Summary
describing Rh-sensitization as an irreversible, undesired change in a person's physiology that "was designed to be prevented by RhoGam"
Summary of this case from Rye v. Women's Care Center of MemphisOpinion
No. 98-CV-2006.
March 24, 2000.
JAMES A. BURKE, ESQ., LARKIN, AXELROD, TRACHTE TETENBAUM, LLP, 34 Route 17K, Newburgh, New York 12550, for plaintiff.
JOHN D. WINTER, ESQ., PATTERSON, BELKNAP, WEBB TYLER, LLP, 1133 Avenue of the Americas, New York, New York 10036, for defendant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs, Joanne Alberg ("Joanne") and her husband Kenneth Alberg ("Kenneth") originally commenced this action in the Supreme Court of the State of New York, County of Ulster, on December 23, 1998. Joanne asserts causes of action against the defendant Ortho-Clinical Diagnostics, Inc. ("defendant" or "Ortho") for negligence, breach of warranty, and strict products liability, claiming she has suffered injuries resulting from receipt of a defective dosage of Ortho's pharmaceutical product, RhoGam. Kenneth asserts a derivative claim for loss of spousal services and society. On December 31, 1998, the defendant removed this matter to the United States District Court for the Northern District of New York, pursuant to 28 U.S.C. § 1441, based on diversity jurisdiction.
The defendant has moved for summary judgment, pursuant to Fed.R.Civ.P. 56, claiming that the plaintiffs' complaint must be dismissed because Joanne has not suffered any physical injury. Plaintiffs oppose. Oral argument was heard on February 18, 2000 in Albany, New York. Decision was reserved.
II. FACTS
Joanne is Rh-negative. When she became pregnant in 1996, it was determined that the fetus was Rh-positive. Due to this Rh factor incompatibility between Joanne and her unborn child, she was given two injections of RhoGam to suppress the development of Rh antibodies in her blood. RhoGam is manufactured and distributed by Ortho.
A person who is Rh-negative and is exposed to blood containing the Rh antigen may develop antibodies and become "sensitized" to Rh-positive blood. (Derman Aff. ¶ 7.) An Rh-negative woman can become sensitized during pregnancy with an Rh-positive fetus. Id.
The first dosage of RhoGam was administered in September 1996, during the pregnancy. Joanne delivered a healthy baby on November 26, 1996. The second dose of RhoGam was administered in November 1996, shortly after Joanne delivered her child. This dose came from a lot which Ortho subsequently recalled.
In May of 1998, Joanne was advised that her November 1996 injection had come from a lot which was recalled. She underwent testing, whereupon it was determined that she had become Rh-sensitized. As a consequence, in future pregnancies which involve an Rh-positive fetus, Joanne must undergo special monitoring and testing for possible physical risks to the fetus. Such testing may also adversely affect Joanne. Joanne claims that, as a result of receiving the defective dosage of RhoGam and becoming Rh-sensitized, she has developed a fear of becoming pregnant and is emotionally distraught over the prospect of not having other children.
III. DISCUSSION A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc., 477 U.S. at 250;Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby. Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
Ortho asserts that New York law does not permit recovery of damages in this case because Joanne has not suffered a physical injury. In addition, Ortho claims, no claim can be made for emotional harm absent a showing that its conduct unreasonably endangered Joanne's physical safety or caused her to fear for her physical safety. There is no need to determine whether or not Joanne has suffered a physical injury for, as the following discussion will show, Joanne may still recover for her emotional trauma even in the absence of a physical injury. Therefore, defendant's motion for summary judgment must be denied.
B. Injury to the Plaintiff
A claimant can recover for emotional trauma even in the absence of physical injury "when there is a duty owned by [the] defendant to plaintiff [and a] breach of that duty resulting directly in emotional harm." Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 448 N.E.2d 1332, 1334, 462 N.Y.S.2d 421, 423 (1983); see also Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249, 176 N.Y.S.2d 996 (1958); Battalla v. State, 17 Misc.2d 548, 553, 184 N.Y.S.2d 1016, 1021 (N.Y. Ct. Cl. 1959) (holding that "[i]f there is a negligent act or omission of another resulting in mental disturbance being caused to a person, and there is a real connection between the ultimate damage and the original wrong, the wrongdoer is liable in damages."), rev'd, 11 A.D.2d 613, 200 N.Y.S.2d 852 (3d Dep't 1960), rev'd, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (1961). There is no requirement that a plaintiff seeking recovery for emotional trauma must be in fear of his or her own physical safety. Topor v. State, 176 Misc.2d 177, 180, 671 N.Y.S.2d 584, 587 (N.Y. Ct. Cl. 1997) (discussingMartinez v. Long Island Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 512 N.E.2d 538, 518 N.Y.S.2d 955 (1987) (holding that breach of duty owed by defendant to plaintiff resulting directly in emotional harm is actionable); Johnson v. State, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638 (1975) (allowing daughter to recover for emotional harm incurred as a result of hospital's negligent misinformation that mother had died). However, "a plaintiff must produce evidence sufficient to guarantee the genuineness of the claim." Kaufman v. Physical Measurements Inc., 207 A.D.2d 595, 596, 615 N.Y.S.2d 508, 509 (3d Dep't 1994) (citing Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 851-52, 592 N.Y.S.2d 782 (2d Dep't 1993); Johnson, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638).
In the present case, the plaintiffs have set forth sufficient evidence to indicate that Joanne's fear of becoming pregnant is a reasonable result of receiving a defective dosage of RhoGam. Joanne's sensitization to the Rh factor is a documented condition called Rhesus disease. See Stedman's Med. Dictionary 502 (26th ed. 1995). This condition cannot be reversed. As a result of being sensitized, Joanne's body produces antibodies which will attack and destroy the red blood cells of any future Rh-positive fetuses. This change in Joanne's physiology means that future pregnancies will require special monitoring, potentially invasive treatments, such as amniocentesis and intra-uterine transfusion, and may result in pre-term labor. (King Aff. 6 ¶ 115-16.) In addition, since Joanne's husband, Kenneth, is Rh-positive, the likelihood that future fetuses will be Rh-positive is approximately 95%. Id. ¶ 14.
As an initial matter, it should be noted that the parties do not appear to dispute that questions of fact exist concerning the issues of Ortho's duty to Joanne, breach of that duty, and causation.
Ortho submitted an affidavit from Dr. Richard Derman wherein he claims that the presence of antibodies in an Rh-sensitized person's blood is part of a normal physiological process. However, this does not negate the fact that this process is not desired, was designed to be prevented by RhoGam, and is not reversible once initiated.
In light of the high likelihood that future fetuses of the plaintiffs will be Rh-positive and that, as a result, future pregnancies will be subject to treatments which may endanger Joanne and her child, Joanne's fear of having any more children despite her expressed desire is reasonable under the circumstances and is not too speculative to preclude recovery. Therefore, the merits of Joanne's claims of emotional trauma should be presented to a jury for determination.
Defendant's remaining arguments have been considered and found to be without merit.
IV. CONCLUSION
Based upon the foregoing, it is
ORDERED, that defendant's motion for summary judgment is DENIED.
IT IS SO ORDERED.