Doe v. CUTTER BIOLOGICAL, A DIV. OF MILES INC.

• Citation: 844 F. Supp. 602
• Decision Date: 24 February 1994
• Docket Number: Civ. No. 92-0434-S-HLR.
• Parties: John DOE, Plaintiff, v. CUTTER BIOLOGICAL, A DIVISION OF MILES INC.; Miles Laboratories, Inc.; and Armour Pharmaceutical Corporation, Defendants.
• Court: U.S. District Court — District of Idaho

844 F. Supp. 602

John DOE, Plaintiff, v. CUTTER BIOLOGICAL, A DIVISION OF MILES INC.; Miles Laboratories, Inc.; and Armour Pharmaceutical Corporation, Defendants.

Civ. No. 92-0434-S-HLR.

United States District Court, D. Idaho.

February 24, 1994.

Robert Huntley and Stephanie Westermeier, Givens Pursley Webb & Huntley, Boise, ID, Charles R. Kozak, Kaneohe, HI, for plaintiff.

Richard E. Hall and John J. Burke, Hall Farley Oberrecht & Blanton, Boise, ID, Dexter Louis and Duncan Barr, O'Connor Cohn Dillon & Barr, San Francisco, CA, for defendants Cutter Biological, Miles Inc., Miles Laboratories, Inc.

Stephen R. Thomas, Moffatt Thomas Barrett Rock & Fields, Boise, ID, Douglas F. Fuson and Sara J. Gourley, Sidley & Austin, Chicago, IL, for defendant Armour Pharmaceutical Corp.

AMENDED ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTIONS TO AMEND

RYAN, Senior District Judge.

I. FACTS AND PROCEDURE

Plaintiff John Doe is a hemophiliac. Because of his condition, John Doe received a clotting agent known as Factor VIII which facilitates the clotting of blood in hemophiliacs.

In December of 1991, John Doe tested positive for the HIV virus. On October 30, 1992, John Doe commenced this federal action naming those providers of the Factor VIII products which were administered to him by the Pocatello Regional Medical Center between 1979 and 1985.¹ Originally, the named defendants included: Cutter Biological, a division of Miles Inc.; Miles Laboratories, Inc.; Armour Pharmaceutical Corporation (Armour); and Alpha Therapeutic Corporation. At this juncture, however, Alpha Therapeutic Corporation has been dismissed with prejudice,² and therefore, Miles Inc.,³ and Armour represent the two remaining defendants.

The following motions are currently pending before the court: (1) Plaintiff's Motion for Partial Summary Judgment and Motion in Limine, filed August 3, 1993; (2) Defendant Miles' Motion for Summary Judgment, filed October 15, 1993; (3) Armour's Motion for Summary Judgment, filed October 15, 1993; (4) plaintiff's Motion to File Second Amended Complaint and Demand for Jury Trial, filed October 1, 1993; and (5) Plaintiff's Motion in Limine for Ruling Regarding Pleading of Strict Liability or Motion for Leave to Amend Complaint, filed November 15, 1993.

On February 17, 1994, a hearing on all pending motions was conducted by the court. At the beginning of the hearing, the court advised counsel that, based on the dictates of the United States Supreme Court, the Ninth Circuit Court of Appeals, and Idaho Appellate Rule 12.1, an Order of Certification, setting forth questions regarding the issue of causation as well as the interpretation of Idaho's blood shield statute, would be sent to the Idaho Supreme Court. See Ord. of Certification, filed Feb. 17, 1994. The court advised further that, pending such certification, Plaintiff's Motion for Partial Summary Judgment and Motion in Limine; Defendants' motions for summary judgment on the issue of causation; and Plaintiff's Motion in Limine for Ruling Regarding Pleading of Strict Liability or Motion for Leave to Amend Complaint would each be denied without prejudice.

Based on the foregoing,⁴ together with an Order on Certain Non-Dispositive Motions filed February 11, 1994, the court requested counsel to limit their oral arguments to the two remaining matters requiring resolution: (1) defendants' motions for summary judgment based on the statute of limitations; and (2) plaintiff's Motion to File Second Amended Complaint and Demand for Jury Trial to add a claim for punitive damages.

Now, having fully considered the record herein, as well as the oral arguments of counsel, and for the reasons contained in the analysis set forth below, defendants' motions for summary judgment based on the statute of limitations shall be denied; and plaintiff's Motion to File Second Amended Complaint and Demand for Jury Trial to add a claim for punitive damages shall be granted.

II. ANALYSIS OF MOTIONS ARGUED AT FEBRUARY 17, 1994, HEARING

A. Defendants' Motions for Summary Judgment Re: Statute of Limitations

1. Positions taken by the parties.

Both Miles and Armour filed motions for summary judgment based on the two-year statute of limitations set forth in Idaho Code § 5-219(4). In particular, Miles moved for summary judgment "on the grounds that plaintiff's injury was objectively ascertainable in 1985 and his action is, therefore, barred by the applicable statute of limitations." Mem. of Points & Authorities in Supp. of Miles' Mot. for Summ.J., filed Oct. 15, 1993, at 2. And, Armour moved for summary judgment on the grounds that:

1. The statute of limitations starts with the onset of "objectively ascertainable" injury.

2. The "objective medical proof" in the instant case shows that plaintiff did not file his action within two years of the time damages were "objectively ascertainable."

3. The damage to plaintiff was "objectively ascertainable" if John Doe would have been tested for HIV as recommended by the physicians and nurses treating him.

Armour's Mem.Supp. of Mot. for Summ.J., filed Oct. 15, 1993, Contents at 2.

More specifically, defendants rely upon the following facts in support of their positions.

Miles notes that John Doe "experienced symptoms consistent with HIV infection in 1981, 1983, and 1985." Mem. of Points & Authorities in Supp. of Miles' Mot. for Summ.J., filed Oct. 15, 1993, at 7. Miles provides the following chronology in support of the statute of limitations argument.

— In June of 1981, John Doe experienced "weakness of undiagnosed origin" and "was also found to be positive on a `mono spot' test, a test for mononucleosis." Id. at 8.

— In May 1983, John Doe suffered from a "two-week history of swollen glands, including axillary nodes (lymph nodes in the arm pits), as well as inguinal nodes (lymph nodes in the groin)." Id.

— In August 1983, John Doe's medical records reflect that Dr. Brydon discussed AIDS with him. Id.

— In January 1985, John Doe suffered from herpes zoster, also known as "shingles." Id.

— In July 1985, Dr. Mickelson treated John Doe for orthopedic problems and discussed AIDS with John Doe and his mother. Id.

— In 1985, Dr. Boe urged John Doe's mother to have her son tested for HIV infection. Id.

— In 1988, Robina Ingram, a nurse from the Oregon Health Sciences University Hemophilia Outreach Program, met with John Doe's mother and urged her to have him tested for AIDS. Id. at 16.

— In 1991, John Doe tested positive for HIV infection. Id. at 8.

Miles points out that heat-treated factor concentrate is believed to inactivate HIV and no infection with heat-treated factor concentrate has been established. Id. at 14. Plaintiff's treating physician, Dr. Roger Boe, estimates that because plaintiff was using non-heat-treated Factor VIII products until 1984, "there was a 70-80% chance that John Doe was infected with HIV prior to August 1984." Id. at 14.

Ultimately, Miles concludes its opening brief by stating:

Plaintiff, in all likelihood, became infected with HIV prior to August 1984. Laboratory tests available in 1985 would have detected that infection. Plaintiff was urged in 1985 and 1988 to be tested for infection with HIV and was warned that he was likely infected with HIV during those years as well. Plaintiff's infection was "objectively ascertainable" as early as 1985 and his cause of action is, therefore, barred by the statute of limitations.

Id. at 19.⁵ According to Miles, at the very latest, John Doe should have filed his complaint by April 1988 — which would have been two years after he turned 18. Id. at 16 n. 15.

In support of its motion, Armour chronicles essentially the same facts as Miles. Armour contends that John Doe's cause of action accrued "far before October 31, 1990," and therefore, the action filed on October 30, 1992, is barred by the statute of limitations. Armour's Mem.Supp. of Mot. for Summ.J., filed Oct. 15, 1993, at 3. In particular, Armour asserts that "the statute of limitations should ... begin to run as of January 1985, when John Doe was presented with herpes zoster," because "signs of immune compromise were `objectively ascertainable' and demonstrate the existence of `some damage' to John Doe's immune system." Id. at 7. Ultimately, Armour concludes by stating that:

Given the virtual hailstorm of facts and warnings indicating that John Doe was at risk of HIV infection or was in fact HIV positive, John Doe should not be allowed to undermine the clear policy of the Idaho statute of limitations by failing to undertake reasonable steps to confirm that he was infected. John Doe was suffering from advanced AIDS in December of 1991 and, therefore, was infected many years prior to that date. In addition, his HIV infection was "objectively ascertainable" by the use of a simple HIV blood test, a full five years prior to October 30, 1990 — a test that had been repeatedly recommended by his health care providers. John Doe indisputably had suffered "some damage" prior to October 30, 1990 and his claims are time barred.

Id. at 13.⁶

In opposition to defendants' motions, plaintiff maintains that, as a matter of law, his injury was not "objectively ascertainable" until December of 1991, when he tested positive for AIDS. Alternatively, plaintiff argues that there are questions of fact which preclude the court from granting summary judgment on the statute of limitations issue.

John Doe's position is summarized as follows:

1 The Statute of Limitations in Idaho Code Section 5-219(4) Did Not Begin to Run Until There was Objective Medical Proof of an Actual Injury to John Doe

2 Defendants' Motions for Summary Judgment Fail Because Defendants Cannot Present Uncontroverted Evidence That There was Objective Medical Proof of Sufficient Injury Until December 1991 when John Doe tested positive for HIV 3 Defendants are Estopped From Asserting a Statute of Limitations Defense Because They Concealed From the Plaintiff the Grave Risk and

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