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Price v. Blood Bank of Delaware2/14/2002
te administrative regulations as well as statutory enactments. Violations of federal administrative regulations have also been recognized as actionable on a negligence per se basis if underlying state law so permits. Stanton by Brooks v. Astra Pharmaceutical Products, Inc., 718 F.2d 553 (3rd Cir. 1983); Orthopedic Equip. Co. v. Eustaten, 276 F.2d 455, 461 (4th Cir. 1960). Establishment of negligence per se through violation of a federal administrative regulation, standing alone, does not establish liability. There must be proof of proximate cause, i.e., that the violation of the regulation was a proximate cause of the plaintiff's injury. Stanton, 718 F.2d at 564. As applied here, plaintiff is entitled to a negligence per se instruction if he establishes a factual basis for causation. Given the general language of the FDA protocol for screening donors, that may prove difficult; but we leave that matter to the presentation of evidence in the event of a retrial.
IV.
Blood Bank has cross-appealed on three grounds, only one of which requires determination in the event of a retrial.
At trial, Blood Bank moved for judgment as a matter of law against three children of Price: Thurmond Price, Dohn Price, and Daretta Wilmer. Blood Bank argued at trial and asserts on appeal that these three plaintiffs are barred from recovering damages in this wrongful death suit because they failed to appear at trial or produce any evidence of damages attributable to their father's death. Thus, any award of damages to them would be based on speculation. Price responds that since other family members offered testimony about the losses suffered by the entire family, the jury had sufficient evidence upon which to determine plaintiffs' losses without speculation.
If Price's children were to recover damages under the wrongful death statute this suit was their only opportunity because 10 Del. C. § 3724(e) provides that " nly 1 action under the subchapter lies in respect to the death of a person." An action under the wrongful death act can be brought either by the personal representative "for the benefit of" the wife, husband, parents, and child of a deceased person or by the named beneficiaries themselves. Johnson v. Physicians Anethesia Service, P.A., 621 F. Supp. 908, 915 (D. Del. 1985). In determining the amount of damages in a wrongful death action, "the court or jury shall . . . fix the award at such sum as will fairly compensate for the injury resulting from the death." 10 Del. C. § 3724(d). The jury or court should consider various factors, including deprivation of expected pecuniary benefits and loss of parental services. Id. The trial judge correctly rejected Blood Bank's motion on the ground that other siblings confirmed the close relationship among family members. The absence of direct testimony by each plaintiff goes to the weight of the evidence, not to its admissibility.
The judgment of the Superior Court is REVERSED and this matter is REMANDED for a new trial consistent with this opinion.
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