his complaint on February 21, 1989. Appellee named the American National Red Cross, American Red Cross Association Greater Cleveland Chapter, and American Red Cross Northern Ohio Regional Blood Services (hereinafter collectively referred to as the "Red Cross"), and the University Hospitals of Cleveland Blood Bank and University Hospitals of Cleveland (hereinafter collectively referred to as "University Hospitals") as defendants. The gist of appellee's complaint is that the American Red Cross was negligent and careless in providing HIV-infected blood for transfusion and that University Hospitals was negligent and careless in administering appellee blood transfusions with blood containing the HIV virus. Appellee alleges that he received the transfusion of blood infected with the HIV virus in January 1985. Appellee further alleges that as a direct and proximate result of the defendants' negligence, he contracted the HIV virus from the blood transfusion administered to him. Appellee subsequently discovered that he had the HIV virus in February 1987.

During the course of pretrial discovery, a dispute arose concerning plaintiff's request for production of documents. Appellee filed a motion seeking to compel the production of documents in order to discover the identity of volunteer blood donors whose blood had been transfused into appellee in January 1985. Appellee also sought production of all medical records for the last five years of "donor 16," whose identity was not revealed. "Donor 16's" death certificate, however, indicated that he had died in 1986. Subsequently, the American National Red Cross moved the trial court for an order to prevent the disclosure of the identity of the volunteer blood donor whose blood is implicated in the transmission of the HIV virus to the plaintiff. In response, the trial court issued the following order:

"The Defendant, American National Red Cross, having filed its Motion for Protective Order, and the same being duly considered by this court, the Court now orders as follows:

"IT IS, THEREFORE, ORDERED that the Red Cross shall forthwith provide plaintiff's counsel with the name of the donor of blood unit no. 42 FY-04453, also known as donor '16.' Red Cross shall also provide Plaintiff's counsel with the donor's last known address; Social Security number and date of death, which was included on his death certificate.

"IT IS FURTHER ORDERED that Plaintif[f] and [his] counsel will not divulge the donor's identity to anyone else, [and] will not directly or indirectly contact the donor's family.

"IT IS FURTHER ORDERED that disclosing any information to a retained expert, Plaintiff's counsel will [e]nsure that such expert is fully aware of the protection afforded by this order and that such expert agrees to abide by its terms. Any papers filed by the parties to this action relating to the donor which identity [sic ] the donor by name shall be filed under seal. In lieu of filing pleadings under seal, papers may be filed in the public record which refer to such person as 'the donor' or a similar designation."

The Red Cross timely appeals, ¹ raising the following assignments of error:

"I. The court of common pleas erred in ordering donor discovery because plaintiff failed to demonstrate a compelling need for discovery of the donor's identity, as required by Ohio Rev.Code Ann. § 3701.243.

"II. The court of common pleas erred in ordering donor disclosure because the constitutional privacy rights of the donor and his family outweigh plaintiff's asserted minimal interest in obtaining the donor's identity.

"III. The court of common pleas erred in ordering donor discovery because plaintiff's asserted interest in obtaining the donor's identity is outweighed by society's interest in, and need for, an adequate and safe blood supply."

I

As an initial matter, this court must first determine whether an order compelling disclosure of the name, last known address, Social Security number and date of death of a donor of blood infected with the HIV virus is a final, appealable order. Section 3(B)(2), Article IV of the Ohio Constitution provides courts of appeals with appellate jurisdiction over final orders. Pursuant to R.C. 2505.02, a final, appealable order is "an order that affects a substantial right made in a special proceeding * * *."

At the time in which appellants filed their notice of appeal, a discovery order such as the one sub judice was clearly a final, appealable order. See Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877 (decision of trial court compelling disclosure of information concerning hospital-patient confidentiality and statutory privilege is a final, appealable order); and Doe v. Univ. of Cincinnati (1988), 42 Ohio App.3d 227, 538 N.E.2d 419 (decision of trial court compelling defendants to supply plaintiff with name, address and telephone number of donor of blood infected with HIV virus is a final, appealable order). However, both Humphry and Doe rely on the balancing test of Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, which was subsequently overruled by the Ohio Supreme Court in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213.

In Amato, the Supreme Court ruled that the determination of "whether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the 'prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable." Amato, supra, 67 Ohio St.2d at 258, 21 O.O.3d at 161, 423 N.E.2d at 456; see, also, Nelson v. Toledo Oxygen & Equip. Co. (1992), 63 Ohio St.3d 385, 387, 588 N.E.2d 789, 790-791.

In Polikoff, supra, the Supreme Court abandoned the Amato balancing test due to inconsistent application and increased criticism. In its place, the Supreme Court, in the interest of justice, clarity and judicial economy, returned to a more historical approach in determining whether an order was made in a special proceeding. The Supreme Court in Polikoff was asked to determine whether an order denying a motion to dismiss a shareholders' derivative suit on the grounds that the shareholders failed to make the requisite demand on the board of directors for the relief sought in court pursuant to Civ.R. 23.1 was a final, appealable order. The Supreme Court answered the question in the negative. In its syllabus, the court held that "[o]rders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02."

Under the Polikoff analysis for determining whether an order is entered in a special proceeding, an appellate court must first ask whether the underlying action was recognized in equity, at common law, or established by special legislation. Polikoff, supra, 67 Ohio St.3d at 107, 616 N.E.2d at 217-218. Next, an appellate court must look at the nature of the relief sought. Id. Where an aggrieved party files a special petition seeking a remedy that was conferred upon that party by an Ohio statute or if the proceeding represents what is essentially an independent judicial inquiry, the order is made in a special proceeding. Id. The court in Polikoff first noted that shareholder derivative suits originated more than one hundred years ago as actions in equity. Next, the court concluded that the aggrieved party did not file a special petition seeking a remedy authorized by statute and the proceeding did not represent an essentially independent judicial inquiry. Therefore, the Supreme Court concluded that an order denying a motion to dismiss a shareholder derivative suit on the grounds that the appellees failed to make the requisite prelitigation demand upon the directors was not an order entered in a special proceeding. Id. Thus, the order was not final and appealable.

Under Polikoff, inquiry into whether the underlying action was recognized at common law or in equity does not end a court's analysis. In a decision rendered the same day as Polikoff, the Supreme Court made it clear that an order entered in an action recognized at common law or in equity may nonetheless be an order entered in a "special proceeding." See Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d 181. The special proceeding in Bell was an action for prejudgment interest stemming from a favorable judgment in the underlying medical malpractice action. In the prejudgment interest proceeding, plaintiff's counsel subpoenaed defendants' attorneys and directed them to bring various documents which the defendants contended were privileged. The trial court granted defendants' motion for a protective order to the extent that the subpoenaed records would not be...