*1 provide two together to read can tions and, in the context extensions distinct form, be- we preprinted
instructions well as practitioner, a reasonable
lieve read them.3 would so lay person,
reasonable granted, for review will petitions to consider instructed will be Board
and the their merits. appeals on Huangs’ Marcella; Timothy MARCELLA;
Carol Marcella,
Timothy as Natural Guardian Marcella, Timothy Marcella; Damon Marcella, Eric as Natural Guardian Marcella, Timothy Carol Marcella wife, Appellants,
husband HOSPITAL; C.T.
BRANDYWINE Monasterio, M.D.;
McChesney, J.R. Caggi Cabria;
M.D.; Dr. John Jose Dr. Jersey Cross; Penn
ano; American Regional Blood
American Sherwood, M.D., Ap
Service; C. William
pellees.
No. 94-1691. Appeals, States Court
United
Third Circuit. 20, 1994.
Argued Dec. 15, 1995.
Decided Feb. 13, 1995. Rehearing March
Sur Petition concerning Huangs Judge’s oral advice argued before us 3. The has also Service any ambiguity. We dispositive appeal find filing cured Huangs we of an the issue find waived Additionally, the raising argument persuasive. the Board. before neither it Immigration Service contended has *2 GREENBERG, Before: SAROKIN, and WEIS, Judges. Circuit OPINIÓN OF THE COURT WEIS, Judge. Circuit This is a negligence growing suit out of a transfusion of contaminated blood collected by the Red Cross through its volunteer do- program. nor trial, After a bench the dis- trict court judgment entered in favor of the Red Cross. appeal, this we hold that the Red Cross is not clothed with immunity and plaintiffs therefore the re- quest for a trial should have grant- been ed. Accordingly, the case must be remanded for a new trial. We concur with the district court’s determination that the donor of the blood required testify, but under conditions protect anonymity. his Plaintiff, Marcella, Carol was infected with HIV as a result of a blood transfusion she Brandywine received at Hospital on Febru- ary 5,1985, in the emergency course of treat- injuries ment for sustained an automobile accident. Her condition has deteriorated to point that it is inevitable she will soon develop full blown AIDS. The blood had through donated the Red Jan- uary 29,1985 by a homosexual male who was gave HIV+. He again blood on June time, 1985. At that the Red per- test, formed an ELIZA which can determine whether a sample blood contaminated HIV. That test did approval not receive from the Food and Drug Administration until March 1985 and was not available at the time O’Shea, Robert (argued), J. Jr. George W. of Marcella’s Through transfusion. a “look Howard, III, Brenner, David E. Richard P. program, back” the Red Cross discovered Hackman, Klein, Charles A. A. Michael Can- that she had received infected blood. celliere, Jr., George Howard, III, P.C., W. complaint filed in the Common Pleas PA, Philadelphia, for appellants. Court of County, Chester Pennsylvania, on July 1988 named as hospi- defendants the O’Brien, William J. John Guernsey, A. tal, physicians plaintiff, had treated Klein, Howard M. Hamill, Patricia M. Con- and the American Red Cross. Plaintiff1 did Rohn, rad O’Brien P.C., Gellman & Philadel- not ask for a but the doctors and PA, phia, Jacqueline Denning (argued), R. Brandywine Hospital did file de- such Gerseh, David P. Salley Rainey, D. Arnold & mands. Porter, Wolf, Edward L. Acting Gen. Coun- sel, Cross, DC, American Red Washington, The case was removed to the United appellees. States District Court for the Eastern District sake, simplicity’s For only we will refer filed on behalf of her husband and minor chil- plaintiff. Carol Marcella as The suit was also dren. ” ‘t’s.’ all the crossed all ‘i’s’ dotted hospital renewed Pennsylvania, the Red entered was therefore Judgment the other trial. None demand Hosp., 838 Brandywine Marcella docketed Cross. The case was did so.
parties *3 (E.D.Pa.1993). Subsequently, Shortly F.Supp. before jury a trial. court as district of trial, in favor the summary judgment was entered was scheduled the case that this confirm hospital. “[t]o a motion the filed Cross the opposed Plaintiff nonjury trial.” was a judg- only appealed the plaintiff has The was she entitled that the on basis motion Cross, asserting: the Red favor of ment in by filed jury demand trial the of the benefit right (1) denied the improperly was she that court. in the state doctors hospital and (2) analysis of trial; court’s that the jury to a negli- that the ordered court The (3) faulty; that some was the evidence (the claims hospital against counts gence 8, on June the donation about the evidence dismissed) having been the doctors against inadmissible.3 was plain- that the jury, but tried to would would be Cross the Red tiffs claim then The court trial. bench I. in a decided on proceeded first the claims severed sus in this case would The evidence Red Cross. against the one the Red finding that district court’s tain the request for a trial, plaintiffs Before harm. Marcella’s cause Cross did con- of the donor discovery deposition fact-finder, the demean- evaluated judge, as denied, was although he was
taminated blood
donor
sophistication of the
or,
education
After
interrogatories.
answer
required to
in
persisted
have
he would
determine that
nonjury
days in the
several
proceeding
if the
instruction
even
correct
giving blood
arranged
take
judge
the district
January
donation.
given at
had been
donor,
that
conditions
under
testimony of the
were
the donor
credibility
evaluations
anonymity.
his
assure
from
findings derived
to the factual
essential
and conclusions
fact
findings of
In its
testimony.
his
Cross’
the Red
that
law,
decided
court
dif-
potential
However,
properly
sources
make
ascertaining
could
policy of
question-
submitting
by
determina-
credibility and causation
blood
contaminated
ferent
faulty.
liability
was
voluntary donors
it to assess
lead
that would
naires
tions
was
Consequently,
Cross
judge determined
the Red Cross.
negligence for
cru-
chargeable with
to establish
“properly
is not sufficient
record
law,
its instructional
turgidity of
and we would
unreasonable
a matter of
facts as
cial
ques-
using outdated
as for
in a
verdict
materials” well
reverse a directed
compelled gave blood
first
the donor
Amoco
when
tionnaires
on these facts. See
based
January
Torcomian,
1985.
1100-01
Oil Co.
(3d Cir.1983);
Corry Jamestown
EEOC
gave
again
donor
However,
because
Cir.1983) (de-
F.2d
Corp., 719
question-
despite
in June
blood
unless
error
by
is reversible
nial of trial
clarified,2 the court decid-
having been
naires
appropri-
been
would have
verdict
a directed
was
the Red
negligence of
Cross
ed
court
ate). Consequently,
if the district
X
“Donor would
factor.
not a causative
jury, the case
plaintiff a
denying the
erred in
on
giving blood
prevented
been
have
trial.
for a new
remanded
must be
had
defendant
even if
January
(more
multiple partners
with
men
or bisexual
procedures,
screening
a brochure
Among
2.
other
However,
one).”
guideline had
the new
donor
than
given by the Red
was
guidelines
given
contain the
incorporated
did not
January
It
into the materials
1985.
groups
high-risk
recommended
gave
1985.
again
exclusion
blood in June
he
when
donor
Service December
Public Health
high-risk group as
defined the
guideline
That
contention
plaintiff's
reviewed
3. We have
“[m]ales
bi-sexual
homosexual
was erro-
evidence
admission
certain
1979.”
one male since
than
sex with
had
Instead,
more
it lacks merit.
and conclude
neous
described
the Red
brochure
"[s]exually active
high-risk group as
homosexual
II.
nations and with the International Red
Emphasizing
Cross.
prestige
preliminary
question, therefore,
usefulness is based on neutrality, the Chair
is whether
is entitled to a
trial.
man of the American Red Cross commented
one,
The issue is not a simple
and the district
preserve
“[t]o
this vital principle
courts that have
point
considered the
intact, the International Red Cross Commit
divided in
rulings.4
their
No
Ap
Court of
tee
always
has
maintained that the national
peals has
point
considered the
in published
societies, while cooperating closely and cor
opinion.
dially with
governments
their own
and with
The collection and
distribution
human
agencies,
should at the same time re
*4
blood for
purposes
medical
is a commercial main independent.”
O’Connor,
Hon. Basil
operation on the part of the Red Cross and
Report
Annual
the American National
of
other
operate
entities that
blood banks. The Red Cross Corporation
1946,
19,
at
re
nature of the enterprise and the
of
identity
printed
Wesley
in
Sturges,
A.
Legal
supplier
are matters to be
considered
Cross,
Status
the Red
56
1, 12
Mich.L.Rev.
of
(1957),
deciding
injured
whether an
party has a
n. 80
cited in Irwin Mem. Blood
right
to a
trial in a claim based on Bank
the San Francisco
Soc’y
Medical
v.
of
negligence.
Cross,
American Nat’l Red
640 F.2d
(9th Cir.1981).
The Red
1057
Cross contends
it is
a federal
instrumentality
that shares
im
cooperation
Close
government
with
is es-
munity to trial by jury.
It
clear
is
sential to the work of the Red Cross. A
government
federal
itself
subject
is not
to perception that
organization
is indepen-
by jury
trial
it specifically
unless
consents.
dent and neutral
equally
is
vital. The Red
Lehman, Sec’y Navy
Nakshian,
v.
453
of
provisions
Cross charter
reflect an attempt
156, 160-61,
U.S.
101 S.Ct.
2701-02, 69 to
objectives.
reconcile these
(1981).
L.Ed.2d 548
question
is
here
by
Some control
government
federal
is
whether,
respect,
in this
the Red Cross
tois
by provision
demonstrated
empowering the
part
be treated as
of
government.
the federal
of
President
the United States to appoint
The American Red
unique
Cross is a
orga-
eight
fifty
of the
members of the Red Cross
nization.
It was chartered by Congress
aas
Board of Governors and
designate
one of
corporation
federal
in 1905.
§§ 1-
36 U.S.C.
them to be its presiding officer. 36 U.S.C.
15.
Its chief purpose at that
time was to
§ 5. The other
appointees
seven
must be
serve
agency
as the
country
this
to moni- officials of
departments
various
agencies
and
implement
tor and
requirements
of the
of
government,
the federal
including at least
applicable
Geneva Convention
to the
of
care
one from the
Thirty
Armed
gover-
Forces.
sick, wounded,
prisoners
and
of
time
nors
by
are
chapters,
selected
the local
Later,
war.
scope
activity
of its
was
twelve are
selected
the Board as mem-
expanded to include service to victims of bers-at-large.
Id.
natural disasters.
An annual financial statement must be
The national Red Cross
designed
is
submitted to
Secretary
Defense,
conjunction
work in
with
societies
report
audits the
at
expense
of the Red
4.
In
following published
opinions,
(llth.Cir.1994).
appealed
Barton was
after the
permitted jury
against
courts
trials
granted
judgment
Red
district court
summary
Cross,
Thus,
Cross: Doe v. American Nat’l
Red
Red
Cross.
847
Eleventh Circuit's sum-
(W.D.Wis.1994);
F.Supp.
mary
647
affirmance did
Doe
v.
reach the
Cross,
question.
F.Supp.
(S.D.W.V.1994)
AmericanRed
845
1152
(Red
punitive
Cross also
damages).
Interestingly,
all
cited cases arose after the
opinions
Other
right
have denied
Supreme Court's decision in American
Red
Nat'l
trials
the Red Cross: Berman v. American
S.G.,-U.S.-,
v.
Cross
S.Ct.
112
120
Cross,
Nat’l
F.Supp.
(N.D.Ind.1993);
(1992).
L.Ed.2d 201
Cross,
v. American Red
Bentz
Hospital
College
Johnson
Medical
Penn
Cir.1991),
summarily
we
sylvania,
(E.D.Pa.1993);
F.Supp.
Barton
affirmed a
verdict
the Red Cross.
Cross,
F.Supp.
American Red
immunity
Red Cross
raised
never
issue at
(M.D.Ala.1993),
op.
building in
—
States,
however,
United
which,
is re-
ployees
headquarters
zation’s
ev-
not direct its
do
officials
§ 13.
Id.
government
maintenance.
sponsible
is like other
Red Cross
eryday affairs —the
Navy
Army,
officers
Commissioned
banks —whose
e.g., national
institutions —
duty with
may be detailed
Air Force
instrumentalities
tax-immune
status
is
§ 711a.
It
10 U.S.C.
Red Cross.
dispute,”
beyond
States
United
supplies
purchasing
privilege
given the
4624-4625,
Forces,
§§
id.
the Armed
from
467;
also Federal
at
see
S.Ct.
Id. at
id.
equipment,
borrowing certain
9624-9625,
229, 235, 55
Priddy, 295 U.S.
Bank
Land
buildings for
government
using
§
(1935) (“Immu-
705, 708, L.Ed. 1408
S.Ct.
§ Id.
supplies.
storing
agencies
government
corporate
nity circumstances, may be
some
employees, in
readily
...
is less
judicial process
suit
duty
while
quarters
meals
furnished
taxation”);
immunity from
implied than
However, in this
Forces.
serving the Armed
*5
F.2d
Spokane, 918
City
v.
States
United
Na-
the American
connection, “employees of
Cir.1990).
(9th
84, 87-88
as
may not be considered
Red Cross
tional
that, although
referred
§Id.
2602.
held
Irwin
States.”
the United
employees of
agency”
“instrumen-
“an
or
cases as
tax
is
Cross
Red
independence of
agency” of
not “an
tality,” the
Cross
Red
are not
employees
in that its
demonstrated
of the
purposes
for
government
federal
sup-
are
activities
its
employees,
federal
That statute
Act.
of Information
Freedom
sources,5
its
and
by private
primarily
ported
others,
among
including,
as
“agency”
defines
or-
by the
directed
day-to-day activities
and a “Govern-
corporation”
a “Government
itself,
government.
not
ganization
U.S.C.
corporation.”
5
controlled
ment
that
Red
provides
also
The charter
structure, activi-
552(f). Finding
§
be sued
to sue and
power
has “the
demon-
Red Cross
of the
purposes
ties
Federal,
or
equity, State
of law
courts
subject
not
organization was
strated
the United States.”
jurisdiction
within
supervision,
control or
federal
substantial
Red Cross
Nat’l
§
In
2.
American
36 U.S.C.
agency.” The
“an
not
it was
held that
Irwin
—
2465, 120
-,
112
S.G.,
S.Ct.
U.S.
v.
history
re-
legislative
also noted
Court
(1992),
Supreme Court held
L.Ed.2d
Val-
the Tennessee
as
to such entities
ferred
Red Cross
authorized
provision
that this
as
Authority and Amtrak
ley
in state
against it
pending
to remove actions
Infor-
by the Freedom
to be covered
units
court,
pro-
to federal
court
Irwin,
F.2d at 1054.
Act.
mation
case be-
basis
jurisdictional
vides
fore us.
“instru
“agency” or
aof
federal
The status
amenability
might affect its
mentality”
itas
held
has also
Supreme Court
received
claim has
jury trial on a tort
ato
taxation.
to state
Cross is
Red
Young v.
In
appellate consideration.
little
v. United
Employment
Department
In
158, 159
Serv.,
F.2d
464,
Postal
States
355, 359-60,
United
S.Ct.
States,
385 U.S.
Cir.1989)
curiam),
Ap
the Court
(per
(1966),
opinion
467-68, 17 L.Ed.2d
sued” clause
and be
the “sue
peals held that
“virtually ...
to the
referred
expose
charter did
Service
in the Postal
pointed out:
government,” but
an
of the
arm
services,
only
service,
while
5%
providing blood
ed
which
collection
Cross blood
5.
Red
services
providing
charter,
were attributed
provides an im
is not mentioned
1985,
Id.
Forces.
Armed
blood
In
portant part of its revenues.
division
total
Cross’
blood services
of the Red
Red Cross'
provided
American
60.5%
services
indepen-
managerial
American
financial
Report
maintains
revenues. Annual
statement,
perform
chartered
from its
recent
dence
divisions
the most
In
activities,
significant "excess reve-
generates
provided
of revenues.
77%
services”
“biomedial
Cross, 845
Nat’l
v. American
Doe
nues.”
F.Supp.
Inter
Report
1993-1994.
Financial
Annual
(S.D.W.V.1994).
1152,
1153 n.4
expenses were devot
estingly,
of Red Cross'
62%
it to a
trial on
employee’s
an
claim of Bank v. Board
County Comm’rs, 368 U.S.
wrongful discharge.
146,
282,
(1961).
S.Ct.
words Bar Federal Associa- incident The Foundation process civil all embrace connotation undoubt- organizations legal Although such tion. continuance or commencement they not Frank, objectives, worthy edly U.S. In proceedings.” Loeffler (1988), immunity. sovereign require L.Ed.2d 549 seem to 549, 108 S.Ct. including clause as Court described gov- given not wholesale is Cross Red le incidents appropriate natural and “the of its by virtue immunity simply ernmental at S.Ct. Id. at gal proceedings.” is inquiry aBut relevant charter. federal 85, 61 Menihan, U.S. at (quoting specific refer- whether, lack of despite the garnish 487). as “incidents” Such at 5.Ct. charter, Red in its trials ences to interest (Burr), prejudgment execution ment govern- deeply involved so Cross is (Lo and civil (Menihan), costs effler), if implied may prohibition ment that Pa., Dep’t (Commonwealth penalties In party. itself were the United States Postal States United Resources Envtl. not exist. does view, relationship such a our Cir.1993)), have been Serv., con- works sometimes federally in actions applicable found arm almost “an to be it seems text which entities. created Nevertheless, fed- government.” of the however, in kind “incidents,” differ Those day-to- manage the not government does eral trial, to a entitlement quality with organization, does day activities of trial method follow that it does not activities, support provide funds scope of the within necessarily included civil grant service or employ and does nonjury A clause. sued” and be “sue addition, prop- its workers. benefits resolve process all, provide civil after does participants one of the its role as erly fulfill reme- additional provides disputes and activities and in international interest prejudgment garnishment, dies the Geneva Conven- provisions of enforce Moreover, has fear often costs. independent of tion, must be excessive award juries would expressed *7 weighing government. States the United a absent factor government, against the sums considering analogous and factors all of these been that have “incidents” other from the law, persuaded that are we decisional and by be the “sue encompassed to be found sover- share does not Red Cross American clause. sued” such immunity the United States with eign the extent organization role injury suits jury personal trials governmental purely out it carries to which with, the with, or interfere inconsistent be circum- Those activity relevance. have some organization’s charter.6 in the role outlined determining significant can be stances litigation parties Accordingly, we hold inconsistent be jury trials would whether Red Cross against nature of this scheme, gravely or would statutory with jury. to a trial entitled govern- of a performance interfere with function. mental III. vary corporations Federally chartered Red Cross’ Having concluded they assume degree to widely in the bar, whether must consider we is no in- status Charters tasks. basic she did rights because her plaintiff waived clauses be sued” “sue and clude not jury trial. As a request specifically Congress have reports to annual require in state earlier, complaint plaintiffs ed organizations diverse granted to such been trial,7 hos- nonjury but requested a America, court the American Boy as the Scouts to assertedly in order did so remarked, counsel 7. Plaintiff's has elected “ARC 6. One district court fee, expectation that corpora- jury private escape paying a compete participate with industry [and] [a]s ... services tions in the blood industry participant ... should full-fledged a ...Doe, F.Supp. at jury trial (S.D.W.V.1994). n.4 pital and doctors defendants did a jury demand court as a case. Not approximate- until jury- ly ten months after removal did the Red Cross file its motion reclassify the case as 81(e) Federal Rule of pro- Civil Procedure nonjury. that, vides in cases removed to the district court, party who made a jury demand for a The Red Cross argues that the issues be- trial in accordance with state law need not tween it and plaintiff differ from those repeat request after removal. The Rule raised in the claims hospital. provides: further 38(d) Relying on Fed.R.Civ.P. and Rosen v. Dick,
“If applicable state law in the court Cir.1980), 91-96 which the case is removed does not require plaintiff contends that is entitled parties rely express jury to make on a only demands in trial demand as to the order to claim by jury, they trial issues between her hospital. and the need Howev- er, 38(d) make demands after removal Fed.R.Civ.P. applies unless the origi- cases nally court they directs that filed in 81(c) do so” the district court. Rule governs cases, removal and it carries over position Plaintiffs is that under Pennsylva- the valid demand in the state court to the law, any party nia if requests jury all federal proceedings.8 parties may rely upon that demand. A request jury not be We withdrawn conclude therefore that the district without the parties consent of all court have erred in denying right appeared action. to a Pa.R.Civ.P. trial. The case must therefore be 1007.1(c). “[T]he Rule apparently seeks to remanded for a new trial. protect rights parties of those who did
not make the
demand for
trial....”
IV.
Hickman,
McFarlane v.
Pa.Super. 240,
We must also consider whether testi
(1985);
A.2d
see also
Recht
mony
discovery
of a blood donor is sub
City
Pittsburgh,
118 Pa.Cmwlth.
ject
to privilege. A substantial amount of
(1988) (“where
A.2d
the circum-
case law has
developed
over whether
stances indicate
possibility
reliance,
discovery
such
permitted.
should
Courts
any doubts should be resolved in favor of
weighed
potential adverse effects to the
trial”).
allowing
system
blood collection
privacy
donors’
At
removal,
time
plaintiffs right
interests
necessity
of such testi
to a
perfected,
trial had been
appro- mony
recovery
by victims of contaminated
priately, the case was docketed in the district
blood.9
*8
hospital
the defendant
would—as it
e.g.,
Cross,
did—ask for
9. See
Lowcountry
Watson v.
Red
974
a
practice
trial.
"games-
Such a
borders on
(4th Cir.1992);
F.2d 482
Coleman v. American
manship”
might expose
lawyer
that
a
to
Cross,
severe
(6th Cir.1992)
Red
(per
1135
important
criticism if it were
plaintiff
that a
curiam);
Ctr.,
Baystate
Diabo v.
Medical
147
receive a
trial.
(D.Mass.1993);
F.R.D. 6
Sampson v. American
Cross,
Nat'l
(N.D.Tex.1991);
Red
law of blood the supplied contaminated privacy on the donor who has ruled that state of Court the on information relevant a conditional provide would established donors issue of state Fed. case. The See lead. negligence follow its issues will privilege, we removal, with actions, law conferred state (in where judge, before civil court R.Evid. or to claims of concern and, out apparently of decision parties the rule supplies donor, is deter- a witness decided of it was defenses, privilege of interests privacy Dudley, law); Earl ano- C. his preserve see also interrogatories state mined to submit Federalism, Evi- Rule im- Federal Jr., be approach could that Before nymity. of Choice Vertical Privilege to the dis- 501: was dence removed of case plemented, (1994). Law, agreed again Geo.L.J. court, parties where trict procedure. Ctr., general that Hosp. Valley Lehigh Stenger (1992), the state Su- A.2d Pa. interrogatories responses After Pennsylva- that determined preme Court compel a received, plaintiff moved were privacy right of provides nia Constitution donor. The deposition of the discovery alone, that but left right to be that includes court denied objected, the district contamination In blood absolute. is not that grounds on the motion plaintiffs be balanced cases, right must that last “(1) untimely on [filed request is their claims establish need to victims’ discovery]; day set preserving interest the state’s shown; (2) genuine need has no sys- blood donation of the volunteer integrity [and], donor; (3) Court at 802. The privacy A.2d interests 437, 609 at Id. tem. balancing of proper that determined been adhered (4) has previous agreement permit- in favor weighed interests various to.” condition on discovery, ting but are dis- nature of this Discovery matters at Id. disclosed. be identity the donor cretionary court with Moreover, the 438-39, at 802-03. A.2d discussion ordinarily consis- approach was court decided However, the trial demon- events at appeal. Confidentiality of Pennsylvania’s tent with judge wish the district strate Act, 35 P.S. Information HIV-Related permit the ruling and previous his reconsider §§ 7601-7612. discovery deposition to take parties of Penn- Supreme Court will follow We the donor. issue and sylvania’s resolution during the testimony days of several After flexibility in adequate that there confident to coun- judge stated the district bench to allow Procedure of Civil Rules the Federal there persuaded that increasingly sel, “I am donor’s preserving still discovery while objective really fair and have a way to is no agree with the also anonymity. We in this the issues some of determination deposition or comment court’s Donor testimony of having the case nature should of this discovery in cases It seems point.... at some X under oath supervision. judicial *9 conducted under causation, that is than other issue me if on no V. judge, howev- of evidence.” a bit crucial to have inappropriate be er, it would retried, believed we case must Because it time and deposition at that discovery a on further to comment appropriate it believe (1993); Ann M. (Fla. Inc., Litigation, 71 N.C.L.Rev. Serv., 500 So.2d Blood Florida Note, LoGerfo, Privacy AIDS Protecting Donor Inc., Airweld, 137 Misc.2d Krygier 1987); Puget Litigation Blood Bank Related Hosp. —Doe (1987); County Tarrant 520 N.Y.S.2d Center, 819 P.2d Wash.2d Blood Sound (Tex.Ct.App. S.W.2d Hughes, 734 Dist. v. (1992); (1991), Peter B. Wash.L.Rev. 981 1987). Litiga- Note, Kunin, AIDS Transfusion-Related Note, Discovery Blood Johnson, also, Permitting Watson Limited Amy tion: K. See Cases, L.Rev. 76 Cornell Single Donor Circuit The Fourth Donors Lowcountiy Cross: (1992). Discovery Rights Blood Speaks Transfusion preferable would be testimony why to have the the donor could not be called testify judicial under supervision. taken at trial appropriate under conditions.10 discussion, After some lawyers further
and the court agreed that each of parties VI. questions would submit judge, who judgment of the district court will be propound would them to the donor in cham- reversed, and the case will be remanded for a bers, presence. in counsels’ lawyers new trial. permitted were suggest ques- additional testimony tions as the unfolded and would be SLOVITER, Before: Judge, Chief permitted to they cross-examine if perceived BECKER, STAPLETON, MANSMANN, a need. suggest Counsel did not GREENBERG, HUTCHINSON, SCIRICA, questions additional judge after the COWEN, NYGAARD, ALITO, ROTH, interrogation, initial but the Red Cross’ law- LEWIS, McKEE, SAROKIN, WEIS, yer However, plaintiff did. asserts that now Judges. Circuit discovery deposition should per- have been mitted. SUR PETITION FOR REHEARING changed
Circumstances since ini- tial denial of plaintiffs request for the March discovery donor’s deposition. The testimoni- petition rehearing filed procedure al during used the bench trial was appellee, Cross, American Red in the above- adequate no doubt sophisticated for a fact- captioned having matter been submitted to finder like experienced the able and judges participated who in the decision judge to make the crucial findings of credibil- this Court to all However, ity. available this case must be tried to now judges circuit regular Court in active parties will required service, judge and no concurred reckon believability with the of the donor having decision asked for rehearing, and a because the critical events occurred more majority of the judges circuit of the circuit in years than ten ago. Moreover, because a regular active having service not voted for human tendency deny or attempt to ex- rehearing by banc, the court in petition cuse conduct that created disastrous conse- rehearing is denied. quences uncommon, to a victim is not a more interrogation extensive probably will be nec-
essary. A wide-ranging discovery deposition likely
most great would be of assistance to parties
both improve presenta-
tion to be at trial. made circumstances,
In these we believe that the judge grant request should for a
discovery deposition subject judicial super- perhaps presence of magis-
vision— judge trate judge or the trial himself —but
under assuring anonym- conditions the donor
ity placing transcripts seal if under
appears necessary. to be We no see reason *10 It occurs possible to us that it would be procedure individual. probably pre- This protect anonymity display- donor’s at trial unlikely, possible, vent the but situation where ing photograph panel his from which the might proceeded for some time ultimately will be selected. Before the usual juror might recognize before a donor when questioning began voir dire and before the na- testify. he is merely sugges- called to This is disclosed, ture of the case was the venire would tion and we do not wish to limit the trial court’s asked, any reference to the donor's use of appropriate. other measures that role, any name or recognized if of them