Snyder v American Association of Blood Banks
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
William and Roslyn Snyder v American Association of Blood Banks, et al. (A-97-95)
Argued November 6, 1995 -- Decided June 4, 1996
POLLOCK, J., writing for a majority of the Court.
On August 23, 1984, William Snyder underwent open-heart surgery at St. Joseph's Hospital in Paterson. Snyder learned in 1987 that he had contracted Acquired Immune Deficiency Syndrome (AIDS) from a transfusion of blood that the Bergen County Blood Center (BCBC), a non-profit blood bank, had provided to St. Joseph's. The BCBC is a member of the American Association of Blood Banks (AABB), an association of blood banks and blood-banking professionals. This appeal addresses whether AABB owed a duty of care to Snyder, and whether AABB is entitled to charitable immunity under N.J.S.A. 2A:53-7.
In 1984 there was no direct test to determine whether blood was infected with Human Immunodeficiency Virus (HIV), the virus that causes AIDS. However, there were other means of making that determination.
In February 1989, Snyder and his wife Roslyn (collectively Snyder) filed a complaint against St. Joseph's, various physicians and other individuals, BCBC and AABB. Snyder asserted claims sounding in strict liability, breach of warranty, negligence and consumer fraud. In the strict-liability claim, Snyder alleged that he had been transfused with a defective blood product that could have been made safe through available blood tests and donor-screening techniques. According to Snyder, AABB resisted implementation of those testing techniques. Snyder further alleged that BCBC and AABB negligently had enhanced his risk of contracting AIDS by failing to implement procedures to prevent HIV-infected donors from giving blood. AABB denied Snyder's allegations and asserted the affirmative defense of charitable immunity.
Ultimately, all defendants other than AABB either settled or obtained dismissals. At trial, the focus was on AABB's role in the blood-banking industry and the reasonableness of its response to increasing evidence that blood or blood products could transmit AIDS. Evidence at trial demonstrated that in the early 1980's, AABB centers collected about half of the nation's blood supply and transfused about eighty percent of the blood to patients. Its institutional members were mainly hospitals and non-profit blood centers. During that time, AABB led the blood industry and established itself as the leader in setting blood-banking standards. Moreover, AABB was active in lobbying on issues concerning the industry. At the state level, the New Jersey Department of Health (DOH), when renewing blood-bank licenses accepted reports of AABB inspections in lieu of its own inspections. The DOH also accepted AABB's standards for obtaining medical histories and conducting physical examinations of the donors. Thus, the picture that emerged at trial was that the AABB was a private, tax-exempt organization with substantial power over the operation of blood banks, including BCBC.
Another important inquiry was whether AABB should have known in 1984 that blood and blood products could carry the HIV virus. The Centers for Disease Control (CDC) formed an AIDS Task Force that from 1982 to 1984 played a pivotal role in publicizing the threat of AIDS to the nation's blood supply. In 1982, the CDC postulated that the cause of the disease was an infectious agent such as a virus which bore a remarkable resemblance to the Hepatitis B Virus (HBV). HBV is transmittable perinatally, by sexual contact or through blood. Throughout 1982, evidence continued to accumulate that a blood-borne agent caused AIDS. At an emergency workshop in Atlanta on January 4, 1983, the Task Force presented disturbing information about the risk of transmission of AIDS through the blood supply. The Task Force recommended three methods to screen out high-risk donors: 1) direct questioning of prospective donors to
determine if they belong to high-risk groups; 2) detailed recording of medical histories of prospective donors to determine any indications of early AIDS symptoms; and 3) the institution of surrogate testing of collected blood. The Task Force also proposed three surrogate tests, which refer to identifying people at risk for disease by testing for some symptom or characteristic manifested by a majority of people who have contracted or are at a risk of contracting the disease. In the early 1980's, one available surrogate test for HIV infected blood was that for the antibody to the Hepatitis B core antigen. At this meeting, AABB and other blood-banking representatives strenuously disagreed with the CDC that blood could transmit AIDS. AABB argued that: surrogate testing was unnecessary; that direct questioning was improper; and that surrogate testing and direct questioning would be too costly and would lead to the rejection of too much blood.
Throughout the early 1980's, despite the mounting evidence, AABB continued to refuse to require surrogate testing or direct questioning of donors. That refusal, however, belied internal concerns within AABB. By April 24, 1984, researchers had isolated the AIDS virus and had developed the ELISA test, which screens for HIV.
At the conclusion of trial, the jury found that AABB had been negligent in not recommending surrogate testing and that that negligence was a substantial factor in causing Snyder to contract HIV. The jury determined that AABB was thirty percent liable for Snyder's injuries.
The Appellate Division affirmed, finding that AABB owed Snyder a duty of care. The Appellate Division denied AABB's charitable immunity claim, reasoning that AABB was not organized exclusively for religious charitable, education or hospital purposes as required under the statute. The Supreme Court granted certification.
HELD: The American Association of Blood Banks is not immune from liability under the Tort Claims Act; AABB owes a duty of ordinary care to persons receiving blood or blood products from its members; and AABB breached its duty of care to Snyder. Moreover, AABB is not entitled to charitable immunity.
1. Blood banks, hospitals and patients relied on AABB for the safety of the nation's blood supply; for years, AABB dominated the establishment of standards for the blood-banking industry and exerted considerable influence over the practice and procedure of its member banks, including BCBC; the risk that blood transfusions could transmit AIDS was severe and was foreseeable; and by 1983, there was ample evidence supporting the conclusion that blood transmitted the AIDS virus. Therefore, AABB knew, or should have known, in 1984 of the risk of AIDS infection from blood transfusions. Thus, the record clearly establishes that AABB owed Snyder a duty of care. Moreover, when balanced against the devastating risks from a disease such as AIDS, the imposition of a duty to care on AABB does not offend the public policy favoring open debate on controversial scientific issues. (pp. 31-38)
2. AABB represented its interest and those of its members, who had a substantial financial interest in the regulation of the billion dollar blood-banking industry. Unlike a governmental agency, AABB was not created by statute; does not act pursuant to government mandate; and is not accountable either to the public or another branch of government. Therefore, the Court need not defer to AABB's decisions as it would a governmental agency. Likewise, the Court rejects the dissent's contention that AABB should enjoy qualified immunity, remaining liable only for a failure to act in good faith. Nothing other than AABB's own self-interest and bad judgment prevented it from recommending surrogate testing. The AABB was not directed by law or mandate to subordinate its interests to those of the public. Moreover, its decisions were not subject to public scrutiny and there were no strictures of procedural safeguards or governmental oversight. Furthermore, AABB never argued that it was entitled to qualified immunity. Thus, a remand for a retrial under a standard never urged by AABB would serve an injustice to Snyder. (pp. 38-48)
3. AABB is a private, tax-exempt association created to meet the needs of the blood-banking industry. Merely because it has assumed regulatory authority over that industry does not transform it into a public entity entitled to immunity under the Tort Claims Act. Moreover, AABB was not organized and solely devoted to religious, charitable, educational or hospital purposes. Therefore, the charitable-immunity statute is inapplicable. (pp. 48-51)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE GARIBALDI, dissenting, is of the view that ordinary negligence is not the appropriate standard of care to measure AABB's conduct. The dictates of public policy, specifically the
quasi-governmental nature of AABB in regulating blood banks, lead to the conclusion that AABB should be entitled to qualified immunity, liable only for a failure to act in good faith.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, STEIN and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE GARIBALDI filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A- 97 September Term 1995
WILLIAM and ROSLYN SNYDER,
AMERICAN ASSOCIATION OF BLOOD
HAROUTUNE MEKHJIAN, M.D.,
Individually and HAROUTUNE
MEKHJIAN, M.D., P.C.; YOUNGICK
LEE, M.D.; WILMO OREJOLA, M.D.;
ANTHONY LOSARDO, M.D.; LEONARD
SAVINO, M.D.; JOHN DOE, M.D.;
a fictitious name; RICHARD ROE,
M.D.; a fictitious name; JOHN
ROE, M.D., a fictitious name;
JOHN SMITH, M.D., a fictitious
name; JOHN JONES, M.D, a
fictitious name; ST. JOSEPH'S
HOSPITAL; ST. JOSEPH'S BLOOD
BANK; BERGEN COMMUNITY BLOOD
CENTER, ANTHONY PASSARO,
LAWRENCE WILKINSON, W BLOOD
BANK, a fictitious name; Dr.
JOHN KALIAN; Y BLOOD BANK, a
fictitious name; Z BLOOD BANK,
a fictitious name; XYZ BLOOD
BANK, a fictitious name; JANE
DOE, a fictitious name; RICHARD
ROE, a fictitious name; JOSEPH
WILLIAMS, a fictitious name;
JOSEPH ROGERS, a fictitious
name; GREGORY SMITH, a
fictitious name; JOSEPH SMITH,
a fictitious name; JANE SMITH,
a fictitious name; and WILLIAM
SMITH, a fictitious name;
Individually and as agents,
employees and servants of
St. Joseph's Hospital,
Argued November 6, 1995 -- Decided June 4, 1996
On certification to the Superior Court, Appellate Division, whose opinion is reported at 282 N.J. Super. 23 (1995).
Edwin R. Matthews argued the cause for appellant (Matthews, White, Giacumbo & Fischer and Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, attorneys; Mr. Matthews, Mark D. Larner and Donald P. Jacobs, on the briefs).
George T. Baxter argued the cause for respondents.
Charles W. Wigginton submitted a brief on behalf of amicus curiae Association of Tissue Banks (Maley, Williamson & Hayden, attorneys; Mr. Wigginton and Burt A. Braverman, a member of the District of Columbia bar, on the brief).
William B. McGuire submitted a brief on behalf of amicus curiae American Society of Association Executives (Tompkins, McGuire & Wachenfeld, attorneys).
Susan M. Sharko and Laura A. Wefing submitted a brief on behalf of amicus curiae College of American Pathologists (Shanley & Fisher, attorneys).
The opinion of the Court was delivered by
Plaintiff William Snyder contracted Acquired Immune Deficiency Syndrome (AIDS) from a transfusion of blood that the Bergen Community Blood Center (BCBC), a non-profit blood bank, had provided to St. Joseph's Hospital. The BCBC is a member of defendant, the American Association of Blood Banks (AABB), an association of blood banks and blood-banking professionals. The
primary issue is whether the AABB owed a duty of care to Snyder. A further issue is whether the AABB is entitled to charitable immunity under N.J.S.A. 2A:53-7.
In the Law Division, a jury found the AABB thirty-percent liable for Snyder's damages of $1,350,000, or $405,000. The Appellate Division affirmed. 282 N.J. Super. 23 (1995). We granted the AABB's petition for certification, 142 N.J. 517 (1995), and now affirm.
On August 23, 1984, Snyder underwent open-heart surgery at St. Joseph's Hospital in Paterson. During the surgery he received transfusions of several units of blood platelets, including unit 29F0784, which BCBC had supplied to St. Joseph's.
At the time, no direct test existed to determine whether blood was infected with Human Immunodeficiency Virus (HIV), the cause of AIDS. Other means of making that determination, however, were available. Starting in 1985, the enzyme-linked immunoabsorbent-assay-screening test (the ELISA test) enabled blood banks to screen for HIV.
Under a nation-wide "look-back" program instituted that year, blood banks could determine whether a prospective donor who tested positive for HIV had donated blood before the development
of the ELISA test. As part of the "look-back" program sponsored by the AABB, BCBC ascertained in 1986 that the donor of unit 29F0784 was HIV positive. That same year BCBC so informed St. Joseph's Hospital. St. Joseph's, in turn, informed Snyder's doctor, who notified him in 1987. Snyder, who was not otherwise at risk, tested HIV positive. He has since contracted AIDS.
In February 1989, Snyder and his wife, Roslyn (collectively referred to as "plaintiffs"), filed a complaint in the Law Division against St. Joseph's, various physicians and other individuals, BCBC, and the AABB (collectively described as "defendants"). Plaintiffs asserted claims sounding in strict liability, breach of warranty, negligence, and consumer fraud. In the strict-liability claim, Snyder alleged that he had been transfused with a defective blood product that could have been made safe through available blood tests and donor-screening techniques. According to the plaintiffs, the AABB, however, resisted implementation of those tests and techniques. Snyder further alleged that BCBC and the AABB negligently had enhanced his risk of contracting AIDS by failing to implement procedures to prevent HIV-infected donors from giving blood. The AABB denied plaintiffs' essential allegations and asserted the affirmative defense of charitable immunity.
In an earlier proceeding, the Law Division entered an order allowing plaintiffs to proceed with their negligence claim against the AABB. Further, the court ruled that plaintiffs were not entitled to discovery of BCBC'S blood-donor records.
The Appellate Division agreed that plaintiffs could maintain their negligence action. Snyder v. Mekhjian (Snyder I), 244 N.J. Super. 281, 290-93 (1990). Overruling the trial court, the Appellate Division allowed plaintiffs' discovery of the donor's records. We affirmed. 125 N.J. 328 (1991).
Ultimately, all defendants other than the AABB either settled or obtained dismissals. At the trial, the critical issue was whether the AABB had breached a duty of care to Snyder. Hence, the trial focused on the AABB's role in the blood-banking industry and the reasonableness of its response to increasing evidence that blood or blood products could transmit AIDS.
At the conclusion of an eight-week trial, the jury found that the AABB had been negligent in not recommending surrogate testing. Surrogate testing refers to identifying people at risk for a disease by testing for some symptom or characteristic manifested by a majority of people who have contracted or are at risk of contracting the disease. In the early 1980s, one
available surrogate test for HIV infected blood was that for the antibody to the hepatitis B core antigen (the HBc antibody).
The jury further found that the AABB's negligence was a substantial factor in causing Snyder to contract HIV. It also found that the AABB was thirty percent liable for plaintiffs' injuries.
The Appellate Division affirmed. Writing for the court, Judge Pressler stated that, on the interlocutory appeal, the court had determined that the AABB owed Snyder a duty of care, and that the law of the case precluded a different determination. 282 N.J. Super. at 43.
The Appellate Division explained that the "unique and dominant role of the AABB in blood-banking and the extent of its control over its institutional members" established the requisite relationship between the AABB and blood-product recipients, "whose safety is its avowed paramount concern." Id. at 43. Considering the risk involved and the "public policy concerns implicit in the blood-banking industry's methods of operation," the court determined that the "AABB is reasonably chargeable with a duty of care owed to those recipients whose life and health depend on the reasonableness and prudence of its actions." Id. at 43-44.
On the charitable-immunity issue, the court reasoned that "although [the AABB] is a non-profit corporation engaged in necessary and useful services, [it] is not `organized exclusively for religious, charitable, educational, or hospital purposes.'" Id. at 41 (quoting N.J.S.A. 2A:53-7). Accordingly, the court denied the AABB's claim of charitable immunity.
Crucial to the assessment of the AABB's alleged duty of care is its role in the blood-banking industry in 1983-84. The blood-banking industry consists of a voluntary sector, which depends on voluntary donors, and a commercial sector, which depends on paid donors. Generally speaking, the voluntary sector provides whole blood and blood components, and the commercial sector provides plasma and plasma derivatives.
Central to the voluntary sector is the American Red Cross with its blood banks, community and hospital blood centers, and the AABB, which includes almost every blood bank in the United States. These voluntary blood banks rely on public-spirited donors for their blood supply. Voluntary blood banks commonly separate donated blood into three components: plasma, platelets, and red cells.
Dominating the commercial sector are manufacturers or fractionators of plasma derivatives. In the early 1980s, fractionators collected approximately eighty percent of plasma from paid donors. The voluntary sector provided the remaining twenty percent. Fractionators pool plasma from thousands of donors and process it to produce large batches of plasma derivatives, such as clotting factors for hemophiliacs. Each batch contains enough clotting factor to treat thousands of patients. Institute of Medicine, HIV and the Blood Supply: An Analysis of Crisis Decisionmaking 15 (1995) (the IOM Report).
State and federal regulations apply to both sectors of the blood-banking industry. The Food and Drug Administration (FDA), an agency of the Public Health Service (PHS) in the United States Department of Health and Human Services (DHHS), inspects and licenses blood banks and other blood facilities. See 21 U.S.C.A. § 321(g)(1)(B) (broadly defining "drugs" to include "articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease," which includes blood and blood products); 21 U.S.C.A. §360(b) (requiring processing establishments, including blood banks, to register with the FDA); 42 U.S.C.A. § 262(c) to (d) (requiring inspection and licensing by the FDA (as delegated by secretary of DHHS) of blood or blood-product facilities that participate in interstate commerce); 21 C.F.R. 5.10(a)(1) and (5) (1995) (delegating to FDA authority
vested in the secretary, DHHS, and PHS in the Food, Drug and Cosmetic Act ( 21 U.S.C.A. §§301-95) and in 42 U.S.C.A. §§262 and 263); 21 C.F.R. 607.3(b) (1995) (defining blood as a drug). In New Jersey, the Department of Health (DOH) discharges similar responsibilities. See N.J.S.A. 26:2A-1 (authorizing DOH to regulate collection, processing and distribution of blood). A blood bank in New Jersey cannot operate without licenses from both the FDA and DOH. 42 U.S.C.A §§ 262(a); N.J.S.A. 26:2A-4.
Against this background, we consider the role of the AABB. According to the AABB's certificate of incorporation, the purpose of the AABB is
to foster the exchange of ideas and information relating to blood banks and blood transfusion services[;] . . . to advance and incorporate high standards of performance and service by blood banks[;] . . . to function as a clearing house for the exchange of blood and blood credits . . . [and] to encourage the development of blood banks through education, public information and research.
The AABB describes itself as a "professional, non-profit, scientific and administrative association for individuals and institutions engaged in the many facets of blood and tissue banking, and transfusion and transplantation medicine." It is "the only organization devoted exclusively to blood banking and blood transfusion services." In the early 1980s, the AABB
centers collected about half of the nation's blood supply and transfused eighty percent of the blood to patients. Its institutional members were mainly hospitals and non-profit blood centers.
According to the AABB's executive director, Joel Solomon, the general purpose of the AABB is "to develop and recommend standards on the practice of blood banking, to help promote the public health, . . . and to conduct numerous programs for communication and education among organization members and the public at-large." The AABB discharges its educational mission by conducting workshops and seminars, and by publishing books, newsletters, pamphlets, and a peer-review journal, Transfusion. Additionally, the AABB lobbies the United States Congress and state legislatures and participates in federal and state administrative rulemaking procedures.
Significantly, the AABB annually inspects and accredits member institutions. It conditions accreditation on compliance with standards published in its Standards for Blood Banks and Transfusion Services and procedures outlined in its Technical Manual. According to the annual report, AABB standards often become FDA standards. As the AABB has declared, it "leads the industry in setting policy and establishing standards of practice for its member blood banks in excess of the FDA."
Both the state and federal government, as well as the blood-banking industry, generally accept AABB standards as authoritative. Consequently, blood banks throughout the nation rely on those standards. For example, BCBC relied on the AABB standards in developing its own operating procedures. In the words of Anthony Passaro, Executive Director of BCBC, the AABB's standards in 1984 "were basically the Bible of the blood center."
AABB's inspections complement the annual inspection by the FDA. If a blood bank loses its AABB accreditation but retains its FDA and New Jersey licenses, it can continue to operate, but only with significant practical problems. Hospitals and other blood banks prefer to work with AABB accredited institutions.
The AABB also issues advisory recommendations and guidelines. The BCBC, which had only a part-time medical director, relied on the AABB for guidance in assuring the safety of its blood supply. According to Dr. Wilkinson, the BCBC's medical director, and Anthony Passaro, its executive director, the BCBC in 1984 followed the AABB's recommendations on AIDS screening. Furthermore, the BCBC would have followed any other AABB recommendations. Dr. Wilkinson testified:
Q: If the A.A.B.B. had recommended that you use a laboratory test for screening aids, would you have done so?
To the same effect, Mr. Passaro testified:
Q. Mr. Passaro: If the American Association of Blood Banks had recommended that you -- not you personally -- that the Bergen County Community Blood Center do a certain laboratory test for screening donors, would it have been done at the Blood Center?
In the early 1980s, the AABB led the blood industry. Dr. George F. Grady, an expert in blood-banking procedures and transfusion-related viruses, testified that the AABB had established itself as the leader in setting blood-banking standards. The AABB, moreover, was an active member of the FDA's influential Blood Products Advisory Council and advised the FDA on issues concerning the blood industry. In a recent study of the FDA's response to the threat of AIDS, the Committee to Study HIV Transmission Through Blood and Blood Products (the Committee) of the Institute of Medicine found that "in the early 1980s, the FDA appeared too reliant upon analyses provided by industry-based members of the Blood Products Advisory Council." IOM Report, supra, at 15.
Others also noted governmental deference to the AABB. Dr. Edgar Engleman, the director of the Stanford Blood Bank, testified that in 1984 the FDA took a passive role in developing
standards and guidelines, essentially deferring to the AABB in determining the blood-banking industry's response to AIDS. Dr. Thomas Asher, a microbiologist and blood expert who runs a blood-products company, testified that "most state . . . governments incorporate into their state regulations the AABB standards, [which] are, in most cases, the state standards for licensing."
At the state level, the DOH, when renewing blood-bank licenses, accepted reports of AABB inspections in lieu of its own inspections. N.J.A.C. 8:8-1.4(b) (May 21, 1984). DOH also accepted AABB's standards for obtaining medical histories and conducting physical examinations of donors. N.J.A.C. 8:8-5.2 (May 21, 1984).
Finally, in a December 1983 memorandum on potential blood-bank liability from transfusion-related AIDS, the AABB's general counsel advised AABB members that "courts have frequently cited AABB's standards as evidence of appropriate practice, and we believe that the courts will give credence to the recommendations made jointly by AABB and other blood banking organizations."
The picture that emerges is of a private, tax-exempt organization with substantial power over the operation of blood banks, including BCBC. That the blood banks would accept
direction from the AABB is understandable: it was their organization. We turn next to the AABB's exercise of that power during the early years of the AIDS crisis.
The first report of severe immune deficiency among homosexuals surfaced in 1981. In 1985, the DHHS approved the ELISA test. Snyder received his transfusion in 1984. Our initial inquiry is whether the BCBC should have known in 1984 that blood and blood products could carry the HIV virus. Answering that question requires consideration of the information available to the AABB about the nature, cause, and transmission of AIDS. It also involves consideration of the roles of the AABB and of the Centers for Disease Control (CDC), a public-health branch of DHHS, in investigating and warning of diseases, such as AIDS.
The CDC first sounded the alarm about AIDS. In 1981, in response to a rapidly spreading and often fatal immunological disorder among homosexual males, the CDC formed a group, subsequently known as the AIDS Task Force. The Task Force consisted of epidemiologists knowledgeable about hemophilia, hepatitis, and sexually-transmitted diseases. From 1982 to 1984, the Task Force played a pivotal role in publicizing the threat of AIDS to the nation's blood supply.
The CDC's primary means of alerting the medical and public-health communities of new diseases is through the publication of the Morbidity and Mortality Weekly Report (MMWR). Between June 1981 and July 1982, the CDC reported in the MMWR a rapidly increasing number of cases, totaling 355, of previously rare immunosuppression-related ailments among homosexual men and intravenous drug users in New York, California, New Jersey, and Florida. The disease, now known as AIDS, had an extremely high mortality rate: forty percent of its victims had died. Data indicated, moreover, that the longer a patient suffered from the disease, the higher the mortality rate climbed. Initially, AIDS occurred only in gay men. By June 1982, however, other groups were at risk. Seventy-five percent of AIDS patients were gay men, twenty percent were intravenous (IV) drug users, and five percent were not readily classifiable.
The AIDS Task Force began to compile a composite description of the disease. Health officials had learned that AIDS victims exhibited persistently swollen lymph nodes long before the onset of other symptoms. One common symptom was depressed T-lymphocyte helper-to-suppressor ratios, an immunological abnormality that reflects a reduced count of a certain lymphocyte, or white blood cell. Another symptom was a low absolute lymphocyte count, which indicates suppression of the immune system.
The two most prominent AIDS-associated diseases were pneumocystis pneumonia and Kaposi's sarcoma. Before their occurrence in AIDS patients, both pneumocystis pneumonia and Kaposi's sarcoma had been extremely rare. Pneumocystis pneumonia is a type of pneumonia that previously had occurred only in severely immunosuppressed patients, such as those undergoing cancer chemotherapy. Kaposi's sarcoma is a skin malignancy that previously had appeared almost exclusively in elderly men. Other AIDS-related ailments included a form of lymphatic cancer known as non-Hodgkins lymphoma and tuberculosis.
Not all patients suffered from the same diseases. Some had pneumocystis pneumonia; others, Kaposi's sarcoma; and still others suffered from both. Almost all, however, displayed the T-cell ratio abnormality and depressed lymphocyte counts. The clustering of the symptoms among homosexual men and IV drug users and the shared abnormality in white blood cell counts led the CDC to conclude in 1982 that the evidence pointed to a single disease with a common underlying factor.
Plaintiffs presented several expert witnesses who explained the evolution of the discovery that blood and blood products could carry the AIDS virus. Dr. Donald Francis, a virologist and epidemiologist, served as director of the AIDS Task Force laboratory in the early 1980s and as assistant director of the CDC's hepatitis-B effort in the 1970s. He testified that in 1982 the CDC detected a pattern in the transmission of AIDS and in the identification of the persons at risk. The pattern revealed that early homosexual AIDS patients were infecting others through sexual contact. Also apparent was an incubation period varying from several months to several years. The CDC postulated in June 1982 that the cause of the disease was an infectious agent, such as a virus.
According to Dr. Francis, the epidemiology of AIDS, which affected primarily homosexuals and IV drug users, bore a remarkable resemblance to that of hepatitis B. Hepatitis B is a liver disease that is transmitted perinatally (from a mother to her fetus) or by either sexual contact or blood. In an outbreak of hepatitis B in the 1970s, the major high-risk populations were homosexual men, IV drug users, and hemophiliacs. Because it could be transmitted by blood, transfusion-related hepatitis B had become a serious public-health concern, particularly to the blood-banking industry.
Dr. Ernest Simon, an expert in blood-banking and transfusion medicine, as well as the deputy director of the FDA's blood division from 1976 to 1980, also testified. He stated that during the early 1980s, "[s]even to ten percent of individuals who were transfused . . . would [subsequently] show evidence of liver dysfunction probably related to transmissibility of viral
hepatitis." Members of the AIDS Task Force, noting the epidemiological similarity between AIDS and hepatitis B, feared that blood and blood products could carry AIDS.
On July 16, 1982, after three hemophiliacs had developed AIDS, the CDC published a landmark report. According to Dr. Francis, the report "brought much of our speculation about the disease to . . . a conclusion about its transmissibility." The three hemophiliacs, unlike the average AIDS patient, were heterosexual men who did not use IV drugs. Furthermore, they did not fit within the observed New York-California geographic distribution of AIDS patients. They shared, however, one potential risk: all three treated their hemophilia with the blood product known as Factor VIII, a concentrated clotting factor. The CDC focused on that factor.
In its July 16, 1982, report in the MMWR, the CDC concluded that "[a]lthough the cause of [AIDS] is unknown, the occurrence among the three hemophiliac cases suggests the possible transmission of an agent through blood products." Study of the Factor VIII manufacturing process led CDC researchers to believe that a virus caused AIDS. In producing Factor VIII, fractionators would filter out larger infectious agents, such as bacteria, to reduce the likelihood of contamination. The filters, however, could not trap smaller agents, such as viruses.
Dr. Francis explained that the realization that the infectious agent was a virus that could be transmitted by blood "was a red flag and concerned us greatly about the potential for blood-borne transmission of other therapeutic blood products."
On July 27, 1982, the PHS held a national meeting of blood and blood-product collectors to discuss the threat of AIDS. At that meeting, members of the CDC Task Force reported their findings to blood-industry organizations, including the AABB.
In September 1982, Dr. Edward N. Brandt, Jr., the assistant secretary for health at DHHS, issued a directive incorporating the conclusions of the July meeting. In that directive, Dr. Brandt stated that
the recent occurrence of [pneumocystis pneumonia] in three patients with hemophilia raises the question whether the underlying immunodeficiency seen in these patients has the same etiology as among other groups with [pneumocystis pneumonia]. There is need to determine if certain blood products, particularly Factor VIII, are risk factors for AIDS.
Dr. Brandt instructed PHS agencies, including CDC, FDA, and the National Institutes of Health (NIH), to increase their efforts to combat AIDS and to focus on the threat to hemophiliacs from the use of factor concentrate.
In November 1982, the CDC became concerned about the special risk that AIDS posed to doctors, nurses, and other hospital personnel who were exposed regularly to blood. Consequently, the CDC alerted them that "hepatitis-B virus infections occur very frequently among AIDS cases." The CDC warned that "[a]t present, it appears prudent for hospital personnel to use the same precautions when caring for" AIDS patients as when caring for patients with hepatitis B.
Throughout 1982, evidence continued to accumulate that a blood-borne agent caused AIDS. The CDC reported that, as with the spread of the hepatitis virus among gay men, the AIDS virus was transmitted sexually and by blood. Vaccination specialists from the CDC, the FDA, and the NIH noted that the "epidemiology of AIDS suggests an unidentified and uncharacterized blood-borne agent as a possible cause of the underlying immunologic defect." Moreover, the total number of AIDS cases was doubling every six months. By December, the number of hemophiliacs diagnosed with AIDS likewise had doubled.
Thus, by late 1982, the pattern for AIDS transmission was clear. Dr. Francis testified that some suspected but unconfirmed cases of transfusion-associated AIDS had surfaced in October and November 1982. On December 10, 1982, the CDC reported that an infant who at birth in March 1981 had received a number of
transfusions later developed AIDS-like symptoms. The infant's parents did not belong to any known risk group. A donor of one of the units later developed AIDS. The CDC noted that "several features of the infant's illness resemble those seen among adults with AIDS." It explained:
The etiology of AIDS remains unknown, but its reported occurrence among homosexual men, intravenous drug abusers, and persons with hemophilia A suggests it may be caused by an infectious agent transmitted sexually or through exposure to blood or blood products. If the infant's illness described in this report is AIDS, its occurrence following receipt of blood products from a known AIDS case adds support to the infectious-agent hypothesis.
* * *
If the platelet transfusion contained an etiologic agent for AIDS, one must assume that the agent can be present in the blood of a donor before onset of symptomatic illness and that the incubation period for such illness can be relatively long.
Because of the long incubation period for AIDS, the Task Force feared that the undiscovered cases greatly exceeded those that had been reported.
One week later, the CDC reported four cases of AIDS in infants under the age of two whose mothers belonged to high-risk populations, but who had not received any blood transfusions. In an additional twelve suspected cases of infant AIDS, nine of the
mothers were IV drug users. The CDC reported that the children could have been infected by the "[t]ransmission of an `AIDS agent' from mother to child, either in utero or shortly after birth." That possibility, according to Dr. Francis, "really fill[ed] in all of the pieces of the puzzle of transmission here. . . . The epidemiology of HIV now looked identical to hepatitis B virus."
Members of the CDC AIDS Task Force developed a model of the cause and transmission of AIDS. Dr. Francis explained:
[W]e're talking about an infectious, viral agent, that was in the blood of individuals, that had the same epidemiologic pattern of sexual, blood-borne and perinatal . . . transmission that hepatitis B virus had, that destroyed a specific lymphocyte, specific [white blood] cell in the immune system . . . .
The person that would be likely to have this virus . . . would be gay men and intravenous drug users or their sexual contacts.
Alarmed at the prospect of AIDS in the blood supply, the CDC called an emergency workshop in Atlanta for January 4, 1983. The purpose of the meeting was to ascertain how to prevent the transmission of AIDS through blood and blood products. Representatives of government, the AABB, the American Red Cross, the Council for Community Blood Banks, the National Hemophilia
Foundation, the National Gay Task Force, and other organizations attended the meeting. The AIDS Task Force was convinced that AIDS was blood-transmissible, and that its epidemiology mirrored that of hepatitis B, "involving the same high-risk groups and in the same proportions."
The Task Force also presented disturbing information about the risk of the transmission of AIDS in the blood supply. By that time, the CDC had reported six cases of transfusion-associated AIDS. A study of 140 gay men with AIDS in San Francisco revealed that at least ten had admitted donating blood in previous years. Because the specific causative agent for AIDS had not yet been identified, the Task Force asserted that persons at high risk for AIDS should not donate blood.
The Task Force recommended three methods to screen out high-risk donors: (1) direct questioning of prospective donors to determine if they belonged to high-risk groups; (2) detailed recording of medical histories of prospective donors to determine any indications of early AIDS symptoms; and (3) institution of surrogate testing of collected blood. Together, these three methods would have prevented blood from high-risk donors from entering the blood supply. Specifically, surrogate testing would have complemented the other two methods by providing an objective
test of blood from high-risk donors who were symptom-free and reluctant to admit to homosexual activity or IV drug use.
Consistent with that recommendation, the Task Force proposed three surrogate tests: (1) the hepatitis-B core-antibody test (core test), which tested for people who either had been or are infected with hepatitis B; (2) the T-cell ratio test, which tested for the specific immunological abnormality common in AIDS patients; and (3) the absolute-lymphocyte test, which tested for a reduced level of lymphocytes.
In 1982, Dr. Thomas Spira of the CDC Task Force conducted a study of the effectiveness of various surrogate tests. He concluded that the core test would identify a large majority of people with or at risk of contracting AIDS. Of patients with AIDS, the core test revealed that eighty-eight percent of gay men, one-hundred percent of IV drug users, and eighty-seven percent of Haitians tested positive for the hepatitis-B core antibody. Seventy-nine percent of the control group of homosexual and bisexual men not suffering from AIDS - the most significant high-risk group - tested positive for hepatitis B. This result was consistent with earlier studies indicating high levels of hepatitis-B infection among gay men. M.T. Schreeder, et al., Hepatitis B in Homosexual Men: Prevalence of Infection and Factors Related to Transmission, 146 J. Infectious Diseases 8 (July 1982). Because hepatitis B was uncommon in the general population, the Task Force estimated that five percent of the remaining healthy male population would test positive. On balance, the Task Force concluded that the core test was the most promising.
At the January 4, 1983, meeting, the AABB and other blood-banking representatives strenuously disagreed with the CDC. Dr. Joseph Bove, chairman of the AABB Committee on Transfusion Transmitted Disease, stated that he was unconvinced that blood could transmit AIDS. He argued that surrogate testing was unnecessary and that direct questioning was improper.
Dr. Francis rejoined that the AABB's response was "remarkably obstructive." He recognized the response as "basically an attempt to deny that there was a threat." The AABB nonetheless persisted in arguing that surrogate testing and direct questioning would be too costly and would lead to the rejection of too much blood. Dr. Francis described the meeting:
[T]he reluctance and the inertia that we at CDC faced with the blood banks in that meeting was so . . . ridiculous and so alarming that it got to the point of me literally pounding on the table and shouting to these individuals as to how many deaths it's going to take before you will act.
And I was saying, do you need ten, do you need twenty, do you need forty, when we get to that level, then are you going to act?
This was a very heated meeting because of this incredible counter balance of those of us investigating the epidemic and seeing the urgency of the situation . . . to put the responsibility for action onto the blood banks, because presumably, they were the only ones that could act, that there -- the imbalance of this urgency from us and the obstruction, the negative response from them was a most disturbing time, one of the most disturbing times in my twenty years in public health.
Following the meeting, the lines hardened. The AABB criticized both direct-donor questioning and surrogate-blood testing. In a joint statement of January 13, 1983, the AABB, the American Red Cross, and the Council of Community Blood Banks described the CDC data as "insufficient," "the evidence "inconclusive," and the possibility that blood transmitted AIDS as "still unproven." Still, as the CDC Task Force had urged, they recommended that their members take from donors detailed medical histories emphasizing early AIDS' symptoms. The joint statement continued, however, that the AABB and the others "[did] not advise routine implementation of any laboratory screening program for AIDS by blood banks at this time," even though "there are laboratory and clinical findings that are present in nearly all AIDS patients." Finally, the AABB and the other organizations rejected direct questioning of donors about sexual preference as ineffective and as an unjustifiable "invasion of
privacy." Confronted with escalating evidence that blood transmitted the AIDS virus and that surrogate testing would reveal the presence of the virus, the AABB became increasingly intransigent.
Throughout 1983, the evidence continued to mount. On March 4, 1983, the PHS reported in MMWR that "the occurrence of AIDS among IV drug users" supports a finding that "blood products or blood appear responsible for AIDS among hemophilia patients." The PHS recognized the need for, but did not recommend, surrogate testing.
A month later, the AABB issued a set of standard operating procedures that required only the distribution of AIDS educational material to donors and continued medical history screening. The AABB refused to require surrogate testing or direct questioning of donors.
That refusal, like Dr. Bove's testimony at the January 4, 1983, CDC meeting, belied internal concerns within the AABB. In December 1982, Dr. Bove wrote an internal memo indicating a growing concern that AIDS could cause "major problems in the blood collecting sector." He continued that his "current best guess is that we are dealing with an infectious agent able to be spread by blood and blood products and that individuals who
receive large quantities of factor concentrate are at an increased risk." In a January 1983 report, Dr. Bove noted that a recently discovered transfusion-related AIDS case "increases the probability that AIDS may be spread by blood." He recognized that "there is little doubt in my mind that additional transfusion related cases and additional cases in patients with hemophilia will surface," and that the CDC was actively pursuing more transfusion-related cases. Consequently, Dr. Bove advised that
the most we can do in this situation is buy time . . . [before the AABB] will be obliged to review our current stance and probably move in the same direction as the commercial fractionators. By that I mean it will be essential for us to take some active steps to screen out donor populations who are at high risk of AIDS.
Additionally, Dr. Bove expressed concern that "we do not want anything that we do now to be interpreted by society (or by legal authorities) as agreeing with the concept - as yet unproven that AIDS can be spread by blood." Dr. Bove stressed that the AABB must do "whatever is medically correct," but that "we may have to do a little more, since we are accused of burying our heads in the sand." Notwithstanding these qualifications, Dr. Bove recognized that blood carries the AIDS virus and that the AABB should actively screen high-risk donors.
In a report dated March 29, 1983, Dr. Bove noted increasing pressure from the federal government and the CDC. He predicted that the "next step on the horizon will probably be a request to institute a mandatory screening of donor blood." Somewhat ambivalently, Dr. Bove stated, however, "that the evidence linking AIDS to blood transfusion is unconvincing." For whatever reason, he and the AABB could not accept the fact that blood can transmit the AIDS virus. Yet, in October 1983, in a memo to the AABB Board of Directors, Dr. Bove warned the AABB board of directors that a forthcoming article by Dr. James W. Curran and others in the prestigious New England Journal of Medicine documented eighteen cases of transfusion-related AIDS.
The plasma industry, which relies on paid donors, took a much more cautious view. Whenever a plasma donor later developed AIDS, the industry would withdraw all coagulation products made from that donor's blood.
Consistent with that approach, the FDA, in a March 24, 1983, memorandum to licensed manufacturers of plasma derivatives, prohibited use of plasma "collected from donors suspected of being at increased risk of transmitting AIDS" from being used to produce "derivatives already known to have a risk of transmitting infectious diseases," such as the clotting factors used in treating hemophilia. Thus, the memorandum evidences the decision
of the federal government to exclude high-risk donors, specifically sexually-active homosexuals. Existing regulations already excluded IV drug users. In sum, the FDA's recommendation reflected its growing concern about AIDS contamination of blood and blood products.
Beginning in 1983, some blood banks began to institute surrogate testing. In January 1983, Dr. Thomas Asher began testing all blood for total lymphocyte count at his commercial blood-fractionating facility. Seven months later, the Stanford University Hospital blood bank instituted the T-cell ratio test. Several northern California blood banks instituted the core test in 1984. No AIDS cases resulted from blood tested at any of these facilities. At a December 1983 meeting of the FDA's Blood Products Advisory Committee, Dr. Edgar Engleman, director of the Stanford blood bank, reported that the bank had rejected, on the basis of T-cell test results, two high-risk donors who should have self-excluded after reading the AIDS information materials, but who elected to donate anyway.
Two influential reports published in early 1984 addressed transfusion-associated AIDS. Dr. Curran's article in the January 12, 1984, New England Journal of Medicine - the article about which Dr. Bove had alerted the AABB board of directors in October 1983 - concluded that AIDS could be transmitted through blood and
blood products. James W. Curran, et al., Acquired Immunodeficiency Syndrome (AIDS) Associated with Transfusions, 310 New England Journal of Medicine 69, 73-74 (Jan. 12, 1984); see Kozup v. Georgetown Univ., 663 F. Supp. 1048, 1052 (D.D.C. 1987) (describing the article as the definitive statement that AIDS was caused by blood-borne agent).
A subsequent article in the Annals of Internal Medicine, another respected peer-review journal, quantified the risks associated with blood transfusion and treatment of hemophilia. The article stated:
Present evidence increasingly indicates that the syndrome is caused by an agent that may be transmitted through transfusions, but risk to a person receiving blood is very small. During 1983, 28 cases of transfusion-associated syndrome were diagnosed . . . in the United States. Each year, more than 3 million persons receive transfusions in the United States: thus for 1983, the crude annual rate of reported cases of the syndrome approximates 1 case per 100,000 recipients.
[James W. Curran and Llewelyn F. Barker, The Acquired Immunodeficiency Syndrome Associated with Transfusions: The Evolving Perspective, 100 Annals of Internal Medicine 298, 299 (Feb. 1984)].
The statistics for hemophiliacs were far more severe:
The 12 cases of [AIDS] diagnosed in 1983 among persons with hemophilia represent an
annual rate of 1 case per 1000 hemophiliacs receiving antihemophilic concentrates. The relatively high rate among hemophiliacs may result from the method of concentrate production: each hemophiliac is exposed annually to several concentrate lots, each containing plasma pooled from thousands of donors.
On April 13, 1984, at a telephone conference of the FDA's Blood Products Advisory Committee, the FDA announced the following position:
The recent decision by several blood and plasma organizations to use the anti-core test was a voluntary decision on their part with the recognition of the limitations of the test and the lack of data to support the premise that excluding anti-core positive individuals from donor pools will have any impact on the frequency with which donors are later found to have developed AIDS.
At this point, it would seem reasonable to continue voluntary and cooperative efforts aimed at assessing the potential usefulness of a variety of laboratory tests for their predictive value in identifying individuals who are in a pre-clinical stage of AIDS. On the basis of the information available to date, it is possible that screening tests other than anti-core may ultimately prove to be more predictive and generally useful in improving the safety of blood and blood products. It would therefore be unwise to adopt anti-core testing to the exclusion of other screening tests.
In July 1984, the Blood Products Advisory Committee's Hepatitis B Core Antibody Testing Study Group (study group)
reported its findings on the core test. The study group consisted of eleven members representing the FDA, plasma fractionators, and major blood-industry associations, including the AABB. The majority of the study group, including the AABB, rejected the core test. It contended that the core test would lead to the rejection of too many healthy donors, was not sufficiently specific, and cost too much. Further, the majority contended that self-screening was working. A minority recommended adoption of the core test. It asserted that self-screening was not working and urged that the core test would exclude sixty to eighty percent of high-risk donors. As a matter of policy, the minority concluded that concerns about blood safety outweighed concerns about a diminishing blood supply or excessive costs.
On April 24, 1984, Secretary Margaret Heckler of the DHHS announced that researchers had isolated the AIDS virus and had developed a blood test for AIDS. She believed that the test, now known as the ELISA test, would be available within six months. In fact, the DHHS approved the ELISA test on March 4, 1985, seven months after Snyder received his transfusion.
Against that background, we consider whether the AABB owed Snyder a duty of care. Our analysis begins by recognizing that
the AABB did not directly obtain, process, or transfuse the infected platelets that caused Snyder to contract AIDS. Thus, the AABB had no immediate connection with either the donor or with Snyder.
The determination of the existence of a duty ultimately is a question of fairness and policy. Crawn v. Campo, 136 N.J. 494, 501 (1994); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). An important, although not dispositive consideration, is the foreseeability of injury to others from the defendant's conduct. Carter Lincoln-Mercury v. EMAR Group, 135 N.J. 182, 194 (1994). Also important are the nature of the risk posed by the defendant's conduct, the relationship of the parties, and the impact on the public of the imposition of a duty of care. Dunphy, supra, 136 N.J. at 108. The absence of a contractual or special relationship is not dispositive. Carter Lincoln-Mercury, supra, 135 N.J. at 195-97; see also Aronsohn v. Mandara, 98 N.J. 92, 105 (1984) (holding that lack of privity of contract between building contractor and third persons does not bar recovery for those injured by defendant's negligence); H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 338-39 (1983) (holding that reasonably foreseeable consequences of auditor's negligent opinion about corporation's finances, not privity in contract,
define duty owed to persons foreseeably relying on auditor's representations).
Blood banks, hospitals, and patients rely on the AABB for the safety of the nation's blood supply. A patient contemplating surgery cannot assure the safety of blood drawn from others. Of necessity, patients rely on others, including the AABB, for that assurance.
Society has not thrust on the AABB its responsibility for the safety of blood and blood products. The AABB has sought and cultivated that responsibility. For years, it has dominated the establishment of standards for the blood-banking industry. To illustrate, the AABB's January 1983 joint statement with the Red Cross and Council of Community Blood Centers endorsed the AABB-recommended screening measures as "prudent and appropriate." In a March 31, 1983, AABB press release, Dr. Bove stated:
We would also like to assure the public that the chance of anyone acquiring AIDS through a blood transfusion is remote. . . . Every precaution is being taken to assure that each unit of blood transfused is the safest possible.
By words and conduct, the AABB invited blood banks, hospitals, and patients to rely on the AABB's recommended procedures. The AABB set the standards for voluntary blood banks. At all
relevant times, it exerted considerable influence over the practices and procedures over its member banks, including BCBC. On behalf of itself and its member banks, the AABB lobbies legislatures, participates in administrative proceedings, and works with governmental health agencies in setting blood-banking policy. In many respects, the AABB wrote the rules and set the standards for voluntary blood banks.
We next examine the severity and foreseeability of the risk that blood transfusions could spread the AIDS virus. The severity of the risk of transfusion-related AIDS is a function of the mortality rate and the infection rate. In 1984, the overall mortality rate of AIDS was forty percent, but for those who had AIDS for more than three years, the rate approached nearly 100%. The infection rate was increasing exponentially. For example, the CDC reported thirty-eight cases of transfusion-related AIDS by December 1983, up from six cases reported in January of that year. The CDC believed that as more people became infected with AIDS, the risk to the blood supply also would increase. Thus, the risk that blood transfusions could transmit AIDS was severe.
The risk also was foreseeable. Epidemiologists at the CDC believed as early as 1982 that the AIDS virus could be transmitted by blood and blood products. In January 1984, Dr. Curran's article in the New England Journal of Medicine confirmed
that belief. Thus, before Snyder received his transfusion, the AABB should have foreseen that a blood transfusion could transmit AIDS.
We are unpersuaded by the AABB's argument that because the evidence was inconclusive, it owed no duty to Snyder. The foreseeability, not the conclusiveness, of harm suffices to give rise to a duty of care. By 1983, ample evidence supported the conclusion that blood transmitted the AIDS virus. In early 1984, the AABB knew that AIDS was a rapidly spreading, fatal disease and that apparently healthy donors could infect others. The AABB also knew that blood and blood products probably could transmit AIDS and that each infected blood donor could infect many donees. Thus, the AABB knew, or should have known, in 1984 that the risk of AIDS infection from blood transfusions was devastating. We agree with the lower courts that the record establishes that the AABB owed Snyder a duty of care.
The AABB claims that considerations of public policy and fairness negate the imposition of a duty of care extending to Snyder. Specifically, the AABB contends that it should not be found liable for taking the "wrong side" of a debate involving medical uncertainties and public policy. According to the AABB, the imposition of liability violates its constitutionally-
protected right to participate in the political process. The argument misses the mark.
The AABB relies on the Noerr-Pennington doctrine, which states generally that because of First Amendment considerations, commercial interests that lobby to influence government do not violate antitrust laws. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S. Ct. 609, 611-12, 30 L. Ed.2d 642 (1972); United Mine Workers v. Pennington, 381 U.S. 657, 669-70, 85 S. Ct. 1585, 1593. 14 L. Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-38, 81 S. Ct. 523, 529-30, 5 L. Ed.2d 626 (1961); see generally 4 Ronald E. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure 2d 520.54 (1992). The United States Supreme Court has not extended the doctrine beyond the field of antitrust. Lower federal courts, however, have applied the Noerr-Pennington doctrine to other areas of the law, including tort liability. See, e.g., South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40, 50-51 (8th Cir. 1989) (finding that defendant's litigation activities were protected under Noerr-Pennington doctr
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