DeBattista v. Argonaut-Southwest Ins. Co.

• Decision Date: 22 June 1981
• Docket Number: ARGONAUT-SOUTHWEST,No. 80-C-1772,80-C-1772
• Citation: 403 So.2d 26
• Parties: Dolores Faciane, wife of/and Joseph C. DeBATTISTA v.INSURANCE COMPANY, et al.
• Court: Louisiana Supreme Court

Page 26

403 So.2d 26

24 A.L.R.4th 494

Dolores Faciane, wife of/and Joseph C. DeBATTISTA v. ARGONAUT-SOUTHWEST INSURANCE COMPANY, et al.

No. 80-C-1772.

Supreme Court of Louisiana.

June 22, 1981.

Dissenting Opinion Sept. 17, 1981.

Rehearing Denied Sept. 18, 1981.

Abbott J. Reeves, Gretna, for applicant.

George E. Cain, Jr., William S. Penick, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-respondents.

William J. Guste, Jr., Atty. Gen., Joseph W. Thomas, Staff Atty., New Orleans, for appellee.

DENNIS, Justice.

One of the plaintiffs, Mrs. Joseph C. DeBattista, contracted hepatitis following a blood transfusion. She and her husband sued among others the Southern Baptist Hospital Blood Bank, the processor and distributor of the blood transfused, and the blood bank's liability insurer.

The court of appeal, 385 So.2d 518, affirmed the district court's dismissal of the suit, finding that the plaintiffs failed to prove that the blood was unwholesome or that Mrs. DeBattista contracted hepatitis from this source. The district judge, however, either resolved these factual issues differently or never reached them. He dismissed the suit stating only that there could be no implied warranty in connection with the sale of the blood and that there was no proof of negligence in its preparation, storage or infusion. We granted certiorari to consider the correctness of the factual findings and the district court holding that a blood bank which distributes diseased blood without negligence cannot be held for damage caused to a person who contracts hepatitis after a transfusion because of its unwholesome condition.

Facts

Mrs. DeBattista had surgery performed at Southern Baptist Hospital on February 14, 1973. Her treating physician ordered a transfusion of three units of blood in conjunction with the surgery and post-operative care. Each unit had been drawn and processed by the Southern Baptist Hospital Blood Bank and administered by Southern Baptist Hospital personnel. Roughly one month after the transfusions, Mrs. DeBattista began to experience symptoms of hepatitis. Her doctor diagnosed her condition as Type B serum hepatitis after hospitalizing her in mid-April.

A donor of one of the units of blood which Mrs. DeBattista had received was subsequently rejected as a donor because of a positive reaction to a hepatitis test. Robert Watson, a paid donor, gave one of the units of blood which Mrs. DeBattista received at Southern Baptist on January 28, 1973, and his blood was tested the next day. The testing did not disclose the presence of hepatitis. Watson had a history of mental disease and syphilis. Had he answered the screening questionnaire regarding venereal disease correctly, his donation of blood would have been rejected. Two months later, however, Watson again sought to give blood and was rejected after hepatitis testing conducted March 27, 1973 revealed a positive reaction indicating that he had been exposed to hepatitis virus at some time. The blood bank notified Watson that he had been disqualified as a donor and that he should consult a physician for further testing. The blood he had given the day before was destroyed. Watson's physician retested him and found no reaction on the hepatitis test. Watson's doctor and the blood bank personnel did not notice that he had any visible symptoms of hepatitis.

The other two units of the transfusion administered to Mrs. DeBattista in February had been obtained by the blood bank from voluntary donors. The same procedures were followed as were used to obtain Watson's blood. There is no evidence in the record that these donors were suspected of having hepatitis.

The trial judge did not expressly determine whether Mrs. DeBattista contracted hepatitis from the transfusion. Since the court of appeal's judgment may constitute a reversal of the trial judge's implicit factual finding, however, we have carefully considered the pertinent evidence.

In this civil case, the plaintiffs' burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).

Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. Weber v. Fidelity & Cas. Ins. Co. of N.Y., 259 La. 599, 608-09, 250 So.2d 754, 757 (1971).

The evidence shows that, approximately one month after receiving a transfusion of blood which came from defendant's blood bank, Mrs. DeBattista became ill with hepatitis. The medical evidence showed that this delay in manifestation of the disease is consistent with contagion through transfusion. The type hepatitis she had is most commonly contracted by blood transfusion. The risk of contracting hepatitis through a transfusion is significantly higher when the blood is accepted from paid, rather than voluntary, donors. At the time the blood bank accepted the blood ultimately given Mrs. DeBattista, the test for this type hepatitis was only 30% effective. It is possible for a person carrying hepatitis virus to display no visible symptoms of illness. It is possible, also, for blood from a person infected with hepatitis to test positive on one occasion and negative on another. Under these circumstances, the most reasonable hypothesis for the cause of Mrs. DeBattista's hepatitis is that it entered her body with the blood she received from the blood bank.

The defendants have failed to produce any evidence which convinces us that the blood transfusion was not the most probable source of Mrs. DeBattista's hepatitis. The court of appeal stated Mrs. DeBattista might have contracted hepatitis from her sister. Her sister had contracted the disease one year earlier and was asymptomatic at the time Mrs. DeBattista entered the hospital in February. Expert testimony in the record establishes, however, that Type B hepatitis is generally transmitted parenterally, most commonly by a transfusion of hepatitis-infected blood. The timing of the onset of symptoms and the subsequent clinical diagnosis is also best explained by plaintiffs' theory that Mrs. DeBattista was exposed to hepatitis during her February hospitalization.

However, after reviewing the evidence, we are convinced that the trial court correctly found that the blood bank was not negligent in any respect. Accordingly, we must consider whether it can be held liable without a finding of negligence.

Liability for Distribution of Defective Blood Under Article 2315

Articles 2315-24 of the Louisiana Civil Code comprise the code's entire chapter of legal principles regulating offenses and quasi-offenses.

The underlying principle is provided by Article 2315: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * " The remaining articles constitute amplifications as to what constitutes "fault" and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible. Loescher v. Parr, 324 So.2d 441 (La.1975).

Definitions of "fault" are actually indefinite generalities and usually not illuminating when applying the concept. Colin and Capitant have said that fault signifies that conduct which a man should not have engaged in that is, that he has acted as he should not have acted. 2 Colin et Capitant, Cours elementaire de droit civil fran cais (8e Ed. 1935) & 190. Defining fault is a logomachy. Because of the difficulty in finding fault for all times and purposes and instead of defining fault by listing numerous activities which constitute fault (much as we enumerate the activities which constitute criminal conduct in our criminal code) our law has left this determination in the hands of the court. Langlois v. Allied Chemical Corp., 258 La. 1067, 1076, 249 So.2d 133, 137 (1971).

In defining "fault" for purposes of products liability in Weber v. Fidelity & Cas. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971), this court held:

"A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect.

"* * *

"If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them." Id. 250 So.2d at 755-756.

Defendant blood bank contends that plaintiffs may not recover in tort under Weber because the blood was not defective, i. e., "unreasonably dangerous to normal use," for three reasons: (1) The judgment of whether the product is "unreasonably dangerous to normal use" must be based on the manufacturer's entire line or his total activity, rather than the single product used by plaintiff. (This is implicitly assumed by defendant, not expressly argued); (2) The social utility of the distribution of blood greatly outweighs the risk of its harm; and (3) Blood banks have no way of preventing distribution of the relatively small amounts of unwholesome blood that cause harm. In essence, defendant relies on an argument that the activity of distributing blood involves...