On appeal from Superior Court, Law Division, Bergen County.
Approved for Publication June 5, 1995.
Before Judges Pressler, Conley and Newman. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
In August 1984 plaintiff William Snyder underwent coronary bypass surgery at St. Joseph's Hospital in Paterson, New Jersey. As a result of being transfused with contaminated blood supplied to the hospital by the Bergen Community Blood Center (BCBC), he was infected with the AIDS virus (HIV). He and his wife Roslyn, who sues per quod, brought this action against, among others, the hospital, his physicians, the BCBC and its personnel, and the American Association of Blood Banks (AABB), of which BCBC is an institutional member. Following pretrial settlements with some defendants and dismissals of others, trial proceeded only against defendant AABB. The jury, by way of its answers to special interrogatories, found that the AABB was negligent in not having recommended surrogate testing for AIDS to its institutional members prior to August 1984. The jury further found that that negligence substantially enhanced plaintiff's risk of contracting AIDS by transfusion and constituted a thirty percent causative factor in his having actually contracted the disease. Finally, the jury found that plaintiff's total damages were $1,000,000 and his wife's $350,000. Judgment was accordingly entered in their favor in the amount of thirty percent of total damages, a total of $405,000, plus prejudgment interest. Defendant appeals. We affirm.
The factual, procedural, and legal background of this 1994 trial is described in our first opinion in this case, Snyder v. Mekhjian, 244 N.J. Super. 281, 582 A.2d 307 (App. Div. 1990), affirmed o.b., 125 N.J. 328 (1991) [Snyder I]. The two issues then directly before us, which we considered on leave to appeal from pretrial orders, were first, whether a cause of action lay in strict liability, and second, whether plaintiff had at least a qualified right to discovery from the donor of the contaminated blood by which he was infected to determine whether its screening, collection, and transmission to the hospital were in any way negligent. We answered the first question in the negative and the second in the affirmative. In dealing with the second, we recognized that the issue of discovery was, obviously, pertinent only if there were in fact a viable cause of action in negligence against the then remaining defendants. This is what we said:
There is certainly enough in this record to raise a factual question as to the reasonableness of AABB's conduct in opting to forego guidelines which would have required its members to perform surrogate laboratory testing or more vigorous donor screening. There is also a factual question as to BCBC's conduct in collecting blood without these techniques, irrespective of AABB's guidelines. If it were determined that the conduct of either BCBC or AABB, or both, unreasonably created an appreciable enhancement of plaintiff's risk and that the enhanced risk was a substantial factor in producing his injury, they would be liable to him in negligence even though he might have contracted AIDS even if they had taken every available precaution. [244 N.J. Super. at 293]
We then remanded for trial, which proceeded on that theory of negligence.
In substantial measure the proofs adduced at trial supported the facts we had recited in Snyder I, 244 N.J. Super. at 287-289, which we had culled from the motion record then before us. Those proofs dealt with AABB's internal structure, its general role in the blood-banking industry, and its specific role in determining the response of the voluntary blood-banking community to the AIDS threat between 1981, when the first AIDS cases were reported by the Centers for Disease Control (CDC), and March 1985, when the first test for HIV was in place.
Both parties relied on the testimony of distinguished experts, most of whom were involved during the critical time period either in AIDS research, AIDS epidemiology, AIDS treatment, or blood-banking on the highest levels. From their testimony, the following history of those years emerges. The CDC, an agency of the federal Public Health Service, publishes a weekly document, the Morbidity and Mortality Weekly Report (MMWR), which is widely disseminated to the medical and scientific community. The MMWR of June 5, 1981, reported five cases of pneumocystis pneumonia among young homosexual men in Los Angeles. The MMWR of July 4, 1981, reported cases of Kaposi's sarcoma among twenty-six young homosexual men, twenty in New York and six in California, as well as ten new cases of pneumocystis pneumonia among young homosexual men, four more in Los Angeles and six in San Francisco. Both diseases, theretofore rare and generally occurring in elderly patients, are associated with immunosuppression. By August 28, 1981, the MMWR reported an additional seventy cases of these two diseases among the same population. Occurrence of the syndrome was doubling every six months. By June 1982, it had become clear that a new immunodeficiency disease of epidemic proportion affecting homosexual men had emerged involving not only pneumocystis pneumonia and Kaposi's sarcoma, but also a variety of other opportunistic infections generally associated with immune-system suppression including lymphopathy, candida infections, adult thrush, and cryptococcal meningitis. Three hundred and fifty cases of this new disease, originally termed GRIDS (gay-related immune deficiency syndrome), were reported, primarily in California, New York, New Jersey, Florida and Texas, and primarily among young homosexual men, although cases were also reported among IV drug users and Haitians, particularly recent immigrants. Although the cause of the disease and its actual mode of transmission were still unknown, the MMWR of July 16, 1982, raised a red flag by reporting three cases of the disease among hemophiliac men who had no other risk factors. This is what the MMWR said:
The clinical and immunologic features these three patients share are strikingly similar to those recently observed among certain individuals from the following groups: homosexual males, heterosexuals who abuse IV drugs, and Haitians who recently entered the United States. Although the cause of the severe immune dysfunction is unknown, the occurrence among the three hemophiliac cases suggests the possible transmission of an agent through blood products.
At least from that time forward, the CDC and others working in the field assumed as a working hypothesis that AIDS was caused by a blood-transmissible infectious agent. Indeed, Dr. Luc Montagnier, a virologist at the Pasteur Institute in France who testified at trial, relied in large part on the CDC information in formulating his working hypotheses, and believed that he had isolated and identified the retrovirus causing AIDS in January 1983. He was certain of that result in the spring of that year. In any event, from the point of view of CDC, the assumption that AIDS was caused by a blood-transmissible virus became a matter of high probability when it reported, in December 1982, that an infant had died of AIDS in California after having been transfused at birth with blood from a donor who had himself subsequently died of AIDS.
The CDC regarded that piece of information as so critical in terms of protection of the nation's blood supply that it called an emergency workshop meeting in Atlanta for January 4, 1983, attended by many of the scientists and physicians responsible for formulating and implementing the nation's blood supply policy, including, among others, representatives of government, the AABB, the National Hemophilia Foundation, and the National Gay Task Force. By that time the CDC had an AIDS Task Force in place consisting of CDC scientists who had special expertise in various facets of the disease. They included Dr. Donald Francis, an expert in hepatitis B among homosexual men, who testified at trial by way of videotaped deposition; Drs. Curran and Jaffe, experts in sexually transmitted diseases; and Drs. Spira and Evatt, experts in hemophilia. The Task Force was convinced that AIDS was blood-transmissible. It was also convinced that epidemiologically the disease mirrored hepatitis B, involving exactly the same high-risk groups and in the same proportions. What came to be known as the Spira data, presented at the meeting, showed that among those patients having AIDS, about ninety percent of gay men, one hundred percent of IV drug users, and ninety-eight percent of Haitians also tested positive on the hepatitis B core antibody test (core test). The data also asserted that seventy-nine percent of all homosexual and bisexual men would have positive core tests as against five percent in the balance of the apparently healthy population. The recommendation of these physicians was that all persons belonging to the high-risk groups should be screened out of the blood-donation system. Three modes of screening were recommended: direct questioning of prospective donors to determine if they belonged to a high-risk group; careful taking of medical histories from donors including questions regarding such early AIDS symptoms as night sweats and weight loss; and, most significantly, surrogate testing. That is to say, since the AIDS-causing agent had not yet been identified, the effort was to find a test of both high sensitivity and high specificity that would enable identification of persons suffering from or at risk of AIDS. At least three such surrogate tests were suggested: the core test, a lymphocyte count test, and a T4/T8 cell test. Since the T4/T8 cell test required sophisticated equipment and specially trained personnel and the lymphocyte test appeared to lack adequate specificity, the core test appeared most promising.
As testified to by those of the witnesses at trial who attended the January 4, 1983, meeting, it was highly emotional, contentious, and fractious. According to plaintiff's witnesses, the chief source of obstruction was the blood bankers and particularly AABB's representative, the chairman of its Transfusion-Transmitted Disease Committee, who declined to subscribe to the view of a blood-transmissible infectious agent as the cause of AIDS. *fn1 Accordingly no real consensus and no recommendations immediately resulted. The meeting, however, marked a turning point in the saga of the nation's blood supply over the next two years. A few blood bankers then acted in accordance with the CDC's views in respect of surrogate testing. Most, including the AABB and almost all of its institutional members, the American Red Cross, and the Council of Community Blood Banks did not. ...