Spence v. Miles Laboratories, Inc., CIV-1-91-185.

• Citation: 810 F. Supp. 952
• Decision Date: 20 November 1992
• Docket Number: No. CIV-1-91-185.,CIV-1-91-185.
• Parties: Jennifer SPENCE, individually and as surviving spouse of Wynne Spence, deceased, Plaintiff, v. MILES LABORATORIES, INC., individually and d/b/a Cutter Laboratories, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

810 F. Supp. 952

Jennifer SPENCE, individually and as surviving spouse of Wynne Spence, deceased, Plaintiff, v. MILES LABORATORIES, INC., individually and d/b/a Cutter Laboratories, Defendants.

No. CIV-1-91-185.

United States District Court, E.D. Tennessee, at Chattanooga.

November 20, 1992.

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Jeffrey D. Boehm, Jerry H. Summers, Chattanooga, TN, for plaintiff.

L. Jay Miller, Waring Cox, Memphis, TN, Terry O. Tottenham, Fulbright & Jaworski, Austin, TX, for defendants.

MEMORANDUM

EDGAR, District Judge.

This Court has previously denied a motion by defendant Miles Laboratories, Inc. ("Miles") for summary judgment. This case is now before the Court on Miles' motion to reconsider. This motion raises several issues which will be discussed in this memorandum. For the reasons discussed herein, Miles' motion for summary judgment will be GRANTED and the case DISMISSED.

I. Standard of Review

Fed.R.Civ.P. 56(c) provides that summary judgment will be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir.1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); 60 Ivy Street, 822 F.2d at 1435-36. The standard for summary judgment mirrors the standard for directed verdict. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. There must be some probative evidence from which the jury could reasonably find for the nonmoving party. If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Id.

II. Facts

The Court has reviewed the record in the light most favorable to plaintiff and makes the following findings of fact. Wynne Spence was born with hemophilia, an inherited disorder in which the hemophiliac's own blood lacks certain key "clotting factors" which are essential to normal blood clotting. Persons with hemophilia are subject to episodes of uncontrolled bleeding which can be fatal. Wynne Spence was first diagnosed as having Hemophilia B involving a Factor IX deficiency in June 1977 after an automobile accident. At that time, he received fresh frozen plasma and a Factor IX blood-clotting factor concentrate manufactured by Hyland known as PROPLEX. In January 1981, Mr. Spence received Factor IX blood-clotting factor concentrate while undergoing oral surgery for the removal of his wisdom teeth. Mr. Spence also received Factor IX blood clotting factor concentrate in September 1982 while being treated for an injury to his knee.

KONYNE-HT was first licensed by the United States Food and Drug Administration in October 1984. KONYNE-HT is a product manufactured and distributed by Cutter Laboratories which is a division of Miles. KONYNE-HT is a Factor IX concentrate derived from human plasma which has undergone heat treatment during its processing. Miles contends that its heat treating process inactivates any HIV in the plasma obtained from blood donors which can cause AIDS.¹

In July and August 1986, Wynne Spence was treated with KONYNE-HT as prescribed by his family physician, Vincent Haren, M.D. The particular KONYNE-HT which was administered to Mr. Spence originated from Lot No. 20P010. The plasma from which KONYNE-HT Lot No. 20P010 was derived was obtained from various blood donors during the period of time from October 1984 through early March 1985. The plasma was processed by Miles beginning on March 18, 1985, and continuing through April 3, 1985. The resulting KONYNE-HT was heat-treated in late May and early June, 1985. KONYNE-HT Lot No. 20P010 was released by Miles for distribution on July 16, 1985, and was shipped to Erlanger Hospital in Chattanooga, Tennessee, on October 1 and 9, 1985.

The usual shelf life or date of expiration of KONYNE-HT in 1985 and 1986 was two years from the date of manufacture. The expiration date on KONYNE-HT Lot 20P010 was June 5, 1987. Wynne Spence was diagnosed as suffering from AIDS on March 22, 1990, after being tested for AIDS for the first time. Wynne Spence and Jennifer Spence filed suit against Miles in the Circuit Court of Hamilton County, Tennessee, on March 20, 1991, and Miles subsequently removed the case to this Court. Mr. Spence died on March 24, 1992, as a result of health complications associated with AIDS. This suit is being carried on by his surviving spouse, Jennifer Spence, pursuant to Tenn.Code Ann. § 20-5-106(a). Dr. Haren has rendered his expert medical opinion that Mr. Spence became infected with the AIDS virus in July and August 1986 when Mr. Spence was treated with KONYNE-HT which was manufactured by Miles using plasma from donors who had not been tested or screened for the AIDS virus. Miles disputes that KONYNE-HT caused Mr. Spence to contract AIDS. Miles asserts that its heat treatment process is completely effective for inactivating the AIDS virus and Mr. Spence was infected with the AIDS virus prior to 1986.

Plaintiff claims that Miles was negligent in not withdrawing from the market KONYNE-HT derived from blood or plasma which had not been tested or screened for the AIDS virus, and also negligent for failing to warn that the plasma it used to manufacture the KONYNE-HT administered to Mr. Spence had not been tested for the presence of the AIDS virus. In the alternative, plaintiff claims Miles is liable pursuant to Tenn.Code Ann. § 68-32-102. These claims are premised upon Tennessee law and the plaintiff has invoked the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332.

III. Analysis

A. Tenn.Code Ann. § 68-32-102

The first question to be resolved is whether plaintiff can maintain a cause of action against Miles pursuant to Tenn.Code Ann. § 68-32-102 which provides in part:

(a) All facilities collecting fresh human blood or plasma directly from an individual donor shall have such blood or plasma tested for the potential presence of the causative agent for Acquired Immune Deficiency Syndrome (AIDS).

(b) Any blood shown by appropriate medical testing to be potentially contaminated by the causative agent for AIDS shall not be used for transfusions, or for any other purposes which may pose a threat of transmission of the virus.

(c) Any person who contracts AIDS from any contaminated blood or blood product shall have a cause of action for damages, including all medical expenses, against any facility supplying untested blood, if such person can establish that such person received any untested blood, or blood product derived therefrom, from such supplier.

The statute was enacted by the General Assembly of Tennessee effective March 24, 1986. It creates a new cause of action whereby a person who contracts AIDS from any untested blood or blood product can recover damages from the supplying facility.

Does the AIDS statute provide the Spences a cause of action in this case? The general rule in Tennessee is that "a statute will be presumed to operate prospectively and not retroactively unless it clearly appears from the statute that the Legislature intended it to operate retroactively. A statute should not be given retroactive operation unless its words make that imperative." Smith v. State Farm Mutual Auto Ins. Co., 278 F.Supp. 405, 410 (E.D.Tenn. 1967); see also Shultz v. Dempster Systems, Inc., 561 F.Supp. 1230, 1232 (E.D.Tenn.1983); Woods v. TRW, Inc., 557 S.W.2d 274, 275 (Tenn.1977); Dailey v. State, 225 Tenn. 472, 470 S.W.2d 608 (1971); Collins v. East Tenn., Va. & Ga. Railroad Co., 56 Tenn. 841 (1872). Especially when a statute creates a new right, as does § 68-32-102, and the statute is not merely remedial in nature, it must be applied prospectively only. Tenn. Const. art. I, § 20; Menefee Crushed Stone Co., Inc. v. Taylor, 760 S.W.2d 223, 226-27 (Tenn. App.1988); Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 775 (Tenn. App.1983); Anderson v. Memphis Housing Authority, 534 S.W.2d 125, 127-28 (Tenn. App.1975); cf. Morris v. Gross, 572 S.W.2d 902, 907 (Tenn.1978). Miles collected the plasma, processed it, and manufactured and distributed the KONYNE-HT Lot No. 20P010 to Erlanger Hospital in 1984-1985 before § 68-32-102 became effective. There is no language in the statute which indicates that the Tennessee General Assembly intended the statute to have retroactive application. Section 68-32-102 cannot be...