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Tenley McLaughlin Good v. Biolife Plasma Services, L.P.

United States District Court, E.D. Michigan, Northern Division

December 20, 2019

TENLEY MCLAUGHLIN GOOD, Plaintiff,
v.
BIOLIFE PLASMA SERVICES, L.P.; and SHIRE PHARMACEUTICALS aka SHIRE US, INC., Defendants.

          OPINION AND ORDER DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING SUPPLEMENTAL BRIEFING

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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 positioning” theory.

         On 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. 52, 53.

         Defendants 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.

         First, 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.

         Second, 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 five pages.

         Finally, 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).[1]

         I.

         Tenley 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.

         Despite 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.

         A.

         Biolife 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.

         The 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 provides:

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 am ...

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