Doe v. Cutter Biological, A Div. of Miles, Inc., Civ. No. 92-0434-S-HLR.

• Decision Date: 12 May 1994
• Docket Number: Civ. No. 92-0434-S-HLR.
• Citation: 852 F. Supp. 909
• Parties: John DOE, Plaintiff, v. CUTTER BIOLOGICAL, A DIVISION OF MILES, INC.; Miles Inc.; Miles Laboratories, Inc.; and Armour Pharmaceutical Corporation; Defendants.
• Court: U.S. District Court — District of Idaho

852 F. Supp. 909

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

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

United States District Court, D. Idaho.

May 12, 1994.

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

Richard E. Hall, John J. Burke, Hall Farley Oberrecht & Blanton, Boise, ID, Dexter Louis, 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, Sara J. Gourley, Sidley & Austin, Chicago, IL, for defendant Armour Pharmaceutical Corp.

MEMORANDUM OPINION

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 Doe¹ commenced this federal action naming those providers of Factor VIII products which were administered to him by the Pocatello Regional Medical Center between 1979 and 1985. At this juncture, the named defendants include: Miles Inc. (Miles), and Armour Pharmaceutical Corporation (Armour).

In February of this year, after ruling upon a number of matters in this proceeding and after consulting with counsel herein, this court respectfully requested the Idaho Supreme Court to exercise its discretionary authority under Idaho Appellate Rule 12.1(c) to accept and decide the following questions:

(A) Assuming plaintiff is able to prove that more than one defendant breached a duty of care to the plaintiff, would Idaho allow recovery when it is not possible for plaintiff to prove which defendant caused plaintiff's injury; and, if so, under what theory?

(B) Does Idaho's blood shield statute, Idaho Code § 39-3702, preclude Plaintiff John Doe from alleging claims based on strict liability or implied warranties of merchantability and fitness for a particular purpose against the named defendants?

Order of Certification, filed Feb. 17, 1994, at 10.

Guided by decisions of the Ninth Circuit Court of Appeals, including Smith v. Cutter Biological, Inc., 911 F.2d 374, 376 (9th Cir. 1990), and Doe v. Cutter Biological, Inc., 971 F.2d 375 (9th Cir.1992), the issuance of an Order of Certification seemed unavoidable and entirely appropriate to this court. Nevertheless, on March 17, 1994, much to this court's dismay, an Order Declining to Accept Certification was entered by the Idaho Supreme Court and filed herein on March 23, 1994.

Accordingly, on April 28, 1994, this court held a hearing on the issues previously certified to the Idaho Supreme Court. Now, having fully considered the written record, together with the oral arguments of counsel, this court shall address the viability of alternative theories of liability under Idaho law, as well as the application of Idaho's blood shield statute.

II. THE VIABILITY OF ALTERNATIVE THEORIES OF LIABILITY UNDER EXISTING IDAHO LAW

A. Plaintiff's Arguments

According to plaintiff, the "evidence will show that the named defendants are the only companies who processed the Factor VIII infused by him." Mem.Supp. of Mot. for Partial Summ.J. & Mot. in Limine, filed Aug. 3, 1993, at 2. Plaintiff anticipates, however, that "at trial it will be difficult, if not impossible, to determine which of the Defendants processed the Factor VIII which caused him to be stricken with AIDS." Id. Therefore, plaintiff filed a motion asking this court to determine that, "one or more of the following alternative theories of liability are applicable to the question of causation in this case: (a) Alternative liability, Section 433B(3), Restatement (Second) of Torts; (b) Market share liability; (c) Enterprise liability; and/or (d) Concert of action, Section 876 of the Restatement (Second) of Torts." Mot. for Partial Summ.J. & Mot. in Limine, filed Aug. 3, 1993, at 1-2.

Plaintiff acknowledges that Idaho has yet to be confronted with this kind of situation, but urges this court to conclude that, if presented with the facts in this case, Idaho's highest court would adopt at least one of the foregoing theories of alternative liability. In support of this position, plaintiff notes the decision of Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964), wherein the Idaho Supreme Court cited the case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), which was the first case to utilize the concept of alternative liability.²

B. Defendants' Arguments

Based on traditional theories of causation under Idaho law and John Doe's admitted inability to prove which dose of Factor VIII caused him to contract the HIV virus and, ultimately, to develop AIDS, defendants filed motions for summary judgment as to the issue of causation. Defendants urge this court to foreclose plaintiff from recovering based on his negligence claims.

In support of their position, defendants note the absence of judicial decisions on the issue of alternative liability and, from a legislative standpoint, emphasize the advent of tort reform, the limitations placed on the common law doctrine of joint and several liability under Idaho Code §§ 6-803(3)-(7), and the provisions of Idaho's blood shield statute under Idaho Code § 39-3702.

Defendants contend that because Hackworth v. Davis, supra, "was decided over two decades before the Idaho legislature decided to eliminate joint and several liability ... the continuing vitality of Hackworth is thus in doubt; particularly so since there have been no recent pronouncements on this issue by the Idaho Supreme Court." Armour's Supplemental Mem. Opp'n to Pl.'s Mot. for Partial Summ. J. & In Limine, filed Dec. 1, 1993, at 3. Defendants argue further that, even if alternative theories of liability were consistent with existing Idaho law, based on circumstances present in this case, none of the theories should be applied.

C. This Court's Analysis of Alternative Theories of Liability

1. The original theory of alternate liability.

As stated earlier, the concept of alternate liability was first developed in the case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers, the plaintiff was injured while hunting quail with the two defendants. Both defendants carried identical shotguns and ammunition. During the hunt, defendants shot simultaneously at the same bird, and plaintiff was struck by bird shot from one of the defendants' guns. Both defendants were found to have acted negligently, but it could not be determined which of them had fired the shot that injured the plaintiff. The California court held that the burden of proof should be shifted to the defendants on the issue of causation. Id. 199 P.2d at 4. In justifying such a shift, the court said that the defendants were "both wrongdoers — both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can." Id.

In the absence of any direct pronouncement by the Idaho Supreme Court on the issue of alternate liability, plaintiff relies heavily on the decision of Hackworth, wherein the Idaho Supreme Court included the Summers case in a string of citations. See Hackworth v. Davis, 87 Idaho at 105, 390 P.2d at 426. From this, plaintiff contends that the Idaho Supreme Court would find "one or more of the following alternative theories of liability ... applicable to the question of causation in this case: (a) Alternative liability, Section 433B(3), Restatement (Second) of Torts; (b) Market share liability; (c) Enterprise liability; and/or (d) Concert of action, Section 876 of the Restatement (Second) of Torts." Mot. for Partial Summ.J. & Mot. in Limine, filed Aug. 3, 1993, at 1-2.

Mere citation to Summers certainly does not compel the conclusion that the Idaho Supreme Court would adopt any theory of alternative liability. And, had the Idaho Supreme Court expressly adopted the holding from Summers in a case where a plaintiff was unable to prove which of two or more negligent defendants caused his injury, such would not compel the conclusion that any or all of the alternative theories of liability should be applied to the suppliers of the Factor VIII concentrates in this case.

On the contrary, unlike the defendants in Summers, Miles and Armour point out that their actions in providing Factor VIII concentrates to the plaintiff were not identical and that such actions were certainly not simultaneous in time. Also, when it comes to determining which dose of Factor VIII caused plaintiff's infliction with the HIV virus, Miles and Armour contend that they have no better access to information — which would assist in that determination — than the plaintiff.

In Idaho, and under the circumstances herein, this court finds the viability of the theory of alternate liability originated in Summers to be questionable.³ At this point, however, before addressing relevant statutes and providing further analysis relative to the original theory, the court finds it useful to discuss each of the other three theories of alternative liability advanced by the plaintiff.

2. Market share theory.

The concept of market share liability was first developed by the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980), to address unique causation problems raised by diethylstilbesterol (DES) litigation. In Sindell, the plaintiff alleged that she was injured by DES which her mother ingested while pregnant with the plaintiff. Although the plaintiff could not identify the manufacturer responsible for making the DES taken by her mother, ...