Marcella v. Brandywine Hosp.

• Decision Date: 13 March 1995
• Docket Number: No. 94-1691,94-1691
• Parties: , 31 Fed.R.Serv.3d 557 Carol MARCELLA; Timothy Marcella; Timothy Marcella, as Natural Guardian for Damon Marcella; Timothy Marcella, as Natural Guardian for Eric Marcella, Carol Marcella and Timothy Marcella, husband and wife, Appellants, v. BRANDYWINE HOSPITAL; C.T. McChesney, M.D.; J.R. Monasterio, M.D.; Dr. Jose Cabria; Dr. John Caggiano; American Red Cross; Penn Jersey American Red Cross Regional Blood Service; William C. Sherwood, M.D., Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 618

47 F.3d 618

63 USLW 2521, 31 Fed.R.Serv.3d 557

Carol MARCELLA; Timothy Marcella; Timothy Marcella, as

Natural Guardian for Damon Marcella; Timothy Marcella, as

Natural Guardian for Eric Marcella, Carol Marcella and Timothy Marcella, husband and wife, Appellants, v. BRANDYWINE HOSPITAL; C.T. McChesney, M.D.; J.R.

Monasterio, M.D.; Dr. Jose Cabria; Dr. John Caggiano;

American Red Cross; Penn Jersey American Red Cross Regional

Blood Service; William C. Sherwood, M.D., Appellees.

No. 94-1691.

United States Court of Appeals, Third Circuit.

Argued Dec. 20, 1994.

Decided Feb. 15, 1995.

Sur Petition for Rehearing March 13, 1995.

Robert J. O'Shea, Jr. (argued), George W. Howard, III, David E. Brenner, Richard P. Hackman, Charles A. Klein, Michael A. Cancelliere, Jr., George W. Howard, III, P.C., Philadelphia, PA, for appellants.

William J. O'Brien, John A. Guernsey, Howard M. Klein, Patricia M. Hamill, Conrad O'Brien Gellman & Rohn, P.C., Philadelphia, PA, Jacqueline R. Denning (argued), David P. Gersch, Salley D. Rainey, Arnold & Porter, Edward L. Wolf, Acting Gen. Counsel, American Red Cross, Washington, DC, for appellees.

Before: GREENBERG, SAROKIN, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

This is a negligence suit growing out of a transfusion of contaminated blood collected by the Red Cross through its volunteer donor program. After a bench trial, the district court entered judgment in favor of the Red Cross. In this appeal, we hold that the Red Cross is not clothed with governmental immunity and therefore the plaintiff's request for a jury trial should have been granted. Accordingly, the case must be remanded for a new trial. We concur with the district court's determination that the donor of the blood may be required to testify, but under conditions that protect his anonymity.

Plaintiff, Carol Marcella, was infected with HIV as a result of a blood transfusion she received at Brandywine Hospital on February 5, 1985, in the course of emergency treatment for injuries sustained in an automobile accident. Her condition has deteriorated to the point that it is inevitable she will soon develop full blown AIDS. The blood had been donated through the Red Cross on January 29, 1985 by a homosexual male who was HIV+. He gave blood again on June 8, 1985. At that time, the Red Cross performed an ELIZA test, which can determine whether a blood sample is contaminated by HIV. That test did not receive approval from the Food and Drug Administration until March 1985 and was not available at the time of Marcella's transfusion. Through a "look back" program, the Red Cross discovered that she had received infected blood.

The complaint filed in the Common Pleas Court of Chester County, Pennsylvania, on July 14, 1988 named as defendants the hospital, the physicians who had treated plaintiff, and the American Red Cross. Plaintiff ¹ did not ask for a jury trial, but the doctors and the Brandywine Hospital did file such demands.

The case was removed to the United States District Court for the Eastern District The district court ordered that the negligence counts against the hospital (the claims against the doctors having been dismissed) would be tried to a jury, but that the plaintiff's claim against the Red Cross would be decided in a bench trial. The court then severed the claims and proceeded first on the one against the Red Cross.

                of Pennsylvania, and the hospital renewed its demand for a jury trial.  None of the other parties did so.  The case was docketed in the district court as a jury trial.  Shortly before the case was scheduled for trial, the Red Cross filed a motion "[t]o confirm that this was a nonjury trial."   Plaintiff opposed the motion on the basis that she was entitled to the benefit of the jury trial demand filed by the hospital and doctors in the state court
                

Before trial, the plaintiff's request for a discovery deposition of the donor of the contaminated blood was denied, although he was required to answer interrogatories. After proceeding for several days in the nonjury trial, the district judge arranged to take the testimony of the donor, under conditions that would assure his anonymity.

In its findings of fact and conclusions of law, the court decided that the Red Cross' policy of ascertaining potential sources of contaminated blood by submitting questionnaires to voluntary donors was faulty. The judge determined that the Red Cross was "properly chargeable with negligence for the unreasonable turgidity of its instructional materials" as well as for using outdated questionnaires when the donor first gave blood in January 1985.

However, because the donor again gave blood in June 1985, despite the questionnaires having been clarified, ² the court decided that the negligence of the Red Cross was not a causative factor. "Donor X would not have been prevented from giving blood on January 29, 1985, even if the defendant had dotted all the 'i's' and crossed all the 't's.' " Judgment was therefore entered for the Red Cross. Marcella v. Brandywine Hosp., 838 F.Supp. 1004 (E.D.Pa.1993). Subsequently, summary judgment was entered in favor of the hospital.

The plaintiff has appealed only the judgment in favor of the Red Cross, asserting: (1) that she was improperly denied the right to a jury trial; (2) that the court's analysis of the evidence was faulty; and (3) that some of the evidence about the donation on June 8, 1985 was inadmissible. ³

I.

The evidence in this case would sustain the district court's finding that the Red Cross did not cause Marcella's harm. The judge, as fact-finder, evaluated the demeanor, education and sophistication of the donor to determine that he would have persisted in giving blood even if the correct instruction had been given at the January donation. The credibility evaluations of the donor were essential to the factual findings derived from his testimony.

However, a jury could properly make different credibility and causation determinations that would lead it to assess liability against the Red Cross. Consequently, the record is not sufficient to establish the crucial facts as a matter of law, and we would be compelled to reverse a directed verdict in a jury trial based on these facts. See Amoco Oil Co. v. Torcomian, 722 F.2d 1099, 1100-01 (3d Cir.1983); EEOC v. Corry Jamestown Corp., 719 F.2d 1219, 1225 (3d Cir.1983) (denial of trial by jury is reversible error unless a directed verdict would have been appropriate). Consequently, if the district court erred in denying the plaintiff a jury, the case must be remanded for a new trial.

II.

The preliminary question, therefore, is whether plaintiff is entitled to a jury trial. The issue is not a simple one, and the district courts that have considered the point are divided in their rulings. ⁴ No Court of Appeals has considered the point in a published opinion.

The collection and distribution of human blood for medical purposes is a commercial operation on the part of the Red Cross and other entities that operate blood banks. The nature of the enterprise and the identity of the supplier are matters to be considered in deciding whether an injured party has a right to a jury trial in a claim based on negligence.

The Red Cross contends that it is a federal instrumentality that shares governmental immunity to trial by jury. It is clear that the federal government itself is not subject to trial by jury unless it specifically consents. Lehman, Sec'y of Navy v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 2701-02, 69 L.Ed.2d 548 (1981). The question here is whether, in this respect, the Red Cross is to be treated as part of the federal government.

The American Red Cross is a unique organization. It was chartered by Congress as a federal corporation in 1905. 36 U.S.C. Secs. 1-15. Its chief purpose at that time was to serve as the agency in this country to monitor and implement the requirements of the Geneva Convention applicable to the care of the sick, wounded, and prisoners in time of war. Later, the scope of its activity was expanded to include service to victims of natural disasters.

The national Red Cross is designed to work in conjunction with societies in other nations and with the International Red Cross. Emphasizing that its prestige and usefulness is based on neutrality, the Chairman of the American Red Cross commented in 1946, "[t]o preserve this vital principle intact, the International Red Cross Committee has always maintained that the national societies, while cooperating closely and cordially with their own governments and with other agencies, should at the same time remain independent." Hon. Basil O'Connor, Annual Report of the American National Red Cross Corporation for 1946, at 19, reprinted in Wesley A. Sturges, The Legal Status of the Red Cross, 56 Mich.L.Rev. 1, 12 n. 30 (1957), cited in Irwin Mem. Blood Bank of the San Francisco Medical Soc'y v. American Nat'l Red Cross, 640 F.2d 1051, 1057 (9th Cir.1981).

Close cooperation with government is essential to the work of the Red Cross. A perception that the organization is independent and neutral is equally vital. The Red Cross charter provisions reflect an attempt to reconcile these objectives.

Some control by the federal government is demonstrated by a provision empowering the President of the United States to appoint eight of the fifty members of the Red Cross Board of Governors and to designate one of them to be its presiding officer. 36 U.S.C. Sec. 5. The other seven appointees must be officials of various departments and agencies of the federal government, including at least one from the Armed Forces. Thirty governors are selected by the local chapters, and twelve are selected by the Board as members-at-large. Id.

An annual financial statement must be submitted to the Secretary of Defense, who audits the report at the expense of the Red Commissioned officers of the Army, Navy and Air Force may be detailed for duty...