Colavito v. New York Organ Donor Network

• Decision Date: 14 December 2006
• Citation: 8 N.Y.3d 43,860 N.E.2d 713
• Parties: Patricia COLAVITO, as Personal Representative for Robert Colavito, Deceased, Appellant, v. NEW YORK ORGAN DONOR NETWORK, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

860 N.E.2d 713

8 N.Y.3d 43

Patricia COLAVITO, as Personal Representative for Robert Colavito, Deceased, Appellant, v. NEW YORK ORGAN DONOR NETWORK, INC., et al., Respondents.

Court of Appeals of New York.

December 14, 2006.

Denise Winter Luparello, Hicksville, and Victor M. Serby, Woodmere, for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner and Robin N. Gregory of counsel), for respondents.

Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock and Owen Demuth of counsel), for State of New York Department of Health, amicus curiae.

Alexandra K. Glazier, Newton, Massachusetts, admitted pro hac vice, Taylor, Duane, Barton and Gilman LLP, Boston, Massachusetts (Pamela S. Gilman and Andrew R. Weiner, admitted pro hac vice, of counsel), and John D. Persons, III, Richmond, Virginia, admitted pro hac vice, for American Association of Tissue Banks and others, amici curiae.

O'Connell and Aronowitz, P.C., Albany (Cornelius D. Murray of counsel), for New York Alliance for Donation, Inc., amicus curiae.

OPINION OF THE COURT

ROSENBLATT, J.

The case before us involves the purported gift of a kidney to plaintiff.^* He asserts that as the specified donee of the organ, he acquired a property right in it, giving rise to claims against defendants for delivering it to someone else. Plaintiff brought suit in federal court, and the United States Court of Appeals for the Second Circuit has certified questions to us relating to whether he has rights that would support his common-law conversion action or a statutory claim under Public Health Law articles 43 and 43-A.

I

In August 2002 Peter Lucia died at defendant Good Samaritan Hospital on Long Island, from massive intracranial bleeding. His widow, Debra Lucia, sought to donate his kidney (or kidneys¹) to plaintiff, Peter's longtime friend who had been suffering from end stage renal disease. Debra proceeded by going through defendant New York Organ Donor Network (NYODN). NYODN transplant coordinator defendant Spencer Hertzel concluded that Peter's kidneys were "not a perfect match, but they [were] good enough." Peter's left kidney was airlifted to Jackson Memorial Hospital in Miami, Florida, where plaintiff was awaiting its transplantation; Peter's other kidney remained in New York.

While preparing for the transplant during the early afternoon of August 23, 2002, Dr. George W. Burke, a surgeon at Jackson Memorial, inspected the donated kidney and discovered an aneurysm of the renal artery, making the kidney unsuitable for transplantation. He immediately contacted NYODN, asking for Peter's other kidney, and was informed that it had been allocated to someone else. The parties agree that NYODN had allocated the other kidney to another patient at about 11:25 A.M. that day.

Plaintiff brought suit against NYODN and others in the United States District Court for the Eastern District of New York, alleging fraud, conversion and violations of New York Public Health Law articles 43 and 43-A. Defendants moved for summary judgment and in support presented the deposition of Dr. Burke, in which he recounted the relevant events of August 23, 2002. He testified that when he found the first kidney unacceptable (owing to the aneurysm) the tissue-typing lab was performing other tests, reconfirming the blood group, retesting plaintiff's tissue and running cross-matching.² About 12 hours after discovering the aneurysm, Dr. Burke learned of the positive cross-match which, he said, would have prevented the successful transplant of either kidney.

Defendants also submitted an affidavit from Dr. Robert S. Gaston, Medical Director of the Kidney and Pancreas Transplantation programs at the University of Alabama. He reviewed the histocompatibility³ studies for the proposed transplant and concluded that plaintiff was an inappropriate donee for either of Peter's kidneys and that any attempt at transplant would result in "hyperacute rejection" by plaintiff, whose antibodies would attack either of Peter's kidneys and cause damage immediately after transplantation. Defendants argued that for these and other reasons plaintiff had no viable common-law or statutory claim against them.

Plaintiff cross-moved for summary judgment, maintaining, as he does before us, that incompatibility is irrelevant to his claim that defendants misappropriated or diverted Peter's second kidney. He characterized the incompatibility determination as belated and suspect.

The District Court granted defendants' motion for summary judgment, denied plaintiff's cross motion and dismissed the complaint (Colavito v. New York Organ Donor Network, Inc., 356 F.Supp.2d 237 [2005]). The court determined that plaintiff failed to state a cause of action for fraud, not having shown how he was harmed by any justifiable reliance on defendants' alleged misrepresentation.

In rejecting the conversion claim, the District Court held, in essence, that contract law ill-suits organ donations and that it would be "inappropriate to expand the limited right that courts recognize in a deceased's body, which only belongs to the next of kin to ensure proper burial" (id. at 244). Lastly, the court concluded that in the absence of a clear legislative expression, neither Public Health Law article 43 nor article 43-A gives donees standing to bring a lawsuit.

On plaintiff's appeal, the Second Circuit agreed that he did not state a cause of action for fraud, but determined that the legal issues necessary to address the two remaining causes of action raised novel and important questions of New York law (Colavito v. New York Organ Donor Network, Inc., 438 F.3d 214 [2006]).⁴ The Second Circuit certified to us, and we accepted, the following questions:

"(1) Do the applicable provisions of the New York Public Health Law vest the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit sounding in the common law tort of conversion or through a private right of action inferred 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?" (Id. at 233.)

II Conversion

To answer the first question we begin by addressing the tort of conversion. A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession (State of New York v. Seventh Regiment Fund, 98 N.Y.2d 249, 746 N.Y.S.2d 637, 774 N.E.2d 702 [2002]). Two key elements of conversion are (1) plaintiff's possessory right or interest in the property (Pierpoint v. Hoyt, 260 N.Y. 26, 182 N.E. 235 [1932]; Seventh Regiment Fund, 98 N.Y.2d at 259, 746 N.Y.S.2d 637, 774 N.E.2d 702) and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's rights (Employers' Fire Ins. Co. v. Cotten, 245 N.Y. 102, 156 N.E. 629 [1927]; see also Restatement [Second] of Torts §§ 8A, 223, 243; Prosser and Keeton, Torts § 15, at 92, 102 [5th ed.]).

The first element is pivotal to our inquiry insofar as plaintiff's conversion cause of action necessarily rests on his claimed property right in the second kidney. We must examine the relevant common law to see whether he has such a right.

The Common Law Relative to Property Rights in the Body of a Deceased Person

We begin with an observation. The common law on this subject extends back for centuries while organ donation and transplantation are measured by mere decades. When discussing body parts of deceased persons, it is unlikely that our forbears had in mind that human organs might be transplanted to extend life or improve health.

As the common law developed, body parts were known to have value, not for transplantation, but for the study of medicine and anatomy. A good deal of the law arose out of religious and cultural sensibilities involving grave robbery, desecration of corpses and, later on, unauthorized autopsies.

Unlike other instances in which we consult the common law, this inquiry cannot possibly yield answers with perfect congruity considering the different context in which common-law courts dealt with this subject. Although the case before us is unprecedented, the common law offers enough guidance for us to answer the question confidently.

Early common-law writings on the subject go back to Lord Coke, whose 17th century pronouncement that a corpse has no value is a good starting point.⁵ Coke's classic edict is of more than historical interest; it has been a staple of the common law. Blackstone reiterated the doctrine, asserting that heirs have no property right in the bodies or ashes of their ancestors, "nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried."⁶

One of this Court's earliest encounters with the subject was in Patterson v. Patterson, 59 N.Y. 574, 583 (1875). Adhering to the rule that no one can have a property right in a dead body, we held that a next of kin has only a right to possess the body for purposes of burying it, and a corresponding duty to do so.

Some years later, in Foley v. Phelps, 1 App.Div. 551, 37 N.Y.S. 471 (1896), a case of first impression in New York, the Court recognized a cause of action by a widow who suffered emotional distress occasioned by an unauthorized autopsy on her late husband. The Court insisted that it was not finding any property right in the body, invoking instead the widow's right and corresponding duty to bury a corpse, unmutilated. Foley relied, in part, on an 1880 case (Snyder v. Snyder, 60 How. Prac. 368, 371 [1880]) in which the court ruled that there is no...