Doe v. Baxter Healthcare Corp.
| Decision Date | 24 August 2004 |
| Docket Number | No. 03-2651.,03-2651. |
| Citation | 380 F.3d 399 |
| Court | U.S. Court of Appeals — Eighth Circuit |
| Parties | John DOE; Mary Doe, as Parents and John & Mary Doe as Guardians on behalf of John Doe, Jr.;, Appellants, v. BAXTER HEALTHCARE CORPORATION; Alpha Therapeutic Corporation; Bayer Corporation, Appellees, Cutter Biological, a Division of Miles, Inc.; Armour Pharmaceutical Company, Appellees. John Doe; Mary Doe, as Parents and Guardians on behalf of John Doe, Jr.; John Doe, Jr., Appellants, v. Cutter Biological, a Division of Miles, Inc.; Armour Pharmaceutical Company; Des Moines Plasma Center, Inc.; Siouxland Plasma Center, now known as Gagnard and Marceaux, Sioux City, Inc., Appellees. |
Appeal from the United States District Court for the Southern District of Iowa, Ronald E. Longstaff, Chief Judge.
COPYRIGHT MATERIAL OMITTED
Steven P. Wandro, argued, Des Moines, IA (Kimberly K. Baer, E. Ralph Walker, David J. Darrell, Glenn L. Norris, Des Moines, IA, Donald C. Arbitblit and Frabrice N. Vincent, San Francisco, CA, on the brief), for appellant.
Richard J. Sapp, argued, Des Moines, IA, and Joseph K. Hetrick, Philadelphia, PA (Sara J. Gourley and Steven J. Ellison, Chicago, IL, David H. Luginbill, Des Moines, Frank J. O'Hara and Erin C. Fisher, Philadelphia, PA, on the brief), for appellee.
Before MORRIS SHEPPARD ARNOLD, MAGILL, and MURPHY, Circuit Judges.
Plaintiff-Appellants, John and Mary Doe (collectively, "the Does"), sued the Defendant-Appellees, Armour Pharmaceutical Company ("Armour"), Alpha Therapeutic Corporation ("Alpha"), Baxter Healthcare Corporation ("Baxter"), and Bayer Corporation, f/k/a Cutter Biological ("Cutter"), in two separate actions in Iowa state court. They claimed that one of the defendants had negligently caused their son, John Doe, Jr. ("Doe Jr.") to become infected with Human Immunodeficiency Virus ("HIV") by allowing a product they knew carried a risk of infection to remain on the market. Doe Jr. is a hemophiliac who has received various treatments for the disease, including infusions of Factor VIII concentrate, which the defendants produced.
This case presents three issues, all of which turn on whether the Does have presented evidence sufficient to create a genuine question of fact regarding who caused Doe Jr. to be infected with HIV. The first issue is whether, under traditional negligence, the Does have presented enough evidence that any single defendant was the but-for cause of Doe Jr.'s infection. The second issue is whether, under alternative liability, the Plaintiffs have presented enough evidence that the four defendants together are the only ones who could be responsible for Doe Jr.'s infection. If the four defendants are the only possible tortfeasors, then the Does argue that each defendant has the burden of proving that it did not cause Doe Jr.'s injury. The third issue is whether the Does can sustain a civil conspiracy cause of action against the defendants. The resolution of this last issue turns on the resolution of the first two issues; if the Does have created a genuine question of fact regarding causation, then their civil conspiracy claim may go forward. The district court ruled against the Does on all three issues, and the Does appeal.
The district court had diversity jurisdiction to hear this case under 28 U.S.C. § 1332. This court has jurisdiction over the appeal under 28 U.S.C. § 1291. We affirm.
John Doe, Jr. was born on September 24, 1978. At ten months, physicians diagnosed him as suffering from Hemophilia A, which results from a deficiency in the production of a blood factor component known as "Factor VIII." Lack of Factor VIII stops the blood from coagulating normally.
There are various ways to treat Hemophilia A, and Doe Jr. has undergone several of them at various times. The disease may be treated by supplementing levels of the Factor VIII protein through infusions of whole blood, plasma, cryoprecipitate, and Factor VIII concentrate. From November 24, 1979 to April 27, 1981, Doe Jr. received cryoprecipitate infusions. Cryoprecipitate is the precipitate that forms when plasma is frozen and then thawed. It is rich in Factor VIII, but contains other components of the source plasma. Each cryoprecipitate treatment comes from a small number of donors. According to one of the Does' experts, the cryoprecipitate used in Iowa at the time was locally procured from single donors. On May 19, 1980, Doe Jr. received his first infusion of Factor VIII concentrate. Factor VIII concentrate is made from pooled human plasma from many different donors from across the country. Manufacturers separate components of the plasma and isolate the Factor VIII protein for use in the therapy. Factor VIII concentrate is made from the plasma of hundreds or thousands of donors, so the number of donors in any single dose is quite large. Doe Jr. continued to receive Factor VIII concentrate infusions manufactured by various companies until January 1985. After that month, he received only heat-treated Factor VIII concentrate or monoclonal factor concentrates. Neither of these last methods of treatment carry any risk of HIV infection. The heat-treatment destroys the HIV virus, and monoclonal factors are derived from non-blood sources that cannot carry the disease.
Doe Jr. tested positive for HIV in July 1987. The parties agree that his infection occurred during a single infusion, and that it is not possible to identify which particular infusion caused his infection. Instead, the Does attempted to establish, using expert testimony, the period during which Doe Jr. was infected. They presented expert testimony that Doe Jr. received treatments that exposed him to some risk of HIV exposure beginning in November 1979 and continuing through January 1985. There is evidence that the risk of exposure from cryoprecipitate treatments between November 1979 and May 1981 was very low. They also presented expert testimony that Doe Jr.'s risk of exposure greatly increased when he began receiving treatments of Factor VIII concentrate on May 19, 1980. The Does also offered evidence that Doe Jr. was not infected by a heat-treated Factor VIII concentrate treatment or a monoclonal concentrate treatment.1 According to medical records, this places the date of Doe Jr.'s infection between 1979 and January 1985, the period during which Doe Jr. received cryoprecipitate treatments and Factor VIII concentrate treatments that had not been heat-treated. The Does spend much of their effort trying to establish which defendants supplied the Factor VIII concentrate between May 1980 and January 1985. Although they have named the relevant suppliers of Factor VIII concentrate, they have not named the manufacturers of the cryoprecipitate as defendants.
The Does rely on hospital records that indicate the source of the concentrate with which Doe Jr. was treated. According to those records, Doe Jr. received Factor VIII concentrate prescriptions from three manufacturers: Cutter, Armour, and Alpha. The evidence indicates he received nineteen prescriptions from May 1980 to November 1984. He received two prescriptions for Alpha products, on May 20, 1980 and June 15, 1980. Except for those two dates, all Doe Jr.'s prescriptions from May 1980 to September 6, 1983 were for Cutter's factor concentrate. Thereafter, from December 2, 1983 to November 19, 1984, Doe Jr. used the factor concentrate manufactured by Armour. Complicating this issue, the Does' experts contend that the records are incomplete. They estimate that he received many more doses of Factor VIII concentrate than the surviving records reflect.
The Does' expert medical testimony further limits the dates of possible infection. They presented statements by four experts. James Mosley, M.D., asserted that Doe Jr. was infected after the middle of 1983. William Robinson, M.D., opined that he was infected around February 1983. Roger Grimson, Ph.D., was of the opinion that Doe Jr. was infected in or after August 1983. Finally, Robert Remis provided probabilities of infection for each relevant year. He said that there was a 65% chance that Doe Jr. was infected between 1983 and 1985. He also said there was a 5% chance of infection in 1980, 5% in 1981, and 25% in 1982.2 The defendants presented their own experts, who asserted that the infection probably occurred before August 1982.
In addition, the Does have presented an expert's declaration asserting that Alpha, Armour, Baxter, and Cutter were the only players in the Factor VIII concentrate market in Iowa at the relevant time. The expert's declaration states the four named defendants in this case "had 94.5% of the national Factor VIII market in 1980 ..., 93% of the national Factor VIII market in 1982 ..., and 88% of the market in 1984." Summ. J.App. at A-204.3 The same declaration indicates that the other purported market players did not distribute to Iowa during the relevant period.
Defendants claim they have presented contrary evidence that shows they were not the only manufacturers in the market at the time Doe Jr. was using Factor VIII concentrate. They represent to the court that there were seven other market players at the time: the American Red Cross ("Red Cross"); Abbott Laboratories ("Abbott") New York Blood Center; Scripps Laboratories ("Scripps"); Parke-Davis; Squibb; and Michigan State Laboratories. This claim is almost entirely unsupported by the record citations defendants have provided. For every purported market player except the Red Cross, the defendants rely for their claims solely on the depositions of Fred Feldman and Allan Brownstein. Dr. Feldman, however, represents only that certain other manufacturers were in the business of making factor concentrate in late 1974. His testimony is unhelpful. Brownstein is perhaps less helpful still. Brownstein gave testimony that some other companies were producing Factor VIII concentrate in the...
To continue reading
Request your trial
-
Criterion 508 Solutions, Inc. v. Lockheed Martin Servs., Inc.
...genuine issues of material fact for the underlying wrongful conduct, then the civil conspiracy claim also fails. Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410 (8th Cir.2004); accord Jensen v. Barlas, 438 F.Supp.2d 988, 1004–05 (N.D.Iowa 2006). In terms of the underlying claim, Criterion......
-
Moody v. Ark. State Highway & Transp. Dep't
...fail. "A civil conspiracy is an agreement between two or more people to commit a wrong against another person." Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410 (8th Cir. 2004). To state aconspiracy claim under section 1983, Moody would have to allege, among other things, the existence of ......
-
Butler v. Crittenden Cnty.
...her. A conspiracy "is an agreement between two or more people to commit a wrong against another person." Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410 (8th Cir. 2004). Butler cannot establish that an agreement between Strong, Busby, and Wren existed merely by attempting to impute Strong......
-
Bergen v. Grinnell Mut. Reinsurance Co.
...instant dispute, the Court must decide this case as it would be decided by the Minnesota Supreme Court. E.g., Doe v. Baxter Healthcare Corp., 380 F.3d 399, 407 (8th Cir.2004). Prior decisions of the Minnesota Supreme Court are binding, but where (as here) that court has not yet addressed an......