In re Factor Viii or Ix Concentrate Blood Products

• Decision Date: 10 September 1998
• Docket Number: No. 93 C 7452.,No. MDL-986.,MDL-986.,93 C 7452.
• Citation: 25 F.Supp.2d 837
• Parties: In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION.
• Court: U.S. District Court — Northern District of Illinois

25 F.Supp.2d 837

In re FACTOR VIII OR IX CONCENTRATE BLOOD PRODUCTS LITIGATION.

No. MDL-986.

No. 93 C 7452.

United States District Court, N.D. Illinois, Eastern Division.

September 10, 1998.

COPYRIGHT MATERIAL OMITTED

David S. Shrager, Shrager, McDaid, Loftus, Flum & Spivey, Philadelphia, PA, Dianne M. Nast, Roda & Nast, P.C., Lancaster, PA, for Plaintiffs.

Mark C. Meyer, Cunningham, Meyer & Vedrine, Wheaton, IL, for Defendant NHF.

MEMORANDUM OPINION

GRADY, District Judge.

Before the court is defendant National Hemophilia Foundation's motion for summary judgment pursuant to F.R.C.P. 56(b), or in the alternative, for summary determination of major issues pursuant to F.R.C.P. 56(d). For the reasons stated below, the motion is denied.

BACKGROUND

Plaintiffs in this multidistrict litigation are hemophiliacs and the personal representatives of deceased hemophiliacs who used certain blood products known as "factor concentrates" to treat their hemophilia and, as a result, became infected with the HIV virus. The defendant National Hemophilia Foundation ("NHF") is a nonprofit organization that provided information to hemophiliacs about blood products in the 1980s. It has been sued in some but not all of the cases consolidated before this court pursuant to 28 U.S.C. § 1407 for pretrial purposes. NHF membership includes chapters (usually on a statewide basis), medical providers and the leading members of the plasma industry. Part of its stated mission is to promote "programs of research; patient, public and professional education; and patient, family and community services."¹ The NHF also develops medical treatment standards or recommendations which are disseminated and relied upon by physicians in their treatment of persons with hemophilia.

The plaintiffs allege that the NHF established itself as the "preeminent authority" and "principal educator" on medical treatment issues impacting persons with hemophilia. The plaintiffs also assert that, early in the AIDS epidemic, the NHF assumed a leadership role in informing, guiding and educating hemophiliacs, their treaters and the media regarding the proper treatment of hemophilia in light of the AIDS risk.

The primary theory of liability is that the NHF was negligent in providing information and advice to its members and for the benefit of the hemophilia community at large. The allegations are that the NHF made false, incorrect and misleading statements regarding the safety of factor concentrates manufactured and distributed by the other defendants in this litigation.² Plaintiffs charge that the NHF negligently recommended use of the concentrates when it should have known of the danger of viral contamination, failed to warn its members about that danger, failed to recommend timely recall of the concentrates and failed to disclose certain relationships between NHF board members and the defendant manufacturers. In addition to the negligence allegations, it is claimed that the NHF violated certain fiduciary duties owing to the plaintiffs. Plaintiffs claim that, as a result of the NHF's actions, they and their decedents relied on the NHF, used the concentrates and became infected with the HIV virus. In many cases the infections have resulted in death.³

In moving for summary judgment, the NHF argues that its First Amendment rights to free speech and free press would be abridged if courts were to impose liability on it because of its communications. It contends that the First Amendment absolutely protects it from tort actions alleging negligent communications. It argues in the alternative that it may be held liable for misstatements only under a malice or "calculated falsehood" standard. It also contends that the First Amendment offers a qualified privilege because NHF publications reported on issues of public concern. Finally, the NHF asserts that it is entitled to First Amendment protection for not speaking, and thus cannot be held liable for failures to warn.

DISCUSSION

I. Freedom of Speech and Press

The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press."⁴ These freedoms are among those protected by the Fourteenth Amendment against abridgement by the states. Thornhill v. State of Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

A threshold issue is whether sufficient governmental action exists to implicate the First Amendment. The NHF claims that the imposition of tort liability would be sufficient. This is correct. The Supreme Court has established that the imposition of tort liability constitutes state action which implicates the First and Fourteenth Amendments. New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also Cohen v. Cowles Media Co., 501 U.S. 663, 668, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991) ("Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes `state action' under the Fourteenth Amendment."); cf. Board of County Comm'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 674 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) ("[c]onstitutional violations may arise from the deterrent, or `chilling,' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights") (quoting Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154) In this multidistrict litigation, we are concerned only with the action of federal courts, so the Fourteenth Amendment is not involved. But the analysis is the same: imposition of tort liability by federal courts would constitute governmental action for First Amendment purposes. Nothing in the plaintiffs' several briefs suggests that imposing tort liability would not amount to governmental action.

The relevant First Amendment jurisprudence is less clear beyond this point. Deciding whether particular speech is entitled to protection is sometimes difficult because of disagreement about the proper analytical approach. Even in established areas of First Amendment jurisprudence, the "Supreme Court oftentimes develops different tests for the permissible scope of restrictions on the various types of speech." 4 RONALD ROTUNDA & JOHN NOWAK, TREATISE ON CONSTITUTIONAL LAW § 20.1 (1992) (hereafter referred to as "Rotunda & Nowak").

The parties have suggested several ways of looking at the question. The NHF analyzes its speech in the context of the commercial versus non-commercial speech dichotomy. At least one of the plaintiffs argues that such labels are meaningless and that a balancing test should be used instead.

The NHF begins by arguing that its publications are noncommercial speech⁵ and because of that status can lose protection in only four circumstances — libel, obscenity, incitement and fighting words. In support of its position that only these four categories of speech are unprotected, the NHF cites Bigelow v. Virginia, 421 U.S. 809, 819, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). It reasons that it is entitled to full First Amendment protection from liability in this litigation unless we find that its speech falls into one of the four unprotected categories.

We disagree with the NHF's view of the law. No Supreme Court case has held that the four categories of speech mentioned in Bigelow are an exhaustive enumeration of unprotected speech. The statement in Bigelow was made in the context of analyzing the protections afforded to commercial speech generally. See 421 U.S. 809, 819, 95 S.Ct. 2222, 44 L.Ed.2d 600. The Court stated that speech is not deprived of protection simply because it is commercial, and went on to add that the particular speech at issue was not within any of the four categories that traditionally fell outside First Amendment protection. But Bigelow did not hold that those categories are the only ones that lack First Amendment protection.⁶ Cf. Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 741, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Breyer, J., joined by Stevens, O'Connor and Souter, JJ.) (jurisprudence interpreting the First Amendment has done so "without imposing judicial formulae so rigid that they become a straitjacket that disables Government from responding to serious problems"). Moreover, the other case NHF relies on expressly recognized that "[t]he parameters and protections of the First Amendment are impossible to define precisely." DeFilippo v. National Broadcasting Co., Inc., 446 A.2d 1036, 1039 n. 4 (R.I.1982).

The NHF argument is belied by a considerable body of law denying First Amendment protection in situations not involving obscenity, libel, incitement or fighting words. For example: speech that invades privacy, see Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (newsworthy person can recover under a New York statute for speech that invaded privacy if there was malice); speech that breaches a promise of confidentiality, see Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991) (First Amendment does not prohibit person providing information from recovering damages under state's promissory estoppel law for publisher's breach of promise of confidentiality given in exchange for information); speech that infringes a copyright, see Rotunda & Nowak § 20.36 (discussing accommodation between free speech and copyright protection); speech that is harassing, see In re Stonegate Sec. Serv., Ltd., 56 B.R. 1014, 1018 (N.D.Ill. 1986) (Grady, J.) ("It is not unconstitutional to prohibit harassing conduct, even if that conduct involves verbal components," but ultimately finding that conduct and speech at issue deserved protection); speech that infringes a performer's right of publicity, see Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977) (although a state may privilege its media to broadcast a performer's...