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Smith v. Cutter Biological Inc.11/29/1991
This court has accepted a request to address certified questions from the Ninth Circuit Court of Appeals. Smith v. Cutter Biological, Inc. , 911 F.2d 374 (9th Cir. 1990).
I.
CERTIFIED QUESTIONS OF LAW
1. Does Hawaii's Blood Shield Law, Haw. Rev. Stat. § 327-51, preclude Smith from bringing a strict liability claim?
2. Does Hawaii's Blood Shield Law, Haw. Rev. Stat. § 327-51, preclude Smith from bringing a negligence claim?
3. Would Hawaii allow recovery in this case when the identity of the actual tortfeasor cannot be proven? If Hawaii would allow recovery, what theory ( i.e. burden-shifting, enterprise liability, market share or other) would the Hawaii Supreme Court adopt?
Id. at 376. In considering our responses to the questions, we note that the issue as to questions two and three concerns the causation factor in negligence. The instant problem is that the plaintiff cannot identify which particular defendant caused his injury .
Our consideration of the issues is limited to the facts as stated in this record. Procedurally, this case reached the Ninth Circuit Court on a summary judgment motion. The order granting summary judgment did not rule on duty and breach as to the manufacturers; summary judgment was granted on the basis that plaintiff failed to prove causation.
The other elements of negligence, i.e. , duty, breach and damages, are not at issue here. We note that at least two courts have determined, in cases similar to the instant action, that there was no breach of duty. Jones v. Miles Laboratories, Inc. , 887 F.2d 1576 (11th Cir. 1989); McKee v. Cutter Laboratories, Inc. , 866 F.2d 219 (6th Cir. 1989). However, those cases are distinguishable. We do not render an opinion as to whether appellant here will overcome the obstacles met by plaintiffs in those cases; the duty and breach issues here have not only not been decided, they are not before this court on the certified questions. Therefore, we do not deal with the viability of those questions.
Our conclusions deal only with this case -- as it comes to us. Therefore, on our reading of the record as it stands, the relevant statutes, and the relevant case law, we answer "yes" to question one, and "no" to question two. Our answer to question three is "yes," using the alternative market-share theory of recovery, as defined herein.
II.
Appellant is a hemophiliac who has tested HIV-positive with the AIDS virus. He claims that his exposure to the AIDS virus occurred in 1983 or 1984, through injections of the Antihemophilic Factor Concentrate (Factor VIII or AHF). Factor VIII, as more fully discussed in Part III, is a blood protein which enables the blood to properly coagulate when a hemophiliac suffers a bleeding episode. The original source of the Factor VIII is through blood donors.
The United States Tripler Army Medical Hospital (U.S.) was appellant's dispensary for Factor VIII during the period of time in which appellant claims to have been infected. According to appellant, appellee manufacturers furnished to the U.S. the Factor VIII which was used by appellant. Upon appellant's first being tested for HIV antibodies in 1986, the results were positive.
Appellant filed suit against the four appellee manufacturers of Factor VIII for negligence and strict liability. Defendants moved for summary judgment. Despite acknowledging "that this is a case in which it might be reasonable to apply the principles of market share theory of liability," the district court granted summary judgment in favor of appellees, holding that appellant failed to prove specifically which manufacturer's product
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