JKB, SR., and VB, personally and as surviving parents and natural guardians of JKB, Jr., Deceased, Appellants, v. ARMOUR PHARMACEUTICAL COMPANY a Delaware corporation, Cutter Laboratories, Division of Miles, Inc., a Delaware corporation, Baxter Healthcare Corporation, f/k/a Hyland Therapeutics, Division of Travenol Laboratories, Inc., a Delaware corporation, and Alpha Therapeutics Corporation, a California corporation, Appellees.
No. 49A02-9506-CV-341
Court of Appeals of Indiana
Jan. 24, 1996
Rehearing Denied April 1, 1996
660 N.E.2d 602
ROBERTSON, Judge.
We reverse and remand with instruction to vacate the judgment of conviction and sentence for count II, dealing in a controlled substance. We affirm on all other grounds.
SHARPNACK, C.J., and NAJAM, J., concur.
James S. Stephenson, Stephenson & Kurnik, Indianapolis, David I. Bell, Daphne B. Subar, Knapp Petersen & Clarke, Glendale, California, Robert G. Weddle, Indianapolis, Charles P. Goodell, Jr., Thomas J. Cullen, Jr., Goodell Devries Leech & Gray, Baltimore, Maryland, Bonnie L. Gallivan, Kevin R. Knight, Ice Miller Donadio & Ryan, Indianapolis, R. Robert Stommel, Lewis & Wagner, Indianapolis, Lory A. Barsdate, Douglas F. Fuson, Sara J. Gourley, David E. Manning, Sidley & Austin, Chicago, Illinois, Eve Strauss West, Norbert F. Bergholtz, Fred T. Magaziner, Dechert Price & Rhoads, Philadelphia, Pennsylvania, for Appellees.
OPINION
ROBERTSON, Judge.
JKB, Sr., and VB, personally and as surviving parents of JKB, Jr., Deceased [JKB], appeal the summary judgment entered against them on the product liability claim (strict liability in tort) in their lawsuit against Armour Pharmaceutical Company, Cutter Laboratories, Baxter Healthcare Corporation, and Alpha Therapeutics Corporation [Pharmaceutical Companies]. JKB raises several related issues with multiple subparts. We restate and consolidate JKB‘s issues as follows:
whether pharmaceutical companies are insulated from product liability claims arising out of the sale of the blood products under Indiana‘s blood shield statute.
We reverse.
FACTS
The dispositive facts are not disputed. JKB was born on February 21, 1977. He had hemophilia. From 1980 through 1986, JKB received blood clotting factor products, known as Factor VIII, produced and sold by the pharmaceutical companies to treat his hemophilia. Unfortunately, the products used by JKB had been contaminated by the virus that causes AIDS. JKB contracted AIDS from the blood products and died on December 31, 1991. Medical and technological advances since the advent of AIDS have now made such blood products safe.
The Factor VIII blood products produced by the pharmaceutical companies are derived from human blood and are produced by a process called “plasmapheresis.” Blood is taken from a donor and spun in a centrifuge to separate the plasma from the red blood cells and the red blood cells are then returned to the donor. Because these extra steps are involved, giving blood for plasma-pheresis is much more time consuming than the donation of whole blood and donors must be compensated accordingly. The plasma is
The pharmaceutical companies filed a motion to dismiss (which was later converted into a motion for summary judgment) with respect to the count in JKB‘s complaint alleging strict liability in tort arguing that, under Indiana‘s blood shield statute, the provision of Factor VIII constituted a rendition of a service and not the sale of a product and thus could not give rise to a product liability action. The pharmaceutical companies did not challenge the remaining counts in JKB‘s complaint which include allegations of negligent manufacture and the negligent failure to warn of the dangers associated with the blood products.
The trial court granted the pharmaceutical companies’ motion. This discretionary, interlocutory appeal ensued.
DECISION
Summary judgment is appropriate only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.
The Blood Shield Statute,
(a) The:
(1) procurement, processing, distribution, or use of whole blood, plasma, blood products, blood derivatives, or other human tissue, such as corneas, bones, or organs, by a bank, storage facility, or hospital;
. . .
is the rendition of a service and not the sale of a product. Such services do not give rise to an implied warranty of merchantability or fitness for a particular purpose, nor do the services give rise to strict liability in tort.
(Emphasis added). Under this chapter, the terms “bank,” “storage facility,” and “hospital” have the meaning set forth in
(a) “Bank or storage facility” means a facility licensed, accredited or approved under the laws of any state for storage of human bodies or parts thereof.
* * *
(d) “Hospital” means a hospital licensed, accredited or approved under the laws of any state [including] a hospital operated by the United States government, a state or a subdivision thereof, although not required to be licensed under state laws.
* * * * * *
(h) “State” includes any state, district, commonwealth, territory, insular possession and any other area subject to the legislative authority of the United States of America.
The cause of action for strict liability in tort arose under common law. See Cornette v. Searjeant Metal Products, Inc. (1970), 147 Ind.App. 46, 258 N.E.2d 652, 656. Thus, the blood shield statute, which limits the ability to bring such a cause of action, is in derogation of the common law. As such, two rules of statutory construction apply: First, a statute which is in derogation of the common law must be strictly construed against limitations on a claimant‘s right to bring suit. Secondly, when the legislature enacts a statute in derogation of
When interpreting a statute, the foremost objective is to determine and effect legislative intent. Spaulding v. International Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307, 309. Statutes must be construed to give effect to legislative intent, and courts must give deference to such intent whenever possible. Indiana State Police Department v. Turner (1991), Ind.App., 577 N.E.2d 598, 601, trans. denied. Thus, courts must consider the goals of the statute and the reasons and policy underlying the statute‘s enactment. Id. Courts are to examine and interpret a statute as a whole, giving words their common and ordinary meaning, and not overemphasize a strict, literal, or selective reading of individual words. Spaulding, 550 N.E.2d at 309. Words and phrases are taken in their plain, ordinary, and usual meaning unless a different purpose is manifested by the statute. State ex rel. Pearson v. Brown (1989), Ind.App., 537 N.E.2d 534, 535, trans. denied. Where possible, every word must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. Spaulding, 550 N.E.2d at 309. The specific inclusion of one entity usually precludes the implication of another entity‘s inclusion in the same statutory provision. Health and Hospital Corporation v. Marion County (1984), Ind.App., 470 N.E.2d 1348, 1356, trans. denied. When certain items or words are specified or enumerated in a statute, then, by implication, other items or words not so specified or enumerated are excluded. Id. at 1355.
Blood shield statutes, effected in nearly every state, have the purpose of ensuring an adequate supply of life-saving and essential blood products. Rogers v. Miles Laboratories, Inc. (1991), 116 Wash.2d 195, 802 P.2d 1346, 1349; Zichichi v. Middlesex Memorial Hospital (1987), 204 Conn. 399, 528 A.2d 805, 810. To achieve this end, such statutes generally provide for liability only in cases of negligence. Id. As the Zichichi court noted:
[t]o require providers to serve as insurers of the safety of these materials might impose such an overwhelming burden as to discourage the gathering and distribution of blood.
In the present case, the pharmaceutical companies sought (and obtained) refuge under Indiana‘s blood shield statute by arguing that they each constituted a “storage facility” as protected under
However, under a strict construction analysis, we simply cannot conclude that our legislature intended to include a pharmaceutical company, which commercially produces blood products for mass distribution, as an entity within the same class described as an organ or a blood “[b]ank or storage facility.” The manufacture and distribution of blood products by pharmaceutical companies is better characterized as the sale of a product rather than the provision of a service. See Miles Laboratories Inc. v. Doe (1989), 315 Md. 704, 556 A.2d 1107, 1117. It is quite unlikely that our legislature intended to include pharmaceutical companies in its definition of “[b]ank or storage facility” simply because the manufacture or production of blood products incidentally involves their storage.
Pharmaceutical companies are not included in the class of entities protected under the blood shield statute either expressly or by unmistakable implication. Had our legislature intended to include pharmaceutical companies under the statute scrutinized, it could have done so expressly. For example, our legislature expressly listed “pharmaceutical
As the blood shield statute does not insulate pharmaceutical companies from product liability under the present circumstances, the trial court‘s entry of summary judgment against JKB on this issue was erroneous. Therefore, we must reverse.
Judgment reversed.
BAKER, J., concurs.
CHEZEM, J., concurs in result with separate opinion.
CHEZEM, Judge, concurring in result.
I concur in result. While I agree that summary judgment should not have been granted against JKB, I arrive at this conclusion for reasons different than the majority‘s.
The pharmaceutical companies argue that they are protected by the Blood Shield Statute,
It is unlawful to operate a blood center in Indiana without a license issued by the state department under this chapter. A blood center that applies for a license in Indiana must also be licensed or appropriately registered by the federal Food and Drug Administration and remain in compliance with all applicable federal regulations.
The appellees have not designated any evidence which would indicate that they are licensed to store blood, blood products, etc., in Indiana, or in any other state. They have only produced the licenses from the FDA. These are not enough to bring them within the protection of the Blood Shield Statute.