South Florida Blood Service, Inc. v. Rasmussen

• Decision Date: 23 April 1985
• Docket Number: No. 84-1403,84-1403
• Citation: 467 So.2d 798,10 Fla. L. Weekly 1041
• Parties: 10 Fla. L. Weekly 1041 SOUTH FLORIDA BLOOD SERVICE, INC., Petitioner, v. Donald RASMUSSEN, Respondent.
• Court: Florida District Court of Appeals

Page 798

467 So.2d 798

10 Fla. L. Weekly 1041

SOUTH FLORIDA BLOOD SERVICE, INC., Petitioner, v. Donald RASMUSSEN, Respondent.

No. 84-1403.

District Court of Appeal of Florida Third District.

April 23, 1985.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for petitioner.

Bender, Bender & Chandler and George Bender, Coral Gables, for respondent.

O'Connor & Hannan and H. Robert Halper and Christina W. Fleps, Washington, D.C. for Council of Community Blood Centers as amicus curiae.

Before SCHWARTZ, C.J., and BARKDULL and NESBITT, JJ.

NESBITT, Judge.

South Florida Blood Service, Inc. (SFBS) seeks review, by way of a petition for certiorari, of an order requiring it to produce the names and addresses of fifty-one volunteer blood donors. We grant the petition and quash the order under review. ¹

Donald Rasmussen has sued William DeLoatche and Leonel Levia Monterroso for personal injuries sustained when struck by a motor vehicle allegedly owned and operated by the defendants. It is that litigation which has led to the issue we must resolve. ²

Rasmussen, while hospitalized because of the injuries he sustained in the accident, received fifty-one units of blood. He was subsequently diagnosed as having acquired immune deficiency syndrome (AIDS). Based on that diagnosis, and the opinion of a physician that the AIDS resulted from the transfusions received while hospitalized, Rasmussen served a subpoena duces tecum on SFBS. The subpoena sought "any and all records, documents and other material indicating the names and addresses of the blood donors identified on the attached records of St. Francis Hospital regarding the plaintiff herein, Donald Rasmussen."

SFBS, not a party to the lawsuit, moved to quash the subpoena or for a protective order on the grounds that Rasmussen had failed to show good cause or justifiable reason for the invasion of the private and confidential records of the blood service and its volunteer donors. The motion was denied and SFBS was ordered to produce the requested material.

AIDS

The 1980's have seen the emergence of a new and deadly disease, acquired immune deficiency syndrome or, as it is more commonly referred to, AIDS. The disease is characterized by an improperly functioning immune system which results in a lack of the normal body defense mechanisms and leaves the victim vulnerable to a wide variety of opportunistic diseases. Johnson, AIDS, 52 Medico-Legal Journal 3 (1984). At present, there is no known cause or cure and the mortality rate is high. ³

Medical researchers have identified a number of groups which have a high incidence of the disease and are labeled "high risk" groups. The overwhelming percentage of AIDS victims are homosexual or bisexual males with multiple sexual partners (72%) and intravenous drug users (17%). ⁴

The public has reacted to the disease with hysteria. Reported accounts indicate that victims of AIDS have been faced with social censure, embarrassment and discrimination in nearly every phase of their lives, including jobs, education and housing. ⁵ It is with the above facts in mind that we analyze the respective interests in this case.

DISCOVERY

Florida Rule of Civil Procedure 1.280 allows for discovery of any matter, not privileged, that is relevant to the subject matter of the action. The scope of this rule, while recognized as being broad, Argonaut Insurance Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA), cert. denied, 364 So.2d 889 (Fla.1978), is not without limitation. First, as the rule indicates, irrelevant and privileged matter is not subject to discovery. Fla.R.Civ.P. 1.280(b)(1). See also East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276 (Fla. 5th DCA 1982); Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1981). Second, the discovery of relevant, non-privileged information may be limited or prohibited in order to prevent annoyance, embarrassment, oppression or undue burden of expense. Fla.R.Civ.P. 1.280(c); 1.410(b), (d)(1); Dade County Medical Association v. Hlis, 372 So.2d 117, 121 (Fla. 3d DCA 1979). We are dealing in this case only with this second limitation on discovery.

The discovery rules, enunciated pursuant to the supreme court's rule making authority under article V, section 2(a) of the Florida Constitution, grant courts authority to control discovery in all aspects in order to prevent harassment and undue invasion of privacy. Springer v. Greer, 341 So.2d 212, 214 (Fla. 4th DCA 1976), appeal dismissed, 351 So.2d 406 (Fla.1977). If a person seeking to prevent discovery establishes good cause, then a court may make any order necessary to protect the interests set out in the rules. In deciding whether good cause has been shown it is necessary to balance the competing interests that would be served by the granting or denying of discovery. Hlis, 372 So.2d at 121. See also Lukaszewicz v. Ortho Pharmaceutical Corp., 90 F.R.D. 708 (E.D.Wis.1981); Richards of Rockford, Inc. v. Pacific Gas & Electric Co., 71 F.R.D. 388 (N.D.Cal.1976).

Rasmussen's Interest

Rasmussen claims a need for the disputed information in order to adequately prove aggravation of his injuries and allow for full recovery. In other words, damages can be recovered for Rasmussen's death if it can be shown that the AIDS which resulted in his death was caused by the blood transfusions which were necessitated by the injuries he suffered in the accident. While this is a legitimate interest, its weight is mitigated because there is no indication that the discovery of the donors' names and addresses will add significantly to the proof of causation. ⁶ First, none of the fifty-one donors has been identified as an AIDS victim. ⁷ Second, even if discovery revealed that some of the donors are in high risk groups, that would not establish that any one of them has AIDS, much less that they transmitted it through a transfusion. Since the probative value of the evidence which might be discovered is questionable, Rasmussen's interest in the information is slight when compared with the opposing interests which we now discuss.

The Privacy Interests of the Donors

SFBS and the Council of Community Blood Centers (CCBC), as amicus curiae, argue that the donors' privacy rights are constitutionally based. See, e.g., City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also, art. I, § 23, Fla. Const. ⁸ We must decide whether a constitutionally protected privacy interest is at stake and, if so, whether that interest impacts on the discovery rules or court orders made pursuant to those rules.

There are two recognized zones of privacy. The first, the decision-making or autonomy zone of privacy interests, requires application of a compelling state interest test. That zone of privacy, however, is limited to decision-making interests in highly personal matters such as marriage, procreation, contraception, family relationships and education. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Roe v. Wade; Shevin v. Byron, Harless, Schaffer, Reid & Associates, 379 So.2d 633 (Fla.1980). Such a privacy interest is not at issue in this case.

The second zone of privacy encompasses the interest in avoiding disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-877, 51 L.Ed.2d 64 (1977); Plante v. Gonzalez, 575 F.2d 1119, 1127-28 (5th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979); Florida Board of Bar Examiners Re: Applicant, 443 So.2d 71, 76 (Fla.1983). This is essentially an interest in confidentiality. It is evident Rasmussen needs more than just the names and addresses of the donors. His interest is in establishing that one or more of the donors has AIDS or is in a high risk group. Because the groups at highest risk are homosexuals, bisexuals, intravenous drug users and hemophiliacs, it is obvious that Rasmussen would have to probe into the most intimate details of the donors' lives, including their sexual practices, drug use and medical histories. Both the courts and the legislature have recognized these areas as sanctuaries of privacy entitled to protection. See Priest v. Rotary, 98 F.R.D. 755 (N.D.Cal.1983) (discovery of plaintiff's sexual history prohibited); Lampshire v. Procter & Gamble Co., 94 F.R.D. 58 (N.D.Ga.1982) (identity of subjects of a Centers for Disease Control study entitled to protection where the study contained information about medical history, personal hygiene, menstrual flow, sexual activity, contraceptive methods, pregnancies, douching and tampon use); Argonaut Insurance Co. (medical records of strangers to the suit entitled to protection); Springer (identity of nonparty patients entitled to protection in discovery of pharmacist's records). See also §§ 397.053, .096, 455.241(2), Fla.Stat. (1983) (legislative recognition of the confidentiality of drug abuse treatment and medical patient records). Certainly these fifty-one donors did not anticipate, when they altruistically donated blood, that some future litigant would intrude into these most personal aspects of their lives. Such probing by strangers into these areas of one's life is itself an invasion of privacy entitled to consideration. Plante, 575 F.2d at 1135.

It is also necessary to take into account the ramifications of possible disclosure to persons outside the litigation. The articles cited in note 5 demonstrate that AIDS is the modern day equivalent of leprosy. AIDS, or a suspicion of AIDS, can lead to discrimination in employment, education, housing and even medical treatment. If the donors' names were disclosed outside the litigation, they would be subject to this discrimination and embarrassment, even though most, if not all of the donors, would not be AIDS victims in fact, but only innocent...