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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KRISTEN TURNER, Plaintiff v. ADALTIS U.S.A., INC., et al., Defendants : : : : : : : ...o0o...

CIV. NO. AMD 04-1227

MEMORANDUM and ORDER In a tragic mishap, plaintiff Kristen Turner allegedly became infected with HIV during the performance of her duties as an immunology technician at Maryland General Hospital in Baltimore. The incident occurred while Turner operated a piece of equipment known as a LABOTECH, an open microplate blood testing system. Alleging claims for strict products liability, negligence, breach of warranty, and intentional infliction of emotional distress, Turner instituted this personal injury action in the Circuit Court for Baltimore City against defendants, Adaltis U.S.A., Inc., Maryland General Hospital, Inc., and James Stewart. Defendants timely removed the case to this court on the basis of diversity of citizenship. The case has been managed in a somewhat unorthodox fashion in that, at the court's suggestion, the parties agreed to early mediation. The case was referred to a magistrate judge for ADR proceedings, and some progress was apparently made but settlement was not reached. Nevertheless, with the court's approval, the parties were permitted to conduct what they refer to as "limited discovery" or "informal discovery," apparently in the hope and belief that such "limited discovery" might further the goal of prompt resolution by settlement

or otherwise, "without the need to engage in far reaching discovery that would involve sensitive personal and medical issues, retaining experts, and possibly joining additional parties located in foreign countries." Counsel are commended for their conscientiousness in these regards. In any event, the claims against defendants Maryland General and Stewart have been dismissed in orders filed on June 17, 2004, and April 4, 2005, respectively.* Now pending is the motion for summary judgment filed by defendant Adaltis. No hearing is needed. The motion shall be granted in part and denied in part for the reasons stated within. I. Pursuant to Fed. R. Civ. P. 56 (c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

The sole claim asserted against Maryland General (which, as Turner's employer and a citizen of Maryland, had provided workers' compensation benefits to plaintiff) was intentional infliction of emotional distress. The pleading and proof requirements of such a claim under Maryland law are stringent. Harris v. Jones, 281 Md. 560, 556, 380 A.2d 611, 614 (1977); Batson v. Shiflett, 325 Md. 684, 733-35, 602 A.2d 1191, 1216-17 (1992); Kentucky Fried Chicken Nat'l Mgt. Co. v. Weathersby, 326 Md. 663, 670, 607 A.2d 8, 11 (1992). The court concluded that plaintiff's allegations fell far short of asserting a colorable claim for this disfavored tort. In so dismissing Maryland General, whose presence in the case would have precluded removal and thus federal jurisdiction, the court determined that Maryland General had been joined in contravention of the "fraudulent joinder" doctrine. (In her opposition to the pending motion for summary judgment filed by defendant Adaltis, Turner consents to the dismissal of her remaining claim for intentional infliction of emotional distress.) As to defendant Stewart, the court concluded that, as a matter of law, plaintiff was a "borrowed servant" of Stewart's company, Health Systems, Inc., which had a contract to manage the Maryland General laboratory, and that Stewart and his company enjoyed immunity from suit under Maryland workers' compensation law. Cf. Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 77-78, 497 A.2d 803, 808-09 (1985). -2-

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is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324; Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Of course, the facts, as well as justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Matushita Elec. Indust. Co v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). II. The parties agree that Maryland law applies in this case. Moreover, Adaltis' motion
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for summary judgment invites the court to assume for purposes of the motion that the LABOTECH was indeed "defective" within the contemplation of Maryland strict products liability jurisprudence, that the defendant committed a breach of warranty, and/or that defendant was negligent in manufacturing and/or marketing the device, but that two affirmative defenses to all of plaintiff's theories of recovery, namely, assumption of the risk and product misuse, are established as a matter of law. The gravamen of defendant's contention is that Turner, a National Institutes of Health-trained technician with a B.S. degree in biology who knew, indisputably, the enormous risk inherent in unprotected exposure to HIV infected blood products, and contrary to certain warnings in the user's manual for the LABOTECH, ran tests on blood products she knew were infected, without closing the lid to the device. The incident occurred on March 12, 2003, when some of the infected blood product escaped from the device during testing after Turner received an unfamiliar error message, opened the lid, and made some adjustments. When Turner restarted the LABOTECH without closing the lid, the blood product contacted Turner's person, e.g., her nasal opening, when, allegedly, an internal component (a "moving part") of the device came loose and caused the blood products to splash out of the device. It is undisputed that the blood products would not have escaped the device and contacted Turner's person had she closed the lid before restarting it. In particular, relying heavily on plaintiff's deposition testimony and other undisputed evidence, defendant summarizes its contentions as follows: (1) Turner was "acutely" aware of the risk of infection associated
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with handling blood samples that were potentially contaminated with HIV and/or Hepatitis C; (2) The user's manual for the LABOTECH includes a clear and conspicuous warning that the lid should be closed when tests are being run; (3) Independent of the user's manual, Turner understood at the time of the accident that the purpose of the LABOTECH's lid was to protect operators from exposure to contaminated blood and that the lid should, therefore, be closed when test are being run; (4) Turner was specifically aware at the time of the accident that running the LABOTECH with the lid open increased the risk that she could come in contact with potentially-contaminated blood samples; (5) If the LABOTECH's lid had been closed at the time of the accident, the accident could not have occurred. Def.'s Memo at 3. Turner has countered defendant's factual showing, inter alia, with her unrefuted affidavit. Therein, she describes the training she received from defendant's personnel in the proper use of the LABOTECH. During her training, the LABOTECH was regularly operated with the lid open. Specifically, Turner attests that, "During my training, the LABOTECH malfunctioned a number of times. On those occasions, I was trained not only how to correct the error but also to observe the operation of the LABOTECH with the lid up to insure the machine operated properly." Turner Aff.

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Maryland Law