United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND DIRECTING SUPPLEMENTAL
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
Tenley McLaughlin Good filed a complaint in Isabella County
Circuit Court alleging claims for malpractice and ordinary
negligence by Defendants, Biolife Plasma Services and Shire
Pharmaceuticals. ECF No. 1 at PageID.1, 11-12. Plaintiff
passed out and was injured when an employee of Defendants
took a capillary sample from Plaintiff's finger in
anticipation of Plaintiff making a blood plasma donation.
Defendants removed the case to federal court based on
diversity jurisdiction. ECF No. 1 at PageID.2. The parties
submitted a joint stipulation dismissing Plaintiff's
medical malpractice claim on August 20, 2019. ECF No. 35.
Plaintiff's general negligence claim identified two
different theories of Defendants' breach of duty. She
alleged that Defendants failed to “take an adequate
history to disclose Plaintiff's history of fainting
during blood draws” and, in addition, that Defendants
failed to “position her in a safe chair or cot/gurney,
with protective restraining components.” ECF No. 1 at
PageID.12. For purposes of clarity the first theory will be
referred to hereinafter as the “negligent
history” theory and the latter the “negligent
August 14, 2019, Defendants filed a motion for summary
judgment primarily focused on the negligent positioning
theory. Defendants contend that Plaintiff's negligent
positioning claim is governed by the Michigan law of premises
liability and the associated open and obvious doctrine.
Defendants contend that the negligent history theory is bared
by the doctrine of assumed risk. ECF No. 32. On August 23,
2019, Plaintiff filed a cross-motion for partial summary
judgment primarily arguing that Defendants had admitted each
of the elements of the negligent history claim. ECF No. 37.
All of the parties filed responses to the cross-motions for
summary judgment. ECF Nos. 46, 49. Replies followed. ECF Nos.
motion for summary judgment of Plaintiff's negligent
positioning claim will be denied for reasons explained in
this opinion. In summary, Michigan's law of premises
liability and the associated doctrine of open and obvious
dangers do not apply to Plaintiff's negligent positioning
theory. In addition, Michigan's law of assumed risk does
not apply and does not bar Plaintiff's negligent history
claim. Supplemental briefing will be directed however to
clarify a number of additional questions.
as earlier noted, Plaintiff's complaint identified two
different theories of Defendants liability. Plaintiff's
dispositive motion, however, focused nearly exclusively on
her negligent history theory and appears to be abandoning the
negligent positioning theory of liability. Plaintiff will be
directed to either affirm that she intends to prosecute the
negligent positioning theory or clarify her intent to pursue
the negligent history theory alone.
because the parties' papers address the two theories in
different contexts, they lack focused attention to the
elements of the negligence claim(s). That is, duty (does the
law require Defendants to conform to a particular standard of
care), breach of duty (what is the evidence that Defendants
did not conform to the standard of care), and proximate cause
(is the connection between the negligent conduct sufficiently
foreseeable to warrant the imposition of liability).
Accordingly, both parties will be directed to supplement
their briefs by no more than 15 pages once Plaintiff has
affirmed or withdrawn her negligent positioning theory of
liability. Each will be entitled to a response not to exceed
to be addressed in the supplemental briefs is Michigan's
law of comparative negligence and the application of
Michigan's tort reform to their dispositive motions.
See MCL § 600.2959; Blackwell v.
Franchi, 914 N.W.2d 900');">914 N.W.2d 900 (Mich. 2018).
McLaughlin Good grew up with a tendency to get light-headed
and/or faint when she saw blood. When Tenley was seven or
eight, she cut her hand on glass and had a negative reaction
to seeing the blood. ECF No. 32-5 at PageID.2162. Tenley once
fainted when her father cut the family's dog's nails
too short and caused the dog to bleed. ECF No. 32-4 at
PageID.2159. Tenley became very pale and unstable.
Id. Tenley also became dizzy after she had her ears
pierced. ECF No. 32-5 at PageID.2163. When Tenley was in
junior high, Tenley's sister sliced her hand in the
kitchen and Tenley passed out from observing the blood. ECF
No. 53-2 at PageID.6543.
her struggles with the sight of blood, Tenley “had
always donated blood [because] it was a big deal to
her.” ECF No. 32-5 at PageID.2164. In high school,
Tenley and her friend “were racing for their gallon tag
because . . . it saves lives.” Id. In 2011
when Tenley was about 16, she tried to donate blood at a MI
Blood donation center for the first time. ECF No. 32-5 at
PageID.2162; ECF No. 32-3 at PageID.2152. She fainted after
her finger was pricked for a capillary sample so she could
not donate blood. ECF No. 32-5 at PageID.2162; ECF No. 32-3
at PageID.2152. On June 7, 2012, she tried to donate blood
again. Tenley had no observable reaction when the capillary
sample was taken, but passed out when the bag began filling
with blood. ECF No. 32-3 at PageID.2152. On another occasion,
according to Tenley's mother, she attempted to donate
blood at an ice rink in Gladwin and later became dizzy. ECF
No. 32-5 at PageID.2163. As a result of her difficulty
donating blood, MI Blood noted in her chart that she had to
be supine when donating. ECF No. 32-5 at PageID.2162.
Plasma has a procedure for addressing new plasma donors.
Katie Pietrzak, the Center Director, and Amy Parks, an RN,
testified about the procedures included for plasma donors.
The process begins with a customer's check-in with the
receptionist and medical historian, followed by a check for
an adequate donation vein by a phlebotomist, a capillary
sample taken by a medical historian, and finally a health
questionnaire and physical exam with a nurse. ECF No. 32-2 at
PageID.2144; ECF No. 49-9 at PageID.5962. Each step of the
process helps determine whether the donor meets the criteria
to donate plasma. ECF No. 32-2 at PageID.2142. A repeat donor
has a shorter process that proceeds in a different order.
Id. at PageID.2144-2145.
receptionist obtains the donor's identification, social
security card, and address. ECF No. 53-3 at PageID.6550.
Next, the receptionist or a medical historian completes a new
donor chart, determines if the potential donor is on the
unacceptable address list or a NDDR list (a list if a
potential donor was declined at another facility), takes the
donor's picture, and has the donor read the consent to
take blood out loud. The donor must then “sign”
the consent by digitally scanning their fingerprint. ECF No.
53-3; ECF No. 49-9 at PageID.5962. The consent statement
I voluntarily consent to the withdrawal of my blood for the
purpose of laboratory testing. It is understood that the
blood is to be used solely for the purpose of testing for
donor eligibility. I understand that this consent will remain
in effect as long as I am a plasmapheresis donor and that I