Monday, July 28, 2003
C.A. Rejects Strict Liability for Suit Against Tissue Bank
By DAVID WATSON, Staff Writer
A tissue bank which supplies cadaver parts for use in surgical procedures provides a service, not a product, and cannot be sued on a theory of strict liability, the Sixth District Court of Appeal ruled Friday.
Addressing what it said were two issues of first impression in California, the court also ruled that a tissue bank is a health care provider against which punitive damages cannot be alleged without leave of court.
Justice Eugene M. Premo, writing for the court, said Santa Cruz Superior Court Judge Robert B. Atack should not have allowed the action filed by Alan J. Minvielle to proceed after the defendant, Cryolife, Inc., filed a demurrer and a motion to strike the punitive damage claims. Minvielle contended the company supplied an infected patellar tendon which was used in his knee surgery and later had to be removed.
The appeals court issued the peremptory writ of mandate sought by the defendant in the case.
“Whether strict products liability applies to a tissue bank that supplied an allegedly defective human tissue for surgical implantation is an issue no California appellate court has considered,” Premo observed. “In contrast, it is well established that strict products liability does not apply to blood banks or other institutions that provide blood transfusions and blood products.”
Premo noted that Health and Safety Code Sec. 1635.2, which deals with tissue banks-while using language different from Sec. 1606, which immunizes blood banks from strict liability claims-states that “the collection, processing, storage, or distribution of tissue for the purpose of transplantation... shall be deemed a service.”
The justice explained:
“When the Legislature enacted section 1635.2 in 1991 as part of a regulatory scheme for tissue banks, it had to know that tissue banks are paid for their activities in connection with providing human cadaver tissue for medical use. By expressly deeming such activities to constitute a service, the Legislature must have intended a tissue bank to be immune from strict liability....”
Atack also erred, Premo said, in denying Cryolife’s motion to strike the punitive damages claims from Minvielle’s complaint under Code of Civil Procedure Sec. 425.13, which requires a pretrial hearing before claims for punitive damages can be asserted against a health care provider.
Courts have held that a sperm bank is a health care provider under that section, the justice pointed out.
“[A] tissue bank is a health dispensary within the meaning of section 425.13 because it dispenses human tissue for transplantation and provides tissue-related services that are identified with human health,” Premo wrote. “For that reason, and because plaintiff’s claims arise from Cryolife’s tissue-related services, we conclude that plaintiff’s punitive damages claim against Cryolife is subject to the procedural requirements of section 425.13.”
The case is Cryolife, Inc. v. Superior Court (Minvielle), H024960.
Copyright 2003, Metropolitan News Company