Rozak v. American Red Cross Blood Services
| Decision Date | 08 October 1996 |
| Docket Number | No. 3:96-CV-471RM.,3:96-CV-471RM. |
| Citation | 945 F.Supp. 1183 |
| Parties | Michael ROZAK, Plaintiff, v. AMERICAN RED CROSS BLOOD SERVICES, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Donald W. Pagos, Sweeney Dabagia Donoghue Thorne Janes and Pagos, Michigan City, IN, for plaintiff.
Robert G. Zeigler, Zeigler Carter Cohen and Koch, Indianapolis, IN, for defendant.
The defendant moves to strike the plaintiff's jury trial demand on the basis of immunity to trial by jury. For the reasons that follow, the court denies the defendant's motion to strike the plaintiff's jury demand.
In June 1994, plaintiff Michael Rozak was hospitalized and received a transfusion of blood platelets that he alleges were supplied by the American Red Cross Blood Services ("ARCBS") and from which he alleges he contracted hepatitis. On May 20, 1996, Mr. Rozak brought a negligence action against the ARCBS in LaPorte County, Indiana Superior Court, and demanded a jury trial. ARCBS filed a notice of removal on June 24, 1996. ARCBS now seeks to strike Mr. Rozak's jury demand, arguing that it is immune to trial by jury as a federal instrumentality.
The ARCBS argues that Mr. Rozak's jury demand must be stricken because the Seventh Amendment jury trial right does not apply to actions against the government and its instrumentalities under the doctrine of sovereign immunity. Mr. Rozak contends that governmental immunity should not apply in this case because the Red Cross is supported primarily by private sources and its day-to-day activities are directed by the organization itself.
Several district courts, including another judge in this district, and one appellate court have addressed the issue presented in this case. See, e.g., Marcella v. Brandywine Hosp., 47 F.3d 618 (3d Cir.1995) (); Doe v. Am. Red Cross, 847 F.Supp. 643 (W.D.Wis.1994) (); Doe v. Am. Nat'l Red Cross, 845 F.Supp. 1152 (S.D.W.V.1994) (); Berman v. Am. Red Cross, 834 F.Supp. 286 (N.D.Ind.1993) (); Barton v. Am. Red Cross, 826 F.Supp. 412 (S.D.Ala.1993) (); Johnson v. Hosp. of the Medical College of Pa., 826 F.Supp. 942 (E.D.Pa. 1993) ().
Chief Judge Sharp decided this issue in favor of the Red Cross in 1993. In Berman v. American Red Cross, 834 F.Supp. 286 (N.D.Ind.1993), Judge Sharp held that the American National Red Cross was sufficiently tied to the federal government that federal sovereign immunity entitled it to protection from a plaintiff's right to trial by jury. The plaintiff in Berman claimed she suffered excruciating pain and damages as a result of the defendant's negligent attempt to draw her blood. The court discussed Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981), an Age Discrimination in Employment Act case in which the Supreme Court held that the United States is immune from suit as a sovereign (unless it consents to be sued, for example, in a "sue and be sued" clause), and that the Seventh Amendment right to jury trial therefore never existed in a suit against the United States. Lehman, 453 U.S. at 160, 162 n. 9, 101 S.Ct. at 2701, 2702 n. 9. Because "when Congress has waived the sovereign immunity of the United States, it has almost always conditioned that waiver upon a plaintiff's relinquishing any claim to a jury trial," the Lehman court held that the appropriate presumption is against a jury trial right. Id. at 161, 101 S.Ct. at 2702. Congress must "clearly and unequivocally depart[]" from this practice; no jury trial right exists against the government absent an express grant of that right. Id. at 161-162, 101 S.Ct. at 2701-2702. The court held that Congress did not explicitly grant a jury trial right in suits against the federal government in the ADEA, and the plaintiff was not entitled to a jury trial. Id. at 162, 101 S.Ct. at 2702.
The next question the Berman court faced was whether to equate the Red Cross and the government for purposes of sovereign immunity and the protection it affords from jury trials. Noting that some courts have applied Lehman to organizations deemed "instrumentalities," like the Red Cross, and other courts have been reluctant to extend sovereign immunity,1 the court examined several factors in determining whether the Red Cross should enjoy immunity from jury trial, including "the source of funding, the status of the personnel, the accountability to the government and the nature of the Red Cross' duties." Berman, 834 F.Supp. at 291. The court noted that Red Cross has federally-provided headquarters, depends primarily on private funds to carry out its duties, that the President appoints eight of the fifty members of the Board of Governors, and is the subject of a yearly Department of Defense audit (paid for by the federal government). Id. The factor the Berman court found carried the most weight was that the Red Cross "must carry out the Government's obligations resulting from the Geneva treaties." Id. "The fact that the Government organized the Red Cross as a corporation rather than as an agency does not change the Red Cross' inherently governmental purpose nor, consequently, its immunity from suit." Id. at 292.
Since the Berman decision, the Third Circuit has reached the opposite result in the only published circuit court case to address the issue thus far. See Marcella v. Brandywine Hosp., 47 F.3d 618 (3d Cir.1995). The plaintiff in Marcella became infected with Human Immunodeficiency Virus (HIV) from a blood transfusion she received during emergency treatment at a hospital. She sued the hospital and her treating physicians, as well as the American Red Cross and its Penn Jersey Regional Blood Service, who had collected the contaminated blood. The district court held that the plaintiff did not have a right to a jury trial for her claims against the Red Cross, and decided on the merits of the claim that the Red Cross did not cause the plaintiff's harm because although its donor questionnaire was outdated and faulty (in ascertaining potential sources of contaminated blood), the same donor had been allowed to give blood several months after the Red Cross had corrected and updated its screening procedures.
The Third Circuit reversed the district court's decision to deny the plaintiff a jury trial and remanded the case for a new trial because, although the evidence could sustain the court's finding, a jury might have found the Red Cross liable if it made different credibility and causation determinations. Id. The court examined the Red Cross, its charter, and its relationship with the government, and concluded that allowing jury trials against the Red Cross in personal injury suits is not inconsistent with and does not interfere with the Red Cross's role as defined in its charter:
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 American Red Cross is a unique organization. It was chartered by Congress as a federal corporation in 1905. 36 U.S.C. §§ 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.
* * * * * *
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. § 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 Cross and forwards it to Congress. Id. §§ 6-7. The federal government furnishes a building in Washington, D.C. for the organization's headquarters which, however, is responsible for maintenance. Id. § 13.
Commissioned officers of the Army, Navy and Air Force may be detailed for duty with the Red Cross. 10 U.S.C. § 711a. It is given the privilege of purchasing supplies from the Armed Forces, id. §§ 4624-4625, 9624-9625, borrowing certain equipment, id. § 2542, and using government buildings for storing supplies. Id. § 2670. Red Cross employees, in some circumstances, may be furnished meals and quarters while on duty serving the Armed Forces. However, in this connection, "employees of the American National Red Cross may not be considered as employees of the United States." Id. § 2602.
The independence of the Red Cross is demonstrated in that its employees are not federal employees, its activities are supported primarily by private sources,* and its day-to-day...
To continue reading
Request your trial
-
Harrington v. American Nat. Red Cross St. Louis, 4:98CV1682-SNL.
...Red Cross, 837 F.Supp. 121 (E.D.N.C. 1992) (holding Red Cross immune from punitive damages claim). See also Rozak v. American Red Cross Blood Servs., 945 F.Supp. 1183 (N.D.Ind.1996) (holding Red Cross not immune from jury trial in case of transfusion recipient who contracted hepatitis); Ber......