Osborn v. Irwin Memorial Blood Bank

• Decision Date: 08 April 1992
• Docket Number: No. A044982,A044982
• Citation: 5 Cal.App.4th 234,7 Cal.Rptr.2d 101
• Court: California Court of Appeals Court of Appeals
• Parties: , 73 Ed. Law Rep. 1067 Paul OSBORN et al., Plaintiffs and Appellants, v. IRWIN MEMORIAL BLOOD BANK et al., Defendants and Appellants.

Page 101

7 Cal.Rptr.2d 101

5 Cal.App.4th 234, 73 Ed. Law Rep. 1067

Paul OSBORN et al., Plaintiffs and Appellants, v. IRWIN MEMORIAL BLOOD BANK et al., Defendants and Appellants.

No. A044982.

Court of Appeal, First District, Division 4, California.

April 8, 1992.

Review Denied July 9, 1992.

Law Offices of Michael J. Moriarty, Michael J. Moriarty, John Daniel, San Francisco, for plaintiffs Paul and Mary Osborn.

Law Offices of Charles Bond, Charles Bond, Stefanie Gandolfi, Berkeley, O'Connor, Cohn, Dillon & Barr, Duncan Barr, Lisa Ungerer, San Francisco, for respondents Irwin Memorial Blood Bank.

James C. Martin, John McDougall Kern, Mary C. Oppedahl, Paul D. Fogel, Crosby, Heafey, Roach & May, Professional Corp., Oakland, for respondents The Regents of The University of California.

Hassard, Bonnington, Rogers & Huber, A partnership including a professional corp., San Francisco, for amicus curiae California Blood Bank System (CBBS) and The American Ass'n of Blood Banks (AABB).

Fred J. Hiestand, Sacramento, for amicus curiae The Ass'n for California Tort Reform (ACTRR).

PERLEY, Associate Justice.

The trial in this case has been reported as the first in the nation where a blood bank was found liable in connection with transmission of the AIDS virus by a blood transfusion.

In February of 1983, at the age of three weeks, Michael Osborn contracted the AIDS virus from a blood transfusion in the course of surgery on his heart at the University of California at San Francisco Medical Center. The blood used in the operation was supplied by the Irwin Memorial Blood Bank. Michael and his parents, Paul and Mary Osborn, sued Irwin and the University for damages on various theories. The only causes of action that survived defense motions for nonsuit and directed verdict were claims against Irwin for negligence, and intentional and negligent misrepresentation. After the jury returned a general verdict for plaintiffs, the court granted Irwin's motion for judgment notwithstanding the verdict on the intentional misrepresentation and negligence claims. Irwin was thus held liable only for a negligent misrepresentation.

The cause of action for negligent misrepresentation was based on a statement to the Osborns by Irwin's receptionist that blood donations could not be earmarked for use in Michael's operation. That statement could be construed as a misrepresentation in light of evidence that Irwin's policy at the time was to discourage rather than prohibit directed donations. Irwin offered to prove that Michael had a rare blood type and hence could not have received any blood from members of his family. Irwin also wanted to show that friends of the family who had agreed to donate for Michael could have provided only a small fraction of the rare blood he needed. This evidence was relevant to proximate cause. To the extent that Michael could not have used directed donations, a statement that prevented those donations did not affect the outcome of his case. However, the court excluded evidence associated with Michael's rare blood type. We conclude that the court erred, that the error was prejudicial to Irwin and thus a new trial on the claim of negligent misrepresentation is required.

The most significant issue on appeal is whether Irwin was entitled to judgment notwithstanding the verdict on the issue of negligence. Qualified experts opined for plaintiffs that Irwin's blood testing and donor screening practices prior to Michael's surgery were negligent in light of concerns about AIDS at the time. On matters such as these that are outside common knowledge, expert opinion is ordinarily sufficient to create a prima facie case. Here, however, there was uncontradicted evidence that Irwin was doing as much if not more in the areas of testing and screening than any other blood bank in the country, and there is no question that it followed accepted practices within the profession. We hold that Irwin cannot be found negligent in these circumstances.

We also conclude that the University's motions for nonsuit and directed verdict were properly granted, and accordingly affirm the judgment in favor of the University.

I. INTRODUCTION

A. Michael Osborn's Medical Case

Michael Osborn was born on January 28, 1983, with isolated ventricular inversion, a rare and life-threatening heart condition that prevented unoxygenated blood from circulating to his lungs. He underwent surgery at the University on February 24, 1983, to repair this condition. It is undisputed that the surgery was necessary and successful. During the course of the procedure, Michael received 12 units or components of blood supplied by Irwin. The necessity of those blood transfusions is undisputed. Michael played normally and showed no symptoms of AIDS for over four years.

In August of 1987, the Osborns received a letter from the University recommending that Michael be tested for the antibody to the AIDS virus. The letter noted that he had received transfusions before April of 1985, at a time when no test for AIDS was available. Michael tested positive, and it is undisputed that he contracted AIDS from a transfusion he received incident to his heart surgery. In late February, 1988, Michael's speech became slurred and he began walking with a limp. He was diagnosed with an AIDS-related brain tumor and underwent surgery for its partial removal. He was receiving medication for swelling of the brain at the time of trial herein. Michael testified briefly at the trial. We have been advised that he has died during the pendency of this appeal.

The donor whose blood transmitted the AIDS virus to Michael has not been identified.

B. Procedural History

This suit was filed in May of 1988. The first amended complaint included causes of action against the University for medical malpractice, breach of contract, intentional and negligent misrepresentation, intentional and negligent infliction of emotional distress, negligent screening of medical staff, battery, and simple negligence. Plaintiffs asserted claims against Irwin for negligence, breach of contract, intentional and negligent misrepresentation, intentional and negligent infliction of emotional distress, battery, and products liability.

The case was tried to a jury in November of 1988, after the court granted plaintiffs' motion for calendar preference based on Michael's illness. The University and Irwin moved for nonsuits when plaintiffs rested. The motion was granted on all claims except those of negligence, and intentional and negligent misrepresentation against Irwin, and those of malpractice, negligent misrepresentation and negligent infliction of emotional distress against the University. After Irwin and the University presented their defenses, the court granted the University's motion for a directed verdict on the remaining claims against it.

Claims against Irwin for negligence, and intentional and negligent misrepresentation were submitted to the jury. Irwin requested a general verdict. The jury returned a 9-3 decision against Irwin, awarding damages of $550,000 to Michael and $200,000 to his parents.

Irwin then moved for judgment notwithstanding the verdict and a new trial. The motion for new trial was supported inter alia by the affidavits of five jurors stating that negligent misrepresentation was the sole basis for their finding of liability. Irwin also moved for entry of an amended judgment reflecting the damage limitations of the Medical Injury Compensation Reform Act (MICRA). Plaintiffs opposed Irwin's motions and moved to strike the juror affidavits.

At the conclusion of the first hearing on the post-trial motions, the court granted Irwin judgment notwithstanding the verdict on the claims of intentional misrepresentation and negligence. The court acknowledged at subsequent hearings that Irwin had unsuccessfully urged throughout the case that claims against it were subject to MICRA. The court also acknowledged that it had erred in concluding that MICRA did not apply. Irwin argued that this error required a new trial. Irwin also argued that, if the court was not inclined to grant a new trial, it could amend the judgment to conform the damage award to MICRA. Irwin submitted that the general verdict could be recalculated in accordance with MICRA based on the evidence of damages at trial, and two juror affidavits about how much of the award represented unreimbursed medical expenses, pain and suffering, and future damages. Irwin suggested that the court could use "its remittitur power" and grant a "new trial conditionally" to effect this result.

The court decided to conditionally grant the motion for new trial, subject to plaintiffs' acceptance of an amended judgment for reduced and deferred damages. The motion to amend the judgment was granted as follows: "[Irwin] shall pay a lump-sum payment to plaintiffs in the amount of $250,100 in present damages; future damages of $250,000 are to be paid to Michael Osborn periodically in equal annual installments commencing on his eighteenth (18th) birthday, and continuing each year until his sixty-fifth (65th) birthday. Inasmuch as the Court finds that Michael Osborn owes no duty of support to anyone, the Court, in conformity with the spirit and intent of [Code of Civil Procedure] § 667.7, hereby orders that any unpaid future damages revert to defendant IRWIN in the event of Michael Osborn's death prior to payment in full." In between these sentences, which were typed on Irwin's form, the court inserted the handwritten notation, "$165,207 for nursing care."

Although the court granted plaintiffs' motion to strike the juror affidavits, it appears to have generally accepted Irwin's breakdown of present and future damages based on those affidavits. The $250,100 figure for present damages appears to represent $250,000 for Michael's pain and suffering, plus $100 for his parents' unreimbursed medical expenses. The $250,000 figure for future damages appears to cover...