Helmstadter v. North American Biological, Inc.

• Decision Date: 11 February 1997
• Docket Number: No. A95-1138,A95-1138
• Citation: 559 N.W.2d 794,5 Neb.App. 440
• Parties: Donald R. HELMSTADTER, Appellant, v. NORTH AMERICAN BIOLOGICAL, INC., a Delaware corporation doing business as Lincoln Plasma Center, Appellee.
• Court: Nebraska Court of Appeals

Page 794

559 N.W.2d 794

5 Neb.App. 440

Donald R. HELMSTADTER, Appellant, v. NORTH AMERICAN BIOLOGICAL, INC., a Delaware corporation doing business as Lincoln Plasma Center, Appellee.

No. A95-1138.

Court of Appeals of Nebraska.

Feb. 11, 1997.

Syllabus by the Court

1. Directed Verdict: Appeal and Error. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

2. Directed Verdict: Evidence. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion from the evidence.

3. Libel and Slander: Words and Phrases. Defamation is language the nature and obvious meaning of which is to impute to a person the commission of a crime or to subject the person to public ridicule, ignominy, or disgrace.

4. Libel and Slander: Proof. In an action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial of the facts, showing that the defamatory matter was published or spoken of the plaintiff.

5. Libel and Slander: Words and Phrases. Spoken or written words are slanderous or libelous per se only if they falsely impute the commission of a crime involving moral turpitude, an infectious disease, or unfitness to perform the duties of an office or employment, or if they prejudice one in his or her profession or trade or tend to disinherit one.

6. Libel and Slander: Proof. The truth itself and alone shall be a complete defense in a defamation action unless it shall be proved by the plaintiff that the publication was made with actual malice, and actual malice shall not be inferred or presumed from publication.

7. Libel and Slander: Words and Phrases. In the law of libel and slander, conditional or qualified privilege comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which the author has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty.

8. Libel and Slander: Proof: Words and Phrases. In a defamation action, even if a publication is true or a qualified privilege exists, the plaintiff may still recover if the plaintiff proves that the publication was made with actual malice. Malice has been defined as hate, spite, or ill will.

Robert Wm. Chapin, Jr., Lincoln, for appellant.

Brenda S. Spilker, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

MILLER-LERMAN, C.J., and IRWIN and SIEVERS, JJ.

SIEVERS, Judge.

Donald R. Helmstadter brought a defamation action against North American Biological, Inc. (NABI), a privately owned company doing business as Lincoln Plasma Center. Helmstadter alleged that NABI made false and inaccurate comments to other plasma centers concerning Helmstadter's eligibility to donate plasma. At trial, after the conclusion of the evidence, the Lancaster County District Court sustained NABI's motion for a directed verdict. Because Helmstadter had not been defamed, the trial court properly granted the directed verdict for NABI, and we therefore affirm.

FACTUAL BACKGROUND

NABI owns approximately 80 plasma centers around the United States and in Germany, including Lincoln Plasma Center in Lincoln, Nebraska, where individuals donate their plasma for money. NABI's plasma centers send samples of each donor's plasma by Federal Express to the NABI laboratory in Miami, Florida, for screening tests for diseases such as human immuno-deficiency virus (HIV), "ALT," hepatitis C, and hepatitis B. Screening tests are nondiagnostic tests; in other words, they do not diagnose a donor with a particular disease. If a sample is reactive, or positive, to the hepatitis B surface antigen, the donor's plasma center is notified and the donor's plasma is destroyed. The plasma center then informs the donor of the test results. A donor who tests positive is then classified as "permanently deferred" or "permanently rejected," and the donor so classified is forever prevented from donating blood or plasma. However, a reactive result to a screening test does not necessarily mean that the donor has contracted or is infected with hepatitis B.

Helmstadter, 66 years of age at trial, began donating his plasma at Lincoln Plasma Center in 1986, using the money to supplement his income. On December 22, 1992, Helmstadter signed NABI's "Automated Plasmapheresis" form, which was in essence an acknowledgment and consent form. The form apprised Helmstadter that after each donation, some of his plasma would be tested for hepatitis, among other diseases. The form advised Helmstadter that if his test results were unsuitable, his name would be entered into NABI's donor rejection files and consequently he would be unable to donate blood or plasma at "ours or other facilities." The form further advised Helmstadter that NABI might be required to report any unsuitable test results to public health agencies.

On July 19, 1993, Helmstadter donated plasma, and a sample was sent to Miami to Helmstadter went to the Lincoln-Lancaster County Health Department, apparently the same day, and requested that he be tested for hepatitis B. The health department took a sample of Helmstadter's blood and told him that they needed the top half of the confidential notice from Lincoln Plasma Center. Consequently, Helmstadter returned to Lincoln Plasma Center that afternoon. Shankland finished the confidential counseling session with Helmstadter and informed him that the test conducted was only a screening test, not a diagnostic test, and that consequently there was the possibility of a false positive test result. Shankland also informed Helmstadter that he was not allowed to donate blood or plasma in the future and that Shankland might have to notify public health agencies. Helmstadter signed the statement of understanding and wrote "with protest " next to his signature. Helmstadter then returned the top half of the form to the health department. On approximately July 30, 1993, Helmstadter received a written report from the health department stating that he had tested negative for hepatitis B.

                be tested in NABI's laboratory.  On July 28, 1993, Wanda Rowen, manager of Lincoln Plasma Center, received a call from the lab and was told that Helmstadter's plasma had tested positive for the hepatitis B surface antigen.  Lincoln Plasma Center immediately marked "Permanent Reject D/T Unsuitable Test Results 7-28-93" on Helmstadter's donor chart.  Helmstadter returned to Lincoln Plasma Center on July 29, 1993, where he was privately informed of the test results by Joseph Shankland, an NABI employee known as a physician substitute.  Shankland requested that Helmstadter sign a confidential notice form acknowledging that he had tested positive to the hepatitis B surface antigen.  The top half of the notice informed Helmstadter that the test was not a diagnostic test for hepatitis B and that false positives might occur.  A false positive is a positive result despite the absence of the disease.  The notice advised Helmstadter not to donate blood or plasma in the future, [5 Neb.App. 443] advised him that his name had been entered in NABI's donor deferral files, and advised him that NABI might be required to provide his test results to public health agencies.  The bottom half of the notice was a statement of understanding, reading as follows:  "I hereby state that I have received this written Confidential Notice for my abnormal screening test, and it has been explained to me.  I understand that the result of this test is not a diagnosis of any infection, and that I should seek further medical evaluation."   Helmstadter became upset, refused to sign the statement of understanding, and left the center
                

On August 16, 1993, Helmstadter went to University Plasma Center, a competitor of Lincoln Plasma Center, and attempted to donate plasma. University Plasma Center drew a serum sample from Helmstadter for testing. According to Helmstadter, when he returned to University Plasma Center on August 23, he was told that his test results were favorable and that he could donate plasma. The record, however, indicates that University Plasma Center did not send any blood for hepatitis B surface antigen testing on August 16. When University Plasma Center asked Helmstadter if he had donated plasma in the past weeks, Helmstadter replied that he had, at Lincoln Plasma Center. In front of Helmstadter, Angela Render of University Plasma Center telephoned Lincoln Plasma Center. Render was told that Helmstadter was not eligible to donate due to lab results. Render, however, was not told the specific lab result or disease which had caused Helmstadter to be permanently deferred. Render then informed Helmstadter that he would not be allowed to donate because he had been permanently deferred due to lab results. As of trial, Helmstadter said he had not since attempted to donate plasma.

On August 30, 1993, the Lincoln-Lancaster County Health Department wrote Helmstadter a letter stating that they had received a report from NABI that he had tested positive for the hepatitis B surface antigen. According to Carolyn Mitchell, communicable disease coordinator for the health department, if an individual in Lancaster County tests positive for hepatitis...