The opinion of the court was delivered by: FULLAM
Plaintiff Carol Marcella has become infected with HIV ("the AIDS virus") as a result of a blood transfusion, and has brought this action to recover damages. Her claims against the suppliers of the contaminated blood, the American Red Cross and its Penn-Jersey American Red Cross Regional Blood Services (for convenience, jointly referred to herein as "Red Cross") were severed and have been tried non-jury. The facts are not in substantial dispute, and may be summarized as follows:
Plaintiff Carol Marcella was seriously injured in an automobile accident on February 5, 1985, and was rushed to the Brandywine Hospital for emergency care. She received several blood transfusions. The unit she received at about 8 p.m. was later determined to have been contaminated with the AIDS virus. That unit had been donated on January 29, 1985, by a male homosexual referred to in these proceedings as "Donor X".
As a result of receiving the transfusion of Donor X's blood, Carol Marcella became infected with the AIDS virus. Although she has not developed full-blown AIDS, her prognosis is bleak. Persons whose T-cell blood count is less than 200 are considered to have full-blown AIDS. In healthy persons, the T-cell count is approximately 1200. Carol Marcella's most recent T-cell count was 400. She is being treated with AZT, and is suffering from the various side effects associated with that medication, including headaches, fatigue, nerve inflammation in her legs, anemia, and gastro-intestinal problems. She also suffers from various pulmonary-bronchial and dermatological problems, and severe emotional and psycho-social problems, including fear, frustration, depression and anger. She is, in short, the innocent victim of a devastating tragedy.
A test which makes it possible to determine whether a unit of blood is contaminated with the AIDS virus was approved by the FDA on March 5, 1985 -- just one month after plaintiff's injury. Until that date, the test was being used only on an exploratory basis in laboratories; it had not been licensed or made available to the Red Cross, and could not lawfully have been used if it had been available. As soon as the test became available, the Red Cross fully utilized it, and sought to identify recipients of blood donated by persons whose blood later tested positive. In carrying out this program, which it called "Look Back," the Red Cross learned that a later blood donation made by Donor X on June 8, 1985, was contaminated with the HIV virus. Eventually, by November 11, 1986, it had been determined that Carol Marcella had received a unit of Donor X's blood from the January donation; on that date, Ms. Marcella was first informed of the possibility that she had received contaminated blood.
Donor X had contributed blood to the Red Cross on several occasions. As noted above, he gave blood on January 29, 1985, and again on June 8, 1985. When these donations occurred, Donor X was not aware that he was infected with HIV. He first became aware of his infection on May 8, 1993, after being contacted by the Red Cross and meeting with Dr. William Sherwood of that organization. Donor X was informed that the unit of blood he donated in June 1985 had been tested and found to be contaminated with HIV, and he was urged by Dr. Sherwood to undergo further testing and obtain appropriate medical treatment. But at the time Donor X testified at trial, on July 6, 1993, he had not taken any action to verify his condition or obtain treatment.
By agreement of the parties, Donor X testified in camera, without disclosure of his identity to counsel or the immediate participants. A Red Cross official not directly involved in the litigation had, pursuant to court order, disclosed the name and address of Donor X to the court in camera, and the court then invited him to appear and testify, under assurance of anonymity.
Donor X testified that, until the disclosure by Dr. Sherwood in May 1993, he did not know he had HIV, and had no reason to suspect that he night have become contaminated. As of January 29, 1985, the crucial date for purposes of this litigation, he had had no sexual contact with any other male for at least 18 months. Although he had little or no specific recollection of what questions he was asked and what information he supplied, in connection with the blood donation, he believed he had answered all questions truthfully. He has never used drugs. He did not consider himself to be a member of any group at high risk of AIDS. If he had known of his HIV contamination, he would not, of course, have donated blood.
This case is governed by Pennsylvania law. In Pennsylvania, by statute, the defendant Red Cross cannot be held liable as supplier of a product under Restatement Torts, § 402A, but only upon proof of causative negligence. 42 Pa. Cons. Stat. Ann § 8333. The parties are in agreement that proof of negligence is required, but disagree as to whether the applicable standard of care is that of a "reasonable person," or the standard of care prevailing among blood banks, and generally accepted in that community as appropriate. While I believe it likely that the Pennsylvania Supreme Court would choose the latter standard, see Seitzinger v. American Red Cross, 1992 U.S. Dist. LEXIS 18445, C.A. Nos. 90-46, 90-3890, 1992 WL 361700 (E.D. Pa. Nov. 30, 1992), in the circumstances of this case there is no significant difference, and no difference in result.
The first step in analysis is to establish the prevailing state of medical knowledge about AIDS and its spread, at the pertinent times. Suffice it to say that, by late 1984, at least, and probably earlier, it was a matter of general knowledge in the medical field that AIDS was caused by a virus, HIV, and that it was communicated by transfers of certain bodily fluids. Specifically, it was known that AIDS could be transmitted through homosexual contact, injections using contaminated needles, and blood-transfusions. And there was a growing concomitant concern about the security of the nation's blood supply.
The concern over the blood supply was two-fold, involving, on the one hand, reducing or eliminating the risk that recipients of blood would become infected and, on the other hand, avoiding reduction in available blood supplies through actions which might frighten or discourage potential donors. From the perspective of Red Cross and other volunteer blood banks, the task was to reduce the likelihood that contaminated blood would be donated, without generating a mistaken belief on the part of donors that they themselves might become infected by giving blood. The generally accepted solution, recommended by all the appropriate federal agencies and other organizations, was to identify "high-risk groups," and either refuse to accept blood donations from members of such groups, or quietly discard blood contributed by such groups. The definitions of these high-risk groups, and the best methods of screening, varied over time, as more information became available.
The Center for Disease Control publishes the Morbidity and Mortality Weekly Report ("MMWR"), containing information about communicable diseases and making recommendations for their treatment and prevention. On January 4, 1983, the Center for Disease Control held an open meeting including physicians and scientists representing the CDC, the Public Health Service, the Food and Drug Administration, the National Institutes of Health, the American Red Cross and the American Association of Blood Banks. On March 4, 1983, as an outgrowth of that conference, an inter-agency statement was published in the MMWR. That statement identified the high-risk groups for AIDS as sexually active homosexual or bisexual men with multiple partners, intravenous drug users, individuals who had recently entered the United States from Haiti, the sexual partners of homosexual and bi-sexual men with multiple partners, the sexual partners of IV drug users, and the sexual partners of individuals who had recently entered the United States from Haiti. It was recommended that all members of such groups ...