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Doe v. Cutter Biological, Inc.

971 F.2d 375 (9th Cir. 1992)

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Doe v. Cutter Biological, Inc.

United States Court of Appeals for the Ninth Circuit

971 F.2d 375 (9th Cir. 1992)

Facts

John Doe and John Smith (plaintiffs) were hemophiliacs who contracted HIV from Factor VIII, a clotting agent that helps hemophiliacs clot, sometime in 1983. Only four companies made Factor VIII, Alpha Therapeutic Corporation, Cutter Biological, Armour Pharmaceutical Company, and Baxter Hyland Healthcare Corporation (the medical companies) (defendants). Doe and Smith filed a negligence action against all the medical companies because they did not know which company made the Factor VIII that caused their infections. Doe and Smith alleged that although the medical companies were aware that AIDS was likely caused by a bloodborne virus as early as 1982, the medical companies did not take any precautions to prevent the transmission of the virus, including surrogate testing or heat treatment. The medical companies moved for summary judgment, arguing that they followed the industry standards at the time, there was no medical consensus that AIDS was caused by a bloodborne virus until the virus was isolated in 1984, and even if the medical companies had performed surrogate testing, Doe and Smith could still have gotten infected. Doe and Smith submitted evidence that hemophiliacs with AIDS were reported in July 1982 and the medical companies began discussions about the safety of Factor VIII beginning at that time, including discussion of surrogate testing. The National Hemophiliac Foundation and the Center for Disease Control both called for screenings of the blood supply. Heat-treating technology was developed in the 1970s, and it was available to treat Factor VIII by March 1983, but it possibly could have been available sooner if the medical companies had prioritized it. As to industry standards, only four companies existed in this industry, and all four worked together closely to develop the standards. The district court granted the medical companies’ motion for summary judgment, and Doe and Smith appealed.

Rule of Law

Issue

Holding and Reasoning (Nelson, J.)

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