Smith v. Paslode Corp.

• Decision Date: 16 March 1992
• Docket Number: No. 88-2247C(7).,88-2247C(7).
• Parties: Kevin Luke SMITH, et al., Plaintiffs, v. PASLODE CORPORATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

799 F. Supp. 960

Kevin Luke SMITH, et al., Plaintiffs, v. PASLODE CORPORATION, et al., Defendants.

No. 88-2247C(7).

United States District Court, E.D. Missouri, E.D.

March 16, 1992.

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Drew Baebler, Schlichter Law Associates, St. Louis, Mo., for plaintiffs.

Frank Gundlach Armstrong, Teasdale, Schlafly, Davis & Dicus, St. Louis, Mo., Brendan Collins, Arnold & Porter, Washington, D.C., for American Red Cross.

Ronald Willenbrock, Stephen Hoyne, Amelung, Wulff & Willenbrock, St. Louis, Mo., and Bruce Bieneman, Cholette, Perkins and Buchanan, Grand Rapids, Mich., admitted pro hac vice for Paslode Corp., Signode Corp., Signode Supply Corp. and Illinois Tool Works.

Judith St. Pierre, Lashly, Baer & Hamel, St. Louis, Mo., for St. Luke's Episcopal Hosp.

MEMORANDUM AND ORDER

HAMILTON, District Judge.

This matter is before the Court pursuant to the Motion of Paslode Defendants for Partial Summary Judgment, filed February 15, 1991, Defendant American Red Cross's Motion for Summary Judgment, filed February 15, 1991, and Defendant American Red Cross's Motion for Protective Order, filed April 1, 1991.

Summary judgment is appropriate when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When presented with such a motion, the Court must determine whether any genuine factual issues exist that only the finder of fact can properly resolve since they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law determines which facts are relevant and which are immaterial. Only disputes which might affect the outcome will properly preclude summary judgment. Id. at 248, 106 S.Ct. at 2510. Factual disputes that are irrelevant or unnecessary to the cause of action will not preclude a summary judgment. Id. When evaluating a motion for summary judgment the Court must view the facts in the light most favorable to the party against whom the motion is directed, giving such party the benefit of all reasonable inferences to be drawn from the facts. Portis v. Folk Constr. Co., 694 F.2d 520, 522 (8th Cir.1982). The moving party always bears the burden of informing the Court of the basis for the motion. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. However, the party opposing the summary judgment motion may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a material factual dispute. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

In their First Amended Complaint, Plaintiffs allege that in November 1983, Kevin Luke Smith was injured when a pneumatic nail gun, manufactured, sold and distributed by the Paslode Defendants, fired a nail through his left hand. As a result of this injury, Kevin Smith underwent surgery and received blood transfusions in December 1983 and September 1984. In August and September 1987, Kevin Smith was diagnosed as infected with the human immuno-deficiency virus (HIV). Plaintiffs allege that one or more of the blood products received by Kevin Smith in 1983 and 1984 and gathered by Defendant American Red Cross (ARC) was infected with the HIV.

In Counts I and II, Kevin Smith charges the Paslode Defendants with products liability and negligence in the manufacture of the nail gun. In Count III, Kevin Smith charges Defendant ARC with several instances of negligence in relation to the blood products provided to him in 1983 and 1984. In Count IV, Constance Smith, wife of Kevin Smith, alleges loss of consortium against both Defendants.

MOTION OF THE PASLODE DEFENDANTS FOR PARTIAL SUMMARY JUDGMENT

The Paslode Defendants move for summary judgment as to Count IV, arguing that since Constance Smith was not married to Kevin Smith at the time of the incident involving the nail gun, she cannot maintain a loss of consortium action against the Paslode Defendants. Constance Smith counters that the HIV condition diagnosed in August and September 1987 was a latent condition which resulted from the nail gun incident; therefore, her cause of action accrued when that condition was diagnosed in August or September 1987, five or six months after her marriage to Kevin Smith on March 7, 1987.

Two independent, separate and distinct causes of action arise when a married person is injured because of the negligence of a third person. Robben v. Peters, 427 S.W.2d 753, 756 (Mo.Ct.App.1968). One action accrues to the injured person for injuries, disabilities and expenses suffered as a direct result of the negligence. Id. A second action accrues to the injured person's spouse for damages suffered due to the loss of the injured person's services, society and companionship. Id. However, this action for loss of a spouse's services, society and companionship is derivative only; therefore, if the injured person has no valid claim for personal injuries, the spouse of the injured person has no right to recover damages flowing from that injury. Elmore v. Illinois Terminal R.R. Co., 301 S.W.2d 44, 47 (Mo.Ct.App.1957).

Generally, claims for loss of consortium based on injuries received prior to marriage are precluded. However, some courts have recognized an exception to this rule, holding that where neither spouse is aware of the tortious conduct or injury at the time of marriage, a loss of consortium claim is still available. Kociemba v. G.D. Searle & Co., 683 F.Supp. 1577, 1578 (D.Minn.1988); Stager v. Schneider, 494 A.2d 1307, 1316 (D.C.Dist.Ct.App.1985); Furby v. Raymark Indus., Inc., 154 Mich. App. 339, 397 N.W.2d 303, 306 (1986). In reaching this determination, the courts reasoned that the claim for loss of consortium could not accrue until the injured spouse's cause of action accrued. Stager, 494 A.2d at 1316. Contra Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 733 P.2d 530, 538 (1987) (holding that the wife's loss of consortium claim did not necessarily accrue at the same time her husband's negligence claim accrued). Applying the discovery rule which states that an injured person's cause of action does not accrue until the damage is reasonably discoverable or ascertainable, the courts found that the spouse's loss of consortium claim also does not accrue until the injury is reasonably discoverable. Stager, 494 A.2d at 1316; Furby, 397 N.W.2d at 306.

In the present case, Kevin Smith alleges he was injured in November 1983 when a nail was fired through his left hand by a nail gun manufactured by the Paslode Defendants. He underwent surgery for this injury in December 1983 and September 1984. Kevin Smith began dating Constance Smith in 1983, prior to the nail gun incident. Kevin and Constance became engaged in June 1986. At that time they began living together. They married on March 7, 1987. From this undisputed evidence, the record is clear that Kevin and Constance Smith were aware at the time of their marriage of the tortious conduct and injury that they attribute to the Paslode Defendants, as distinct from the HIV infection.

Plaintiffs argue for the adoption by this Court of the above-stated exception to the general rule. According to Plaintiffs, that exception should apply in this case since the HIV infection was diagnosed subsequent to their marriage; therefore, the cause of action accrued at the time of the diagnosis. The Court, however, finds it is unnecessary to determine whether this exception should be adopted. Applying this exception would not rescue Constance Smith's loss of consortium claim since Kevin Smith's cause of action against the Paslode Defendants accrued in November 1983, prior to their marriage. At that time, Kevin Smith could reasonably ascertain the tortious conduct and the damage sustained as a result of that conduct. It was at that point that Kevin Smith's right to commence an action arose. See Renfroe v. Eli Lilly & Co., 686 F.2d 642, 647 (8th Cir.1982); West v. Atlas Chemical Indus., Inc., 264 F.Supp. 697, 700 (E.D.Mo.1966) (citing Rippe v. Sutter, 292 S.W.2d 86, 90 (Mo. 1956)); Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 814 (Mo.Ct.App. 1982). Although the HIV infection was arguably a latent condition not reasonably ascertainable prior to August or September 1987, the element of damage was established previously when the nail injured Kevin Smith's hand. Therefore, the HIV infection constituted additional damage, but did not create a new and separate cause of action against the Paslode Defendants.

Since Constance Smith was not married to Kevin Smith at the time his cause of action against the Paslode Defendants accrued, she may not maintain a loss of consortium claim against those defendants. Therefore, the Motion of Paslode Defendants for Partial Summary Judgment is granted.

MOTION OF DEFENDANT AMERICAN RED CROSS FOR SUMMARY JUDGMENT

In its motion, Defendant ARC asserts that it is entitled to summary judgment since it satisfied the generally recognized and accepted practices of blood bank professionals when it collected and processed the blood received by Kevin Smith. Moreover, ARC contends that Plaintiffs' experts are not qualified to testify as to the applicable standard of care in the blood banking profession. Alternatively, ARC contends that its alleged negligence was not the proximate cause of Plaintiffs' injuries and that strict liability and implied warranties do not apply to the collection and processing of blood products in Missouri. Finally, ARC asserts that Plaintiffs' action is barred by the applicable statute of limitations.

Plaintiffs and the Paslode Defendants counter that the professional standard of care which applies in actions against physicians and hospitals does not apply to the ARC. Rather, they contend that the ordinary standard of care applies, requiring the ARC to use the degree...