Reading Hospital and Medical Center Blood Bank, in a letter dated January 27, 1987, advised Dr. Thomas Stewart, Sallie Smith's primary care physician, that Sallie Smith had been transfused with a blood product of a donor who subsequently tested HIV positive.
On February 10, 1987, during an office visit, Dr. Stewart advised Sallie Smith and her husband, Aaron Smith, that she could have been infected with the HIV virus during the surgery. Stewart Dep. at 14. Dr. Stewart provided the Smiths with details about the disease,
gave them a handout on AIDS and arranged for HIV testing at Reading Hospital. Id.
Dr. Stewart received Sallie Smith's positive test result sometime between February 10, 1987 and March 23, 1987, the day on which he informed the Smiths of the results. Aaron Smith did not test positive. Dr. Stewart informed the Smiths that Sallie Smith would develop AIDS as a result of her HIV infection, there was no cure and she would ultimately die from it. Stewart Dep. at 14-16. Dr. Stewart also reviewed blood and body fluid precautions
with the Smiths and told them that Sallie Smith would have to be monitored closely and treated with medications as needed to combat opportunistic diseases. Id.
Dr. Stewart treated Sallie Smith throughout her illness and monitored and documented the progression of the HIV infection. Until June 29, 1992, Dr. Stewart's progress notes referred to Sallie Smith and her condition alternatively as an "asymptomatic HIV individual" and "asymptomatic HIV infection." As of June 29, 1992 Sallie Smith's condition was referred to as "HIV with H-Zoster".
Sallie Smith died on September 5, 1993. The Certificate of Death lists the cause of death as "Human Immunodeficiency Viral Infection."
Aaron Smith filed the present action on October 3, 1993 alleging causes of action for negligence, strict liability, breach of warranties, survival action and wrongful death against defendants Red Cross, Keystone Community Blood Bank Inc., and Reading Hospital. Plaintiff also alleged a cause of action for informed consent battery against Reading Hospital. By stipulation of the parties, defendant Keystone Community Blood Bank, Inc. was dismissed without prejudice as a party to this action. In addition, this court granted the Motions to Dismiss claims based on strict liability and breach of implied warranty of both defendants Red Cross and Reading Hospital as well as the claim for informed consent battery asserted solely against Reading Hospital.
III. LEGAL STANDARD
A. Amendment of Complaint
Federal Rule of Civil Procedure 15(a) provides that a "party may amend [it's] pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." A motion to amend must be denied if prejudice will result to the non-moving party. Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3rd Cir. 1993). Likewise, denial can be based on "bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment." Id. A proposed amendment which is barred by the statute of limitations is futile as such an amendment can neither "cure the deficiency in the original complaint" nor "withstand a renewed motion to dismiss." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
B. Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment shall be properly granted if "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of "showing--that is, pointing out to the district court--that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992). The "nonmoving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Telephone Co. of Pennsylvania, 24 F.3d 508, 511 (3d Cir.1994).
When considering a motion for summary judgment, "inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Id. at 512. The court may not make credibility determinations or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the record thus construed could not lead the trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
As previously stated, the Red Cross and Reading Hospital both have moved for summary judgment on the ground that plaintiff's claims are barred under the applicable Pennsylvania statutes of limitations. They argue that plaintiff's negligence and survival claims are governed by Pennsylvania statute 42 Pa.C.S.A. § 5524, which states that negligence, resulting wrongful death,
and survival claims must be commenced within two years of the date on which the injury giving rise to the claim is sustained. Defendants maintain that the cause of action for these claims began to run on March 23, 1987 when Sallie Smith learned both that she was HIV positive and the cause of her illness. Suit was not filed until October 14, 1993 - - over six and one-half years later.
While defendants claim that plaintiff's suit must be dismissed for failing to satisfy timely filing requirements, plaintiff argues that this court should extend the Pennsylvania separate disease rule to cases in which the claimant's injury results from HIV infection. Under such a framework, HIV infection and AIDS would be treated as "separate and distinct" illnesses, with each representing a separate cause of action and triggering a new statute of limitation. Plaintiff seeks leave to amend the complaint to aver that Sallie Smith died from AIDS and not HIV infection, as alleged in the original complaint, in order to take advantage of such a ruling and to salvage what might otherwise be a time barred claim.
Under Pennsylvania statute 42 Pa.C.S.A. § 5524, negligence, resulting wrongful death, and survival claims must be commenced within two years of the date on which the injury giving rise to the claim is sustained. However, when the injured party is unable, despite the exercise of due diligence, to know of the injury or its cause, the "discovery rule" tolls the statute of limitations until the plaintiff "knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 633 A.2d 1172, 1174 (Pa.Super. 1993).
In Murray v. Hamot Medical Center of City of Erie, 429 Pa. Super. 625, 633 A.2d 196, 200 (Pa.Super. 1993), the Superior Court of Pennsylvania, in affirming the lower court ruling, held that the discovery rule is applicable in cases involving HIV infection. The facts of Murray are substantially similar to the facts of the case now before the court. Plaintiff Murray, who contracted HIV through blood administered during open heart surgery, failed to file suit against defendants within two years of learning that he was HIV positive. The Court of Common Pleas of Erie County ruled that plaintiff's action was time barred and granted defendants' motions for summary judgment.
On appeal, the Murray Court dismissed plaintiff's argument that to sue solely on the basis of HIV transmission, without any corresponding illness, was "premature." Instead, the court reasoned that plaintiff suffered an injury "once he was infected with HIV" and that his cause of action began to accrue when he "subsequently learned about the infection and its cause." Id., at 202. Armed with this information, the Court wrote that "it was incumbent upon [plaintiff] to take legal action for his injury within two years from that date." Id., at 201.
The Court squarely rejected plaintiff's contention that an HIV-infected person has no damages during the time he is asymptomatic by noting that, although an infected person may appear asymptomatic, the virus "continues to affect the host's immune system until it becomes so depressed that a limitless number of life-threatening infirmities may occur." Id., at 200.
In the instant case, plaintiff's claim, as averred in the original complaint, would be time barred under Pennsylvania law. Although Sallie Smith was infected in December of 1984, under the discovery rule the statute of limitations was tolled until March 24, 1987, the day she learned both that she was HIV positive and the cause of her illness. As of that date, it was incumbent upon Sallie Smith to file suit within two years. Aaron Smith, as administrator of the estate of Sallie Smith, did not file suit until October 14, 1993 - - over six and one-half years later. Therefore, this court finds that plaintiff's negligence, resultant wrongful death, and survival claims clearly are time barred.
In opposition to the result reached by this court that the present action is time barred, plaintiff presents an argument suggesting that the courts of Pennsylvania should apply the separate disease rule to tort cases involving HIV/AIDS and seeks Leave to Amend to aver that Sallie Smith died from AIDS, not HIV. Prior to the articulation of the separate disease rule in Marinari v. Asbestos Corp. Ltd., 417 Pa. Super. 440, 612 A.2d 1021 (1992), Pennsylvania followed the general rule that "all claims against a defendant arising from a single transaction or occurrence must be asserted in a single action." Id., at 1027. However, the Marinari Court reasoned that the single disease rule presented a problem in the context of asbestos litigation in that once plaintiffs are informed that they have pleural thickening (the first manifestation of asbestos exposure), they must bring an action within the applicable statute of limitation to make a claim for their present condition and for "any and all predictable later diseases and or injuries related to asbestos exposure." Id., at 1025. Such a rule, the Court opined, caused "inequities" because asbestos exposure does not result in only one disease. That is, the
damage to the human body which may result from asbestos exposure does not occur as a seamless progression of a single pathology. Instead, exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times.
Id., at 1024.
As a consequence, the Court posited that the evidence employed to prove the possibility of future disease is inherently speculative and can result in "unfairly excessive or inadequate compensation" - - that is, some plaintiffs would receive windfall damages for diseases that never materialize while others may receive little or no compensation for diseases which later became manifest. The Court wrote:
. . . , even plaintiffs who later contract cancer and who have recovered some amount of risk of cancer damages may emerge with an inequitable award, since the jury, cognizant of the less than one hundred percent chance that the plaintiff will contract cancer, likely will have awarded less than one hundred percent damages. Finally, inequitable awards are more likely to result from a future damages action simply because the damages cannot be known.
Id., at 1027.
The Court continued by noting that although the prohibition against "splitting" a cause of action is designed to prevent delay and the waste of resources, this approach must yield when the "judicial objectives underlying the same are outweighed by the need to effect a just result based upon proof rather than upon sheer speculation." Id. The Court concluded that the "better view" is to allow recovery in a first action
only for a disease which has already manifested itself from exposure to asbestos and the natural, predictable progression, if any, of that disease. If additional injuries from a separate disease manifest themselves in the future, such injuries will support a second action.