Doe v. American Nat. Red Cross

• Decision Date: 10 June 1992
• Docket Number: 3:91-0040-19.,Civ. A. No. 3:91-0039-19
• Court: U.S. District Court — District of South Carolina
• Parties: Jane DOE (whose true name is confidential), Personal Representative of the Estate of John Doe (whose true name is confidential), deceased, Plaintiff, v. The AMERICAN NATIONAL RED CROSS, d/b/a American Red Cross Central South Carolina Chapter S.C. Regional Blood Services, Defendant.

790 F. Supp. 590

Jane DOE (whose true name is confidential), Personal Representative of the Estate of John Doe (whose true name is confidential), deceased, Plaintiff, v. The AMERICAN NATIONAL RED CROSS, d/b/a American Red Cross Central South Carolina Chapter S.C. Regional Blood Services, Defendant.

Civ. A. Nos. 3:91-0039-19, 3:91-0040-19.

United States District Court, D. South Carolina, Columbia Division.

June 10, 1992.

Charles L. Henshaw, Jr., Benjamin M. Mabry, Columbia, S.C., for plaintiff.

Stephen G. Morrison, James F. Rogers, Stuart Murray Andrews, Jr., Columbia, S.C., for defendant.

ORDER ON MOTION FOR RECONSIDERATION

SHEDD, District Judge.

This matter is before the Court on plaintiff's motion for reconsideration. By Order dated March 31, 1992, 788 F.Supp. 884, the Court ruled that certain information which plaintiff sought from defendant through discovery interrogatories, relating to the identity of an HIV-infected blood donor ("the Donor"), is privileged information not subject to disclosure under S.C.Code Ann. § 44-29-135, and Regulation 61-21G(2)(d), promulgated by the South Carolina Department of Health and Environmental Control ("DHEC"). See S.C. Reg. Vol. 15, Issue 5 (May 24, 1991). Based on this ruling, the Court denied plaintiff's motion to compel defendant to disclose information concerning the identity of the Donor and granted defendant's motion for an order protecting it from being compelled to make the disclosure.¹ In her motion for reconsideration, plaintiff asserts that the Court gave improper retroactive application to Regulation 61-21G(2)(d), and that the Court denied plaintiff her right to a "remedy" in violation of Article 1, section 9 of the South Carolina Constitution. For the reasons set forth below, the Court will deny plaintiff's motion.

I

Plaintiff initially contends that the Court improperly applied Regulation 61-21G(2)(d) retroactively. In support of this position, plaintiff argues that defendant allegedly knew the identity of the Donor "through some source" by September 21, 1989, and DHEC did not promulgate Regulation 61-21G(2)(d) until May 24, 1991. Therefore, according to plaintiff, the information released by DHEC to defendant about the Donor's identity "could not have been made pursuant to the current version of Regulation 61-21G(2)(d)." Pl. Mem., at 3. While plaintiff correctly points out that there is a general presumption under South Carolina law that regulations are not to be applied retroactively unless there is specific provision or clear intent to the contrary, see, e.g., Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123, 125 (1978), that principle is not applicable in this case for two reasons.²

First, it is clear that Regulation 61-21G(2)(d) is not being applied retroactively in this case. Although plaintiff makes much of the fact that DHEC released the information concerning the Donor's identity to defendant before Regulation 61-21G(2)(d) became effective, the appropriate time frame for determining the applicability of Regulation 61-21G(2)(d) is not when DHEC released the identity of the Donor to defendant; instead, it is when plaintiff is seeking to gain access to the Donor's identity. See Scott v. McDonald, 70 F.R.D. 568, 573 (N.D.Ga.1976) ("The applicability and availability of a privilege should be governed by the current law in force at the time of trial and not at the time the alleged confidential communication took place"). While DHEC's disclosure of the identity of the Donor to defendant may have preceded the promulgation of Regulation 61-21G(2)(d), defendant is now bound to keep the information relating to the Donor's identity "strictly confidential" and not to release it. Under these circumstances, the application of Regulation 61-21G(2)(d) is not retroactive.

Second, even assuming arguendo that Regulation 61-21G(2)(d) is being applied retroactively, this application is not improper because the privilege created by the regulation is procedural rather than substantive, and under South Carolina law, procedural regulations may be applied retroactively. Bartley v. Bartley Logging Co., 293 S.C. 88, 359 S.E.2d 55, 56 (1987). Regulation 61-21G(2)(d) is designed to keep possibly relevant and otherwise admissible information from being disclosed. It does not impair the substantive law of, or impair plaintiff's substantive right to bring, any cause of action. See Samuelson v. Susen, 576 F.2d 546, 552 (3d Cir.1978) (holding Ohio statutory evidentiary privilege to be procedural and therefore applicable even though the lawsuit was commenced prior to the effective date of the statute). Accordingly, because the privilege created by Regulation 61-21G(2)(d) is procedural, the Court may properly give it retroactive application.

II

Plaintiff's second argument raises a question of state constitutional law. Relying on Article 1, section 9, of the South Carolina Constitution of 1970, which provides: "All courts shall be public, and every person shall have speedy remedy therein for wrongs sustained,"³ plaintiff asserts that the Court's application of Regulation 61-21G(2)(d) is a "restriction on her right to fully explore the question of whether negligence in donor screening caused the death of her husband" and that "the effect of this denial is to prevent her from proving that a wrong was sustained," thereby denying her a "remedy." Pl.Mem., at 5. Plaintiff's argument is misplaced.

The remedy clause of Article 1, section 9 "is not a guarantee of full compensation to all injured persons...." Wright v. Colleton County Sch. Dist., 301 S.C. 282, 391 S.E.2d 564, 570 (1990). Rather, its purpose is "to secure to the inhabitants of the state, for which the constitution was made, access to the courts for redress of any injury which they may have received." Central R.R. & Banking Co. v. Georgia Constr. & Inv. Co., 32 S.C. 319, 11 S.E. 192, 203 (1890).⁴ Although not directly on point, the South Carolina Supreme Court has on several occasions been confronted with claims of violation of the constitutional remedy clause and has provided some guidance as to what constitutes such a violation. See, e.g., Wright, 391 S.E.2d at 570 (statutory limitation of recovery under state tort claims act did not violate Article 1, section 9 remedy clause); Maner v. Maner, 278 S.C. 377, 296 S.E.2d 533, 535 (1982) ("lax observance of ... regulations prescribed by the statute and the rules of court for perfecting appeals can but lead to unnecessary delay in the final disposition of causes in our courts, and thus work infringement of the constitutional guaranty ... that `every person shall have speedy remedy therein for wrongs sustained'"); State v. Gibbes, 171 S.C. 209, 172 S.E. 130, 133-34, aff'd, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933) (emergency statute temporarily vesting in the Governor control of banks and forbidding legal proceedings against banks without the Governor's approval was proper exercise of the legislature's power and did not violate constitutional right to a remedy); First Carolinas Joint Stock Land Bank of Columbia v. Stuckey, 170 S.C. 86, 169 S.E. 843, 845 (1933) ("If a defendant in a lawsuit can file, and continue to file, amended pleadings, it will be impossible for a plaintiff to have any remedy at all in the courts, much less the `speedy remedy' guaranteed to him by the Constitution").⁵

While the issue raised by plaintiff is one of first impression in South Carolina, courts in other jurisdictions, interpreting analogous constitutional provisions, have rejected arguments substantially similar to plaintiff's. For example, in Perl v. Omni Int'l of Miami, Ltd., 439 So.2d 316 (Fla.Ct. App.3d Dist.1983), the plaintiff brought an action for slander based on his employer's alleged false statements to the Florida Department of Labor and Employment Security regarding the plaintiff's claim for unemployment compensation. By statute, communications between an employer and the labor department were deemed privileged and could not be made the subject matter or basis for any suit for slander or libel. 439 So.2d at 317. The plaintiff conceded that the statute barred his claim; however, he argued that the statute was "unconstitutional as it denied him his right of access to the courts as guaranteed by Article I, Section 21 of the Florida Constitution," 439 So.2d at 317, which provided: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." The court rejected the plaintiff's argument, noting that because the statute did not abolish a cause of action that had previously existed, it "cannot possibly constitute a denial of the right of access to the courts" under Article I, section 21. 439 So.2d at 317.

Similarly, in Eubanks v. Ferrier, 245 Ga. 763, 267 S.E.2d 230 (1980), a medical malpractice action, the plaintiff sought during discovery to obtain records and proceedings of the hospital review committee which, by statute, were not subject to discovery or introduction in a civil action against a provider of professional health services arising out of the matters which were the subject of the evaluation and review by the committee. 267 S.E.2d at 231-32. The trial court denied the plaintiff's discovery request and the plaintiff appealed, arguing before the state supreme court that the statute infringed on her right of access to the courts. The supreme court disagreed noting that the statute "does not deprive the medical malpractice plaintiff of his or her right to access to the courts; it merely withholds from the plaintiff a certain type of evidence which would otherwise be available to him or her." 267 S.E.2d at 233.

Finally, in Coughlin v. Westinghouse Broadcasting and Cable, Inc., 603 F.Supp. 377 (E.D.Pa.), aff'd, 780 F.2d 340 (3d Cir. 1985), cert. denied, 476 U.S. 1187, 106 S.Ct. 2927, 91 L.Ed.2d 554 (1986), the plaintiff in a libel action against a media defendant sought to obtain through discovery,...