Howell v. Spokane & Inland Empire Blood Bank

• Decision Date: 31 October 1991
• Docket Number: No. 56642-9,56642-9
• Citation: 818 P.2d 1056,117 Wn.2d 619
• Court: Washington Supreme Court
• Parties: Virgil T. HOWELL and Geraldine Howell, husband and wife, Appellants, v. SPOKANE & INLAND EMPIRE BLOOD BANK, a Washington corporation, Alan R. Danielson, M.D. and Jane Doe Danielson, husband and wife, Orthopedic Associates of Spokane, Inc., P.F., a Washington corporation, Deaconess Medical Center, a Washington corporation, and John Doe X and Jane Doe X, husband and wife, Respondents.

Page 619

117 Wn.2d 619

818 P.2d 1056

Virgil T. HOWELL and Geraldine Howell, husband and wife, Appellants, v. SPOKANE & INLAND EMPIRE BLOOD BANK, a Washington corporation, Alan R. Danielson, M.D. and Jane Doe Danielson husband and wife, Orthopedic Associates of Spokane, Inc P.F., a Washington corporation, Deaconess Medical Center, a Washington corporation, and John Doe X and Jane Doe X husband and wife, Respondents.

No. 56642-9.

Supreme Court of Washington En Banc.

Oct. 31, 1991.

John P. Lynch, Spokane, for appellants Howell.

Randall & Danskin, P.S., Michael J. Myers, Keith D. Brown, Spokane, for respondent Spokane & Inland Empire Blood Bank.

Paine, Hamblen, Coffin, Brooke & Miller, John C. Riseborough, Spokane, for respondents John and Jane Doe X. Bryan P. Harnetiaux, Robert H. Whaley, Spokane, amicus curiae for appellants on behalf of Washington State Trial Lawyers Ass'n.

Heather Houston, Sam Pailca, Seattle, amicus curiae for the Blood Banks on behalf of Washington Defense Trial Lawyers Ass'n.

Kenneth A. Letzler, Karen S. Wagner, Karen Shoos Lipton, Washington, D.C., Steven Labensky, Phoenix, Ariz., David M. Jacobi, Seattle, amicus curiae for the Blood Banks on behalf of the American Nat. Red Cross, American Ass'n of Blood Banks and Council of Community Blood Banks.

Robert J. Rohan, Seattle, amicus curiae for the Blood Banks on behalf of the Northwest AIDS Foundation.

Andrew K. Dolan, Seattle, amicus curiae for the Blood Banks on behalf of the Washington State Medical Ass'n.

Stephen K. Causseaux, Jr., Tacoma, amicus curiae for the Blood Banks on behalf of Tacoma-Pierce County Health Dept.

DORE, Chief Justice.

Blood recipient Virgil Howell (Howell) ¹ appeals the trial court's summary judgment order dismissing his claims against a donor (John Doe X) of allegedly HIV-positive blood transfused into him. Howell also appeals a discovery order providing that the donor's identifying information be kept confidential until greater need could be demonstrated and one providing that Howell be allowed to take only an anonymous, videotaped deposition of John Doe X rather than a face-to-face deposition. We affirm.

FACTS

The facts relevant to this appeal are as follows. On October 1, 1984, before blood screening tests for AIDS were available, John Doe X made a voluntary blood donation at respondent Spokane and Inland Empire Blood Bank (SIEBB). At that time, SIEBB was routinely asking donors to self-screen and to refrain from donating blood if they were members of any high-risk group, which groups SIEBB identified to donors.

On October 8, 1984, appellant Virgil Howell received two units of blood at Deaconess Medical Center. The blood was provided to Deaconess by SIEBB. One of the units had been provided to SIEBB by John Doe X.

Two years later, in August of 1986, John Doe X again donated blood. At that time, blood screening tests were available to detect antibodies to the HIV virus, which is known to cause AIDS. John Doe X's donation was tested and found to contain such antibodies, and SIEBB notified John Doe X of the test results. Both John Doe X and Howell presently test seropositive. ²

On December 4, 1987, Howell sued SIEBB, John Doe X, and others on a number of theories. On August 5, 1988, before John Doe X appeared in the action, the trial judge ruled orally that SIEBB must disclose John Doe X's identity. John Doe X then appeared and moved for reconsideration of the order. The trial judge reversed and ruled that discovery could proceed through interrogatories, requests for production of documents, and depositions upon written questions, but the identity of John Doe X would remain confidential. If the initial round of discovery indicated a need for disclosure of John Doe X's name, a motion for disclosure could be brought at that time. If disclosure of John Doe X's identity was indicated, it would be provided to only one of Howell's counsel and to no one else absent Following the entry of this order, Howell was provided 10 years' worth of John Doe X's and his wife's medical records and their dental records. Howell has deposed John Doe X's wife, his treating physician, and a physician who has counseled John Doe X. John Doe X has also answered 19 interrogatories propounded to him by Howell and 80 by SIEBB. Although John Doe X desired to have his deposition taken by written question, Howell was allowed to conduct a videotaped deposition with John Doe X's face obscured so Howell and his counsel could observe John Doe X's body language. This deposition lasted 5 hours. John Doe X testified that he is not a member of a high-risk group, and that his alleged exposure to the AIDS virus must have happened during a separation from his wife in 1982, during which period he had vaginal sex with one woman three times. John Doe X's physician testified that the likelihood of a casual heterosexual contact resulting in the transmission of AIDS is remote.

                court order.   None of John Doe X's relatives or acquaintances could be contacted without court order.   Finally, John Doe X's identity would not be placed in the record of the court until after a final judgment was obtained.
                

John Doe X also testified that before he made the 1984 blood donation, he read a handout given him by SIEBB entitled "An Important Message to All Blood Donors ". This handout identified high-risk groups and asked members of those groups to refrain from donating blood. A copy of John Doe X's donor card, which lists, among other things, his weight, blood pressure, and pulse was produced by SIEBB. However, the medical questionnaire that is routinely given to donors was not produced because SIEBB claimed it was unavailable.

On October 12, 1989, the trial judge granted summary judgment of dismissal of Howell's claims against John Doe X for negligence, res ipsa loquitur, negligent infliction of emotional distress, outrage, assault, and loss of consortium. Howell appeals the entry of this summary judgment,

the order preventing John Doe X's face-to-face deposition, and the discovery order preventing disclosure of John Doe X's identity.

ANALYSIS

I.

We begin our analysis by noting that Howell's brief suffers from the same flaw that plagued him on his earlier appeal: although he makes numerous assignments of error, not all are supported by legal argument and authority. If a party fails to support assignments of error with legal arguments, they will not be considered on appeal. Schmidt v. Cornerstone Ins., Inc., 115 Wash.2d 148, 795 P.2d 1143 (1990); Howell v. Spokane & Inland Empire Blood Bank, 114 Wash.2d 42, 46, 785 P.2d 815 (1990) (Howell I). Howell assigns error to the trial court's grant of summary judgment dismissing Howell's claims of negligence, res ipsa loquitur, negligent infliction of emotional distress, outrage, assault, and loss of consortium. However, he discusses only the negligence claim, and that only in his reply brief. Thus, we will not address these other claims on this appeal, and the summary judgment is affirmed to the extent it dismisses claims other than negligence.

II.

On a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (citing LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975)). A moving defendant may meet this burden by showing that there is an absence of evidence to support the nonmoving party's case. 112 Wash.2d at 225, 770 P.2d 182 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). John Doe X provides a detailed discussion of each cause of action raised by Howell and the lack of evidence to support it. However, because we have disposed of Howell's other causes of action, we will focus only on his claim of negligence.

John Doe X has met his initial burden with respect to Howell's negligence claim.

After this showing is made, the burden shifts to the party with the burden of proof at trial, the plaintiff. The plaintiff must come forward with evidence sufficient to establish the existence of each essential element of its case. If this showing is not made:

[T]here can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

112 Wash.2d at 225, 770 P.2d 182 (quoting Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552). In that case, a summary judgment is properly granted.

Thus, after John Doe X made his initial showing, Howell's burden was to come forward with evidence to establish the existence of each essential element of his negligence claim. One element Howell must establish is John Doe X's breach of a duty to refrain from donating blood in 1984. See Davis v. Globe Mach. Mfg. Co., 102 Wash.2d 68, 73, 684 P.2d 692 (1984). However, such a duty arose, if at all, only if John Doe X knew or should have known of his seropositivity at the time of the donation. See, e.g., Berner v. Caldwell, 543 So.2d 686, 689-90 (Ala.1989); see generally Comment, AIDS--Liability for Negligent Sexual Transmission, 18 Cum.L.Rev. 691 (1987-1988).

Howell has presented absolutely no evidence that John Doe X knew or should have known of his seropositivity when he donated blood in 1984. The only evidence offered on this issue is from John Doe X himself. He supported his summary judgment motion with his own and his counsel's affidavits, deposition testimony of Dr. Collins and Dr. Lehman, and by his responses to interrogatories promulgated by SIEBB and Howell. The gist of this evidence was that John Doe X was not a member of a high-risk group at the time of the donation and truthfully answered the questions asked him by the blood bank staff, he has never shown any Because of Howell's failure to come forward with evidence on an essential element of his case, we would normally decide at this point that the summary...