Barton v. American Red Cross

• Decision Date: 29 September 1992
• Docket Number: Civ. A. No. 91-T-1001-S.
• Citation: 804 F. Supp. 1455
• Parties: R.A. BARTON, et al., Plaintiffs, v. AMERICAN RED CROSS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

804 F. Supp. 1455

R.A. BARTON, et al., Plaintiffs, v. AMERICAN RED CROSS, et al., Defendants.

Civ. A. No. 91-T-1001-S.

United States District Court, M.D. Alabama, S.D.

September 29, 1992.

James Prestwood, Andalusia, Ala., Alvin Prestwood, Joseph Borg, Ben Fuller, Montgomery, Ala., for plaintiffs.

Tony Miller, Jeffrey Grantham, Birmingham, Ala., Bruce Chadwick, Kathleen Behan, Washington, D.C., for defendants.

ORDER

MYRON H. THOMPSON, Chief Judge.

Plaintiffs R.A. Barton and her husband and two sons charge defendants American Red Cross and Eoline McGowan, M.D., with negligent and wanton failure to screen properly for HIV-infected blood that was given to Mrs. Barton in a transfusion.¹ The Bartons seek relief under the Alabama Medical Liability Act (AMLA), Ala.Code 1975 § 6-5-542.² This cause is before the court on a motion for summary judgment filed by the Red Cross and Dr. McGowan. In their motion, the Red Cross and Dr. McGowan assert three defenses: (1) that the doctrines of issue and claim preclusion bar the Bartons' claims; (2) that the statute of limitations contained in the AMLA bars the Bartons' claims; and (3) that the Barton sons' claim for loss of parental consortium is not cognizable under Alabama law. For the reasons set forth below, the motion for summary judgment is denied in part and granted in part.

I. STANDARD FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." A district court must consider "all the evidence in the light most favorable to the nonmoving party ... and resolve all reasonable doubts in favor of the non-moving party." Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11th Cir.1990) (citations omitted). Because this action is based on a state cause of action, it is similar to an action based on diversity-of-citizen jurisdiction and state substantive law applies.

II. BACKGROUND

On July 24, 1988, Mrs. Barton was admitted to the Southeast Alabama Medical Center in Dothan, Alabama for treatment by Dr. John P. Moore, Jr. Mrs. Barton was given a transfusion with blood taken from a donor provided by the American Red Cross. Dr. Eoline McGowan was responsible, at least in part, for supervising the Red Cross's procedures for screening blood from volunteer donors in 1988 in Alabama. On June 9, 1990, the Red Cross discovered that the donor whose blood had been used in Mrs. Barton's transfusion had tested positive for HIV. The Red Cross did not notify the Medical Center of the donor's HIV status until December 13, 1990.

Dr. Moore informed Mrs. Barton on January 3, 1991, that the blood donor had tested positive for HIV but told her that he was "99% sure that she had nothing to worry about." Mrs. Barton took a blood test and was informed by Dr. Moore on January 8 that her blood tested positive for HIV. However, Dr. Moore also told her that false positives were possible and that the results could not be considered final until a California laboratory conducted a more sophisticated test, known as a "Western blot" test. It is unclear precisely when Mrs. Barton was informed of the results of the Western blot test. A report by the Alabama Reference Laboratory, dated January 12, states that the results of the Western blot test "should be available within 7 days." A letter from another physician, Dr. Coe, to Dr. Moore, dated January 23, states: "As we have discussed, Mrs. Barton is, indeed, HIV positive confirmed with Western blot study." Mrs. Barton alleges that she could not have learned of the Western blot test results earlier than January 20 and believes that Dr. Coe's office orally informed her of the results on January 22.

Mrs. Barton filed suit against the Red Cross, Dr. McGowan, the Southeast Alabama Medical Center, and Dr. Moore on July 18, 1991, in the Circuit Court of Houston County, Alabama. On August 22, Mrs. Barton amended her complaint to add claims for loss of consortium by her husband and her two minor sons. That same day, the state court granted a motion to dismiss filed by the Medical Center and Dr. Moore on statute-of-limitations grounds. Also on August 22, the Red Cross and Dr. McGowan removed the case to federal court. Subsequently, these two defendants moved for summary judgment.

III. DISCUSSION

The Alabama Supreme Court recently decided that the AMLA applies to claims against the Red Cross. The court found that the Red Cross is a "health care provider" as the term is defined in the Act, Ala. Code 1975 § 6-5-542. Wilson v. American Red Cross, 600 So.2d 216, 218-19 (Ala. 1992). The Act also governs claims against Dr. McGowan, by virtue of her status either as a physician or as a "health care provider" supervising the Red Cross's blood screening procedures. It therefore follows that the Bartons' claims are governed by the AMLA.

As stated, the Red Cross and Dr. McGowan present three defenses to the Bartons' AMLA claims: (1) whether the doctrines of issue and claim preclusion bar the Bartons' claims; (2) whether the statute of limitations contained in the AMLA bars the Bartons' claims; and (3) whether the Barton sons' claim for loss of parental consortium is cognizable under Alabama law.

A. Claim and Issue Preclusion

The Red Cross and Dr. McGowan contend that the Bartons are barred by the doctrines of claim preclusion and issue preclusion from relitigating the statute of limitations issues decided by the state court before the case was removed to federal court. Alabama law applies in determining the preclusive effect to be given an Alabama state court judgment in an action based on state law. See Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir.1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985). The Red Cross and Dr. McGowan argue that the claims against Southeast Alabama Medical Center and Dr. Moore were also governed by the AMLA and were dismissed pursuant to the AMLA's statute of limitations. Therefore, according to the Red Cross and Dr. McGowan, the statute of limitations issue was already decided in a prior action and cannot be relitigated under Alabama's doctrine of issue preclusion. Similarly, they maintain that the Bartons' causes of action are barred by Alabama's doctrine of claim preclusion.

According to Alabama law, for either issue preclusion or claim preclusion to apply, the prior judgment must have been a final judgment. Shelby County Planning Comm'n v. Seale, 564 So.2d 900, 901-02 (Ala.1990); Chandler v. Commercial Union Ins. Co., 467 So.2d 244, 251 (Ala.1985). As the Eleventh Circuit Court of Appeals has noted, "Under Alabama law, finality for purposes of preclusion is equated with finality for purposes of appeal." Battle v. Liberty Nat'l Life Ins. Co., 877 F.2d 877, 882 (11th Cir.1989). Rule 54(b) of the Alabama Rules of Civil Procedure, which governs finality of judgments, provides that "any order ... which adjudicates ... the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order ... is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." The state court order here dismissed the claims against only two of the four defendants. Thus, the order adjudicated the rights and liabilities of fewer than all the parties and was not a final judgment under Rule 54(b).

Rule 54(b) does provide an exception allowing a court to direct final judgment as to fewer than all the parties, but the court must make an "express determination that there is no just reason for delay." Tubbs v. Brandon, 366 So.2d 1119, 1120 (Ala. 1979) (emphasis in original); see also Ala. R.Civ.P. 54(b), Committee Comments. If the trial court fails to make this express determination, a judgment "against fewer than all defendants where there are multiple defendants is not a final judgment...." McKiever v. King & Hatch, Inc., 366 So.2d 264, 264 (Ala.1978).

The state court noted only that it had granted the motion to dismiss made by the Medical Center and Dr. Moore. The court failed to make the express determination required by Rule 54(b) for an order to constitute a final judgment. Therefore, neither the doctrine of issue preclusion nor claim preclusion can apply to the state court order because it is not a final judgment under Alabama law.

An alternative reason for not applying preclusion here is that the state court order was not part of a separate action. Rather, the state court order is still part of the federal action at hand. The Alabama Supreme Court has indicated that res judicata does not apply between claims in the same action. Recently, in rejecting such a defense, the court wrote that

"the doctrine of res judicata does not apply in this situation, because that doctrine prohibits the relitigation of all matters that were or could have been litigated in a prior action. But here, the complaint of plaintiff and defendant's counterclaim and third-party complaint were litigated together."

Stone v. Gulf American Fire and Casualty Co., 554 So.2d 346, 372-73 (Ala.1989) (emphasis in original) (internal citation omitted), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990). As noted above, Alabama law applies in determining the preclusive effect to be given an Alabama state court judgment in an action based on state law. Thus res judicata does not apply to the state court order here.

B. Statute of Limitations

Under the AMLA, an action must be brought within two years "after the act or omission giving rise to the claim." Ala. Code 1975 § 6-5-482(a). However, if the cause of action is not discovered and could not reasonably have been discovered within that two-year period, "then the action may be commenced within six months from the date of such discovery or the...