Nelson v. American Nat. Red Cross, s. 93-7114

• Decision Date: 28 June 1994
• Docket Number: 93-7115,Nos. 93-7114,s. 93-7114
• Citation: 307 U.S.App.D.C. 52,26 F.3d 193
• Parties: James D. NELSON, Jr., Appellant, v. AMERICAN NATIONAL RED CROSS, et al., Appellees. James D. NELSON, Jr., Cross-Appellee, v. AMERICAN NATIONAL RED CROSS, et al., Cross-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 193

26 F.3d 193

307 U.S.App.D.C. 52

James D. NELSON, Jr., Appellant, v. AMERICAN NATIONAL RED CROSS, et al., Appellees.

James D. NELSON, Jr., Cross-Appellee, v. AMERICAN NATIONAL RED CROSS, et al., Cross-Appellants.

Nos. 93-7114, 93-7115.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 11, 1994.

Decided June 28, 1994.

As Amended June 28, 1994.

Marc Fiedler, Washington, DC, argued the cause, for James D. Nelson, Jr., appellant in No. 93-7114 and cross-appellee in No. 93-7115. On brief was Patrick M. Regan, Washington, DC.

Fern P. O'Brian argued the cause and filed the briefs for American National Red Cross, et al., appellees in No. 93-7114 and cross-appellants in 93-7115. Nancy F. Preiss argued the cause and filed the briefs for Georgetown University, et al., appellees in No. 93-7114 and cross-appellant in No. 93-7115. Bruce M. Chadwick entered an appearance for American National Red Cross.

Before EDWARDS, SILBERMAN and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by Circuit Judge EDWARDS.

KAREN LeCRAFT HENDERSON, Circuit Judge:

James D. Nelson, Jr. (Nelson Jr.) brought suit in district court against the American National Red Cross (Red Cross) and Georgetown University Hospital (Georgetown) (collectively referred to as "the defendants"), claiming that their negligence caused the death of his father, James D. Nelson, Sr. (Nelson Sr.). Nelson Jr.'s complaint included both a survival action and a wrongful death claim. The district court granted the defendants' motion for summary judgment on Nelson Jr.'s survival action, holding that it was barred by the applicable statute of limitations. The court denied the defendants' motion to dismiss Nelson Jr.'s wrongful death claim, however, deciding that it was timely filed even though the statute of limitations applicable to Nelson Sr.'s negligence action had expired before his death. Nelson Jr. appeals the district court's grant of summary judgment on his survival action, while the defendants appeal the court's denial of their motion to dismiss Nelson Jr.'s wrongful death claim.

I. BACKGROUND

On February 8, 1985, Georgetown physicians removed Nelson Sr.'s spleen during surgery. After the operation, Nelson Sr. experienced internal bleeding that necessitated emergency exploratory abdominal surgery. During the second surgery, performed later that day, Nelson Sr. received transfusions of blood and blood products supplied by the Red Cross.

In October 1986, Dr. Ronald Sacher, a Georgetown physician, informed Nelson Sr. that a portion of the blood he had received during his second surgery had been drawn from an individual who later tested positive for the Human Immunodeficiency Virus (HIV). HIV is the virus believed to cause Acquired Immunodeficiency Syndrome (AIDS), a fatal illness. Dr. Sacher advised Nelson Sr. that he should be tested to determine whether he too was HIV positive. Nelson Sr. was tested and on October 10, 1986, Dr. Sacher informed him that he had tested positive for HIV. Dr. Sacher explained that "being HIV positive was in all likelihood associated with progression to AIDS but that the period of time to progression was uncertain." Joint Appendix (J.A.) at 131. Dr. Sacher gave Nelson Sr. no reason to believe that he would not eventually develop AIDS. J.A. at 132.

In April 1987, Nelson Sr.'s virus became symptomatic--the lymph nodes in his armpits and neck were enlarged and his T-4 cell count dropped. At that time, Dr. Sacher told Nelson Sr. that the symptoms manifested the progression of his condition from HIV positive to an AIDS-related complex (ARC). ¹ J.A. at 169-71. From this point forward, Nelson Sr.'s health steadily deteriorated. In the summer of 1989, Nelson Sr. was informed that he had developed symptoms associated with a pre-AIDS condition. J.A. at 187, 398. By the spring of 1990, he had developed AIDS and on March 15, 1991, he died of an AIDS-related illness. J.A. at 169-71, 187.

Nelson Sr. did not file suit against the defendants before his death. On March 9, 1992, Nelson Jr. brought an action seeking damages from the Red Cross resulting from the blood it had supplied that, it alleged, caused Nelson Sr. to develop AIDS. Nelson Jr. also sued Georgetown, alleging that the medical malpractice of its agents and employees in performing his father's splenectomy necessitated the blood transfusion Nelson Sr. received. Nelson Jr.'s claims were based on the District of Columbia Survival Act, D.C.Code Sec. 12-101, ² and the District of Columbia Wrongful Death Act, D.C.Code Sec. 16-2701. ³

The defendants moved to dismiss Nelson Jr.'s survival action on the ground that it was barred by D.C.Code Sec. 12-301(8), which provides a three-year statute of limitations for negligence actions. In opposing the defendants' motion, Nelson Jr. relied on matters outside the pleadings and thus, as he concedes, converted the motion to dismiss to a motion for summary judgment. See Nelson's Brief at 6 n. 3; Fed.R.Civ.P. 12(b). The trial judge granted summary judgment to the defendants on the survival action, holding that because Nelson Sr. was aware of his injury, its cause and some evidence of wrongdoing by October 1986, the expiration of the three-year statute of limitations barred Nelson Jr.'s survival action. J.A. at 415-16. The defendants also moved to dismiss Nelson Jr.'s wrongful death action, arguing that the complaint failed to state a cause of action because Nelson Sr. could not have brought a timely action for negligence at the time of his death. The trial judge denied the motion to dismiss, holding that the Wrongful Death Act created an independent cause of action that was timely filed within one year of Nelson Sr.'s death.

The trial judge certified his rulings for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b). We granted Nelson Jr.'s petition for permission to appeal the district court's grant of summary judgment to the defendants on his survival action as well as the defendants' petition for permission to cross-appeal the court's denial of their motion to dismiss Nelson Jr.'s wrongful death action.

II. SURVIVAL ACTION

Nelson Jr. appeals the district court's order granting summary judgment to the defendants on his survival action. Summary judgment is appropriate when "there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Beckett v. Air Line Pilots Assoc., 995 F.2d 280, 284 (D.C.Cir.1993) (citation and internal quotation omitted). We review the district court's grant of summary judgment de novo. Goldman v. Bequai, 19 F.3d 666, 672 (D.C.Cir.1994).

Under District of Columbia law, a survival action must be filed within three years of the date the right to maintain the action accrues. D.C.Code Sec. 12-301(8). Ordinarily, a plaintiff's cause of action accrues at the time he suffers the injury alleged. Burns v. Bell, 409 A.2d 614, 615 (D.C.1979). The general rule is modified, however, when "the relationship between the fact of injury and some tortious conduct is obscure at the time of injury." Knight v. Furlow, 553 A.2d 1232, 1233 (D.C.1989). In such a case, District of Columbia courts employ the discovery rule to determine when the applicable statute of limitations begins to run. See Burns v. Bell, 409 A.2d 614 (D.C.1979). Under the discovery rule, a cause of action accrues when the plaintiff "must know or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing." Bussineau v. President & Directors of Georgetown College, 518 A.2d 423, 425 (D.C.1986).

Applying the discovery rule, the district court concluded that Nelson Sr.'s cause of action against the defendants accrued on October 10, 1986, the day that test results established that he was HIV positive and he was so informed. J.A. at 414-17. The court reasoned that Nelson Sr. had been injured "as surely as if he had been administered a poison or struck a blow," that he knew when and how he had contracted the virus and that "wrongdoing by someone was more than a hypothetical possibility." J.A. at 414-15. Nelson Jr. argues, however, that his father's cause of action did not accrue when his father learned that he was HIV positive but rather when he learned that he was suffering from AIDS.

Nelson first argues that his father was not injured until he developed AIDS. We disagree. Courts addressing the issue have uniformly held that a plaintiff is injured when he becomes HIV positive and that the statute of limitations begins to run as soon as the plaintiff discovers his injury through an HIV positive test result. See, e.g., Doe v. Cutter Biological, 813 F.Supp. 1547, 1555 (M.D.Fla.1993), aff'd, 16 F.3d 1231 (11th Cir.1994); DiMarco v. Hudson Valley Blood Servs., 147 A.D.2d 156, 542 N.Y.S.2d 521, 524-25 (1989); Doe v. University Hosp., 148 Misc.2d 756, 561 N.Y.S.2d 326, 328 (Sup.Ct.1990); In re Complex Blood Bank Litig., No. 908-843 (Cal.Super.Ct. Dec. 20, 1989) reprinted in J.A. at 84-88.

Although the District of Columbia courts have not addressed the issue, we are confident they would agree with the other jurisdictions. The recent decision of the District of Columbia Court of Appeals in Colbert v. Georgetown Univ., 641 A.2d 469 (D.C.1994), gives us specific support for our confidence. There, the plaintiff was informed in 1982 that her physician's decision to perform a lumpectomy rather than a mastectomy in treating her breast cancer increased the probability that her cancer would metastasize. Id. at 470. In September 1986, Colbert learned that the cancer had in fact metastasized. Id. at 471. When Colbert brought suit in 1989, the defendant argued that her cause of action was time-barred because it had accrued in 1986 and was governed by a three-year statute of limitations. The...