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Doe v. Puget Sound Blood Center11/14/1991
We recognize that these consequences are predicted by persons who seem to be knowledgeable. Some courts have accepted these consequences as though they were established facts. E.g., South Fla. Blood Serv., Inc. v. Rasmussen, 467 So. 2d 798 (Fla. Dist. Ct. App. 1985), aff'd on other grounds, 500 So. 2d 533, 56 A.L.R.4th 739 (Fla. 1987). Some amici cite unreported decisions of various trial courts. Brief of amici American National Red Cross, at 9, 11, and app. They are of little precedential value.
The difficulty with these predictions is that they border on speculation about human conduct in reaction to a limited and restrictive discovery order. It can be argued with equal persuasion that the true public interest is an uninfected blood supply and therefore, public policy should discourage donors who are in the high risk groups. We would like to believe that most persons known to be at risk would forgo donation rather than provide false information as suggested by the Blood Center and some amici. Indeed, one would think that the tests now available might detect false information and prevent contaminated blood from entering the blood supply. Part of the difficulty in assessing the public policy considerations are the rapidly changing medical knowledge, including testing, and the apparent public reactions to the entire AIDS epidemic.
Admittedly the balancing and weighing of interests and values are difficult. There is apparent merit on both sides. However, given this record and considering the limitations and restrictions imposed by the trial court, we conclude that there has not been a clear showing of an abuse of discretion. In the words of State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 482 P.2d 775 (1971), the exercise of discretion was not manifestly unreasonable, it was not exercised on untenable grounds, or for untenable reasons.
The trial court is affirmed.
APPENDIX
Brachtenbach, J.
Response to Dissent
The dissent asserts that once a plaintiff meets "the requirements of CR 26(b)(1) (relevance and nonprivileged subject matter), the issue of privacy drops out of the case as a matter of law". Dissent, at 1. The dissent misses the entire point. The right of privacy would make the matter privileged.
The dissent finds affirmance by the majority to be confusing and logically inconsistent--because the majority declines consideration of the privacy issue on this record. Again the dissent is far off the mark. Establishment of a right of privacy would create another important criteria to be balanced in deciding whether to grant discovery. The majority holds that the death of the donor raises significant issues, not addressed, which precludes determination of the privacy question. There is nothing confusing about the proposition that a discovery order can be affirmed because the defendant did not establish the grounds for a possible defense to discovery, i.e., privacy. The dissent is simply wrong in asserting that the majority has held there is no right of privacy. Dissent, at 8-9. The majority makes no such holding as evidenced rather clearly by stating "the privacy issue cannot be decided on this record." Majority, at 14.
Next the dissent injects a theory totally irrelevant to this case. It does so by discussing disclosure to meet a valid governmental interest. Dissent, at 7-8. This is a matter of private litigation, not disclosure to the government which is what was involved in the only case cited by
the dissent, Peninsula Counseling Ctr. v. Rahm, 105 Wash. 2d 929, 935, 719
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