Delaware Valley Transplant Program v. Coye

• Citation: 678 F. Supp. 479
• Decision Date: 03 February 1988
• Docket Number: Civ. A. No. 88-0548(SSB).
• Parties: DELAWARE VALLEY TRANSPLANT PROGRAM, Veronica Durkin, Marianne Fletcher, Glen Miller, and Joyce Battle, Plaintiffs, v. Molley Joel COYE, M.D., M.P.H., Commissioner, State of New Jersey, Department of Health, Defendant, and New Jersey Organ and Tissue Sharing Network, Intervenor.
• Court: U.S. District Court — District of New Jersey

678 F. Supp. 479

DELAWARE VALLEY TRANSPLANT PROGRAM, Veronica Durkin, Marianne Fletcher, Glen Miller, and Joyce Battle, Plaintiffs, v. Molley Joel COYE, M.D., M.P.H., Commissioner, State of New Jersey, Department of Health, Defendant, and New Jersey Organ and Tissue Sharing Network, Intervenor.

Civ. A. No. 88-0548(SSB).

United States District Court, D. New Jersey.

February 3, 1988.

Archer & Greiner by Gary J. Lesneski, Haddonfield, N.J., for plaintiffs.

Office of the Atty. Gen. by Michael Haas, Asst. Chief Atty. Gen., Health, Education, Labor & Commerce Section, Trenton, N.J., for defendant.

Cohen, Shapiro, Polisher, Shiekman and Cohen by Murray J. Klein, Trenton, N.J., for intervenor.

OPINION

BROTMAN, District Judge.

I. INTRODUCTION

This matter arises out of a January 27, 1988 action taken by Molley Joel Coye, the New Jersey Commissioner of Health, designating one organization, the New Jersey Organ and Tissue Sharing Network "Network" as the sole organ donor procurement agency for the State of New Jersey. Plaintiffs, the Delaware Valley Transplant Program "DVTP" and four individually named patients currently awaiting organ transplant operations, challenge the Commissioner's designation on the following grounds:

(1) that the designation violates the Commerce Clause;

(2) that the designation violates the rights of the plaintiffs to freedom of interstate travel, substantive due process, and equal protection of the laws; and

(3) that the Commissioner's action is inconsistent with and therefore pre-empted by federal regulations.

Plaintiffs further allege that the Commissioner's decision to appoint Network the sole organ procurement agency for the State of New Jersey poses a threat of irreparable harm to plaintiffs, and consequently, plaintiffs seek a temporary restraining order enjoining the Commissioner, her employees, agents and subordinates from implementing her decision. A hearing was held on plaintiffs' application on February 1, 1988, at which testimony was taken. During the hearing, the court also granted a motion by Network to intervene in these proceedings and to file papers in opposition.

For the reasons set forth below, plaintiffs' application for a temporary restraining order is granted.¹

II. FACTS AND PROCEDURE

DVTP, a Philadelphia-based non-profit organization, has, for the past thirteen years, procured organs for transplants in an area containing sections of Eastern Pennsylvania, the State of Delaware and nine counties located in Southern New Jersey. As part of its program, DVTP deals with 170 different hospitals, including twenty-five of the thirty-one hospitals located in South Jersey.

The organs procured by DVTP are used by eight regional transplant centers. Six of these centers are located in Philadelphia. According to plaintiffs, approximately twenty-five percent of the transplants at these six centers are performed on New Jersey residents. Also, according to plaintiffs, there are in excess of 150 New Jersey residents currently awaiting transplants at the six Philadelphia centers. These patients include plaintiffs Darling, Fletcher, Miller and Battle.

The Philadelphia transplant centers provide transplant services not now available in South Jersey hospitals. These services include heart, heart-lung, liver and pancreas transplants, as well as multiple organ transplants. Only one South Jersey hospital is certified as a transplant center — Our Lady of Lourdes Hospital in Camden, which only has a transplant program for kidney operation.

In 1986, Defendant Coye commissioned a task force to make recommendations regarding the organ transplant procedures in New Jersey. The mandate of the task force was to assure that retrieved organs are distributed fairly and efficiently, so to avoid the public perception that organ donating unfairly benefits those outside the community. DVTP was denied the opportunity to be a member of the task force. Instead, the task force was comprised of almost all North Jersey-based members, including a representative of what is now known as the Network, the organization subsequently designated as the sole organ procurer for the State.

In March 1987, a certificate of need application was filed on behalf of Network, the purpose of which was to consolidate the procurement efforts of two previously separate and competing entities: the Northern New Jersey Organ Procurement Program and the Transplant Foundation of New Jersey, Inc. This application was conditionally approved by the Commissioner on August 26, 1987. The approval was contingent on Network's filing of an application for a certificate of need to become the sole state-wide organ procurement agency. Network so applied on September 28, 1987. On January 27, 1988, Commissioner Coye approved Network's application, thereby designating Network the sole organ procurement agency for New Jersey.

III. DISCUSSION

In order to establish an entitlement to preliminary injunctive relief, plaintiffs must demonstrate (1) that there is a reasonable probability that they will succeed on the merits; (2) that they will be irreparably harmed if the injunction is not granted; (3) that they will suffer more harm if the injunction is not granted that defendants will suffer if the injunction is granted; and (4) that the granting of the injunction is not contrary to the public interest. SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir.1985).

(A) Probability of Success on the Merits

The Commerce Clause of the United States Constitution, Art. 1, Sect. 8, cl. 3, commits to Congress the sole authority for regulating commerce among the several states. Out of this provision, has, by implication, grown the concept that states are forbidden from enacting protectionist legislation which places burdens or restraints on interstate commerce. See Pennsylvania v. West Virginia, 262 U.S. 553, 596, 43 S.Ct. 658, 664, 67 L.Ed. 1117 (1923). In the present case, plaintiffs argue that the Commissioner's decision to designate Network the sole organ procurement agency for New Jersey is an impermissible protectionist measure which seeks to assure that organs retrieved from patients in New Jersey hospitals are used only for in-state transplant operations.

In City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), the Supreme Court stated that, in evaluating a measure under the Commerce Clause, the threshold inquiry "must be directed to determine whether ... the provision in question is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." Id. at 624, 98 S.Ct. at 2536. In so stating, the Court explained that "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Id., citing, H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Toomer v. Witsell, 334 U.S. 385, 403-06, 68 S.Ct. 1156, 1165-67, 92 L.Ed. 1460 (1947); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 525, 55 S.Ct. 497, 501, 79 L.Ed. 1032 (1934); Buck v. Kuykendall, 267 U.S. 307, 315-16, 45 S.Ct. 324, 325-26, 69 L.Ed. 623 (1925). However, "if a legitimate local purpose is found then the question becomes one of degree." 437 U.S. at 624, 98 S.Ct. at 2535, quoting Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).

In the case at bar, it appears at first blush that the Commissioner's designation of Network is a highly protectionist effort to keep organs retrieved in New Jersey from being used in out-of-state transplant operations. Nonetheless, the State claimed during the February 1 hearing that the Department of Health had taken no action against DVTP, and that DVTP was free to continue its procurement activities in the same manner as it had in the past.

The State's claim, however, is belied by its actions. The exhibits entered into evidence by the plaintiffs at the hearing are replete with indications of the Department of Health's intention to establish one state-wide organ procurement agency for New Jersey. See Exhibit D (August 26, 1987 letter from Commissioner Coye to Network approving Network's certificate of need application on the condition that Network file a further certificate of need "to become the Statewide Organ Procurement Agency for New Jersey...."); Exhibit H (January 27, 1988 letter from Commissioner Coye to Network approving Network's certificate of need application "for the establishment of an independently organized statewide organ retrieval agency," stating as one reason for such...