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Smith v. Cutter Biological Inc.11/29/1991
ish when and how he was infected by the HIV virus, and the fact that information regarding AIDS and the techniques to detect the HIV virus were just being developed during the pertinent period, make it impossible for Smith to prove a standard of care. The majority's decision now allows all of the parties to proceed to trial, which undoubtedly will result in substantial costs and attorneys' fees being incurred. However, the expenditure of time and money will be for naught.
For these reasons, I would answer the certified questions as follows:
1. Hawaii's blood shield law, HRS ยง 327-51, precludes Smith [plaintiff] from bringing a strict liability claim.
2. Hawaii's blood shield law does not preclude Smith from bringing a negligence claim as to any defendant against whom Smith is able to establish 1) a duty owed to him; 2) breach of that duty; 3) causation; and 4) injury . The statute requires Smith to prove that his HIV infection was caused by one of the defendant's own negligence.
3. Hawaii does not recognize the applicability of any nonidentification theory of causation to this case. The circumstances of this action do not provide a sufficient or appropriate basis to depart from the well-established principles of negligence liability under Hawaii law.
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