Miles Laboratories, Inc. Cutter Laboratories Div. v. Doe

• Decision Date: 01 September 1988
• Docket Number: No. 1,1
• Citation: 556 A.2d 1107,315 Md. 704
• Parties: , 57 USLW 2707, Prod.Liab.Rep. (CCH) P 12,126 MILES LABORATORIES, INC. CUTTER LABORATORIES DIVISION v. Jane DOE and John Doe. The MARYLAND CHAPTER OF THE AMERICAN NATIONAL RED CROSS et al. v. Mary DOE, etc. Misc.,
• Court: Maryland Court of Appeals

Page 704

315 Md. 704

556 A.2d 1107, 57 USLW 2707,

Prod.Liab.Rep. (CCH) P 12,126

MILES LABORATORIES, INC. CUTTER LABORATORIES DIVISION v. Jane DOE and John Doe.

The MARYLAND CHAPTER OF THE AMERICAN NATIONAL RED CROSS et al. v. Mary DOE, etc.

Misc. No. 1, Sept. term, 1988.

Misc. No. 18, Sept. Term, 1987.

Court of Appeals of Maryland.

May 2, 1989.

Charles P. Goodell, Jr. (Semmes, Bowen & Semmes, on brief), Baltimore (Duncan Barr, Lisa T. Ungerer, O'Connor, Cohn, Dillon & Barr, all on brief), San Francisco, Cal. (Geoffrey R.W. Smith, Christopher P. Berka, Jane E. Lovell, McCutchen, Doyle, Brown & Enersen, all on brief), Washington, D.C., for appellant in Misc. No. 1.

Martin H. Freeman (Robert K. Jenner, Freeman & Richardson, P.A., all on brief), Bethesda, for appellee in Misc. No. 1.

Bruce M. Chadwick and Louis M. Bograd (Brendan Collins, Arnold & Porter, all on brief), Washington, D.C. (Karen Shoos Lipton, on brief) Washington, D.C. (Gary I. Strausberg and Melnicove, Kaufman, Weiner, Smouse & Garbis, all on brief), Baltimore, for appellant in Misc. No. 18.

Kathleen A. Birrane (Andrew Jay Graham, Kramon & Graham, P.A., all on brief), Baltimore, for appellee in Misc. No. 18.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

These cases present questions of Maryland law certified to us by the United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Md.Code (1974, 1984 Repl.Vol.), §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article. ¹ Each case draws into question the liability of a supplier of blood or blood products alleged to have transmitted the Acquired Immune Deficiency Syndrome (the AIDS virus) to the plaintiff-recipients. ²

I.

Miscellaneous No. 1 involves a suit against Miles Laboratories, Inc. (Miles), a commercial preparer and supplier of "Konyne"--a blood clotting factor concentrate. Plaintiffs Jane and John Doe, in a multi-count complaint filed in the federal district court, have alleged a cause of action against Miles, inter alia, in strict liability, implied warranty, and negligence.

As certified by the district court, the facts jointly agreed upon by the parties are essentially these: Jane Doe delivered a child in September of 1983. Several days later she was admitted to Shady Grove Adventist Hospital suffering from profuse vaginal bleeding. Her bleeding could not initially be controlled although she was given substantial amounts of blood derivatives.

In total, approximately 46-50 units of various blood derivatives were made available for transfusion into Mrs. Doe, although not all may have been given. During the attempt to stop the bleeding, her physicians administered a single "500 unit" vial of "Konyne" to Mrs. Doe. Ultimately, her bleeding stopped.

Subsequently Mrs. Doe developed a variety of health problems which assertedly led to the diagnosis of HIV (Human Immunodeficiency Virus)--the "AIDS" virus--and the diagnosis of ARC (Acquired Immunodeficiency Related Complex). ³ Mrs. Doe has not been diagnosed as having actual AIDS, although there is a substantial risk that she may contract full-blown AIDS at some time in the future.

Miles purchases the blood plasma necessary for the preparation of Konyne from blood donors. It markets Konyne to hospitals and doctors; it does not administer the product to anyone. In this case, Miles provided Konyne to the Washington Hospital Center which in turn provided the particular vial administered to Mrs. Doe to the Shady Grove Adventist Hospital. The Konyne received by Mrs. Doe in September of 1983 was shipped by Miles in January of 1983. ⁴

A.

By Chapter 717 of the Acts of 1971, then codified as Maryland Code (1957, 1980 Repl.Vol.), Art. 43, § 136B, the General Assembly provided:

"As to the virus of serum hepatitis, neither strict liability in tort nor the implied warranties of merchantability and fitness shall be applicable to the procurement, processing, storage, distribution, and/or use of whole blood, plasma, blood products, and blood derivatives for the use of injection or transfusing the same or any of them into the human body for any purpose whatsoever." (Emphasis supplied)

Chapter 21 of the Acts of 1982 added the Health-General Article to the Maryland Code. It repealed § 136B; in its place, it enacted § 18-402 which provided:

"A person who obtains, processes, stores, distributes or uses whole blood or any substance derived from blood for injection or transfusion into an individual for any purpose may not be held liable for the virus of serum hepatitis under:

(1) Strict liability in tort;

(2) The implied warranty of merchantability; or

(3) The implied warranty of fitness."

(Emphasis supplied)

The revisor's note to § 18-402 stated that its provisions were derived without substantive change from former § 136B.

Section 18-402 was substantially amended by Chapter 259 of the Acts of 1986 (the 1986 amendment) to read:

"A legally authorized person who obtains, processes, stores, distributes, or uses whole blood or any substance derived from blood for injection or transfusion into an individual for any purpose is performing a service and is not subject to:

(1) Strict liability in tort;

(2) The implied warranty of merchantability; or

(3) The implied warranty of fitness."

The Legislature provided that the 1986 amendment to § 18-402 would take effect on July 1, 1986. ⁵

(1)

The first certified question is whether the provisions of § 18-402, as amended in 1986, "exempt the commercial preparer and supplier of a blood product from strict liability in tort where, assertedly as a result of the blood product, the recipient was infected with the AIDS virus prior to 1986."

The 1986 amendment to § 18-402 eliminated the reference in the precursor statutes to the virus of serum hepatitis. It broadly insulated blood or blood product suppliers from strict liability in tort and from breach of the implied warranties of merchantability and fitness "for injection or transfusion into an individual for any purpose"; and it characterized this activity as a "service" (rather than a sale).

The Does acknowledge that the 1986 amendment to § 18-402 abrogated a strict tort liability cause of action against blood product suppliers for all transfusion-associated diseases. They point out that Mrs. Doe was transfused in September of 1983, well prior to the July 1, 1986 effective date of the amendment to § 18-402 and, also, that suit was filed prior to July 1, 1986. The Does claim that the pre-1986 blood shield statutes in effect when Mrs. Doe was infected with the AIDS virus, and at the time suit was filed, precluded recovery against a blood product manufacturer in strict liability in tort or breach of implied warranties only when the person contracted serum hepatitis. The Does contend that there is nothing in the history of the 1986 amendment to indicate a legislative intention that the statute be retroactively applied. Moreover, they invite attention to the report of the Senate Judicial Proceedings Committee which recognized that the 1986 amendment "expands" the scope of the exemption from liability by repealing "the limiting reference to the virus of serum hepatitis." From this the Does glean an intention that blood suppliers would remain liable without fault with respect to all pre-1986 transfusions resulting in disease or contaminants other than the virus of serum hepatitis.

Miles argues that the 1986 amendment was intended by the Legislature to apply to all cases of AIDS infection resulting from the use of blood products, regardless of the date of the infection or the date upon which suit is filed. It says that the legislative history and context of the 1986 amendment shows that limiting it to prospective operation would be inconsistent with the legislative purpose. It suggests that because the AIDS virus was not isolated until 1984, and there was no test to detect the presence of the AIDS virus in the blood supply until 1985, the focus of the 1986 amendment was necessarily upon pre-1986 cases. Miles maintains that the Legislature, in dealing with such a significant public policy matter, could only have intended that the 1986 amendment be given retroactive application to include the vast majority of blood-related AIDS cases in which infection occurred prior to 1986. According to Miles, there could be no reason for the Legislature, in enacting the 1986 amendment, to create any distinction between those infected persons who discovered their infection and brought suit prior to July 1, 1986, and those who could not sue before that date because they had not yet discovered their infection.

We view the legislative history underlying enactment of the 1986 amendment as inconclusive at best. In these circumstances, the Maryland rule, most recently reaffirmed by Judge Rodowsky for the Court in WSSC v. Riverdale Heights Volunteer Fire Co. Inc., 308 Md. 556, 520 A.2d 1319 (1987), is that the statute is presumed to operate prospectively and should be construed accordingly. As we said in that case, while there is no absolute bar to retrospective application, "The presumption against retrospectivity is rebutted only where there are clear expressions in the statute to the contrary" and only upon "the plainest mandate in the legislation." 308 Md. at 561, 520 A.2d 1319. The rationale underlying this rule "provides that retrospective application, which attempts to determine the legal significance of acts that occurred prior to the statute's effective date, increases the potential for interference with persons' substantive rights." Id.

After a thorough review of the history of § 18-402, the Court of Special Appeals, in Roberts v. Suburban Hospital 73 Md.App. 1, 532 A.2d 1081 (1988) held that there was no indication that the Legislature in its 1986 amendment to § 18-402, intended that it be retroactive. The same conclusion was...