as a result learned that she was HIV positive.
All of the blood administered to plaintiff at the Hospital in 1986 came from the Red Cross. Pursuant to a contract between the Hospital and the Red Cross, the Red Cross bore the responsibility for testing all blood before delivering it to the Hospital. See Albany Medical Center's Exhibit F. Thus, the Hospital had no contractual duty to test the blood. Moreover, plaintiff does not dispute the fact that she required the emergency surgery or that the surgery was a success. See Transcript of Proceedings Before this court dated March 12, 1992 at 17. Under these circumstances, the Hospital contends that it is entitled to judgment as a matter of law. Likewise, the Red Cross contends that it is entitled to judgment as a matter of law because its procedures both complied with all applicable FDA regulations and American Association of Blood Banks standards and were consistent with the prevailing practices of volunteer blood collectors throughout the nation in April 1986. Plaintiff orally informed this court that she opposed defendants' motions. However, she submitted no papers in opposition thereto nor did she appear before the court on May 5, 1992, at which time the court entertained oral argument on these motions.
A. Summary Judgment Standard
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The mere existence of some alleged factual dispute, however, will not defeat such a motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, (1986). Rather, Rule 56 of the Federal Rules of Civil Procedure ("Rule 56") requires that there be no genuine issue of material fact. Id. at 2488, 106 S. Ct. at 2510, 91 L. Ed. 2d at (emphasis in the original). Material facts are defined as those which might affect the outcome of the suit under the governing law. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2558, 91 L. Ed. 2d 265, (1986). Once the moving party has met this burden, the burden shifts to the non-movant to demonstrate that there is a genuine issue of material fact. In this regard, the non-movant must do more "than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, (1986). "Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact. To avoid summary judgment, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor." Greenblatt v. Prescription Plan Servs. Corp., 783 F. Supp. 814, 819-20 (S.D.N.Y. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (interpreting the "genuineness" requirement)).
Moreover, as a preliminary matter, the non-movant must "make a showing sufficient to establish the existence of [all of the] elements essential to [her] case, and on which [she] will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552, 91 L. Ed. 2d at . If the non-movant fails to satisfy this initial burden, there can be no genuine issue as to any material fact because "[a] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552, 91 L. Ed. 2d at . Under these circumstances, the moving party is entitled to a judgment as a matter of law. Id. at 323, 106 S. Ct. at 2552, 91 L. Ed. 2d at .
Furthermore, for purposes of determining whether or not to grant summary judgment, the language of Rule 56 limits the information which the court may consider to the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file. In this regard, movants' uncontested assertions in their Rule 10(j) Statement are deemed admitted for purposes of deciding whether summary judgment should be granted. See Local Rule 10(j); see also Blackwelder v. Safnauer, 689 F. Supp. 106, 112-13 n.2 (N.D.N.Y. 1988), appeal dismissed, 866 F.2d 548 (2d Cir. 1989). In contrast, as one court in this Circuit has stated
it is now well-settled that legal memoranda and oral argument are not evidence and "cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion where no dispute otherwise exists." British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 ([9th Cir.] 1978) [, cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 241 (1979)]; see also Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir. 1984); Watts v. United States, 703 F.2d 346, 353 (9th Cir. 1983).
United States v. United States Currency in Amount of $ 23,481.00, 740 F. Supp. 950, 955 (E.D.N.Y. 1990).
It is with these requirements in mind that he court must determine whether summary judgment is warranted in this case.
B. Plaintiff's Negligence Claims
Under New York law, in order to prevail in an action based on negligence, plaintiff must demonstrate that defendants owed her a duty, that they breached this duty, and that this breach was the proximate cause of her injury. See Kazanoff v. United States, 945 F.2d 32 (2d Cir. 1991) (citing Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648, 424 N.E.2d 531 (1981)). More specifically, in the context of medical negligence claims, the Red Cross and other volunteer blood collections organizations are held to the prevailing standard of care in their profession. See Hoemke v. New York Blood Center, 912 F.2d 550, 552 (2d Cir. 1990) (citing Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 480-81, 385 N.Y.S.2d 772, 775 (1st Dep't 1976)); see also Valdiviez v. United States, 884 F.2d 196 (5th Cir. 1989); Shelby v. St. Luke's Episcopal Hosp., No. H-86-3780, 1988 U.S. Dist LEXIS 16995 (S.D. Tex. Mar. 17, 1988); United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992). Notwithstanding this general rule, however, if a given profession lags behind in adopting procedures that reasonable prudence would dictate should be instituted, the court is free to hold a given defendant to a higher standard of care than that adopted by the applicable profession. See Hoemke, 912 F.2d at 552 (citing The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.) (Learned Hand, J.), cert. denied, 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571 (1932) (other citations omitted)).
There is no indication that volunteer blood collection organizations such as the Red Cross have lagged behind in adopting procedures to detect AIDS and other viruses which can be carried by the blood supply. In fact, a brief review of the history of AIDS and HIV detection supports a contrary conclusion. It was not until May 1984 that Dr. Gallo of the National Institute of Health's National Cancer Institute reported that he had isolated the retrovirus that causes AIDS. See Lamberson Declaration at P 13. Just prior to Dr. Gallo's published report, the Secretary of Health and Human Services announced the isolation of the AIDS virus and proclaimed that a blood screening test would be forthcoming. See Lamberson Declaration at P 14. Until March 1985, there was no licensed test available for the routine screening of blood to detect the presence of AIDS, antibodies to HIV, or HIV itself. On March 2, 1985, however, the FDA licensed a blood test to identify carriers of antibodies to HIV. See Lamberson Declaration at P 15.
The Red Cross, along with other blood centers, promptly implemented this test. The test's effectiveness, however, is limited because it screens only for antibodies to HIV, not for the virus itself. See id. Consequently, blood tests such as this one licensed by the FDA and used by the Red Cross can detect most, but not all, HIV-infected persons. Due to the nature of the HIV virus, persons who carry and transmit HIV may not develop these detectable antibodies to HIV for a period of time commonly referred to as the "window period." The length of this "window period" ranges from a few weeks to as much as six months or more. See Lamberson Declaration at P 16. (citing Menitove, Current Risk of Transfusion Associated Human Immunodeficiency Virus Infection, 114 Arch. Pathol. Lab. 330 (1990)). Unfortunately, there is no available test which can determine whether blood taken from an infected donor during this time period is tainted.
There is no dispute that the Red Cross and the Hospital owed plaintiff a duty to meet the prevailing standard of care in their professions. However, there is nothing in the record to support a finding that either defendant failed to meet the applicable standard. The Red Cross complied with all of the FDA regulations as well as the standards for blood banks and hospital transfusion services promulgated by the American Association of Blood Banks. See Lamberson Declaration at PP 11, 12. In addition, as outlined above, the Red Cross carefully screened all potential donors in an attempt to ascertain whether they were infected with HIV, AIDS, or any other blood transmissible diseases. Furthermore, with regard to the Hospital's behavior, it procured blood only from the Red Cross which was contractually responsible for testing the blood before it was delivered for use. There is nothing in the record to indicate that the Hospital failed to meet its duty of care to plaintiff by relying on the Red Cross' testing procedure for blood products.
Under similar circumstances, courts have granted summary judgment to defendants whose blood screening and testing procedures conformed to the applicable professional standards. See generally Valdiviez, 884 F.2d 196; Shelby, 1988 U.S. Dist LEXIS 16995 (summary judgment granted because it was uncontroverted that blood bank had followed all recommended donor screening procedures, federally-mandated screening tests, and other standards of care mandated or recommended by standard setting organizations); McKee v. Miles Lab., Inc., 675 F. Supp. 1060 (E.D. Ky. 1987), aff'd sub nom. McKee v. Cutter Lab., Inc., 866 F.2d 219 (6th Cir. 1989) (summary judgment granted because testing procedures complied with prevailing practice). Thus, on the basis of the facts before the court and the relevant case law, the court concludes that defendants did not breach their duty of care to plaintiff with regard to their handling of the blood with which plaintiff was transfused. Therefore, plaintiff has failed to establish an essential element of her prima facie case of negligence; and, consequently, defendants are entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322, 106 S. Ct. at 2552, 91 L. Ed. 2d at . Accordingly, the court grants defendants' motions for summary judgment.
Based on the facts before it and the relevant case law, the court concludes that plaintiff has failed to establish a prima facie case of negligence against either the Red Cross or the Hospital. It is undisputed that both defendants owed a duty to plaintiff to conform to the standards of care applicable to their professions. There is no evidence, however, to support a finding that either defendant breached this duty. Thus, since plaintiff has failed to establish an essential element of her prima facie case, defendants are entitled to judgment as a matter of law. Accordingly, the court grants defendants' motions for summary judgment.
IT IS SO ORDERED.
DATED: July 16, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge