Colavito v. New York Organ Donor NetworkColavito v. New York Organ Donor Network
Richard E. Lerner, Wilson, Elser, Moskowitz, Edelman & Dicker P.C., New York, NY, for Defendants-Appellees New York Organ Donor Network, Inc., Robert Kochik, and Spencer Hertzel.
Before: JACOBS, CABRANES, and SACK, Circuit Judges.
SACK, Circuit Judge.
When, in August 2002, Peter Lucia died in a Long Island, New York, hospital of intra-cranial bleeding, his widow decided to donate both of his kidneys to his long-time friend, the plaintiff Robert Colavito, who was suffering from end-stage renal disease. Peter Lucia‘s left kidney was therefore air-lifted to a hospital in Miami, Florida, where Colavito was waiting for its implantation. Lucia‘s right kidney remained in New York.
While Colavito was being prepared for surgery, his surgeon, Dr. George W. Burke, discovered that Lucia‘s left kidney was irreparably damaged by aneurysms and therefore unfit for implantation. When a member of Burke‘s staff called the New York Organ Donor Network (“NYODN“) to ask for delivery of the second kidney, he was told that it had already been delivered to and implanted in another patient. As the intended donee, Colavito brought this lawsuit in the United States District Court for the Eastern District of New York for fraud, conversion, and violations of
BACKGROUND
In setting forth the facts underlying this appeal from the district court‘s grant of summary judgment to the defendants, we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in his favor. See LaSalle Bank Nat‘l Ass‘n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir.2005).
The Attempt at a Transplant
On August 21, 2002, Peter Lucia died from intra-cranial bleeding at Good Samaritan Hospital, in West Islip, New York. Joint Appendix (“J.A.“) at 122. His widow, Debra Lucia, and their sons, decided to donate one of Peter‘s kidney to his friend, Robert Colavito, a resident of Coral Springs, Florida, who was suffering from end-stage renal disease. J.A. at 10, 129.
The Lucias first told a hospital nurse about their decision. Defendant Spencer Hertzel, an NYODN official, was then summoned to meet with the Lucias. J.A. at 132. Hertzel told Debra Lucia that her husband had had a “universal blood type,” which made him a “universal donor.” J.A. at 134-35. Hertzel then helped her fill out a printed organ-donor form by reading aloud questions from the form and writing down her answers. J.A. at 137. Sometime thereafter, she signed the donor form.2
The donation form contained a printed list of possible organs for donation. Def.‘s Mot. for Summ. J., Aug. 6, 2004, Ex. G.; J.A. at 110. Hertzel placed a check mark next to the entry for “Kidneys.” Id. In response to the form‘s question whether the non-transplanted organs could be used for medical research, Hertzel placed a check mark next to “no.” Id. Next to an entry for “Directed Donation,” Hertzel placed a check mark next to “yes.” Id. And next to “Organ/tissue tо be directed,” he wrote the word “KIDNEY.” Id. Upon completion, the form also stated: “If it is not feasible for medical or logistical reasons for the donated organs/tissue to be used by the person to whom I direct it, the NYODN may allocate the organs/tissue as if I had not made a directed donation,” with the word “tissue” thus crossed out by hand in two places. Id. Debra Lucia told Hertzel that the kidneys were a directed donation specifically for Colavito. Lucia testified that “[t]hey were not for anyone else and I told him that specifically.” Lucia Dep. at 38; J.A. at 152. Had Lucia known that the kidneys could not be used by Colavito, she said, she would never have consented to their removal: “There was no question about them being not transplantable. [Colavito] was a universal blood type, and therefore, he was compatible. Had [Hertzel] told me any other thing, I would not have donated them.” Id. at 39; J.A. at 153.
Debra Lucia testified that she never discussed with Hertzel what would happen to the second kidney if the first one were transplanted successfully. But her understanding was that “[a]s long as Bobby [Colavito] was taken care of and he was fine, then the kidney could be given to another person.”4 Id. at 64-65; J.A. at 178-79. Lucia testified that “[w]hat I wаnted more than anything was for Bobby to get a functioning kidney. If they needed both of them, that would have been fine. If they needed one, that would have been fine also. But he was to be taken care of.” Id. at 64; J.A. at 178.
Colavito was a resident of South Florida. Debra Lucia asked whether Colavito should come to New York for the transplant, but Comellas told her that it would be easier to ship the kidneys interstate by airplane than to transport them across town for implantation. J.A. at 141. Peter Lucia‘s left kidney was therefore sent by air to Miami.
On August 23, 2002, two days after Peter Lucia‘s death and at about the time his left kidney arrived in Miami, Colavito was admitted to Jackson Memorial Hospital in Miami. J.A. at 233. The hospital staff prepared him for surgery. He was then taken to the surgical waiting area and told, “We go in 5 minutes.” Decl. of Robert Colavito dated Sept. 4, 2004, ¶ 32; J.A. at 235. When Colavito asked a hospital nurse for confirmation that the kidney was compatible, he was told: “We wouldn‘t be here if it wasn‘t compatible.” Id. at ¶ 31; J.A. at 235.
Without a kidney to implant, Dr. Burke sent Colavito home. Subsequent tests indicated that, in fact, both kidneys were histo-incompatible with Colavito‘s antibodies and therefore could not have been successfully transplanted in any event. But apparently neither Dr. Burke nor NYODN officials knew of the test results at the time Colavito was sent home, nor did they inform Colavito when they leaned about the results of the histo-compatibility tests. J.A. at 88.
Later that afternoon, Colavito and his wife, unaware that both of Peter Lucia‘s kidneys were histo-incompatible and therefore unsuitable for implantation, called Debra Lucia to find out what hаd happened to the second kidney. J.A. at 159-60. The Lucias’ son, Peter, called Hertzel, who said that “his hands were tied” and gave them the telephone number of another NYODN official. Lucia Dep. at 46; J.A. at 160. Debra and the younger Peter Lucia spoke to that NYODN official who said it was not NYODN‘s fault that Dr. Burke had waited until approximately 2:00 p.m. to examine the first kidney.6 J.A. at 161. The official also informed the Lucias that the kidney was already being implanted in someone else. J.A. at 166.
The next day, Debra Lucia spoke to the director of clinical operations at NYODN, the defendant Robert Kochik. J.A. at 163-64. Kochik told her that “this [had] never happened before” and promised to put Colavito at the top of the organ recipient list. Id. at 51; J.A. at 165. At no time during these conversations did anyone tell the Lucias or Colavito that the kidneys were histo-incompatible.
About one month later, while Colavito was preparing to consult a lawyer with respect to these events, he was told for the first time that “cross-match” testing results showed that the kidneys had been incompatible with his antibodies. J.A. at 237. Dr. Burke testified that “somewhere after I had already made the decision this kidney [the first one] was not a viablе kidney for transplantation, hours later, I was informed about the crossmatch results,” i.e., he had been told weeks before Colavito learned about the test results. Dep. of Dr. George W. Burke, May 10, 2004, at 20; J.A. at 90. In light of the results of the cross-match test, Burke said, he would not have implanted either the right or the left kidney in Colavito. J.A. at 78. He also explained that surgical preparation and laboratory tests such as cross-matching are often done simultaneously to save time. J.A. at 90.
Colavito continues to suffer from renal failure and remains on dialysis. J.A. at 296. The district court noted in its opinion that NYODN has since offered Colavito seven kidneys, without success. Two were found to be diseased; the other five were found to be incompatible. Colavito, 356 F.Supp.2d at 241 n. 8.
Proceedings in the District Court
On August 22, 2003, Colavito brought suit in the United States District Court for the Eastern District of New York against the NYODN, Kochik, Hertzel, the Good Samaritan Hospital Medical Center, and two “Doe, M.D. defendants,” invoking the court‘s diversity jurisdiction.7 In his complaint, Colavito asserts causes of action sounding in fraud, conversion, and violation of the
After discovery, the parties all moved for summary judgment.8 The defendants argued that the district court lacked diversity jurisdiction because Colavito had failed to allege an amount in controversy exceeding $75,000. The court rejected this argument, reasoning that even if the kidney itself was worthless to the plaintiff, Colavito could theoretically recover punitive damages that would clear the $75,000 threshold because he alleged purposeful misdirection of the organ. Colavito, 356 F.Supp.2d at 240-41.
The district court then rejected Colavito‘s fraud claim on the merits, reasoning that Colavito had failed to present evidence establishing that he detrimentally relied on the NYODN‘s alleged misrepresentations. Id. at 241. Finally, the court dismissed Colavito‘s remaining claims, concluding that because it is “against public policy to recognize broad property rights in the body of a deceased,” Colavito could not prevail in a common law action for conversion or a claim based on the
Colavito appeals.
DISCUSSION
I. Standard of Review
We review de novo a district court‘s grant of summary judgment, including its determination of its own jurisdiction, see Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998); Hotel & Rest. Employees Union Local 217 v. J.P. Morgan Hotel, 996 F.2d 561, 564 (2d Cir.1993), and any “legal issue of statutory interpretation,” White v. Shalala, 7 F.3d 296, 299 (2d Cir. 1993); see also LaSalle Bank, 424 F.3d at 205. We also “review de novo a district court‘s determination of state law.” Salve Regina College v. Russell, 499 U.S. 225, 231 (1991); accord Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.3d 363, 370 (2d Cir.1999).
Because Colavito invokes the diversity jurisdiction of the district court, the amount in controversy must exceed $75,000.
But the defendants argue that these figures are vastly and fatally overstated. Although the party invoking federal jurisdiction must show by a “‘reasonable probability‘” that the amount-in-controversy requirement is satisfied, Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994) (quoting Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir.1975)), we recognize “a rebuttable presumption that the face of the complaint is a good faith representation of the aсtual amount in controversy,” Wolde-Meskel, 166 F.3d at 63. In order to rebut this presumption, the defendant must show that the complaint “was so patently deficient as to reflect to a legal certainty that [the plaintiff] could not recover the amount alleged or that the damages alleged were feigned to satisfy jurisdictional minimums.” Id.
The defendants argue that the mis-delivered kidney—and therefore the amount in controversy—cannot be worth more than $75,000 because 1) it is contrary to New York‘s public policy to give an organ an objective fair market value,9 and 2) Lucia‘s kidney was histo-incompatible with Colavito‘s immune system and therefore worthless to Colavito. The district court sidestepped these arguments by focusing on the possibility of punitive damages. See Colavito, 356 F.Supp.2d at 240. The court concluded that Colavito could theoretically recover more than $75,000 in punitive damages on his fraud claim because he “alleged purposeful misdirection of an organ donation,” which would constitute fraud that “‘is gross and involves high moral culpability.‘” Id. (quoting Shanahan v. Vallat, 2004 WL 2937805, at *11 (S.D.N.Y. 2004)).
We think that the district court was likely correct that, under New York law, a plaintiff can ordinarily recover punitive damages for wanton and willful conduct even when there are only nominal compensatory damages. See, e.g., Ligo v. Gerould, 244 A.D.2d 852, 853, 665 N.Y.S.2d 223, 224 (4th Dep‘t 1997); Bryce v. Wilde, 39 A.D.2d 291, 293, 333 N.Y.S.2d 614, 616 (3d Dep‘t) (“Punitive damages [in a tortious interference with contract case] are not recoverable alone although they may be based upon an award of nominal compensatory damages and there must be actual malice shown on the part of a defendant.“), aff‘d, 31 N.Y.2d 882 (1972); see also Action House, Inc. v. Koolik, 54 F.3d 1009, 1013 (2d Cir.1995) (“Had nominal damages been awarded [with respect to breach of fiduciary duty and misappropriation claims], we believe that an award of punitive damages would have been consistent with New York law.“) (citing Bryce, 39 A.D.2d at 294); Reinah Dev. Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487, 452 N.E.2d 1238, 1240, 465 N.Y.S.2d 910, 912 (1983) (assuming that nominal damages award would support punitive award but concluding that punitive damages were not warranted on the facts). We therefore adopt the analysis of the district court.10
The district court correctly noted that under New York law,
[t]o establish a claim for fraud, plaintiff must show that (1) the defendants misrepresented a material fact; (2) the defendants knew they were making a false misrepresentation; (3) Mr. Colavito justifiably relied on such misrepresentation; and (4) he suffered harm as a result.
Colavito, 356 F.Supp.2d at 241 (citing Cohen v. Houseconnect Realty Corp., 289 A.D.2d 277, 278, 734 N.Y.S.2d 205, 206 (2d Dep‘t 2001)). Each element of a fraud claim must be proved by clear and convincing evidence. Hutt v. Lumbermens Mut. Cas. Co., 95 A.D.2d 255, 257, 466 N.Y.S.2d 28, 30 (2d Dep‘t 1983). The district court disposed of Colavito‘s fraud claim on the grounds that the only actions Colavito took in rеliance on the alleged misrepresentation were “going to the hospital and preparing for surgery” and that doing so in vain did not constitute compensable harm. Colavito, 356 F.Supp.2d at 241.
On appeal, Colavito argues that he detrimentally relied not on the initial fraudulent statements that he would receive the kidney, but on NYODN‘s statements on August 23, 2002, that the second kidney had already been implanted in another patient. Colavito argues that the second kidney was actually implanted on August 26, and that the defendants “intentionally misrepresented to Plaintiff and to the Lucia family that the kidney had already been transplanted into someone else on August 23, 2002.” Appellant‘s Br. at 31 (emphasis in original). Colavito says that these alleged misrepresentations prevented him from laying claim to the second Lucia kidney, which was rightfully his, before it was too late.
But Colavito has adduced no evidence to support his assertion that the NYODN officials knew on August 23 that the second kidney might remain available for Colavito‘s use. The only evidence in the record on summary judgment reflects statements on behalf of NYODN to Dr. Burke and the Lucias consistent with what was written in NYODN‘s internal documents at the time, i.e., that the kidney had by then been diverted elsewhere. On a motion for summary judgment “the opposing party may not rest upon mere conclusory allegations or denials.” Markowitz v. Republic Nat‘l Bank of N.Y., 651 F.2d 825, 828 (2d Cir.1981). “A plaintiff does not become entitled to a jury trial simply by asserting a cause of action in which the defendant‘s state of mind is a material element.” Id. Without anything more than the assertion in his appellate brief, Colavito has not made a sufficient showing to create a genuine, triable issue of fact on this issue. And without one, his fraud claim must fail. We therefore affirm the district court‘s grant of summary judgment for the defendants on Colavito‘s fraud claim.
IV. Determining New York Public Policy
Although the district court resolved Colavito‘s fraud claim on evidentiary grounds, it dismissed his remaining claims for failure to state a cause of action.
Before embarking on a discussion of whether the district court‘s legal conclusions were correct, we pause to note the obvious: There is a glaring anomaly in Colavito‘s case. Although he will not concede the point, the evidence strongly suggests that neither of Peter Lucia‘s kidneys was, it turned out, suitable for implantation in Colavito‘s body. It is, as a result, difficult to comprehend what compensatory damages Colavito might have suffered as a result of being deprived of the second Lucia kidney beyond the psychic or the nominal—and even that harm may have arisen from the defendants’ failure to inform him promptly of the histo-compatibility test results, rather than from his loss of the kidney. Put another way, it may be possible to view the misdirected kidney as, from Colavito‘s perspective, no more than a dead and useless body part.11 Indeed, it seems possible that this litigation might never have been brought had Colavito been told immediately, by his doctor or someone else, that the Lucia kidneys were, according to the tests, useless to him, rather than leaving him to think for weeks that his life had been put in serious jeopardy by the apparent misfeasance of the defendants.
A. Common Law
The district court concluded that Colavito could not bring a claim for conversion or a cause of action under the
[a]s cases involving unauthorized mutilation and disposition of bodies increased toward the end of the 19th century, paralleling the rise in demand for human cadavers in medical science and use of cremation as an alternative to burial, see In re Johnson‘s Estate, 169 Misc. 215, 7 N.Y.S.2d 81, 85-86 [N.Y. Surr.1938] (describing “an outpouring” of such cases), courts began to recognize an exclusive right of the next of kin to possess and control the disposition of the bodies of their dead relatives, the violation of which was actionable at law.
Id. at 791-92. As the district court recognized, these cases created the only exception to Blackstone‘s common-law rule: “а ‘quasi property’ right, belonging to the spouse or next of kin to possess the body for the purposes of ensuring proper burial.” Colavito, 356 F.Supp.2d at 244.
According to the district court, this common law public policy bars the plaintiffs from applying conversion claims to organ donations. In support of this ruling, the district court cited four cases: Perry v. Saint Francis Hosp. & Med. Ctr., Inc., 886 F.Supp. 1551, 1553 (D.Kan.1995) (holding that the plaintiffs were barred from recovering for breach of contract based on the defendant‘s removal of more body parts from the body of the deceased than were authorized); Shults v. United States, 995 F.Supp. 1270, 1275-76 (D.Kan.1998) (concluding that parents of a deceased airman had no claim for conversion where portions of their son‘s tissues and organs were discarded after autopsy); Bauer v. N. Fulton Med. Ctr., 241 Ga.App. 568, 571, 527 S.E.2d 240, 244 (1999) (holding that a widow could not maintain a claim for conversion based on the unauthorized removal of her husband‘s eye tissue); Hasselbach v. Mt. Sinai Hosp., 173 A.D. 89, 92, 159 N.Y.S. 376, 378-79 (1st Dep‘t 1916) (deciding that a widow could not sustain a conversion claim for an unauthorized autopsy performed on her husband). Based on this case law, the district court
agree[d] with the Georgia Court of Appeals in Bauer that it would be against public policy to engage in a valuation of Mr. [Lucia‘s] kidneys, which are not property. Based on the case law discussed above, the court also finds it inappropriate tо expand the limited right that courts recognize in a deceased‘s body, which only belongs to the next of kin to ensure proper burial.
Colavito, 356 F.Supp.2d at 244 (citation and footnote omitted). But if there is indeed a public policy against finding property rights in donated organs, we do not think that these common-law cases establish it.
First, there is by no means a modern consensus that body parts are excluded from conversion actions at common law. In Wint v. Ala. Eye & Tissue Bank, 675 So.2d 383, 384-86 (Ala.1996), for example, the Alabama Supreme Court recognized, in this context, actions for conversion and trespass to chattels, although it ultimately determined that the plaintiff had failed to adduce sufficient evidence to withstand summary judgment. Cf. Cornelio v. Stamford Hosp., 246 Conn. 45, 717 A.2d 140, 143 n. 6 (1998) (assuming, without deciding, that plaintiff had a property interest in pap smear specimens and noting that the existence of property rights in body parts is a “new, and thorny, question” that “has as yet been the subject of very little authority and commentary“).
Second, all of the cases the district court cited involved lawsuits by a decedent‘s relatives about the preservation of body parts of the dead. The courts that have declined to treat this sort of claim as asserting a valid property right have explained that it should have been brought as a claim for emotional distress—which indeed is the gravamen of the injury bereaved families seek to redress in such circumstances. Usually, to recover for the tort of negligent infliction of emotional distress, a plaintiff must show that he or she suffered a physical injury. But because the mishandling of a corpse is presumed to be emotionally distressing even though there is no physical impact on the plaintiff, courts have created the legal fiction of the “quasi-property right” to which the district court referred to permit recovery in such cases. Colavito, 356 F.Supp.2d at 244. “If the plaintiff could show that his property right had been harmed, he would avoid the burden of proving that his emotional distress was accompanied by physical injury.” Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 880 (Colo.1994) (en banc). Accordingly, “the technical [quasi-property] right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress.” Restatement (Second) of Torts § 868 cmt. a (1979).
We think that the district court drew the wrong lesson from these cases in the context of Colavito‘s asserted causes of action. It concluded that “the narrow rights in a deceased‘s body are reserved exclusively for the next of kin and only for purposes of ensuring proper disposition of the deceased‘s body.” Colavito, 356 F.Supp.2d at 246. The control-over-corpse cases restrict the recovery of relatives to emotional distress because that is in fact what they suffered. But a lawsuit based on the loss of a donated organ typically seeks more than compensation for injured feelings. The intended recipient of a human organ does not bring suit for control over a dead body and its constituent parts. He or she sues for the loss of a functioning organ.
The district court‘s conclusion that “[c]ourts have also been reluctant to apply contract law to organ donations” thus does not follow from the decisions of courts dealing with the treatment of corpses. Plaintiffs such as Colavito are not using the term “property” as a legal fiction upon which to base a claim for emotional harm. They have—or assert that they have—a practical use for the organ, not a sentimental one.12
B. New York Public Health Laws
Notwithstanding the District Court‘s conclusion to the contrary, it is arguable that under the
In other contexts, courts have been reluctant to expand common-law remedies when the legislature has remained silent. Cf. Moore v. Regents of the Univ. of Cal., 51 Cal.3d 120, 142, 793 P.2d 479, 493, 271 Cal.Rptr. 146, 160 (1990) (rejecting patient‘s claim of a common law property right in the use of his cells for research, in part because “problems in this area are better suited to legislative resolution“). But in Colavito‘s case, the New York legislature has spoken by adopting the Uniform Anatomical Gift Act and related public health laws. The district court reasoned that “the meaning of [the] statute is ambiguous [and] the court should avoid a construction that would be contrary to public policy.” Colavito, 356 F.Supp.2d at 246. But public policy is at least in part what a state, through its statutes, says it is. Plainly, the public policy of the state as indicated in its statute is not necessarily trumped by what the pre-existing common law suggests it used to be. Cf. Moore, 51 Cal.3d at 137 (“It is these specialized statutes . . . to which courts ordinarily should and do look for guidance on the disposition of human biological materials.“).
The New York statute carves out a specific and limited immunity provision: “A person who acts in good faith in accоrd with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.”
[T]he Legislature has created an objective standard by which the good faith of a [defendant] could be measured. The Uniform Anatomical Gift Act establishes a statutory scheme which outlines the means of effecting an anatomical gift, the classes of individuals entitled to effect such a gift, and the circumstances under which such a gift must be deemed null and void.
Nicoletta v. Rochester Eye & Human Parts Bank, Inc., 136 Misc.2d 1065, 1069, 519 N.Y.S.2d 928, 931 (Supreme Ct. Wayne Co.1987). The legislature has taken pains to establish a comprehensive regime, including a limited safe-harbor provision, which courts are obligated to enforce. “Where the Legislature has spoken, indicating its policy preferences, it is not for courts to superimpose their own.” Morales v. County of Nassau, 94 N.Y.2d 218, 224, 724 N.E.2d 756, 759, 703 N.Y.S.2d 61, 64 (1999). “The rule cannot be otherwise for, as was long ago recognized, when courts attempt to define the limits of public policy without a firm foundation in precedent or law, they usurp the legislative function which is, of course, to define the public will.” Kraut v. Morgan & Bro. Manhattan Storage Co., 38 N.Y.2d 445, 452, 343 N.E.2d 744, 748, 381 N.Y.S.2d 25, 29-30 (1976).
IV. Certification
A. Reasons to Certify
Identifying where New York public policy is likely to be found, however, is different from identifying what New York public policy is. As noted, Colavito asserts that by misdirecting Peter Lucia‘s second kidney, the defendants violated
The Uniform Anatomical Gift Act of 1968 sought to balance several competing interests. According to a prefatory note prepared by its proponent, the National Conference of Commissioners on Uniform State Laws:
[I]f utilization of bodies and parts of bodies is to be effectuated, a number of competing interests in a dead body must be harmonized, and several troublesome legal questions must be answered.
The principal competing interests are: (1) the wishes of the deceased during his lifetime concerning the disposition of his body; (2) the desires of the surviving spouse or next of kin; (3) the interest of the state in determining by autopsy, the cause of death in cases involving crime or violence; (4) the need of autopsy to determine the cause of death when private legal rights are dependent upon such cause; and (5) the need of society for bodies, tissues and organs for medical education, research, therapy and transplantation. These interests compete with one another to a greater or less extent and this creates problems.
Unif. Anatomical Gift Act of 1968, Prefatory Note. In analyzing these competing interests, one method of increasing donations may be to limit or foreclose liability for doctors and organ procurement and dissemination organizations, but another may be to give donors enforceable rights to ensure that their wishes in making such donations are carried out.
Within the framework of encouraging organ donations, New York has taken additional steps to honor the intent of the donor. In 1994, the legislature amended section 4301 to require that a donee shall not accept an organ if he or she “has actual notice of contrary indication by the decedent.” 1994 N.Y. LAWS 62, at *1, codified at
New York adopted section 4351(7)‘s provision, which holds agencies “legally responsible for any negligent or intentional act or omission,” as part of a comprehensive scheme to identify donors and funnel requests through federally designated organ procurement organizations. The stated purpose of the 1997 amendments was “[t]o increase the supply of organs, by enhancing the process by which anatomical gifts are requested.” N.Y. Bill Jacket, 1997 S.B. 5745 Ch. 668. Although we have found no record of a specific discussion of the “legally responsible” clause, the Division of Budget report noted generally that “[t]he provisions of this bill may increase costs for organ procurement organizations.” Id.
One may or may not agree with Mrs. Lucia‘s decision, but it would appear to be entirely permissible under the Uniform Anatomical Gift Act, which specifically allows for directed donations.
“Where ‘unsettled and significant questions of state law will control the outcome of a case,’ we may certify those questions to the New York Court of Appeals.” Prats v. Port Auth. of N.Y. and N.J., 315 F.3d 146, 150-51 (2d Cir.2002) (quoting 2d Cir. R. 0.27) (alterations incorporated). “Certification is a discretionary device, both for the certifying court and for the court requested to answer the certified questions.” McCarthy v. Olin Corp., 119 F.3d 148, 153 (1997) (quoting Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.1992)) (alteration incorporated); see also Stitching Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int‘l B.V. v. Schreiber, 407 F.3d 34, 59 (2d Cir.2005) (Sack, J., concurring) (commenting that this rule “gives us relatively broad discretion as to when to certify, and . . . there are things other than our ability to predict New York law that can inform our decision as to whether or not to do so.“). We think that there are several fаctors that make certification appropriate in this case.
First, here, the “statute‘s plain language does not indicate the answer.” Riordan, 977 F.2d at 51.
Second, there are only five published state court opinions interpreting New York‘s Uniform Anatomical Gift Act, and only one of them—a trial court case—is remotely relevant to the issues before us. See Nicoletta, 136 Misc.2d 1065, 519 N.Y.S.2d 928; cf. Elliott Assocs., 194 F.3d at 370 (“Because it is our job to predict how the forum state‘s highest court would decide the issues before us, we will not certify questions of law where sufficient precedents exist for us to make this determination.” (internal quotation marks and citation omitted).).
Third, law in this area reflects value judgments and public policy choices in which we have little experience, expertise, or authority. See Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA, Inc., 344 F.3d 211, 221 (2d Cir.2003) (“The fact that resolution of this case will require analysis of important policy considerations of the state of New York also favors certification.“). The generalized goals of increasing organ donations could plausibly be furthered either by shielding organ procurement organizations from liability or by giving donors and donees enforceable rights to remedy and deter misconduct. New York has an obvious interest in calibrating the right incentive structure for future organ donors, and persons and entities facilitating transplants, which it can do, in part, by adjusting the extent to which an organ will be used according to the wish of the donor even if contrary to what others might think to be the public good. We think it would be imprudent to embark on an excursion of our own into the state statutory incentive structure in this important and sensitive area of state law and policy. We therefore certify that question to the New York Court of Appeals.15
Colavito‘s claims also present several subsidiary questions of statutory interpretation that may also need to be resolved in order for us to be able to determine the possible scope of Colavito‘s rights and available remedies.
1. Implied Private Right of Action. As noted, if New York‘s Public Health Laws do vest Colavito with enforceable rights, it remains unclear whether those rights may be asserted by a common law action for conversion, by a private right of action implied from the public health laws, or both. If we were interpreting Articles 43 and 43-A as we interpret federal statutes, we would likely conclude that they do not imply a private right of action. Under current Supreme Court doctrine, whether a private right of action exists depends primarily on the “text and structure” of the statute itself. Alexander v. Sandoval, 532 U.S. 275, 288 (2001). The Uniform Anatomical Gift Act does say that the rights of the donee are paramount, but for federal statutes, “[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. Without evidence of legislative intent to create one, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286-87.
Furthermore,
But here we must apply New York, not federal, law to interpret the statutes.
We are bound here, not by federal prudential requirements for an action brought under a federal statute or constitutional provision, but by this state‘s own requirements for implying a private right of action where the state statute has not explicitly provided for one, which requirements are fully set forth in the . . . controlling state cases.
Hammer v. Am. Kennel Club., 304 A.D.2d 74, 80, 758 N.Y.S.2d 276, 281 (1st Dep‘t 2003).