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GIORNO v. TEMPLE UNIV. HOSP.

January 3, 1995

WILLIAM GIORNO
v.
TEMPLE UNIVERSITY HOSPITAL, DR. JUAN A. ASENSIO, DR. ROBERT KORN, DR. GARBER SCOTT, DR. JOHN HOPKINS, and AMERICAN RED CROSS



The opinion of the court was delivered by: JAMES MCGIRR KELLY

 J.M. KELLY, J.

 Presently before the court is Defendant American Red Cross's ("defendant") Motion for Summary Judgment. Plaintiff commenced this action in the Philadelphia Court of Common Pleas on May 20, 1993. Defendant Red Cross removed the case to this court on June 24, 1993. This court has jurisdiction under 28 U.S.C. § 1332. For the following reasons, the Summary Judgment Motion is granted.

 STANDARD OF REVIEW

 Under Fed. R. Civ. P. 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This court is required, in resolving a motion for summary judgment pursuant to Rule 56, to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, the evidence of the nonmoving party is to be believed, and the district court must draw all reasonable inferences in the nonmovant's favor. See id. at 255. Furthermore, while the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 FACTUAL AND PROCEDURAL HISTORY

 Plaintiff William Giorno ("plaintiff") was injured in an automobile accident on March 28, 1991. He was taken to Temple University Hospital ("Temple") on that day, and remained there until May 4, 1991. During that period, Temple doctors and hospital personnel gave plaintiff a total of eight (8) blood transfusions. The American Red Cross ("Red Cross" or "defendant") supplied the blood that the doctors transfused into the plaintiff.

 On or about July 1, 1991, plaintiff discovered that he had contracted the Hepatitis "C" virus ("HCV"). Plaintiff believed that he acquired the virus from one of the blood transfusions. Therefore, he commenced this action against Temple, the Red Cross, and the physicians who treated him. The complaint set forth the following claims against the Red Cross: 1) strict liability and breach of implied warranty for providing contaminated blood; 2) failure to obtain plaintiff's informed consent prior to the blood transfusions; and 3) negligence in screening and testing blood donors, and failing to address problems in the blood transfusion industry. See Complaint at PP 78 - 83.

 During discovery, the Red Cross voluntarily tested all of the donors who had provided blood to the plaintiff. The Red Cross used the Second Generation Immunoassay HCV Test ("HCV 2.0") on these donors. This test was not in existence at the time the donors gave the blood that plaintiff received. The test revealed that one of the donors was HCV-positive, and may have been at the time of the relevant donation. This donor is hereinafter referred to as Donor #7.

 The Red Cross moved for summary judgment on January 25, 1994. It argued that the Pennsylvania Blood Shield Statute barred plaintiff's strict liability and breach of implied warranty claims. See 42 Pa.C.S.A. § 8333; Cutler v. Graduate Hospital, 717 F. Supp. 338 (E.D.Pa. 1989). The Red Cross also claimed that it had no duty to obtain plaintiff's informed consent, and therefore could not be liable under such a theory. See e.g. Jones v. Philadelphia College of Osteopathic Medicine, 813 F. Supp. 1125 (E.D.Pa. 1993).

 In its response brief, plaintiff conceded and withdrew the strict liability, breach of warranty and informed consent claims. Therefore, the only remaining claims against the Red Cross are those grounded in negligence.

 DISCUSSION

 1. The applicable standard ...


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