Opinion
NO. 7-01-CV-026-R.
December 18, 2001.
MEMORANDUM OPINION AND ORDER
Defendants' Motion for Summary Judgment is before the Court. Plaintiff Elizabeth Dossey, Individually and as Next Friend of her daughter Sarah Dossey, brought this suit against Defendants Becton Dickinson and Fisher Scientific Company, L.L.C. alleging, inter alia, products liability, wrongful death, and bystander claims. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. BACKGROUND FACTS
Plaintiff Elizabeth Dossey ("Dossey" or "Plaintiff") sustained an accidental needle stick on February 7, 1999, while drawing blood from a known HIV positive patient ("The Source Patient"). Dossey alleges that she tested negative for the HIV virus ("HIV") on the date of the accidental needle stick and that she first tested positive for HIV six weeks after the accidental needle stick. Dossey alleges that she contracted HIV from contaminated blood contained in the needle. Dossey subsequently filed this lawsuit, Individually and as Next Friend of her daughter Sarah Dossey, against Becton Dickinson ("BD") the manufacturer of the needle that pricked her, and Fisher Scientific Company ("Fisher"), the distributor of the needle. Dossey alleges that the proximate and producing cause of her injuries and damages in contracting HIV was a defect in the design of BD's needle, which led her to the accidental needle stick.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 5:57, 559 (5th Cir. 1997). The court must resolve all reasonable doubts in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that reasonable minds could differ as to whether or not the allegation is true, the motion must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A defendant who seeks summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact by either submitting summary judgment evidence that negates the existence of a material element of the plaintiff's claim or by identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrates the absence of evidence to support a material element of the plaintiff's claim. See Celotex, 477 U.S. at 323; Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Once the defendant has satisfied its initial burden, the plaintiff must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment for the defendant will be granted if the plaintiff fails to make a showing sufficient to establish a material issue of fact as to the existence of an element essential to its case. See Celotex, 477 U.S. at 322.
B. Dossey's Products Liability Claims
Dossey alleges that a defective hypodermic needle designed and manufactured by BD caused her to sustain the needle stick and to contract HIV. Dossey alleges both negligence and strict liability theories. To prevail on a products liability claim brought under a negligence theory, the plaintiff must prove, inter alia, that the defective product was the proximate cause of her injuries. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). To prevail under a strict liability theory, the plaintiff must prove, inter alia, that the defective product was the producing cause of her injuries. See Abbott Labs. v. Gravis, 470 S.W.2d 639, 643 (Tex. 1971).
An element common to both proximate and producing cause is actual causation in fact. Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993). Actual causation in fact means "that the defendant's act or omission was a substantial factor in brining about the injury which would not otherwise have occurred." Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 160 (Tex. 1995). Thus, to prevail under either a negligence or strict liability theory, the plaintiff must establish that "but for" the product's faulty design the plaintiff would have suffered no injury. See Gen. Motors Corp., 873 S.W.2d at 357; Prudential Ins. Co., 896 S.W.2d at 160.
Defendants, BD and Fisher, argue that Dossey cannot prove the causation element of her products liability claims. Through the evaluation of genotype tests, BD's expert, Dr. Frank S. Rhame ("Dr. Rhame" or "Defendants' expert"), has concluded within a reasonable medical certainty that Dossey is infected with a strain of HIV unrelated to the HIV strain with which The Source Patient is infected. The gravamen of Defendants' argument is that Dossey did not acquire her HIV strain from the accidental needle stick contaminated with blood from The Source Patient, but, instead, acquired it prior to or subsequent to the needle stick. In furtherance of this argument, and in addition to Dr. Rhame's affidavit, BD introduced other medical records indicating Dossey had unprotected sexual relations with an intravenous drug user prior to her accidental needle stick.
Plaintiff rebuts Defendants' summary judgment evidence by introducing affidavits of its own expert, Dr. Cal ("Dr. Cal" or "Plaintiff's expert"). Dr. Cal makes several attacks on the validity of the genotype test used by Defendant's expert. Dr. Cal has reviewed hundreds of genotype testes, and he stated that the genotype tests have never been used for the type of comparison by Defendants' expert. Even assuming the genotype test is an acceptable method, Dr. Cal argues that it is nevertheless dependant upon information concerning the medications both persons were taking when the test was performed. Defendants' expert admits that he has little to no information on the medication being taken by the Source Patient.
Plaintiff further argues that Defendants' time table opinion is scientifically invalid. Defendants' expert states that four months is too short a period of time for mutations in HIV strains to appear or disappear. Plaintiff's expert argues that the appearance or disappearance of mutations can occur rapidly and frequently, within the time frame of four months.
Finally, Plaintiff s expert simply disagrees with Defendants' expert. Plaintiff's expert argues that Dossey suffered a needle stick on February 17, 1999, from a known AIDS patient and that she tested negative for HIV the day of and six days after the needle stick. According to Plaintiff's expert, this would rule out any pre-existing condition of HIV at the time of the needle stick. Plaintiff's expert concludes that there is no other explanation, plausible or not, for the Plaintiff's contracting HIV.
Based on the foregoing, Plaintiff has adduced sufficient summary judgment evidence to meet its burden and has clearly created an issue of fact as to "but for" causation. Both the Plaintiff and Defendant have employed well-qualified experts who simply disagree. This is a classic question for the jury. See Anderson, 477 U.S. at 250 (where reasonable minds could differ as to whether or not the allegation is true, the motion must be denied). See, e.g., Mathis v. Bocell, 982 S.W.2d 52, 61 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (where the movant's expert testimony is controverted by opposing expert testimony, a genuine issue of material fact is created and summary judgment should be denied.).
C. Dossey's Wrongful Death Claim
Plaintiff's wrongful death claim is premature as a matter of law. A cause of action for wrongful death accrues upon the death of the injured Person. TEX. CIV. PRAC. REM. CODE ANN. § 16.003(b) (Vernon Supp. 2000) (emphasis added). Because Dossey is not yet deceased, no cause of action has accrued. As a result, Dossey's daughter's wrongful death claim fails as a matter of law.
Plaintiff requests that this Court permit the wrongful death claim under the Texas Open Courts Provision. This request cannot be granted. To seek redress under the provision, a litigant must: (1) have a cognizable common law cause of action that is being restricted; and (2) show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. See Lucas v. United Stares, 757 S.W.2d 687, 690 (Tex. 1988); Sax v. Votteler, 648 S.W.2d 661,666 (Tex. 1983). Pursuant to Texas law, wrongful death actions are creatures of statute, and there is no common law cause of action for wrongful death. See, e.g., Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex. 1990) (stating that wrongful death actions are creatures of statute, abrogating the common law rule that no cause of action may be brought for the death of another person). Thus, because there is no common law cause of action being restricted in this case, Plaintiff is not entitled to redress for her wrongful death claim under the Texas Open Courts Provision. Defendants, BD and Fisher, are entitled to summary judgment on Plaintiff's wrongful death claim.
D. Dossey's Bystander Claim
Plaintiff s bystander claim also fails as a matter of law. In Texas, a bystander who witnesses a negligently inflicted serious or fatal injury may recover for metal anguish only if the person: (1) was located near the scene of the accident when it occurred; (2) suffered shock as a result of the direct emotional impact from a contemporaneous observance of the accident; and (3) was closely related to the victim of the accident, See United Servs. Auto. Ass'n v. Keith, 970 S.W.2d 540, 541-542 (Tex. 1998).
IT is undisputed that Dossey's daughter Sara was neither present nor anywhere near her mother when her mother received the needle stick at issue in this case. As a result, it is not possible that Sarah suffered shock from a contemporaneous observance of the needle stick. Because she fails to satisfy this essential element required for a bystander claim, Plaintiff's bystander claim fails as a matter of law. Defendants, BD and Fisher, are entitled to summary judgment on Plaintiff's bystander claim.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's wrongful death and bystander claims, and DENIED as to Plaintiff's Products Liability Claim. IT IS SO ORDERED.