In the matter of, Spence v. Miles Laboratories, Inc., 810 F. Supp. 952 (E.D. Tenn. 1992), a hemophiliac, who allegedly contracted acquired immune deficiency syndrome (AIDS) from blood clotting factor concentrate, and his wife sued manufacturer of clotting factor. This Court had previously denied a motion by defendant Miles Laboratories, Inc. (“Miles”) for summary judgment. The case came before the Court on Miles‘ motion to reconsider.
Wynne Spence was born with hemophilia, an inherited disorder in which the hemophiliac’s own blood lacks certain key “clotting factors” which are essential to normal blood clotting. Persons withhemophilia are subject to episodes of uncontrolled bleeding which can be fatal. Wynne Spence was first diagnosed as having hemophilia B involving a Factor IX deficiency in June 1977 after an automobile accident. At that time, he received fresh frozen plasma and a Factor IX blood-clotting factor concentrate manufactured by Hyland known as PROPLEX. In January 1981, Mr. Spence received Factor IX blood-clotting factor concentrate while undergoing oral surgery for the removal of his wisdom teeth. Mr. Spence also received Factor IX blood clotting factor concentrate in September 1982 while being treated for an injury to his knee. KONYNE–HT is a product manufactured and distributed by Cutter Laboratories which is a division of Miles. KONYNE–HT is a Factor IX concentrate derived from human plasma which has undergone heat treatment during its processing to kill the AIDs virus as it contends. In July and August 1986, Wynne Spence was treated with KONYNE–HT as prescribed by his family physician.
Wynne Spence was diagnosed as suffering from AIDS on March 22, 1990, after being tested for AIDS for the first time. WynneSpence and Jennifer Spence filed suit against Miles in the Circuit Court of Hamilton County, Tennessee, on March 20, 1991, and Miles subsequently removed the case to Federal Court under diversity jurisdiction. Mr. Spence died on March 24,1992, as a result of health complications associated with AIDS. This suit was carried on by his surviving spouse, Jennifer Spence, pursuant to Tennessee Wrongful Death Statute Tenn.Code Ann. § 20–5–106(a). Plaintiff claimed that Miles was negligent in not withdrawing from the market KONYNE–HT derived from blood or plasma which had not been tested or screened for the AIDS virus, and also negligent for failing to warn that the plasma it used to manufacture the KONYNE–HT administered to Mr. Spence had not been tested for the presence of the AIDS virus.
The first question to be resolved by the Court was whether plaintiff could maintain a cause of action against Miles pursuant to Tenn.Code Ann. § 68–32–102 which permits a cause of action against a company who does not test its blood or plasma for AIDS. The next point of analysis for the Court was whether the AIDS statute provided the Spences a cause of action in this case. The general rule in Tennessee is that “a statute will be presumed to operate prospectively and not retroactively unless it clearly appears from the statute that the Legislature intended it to operate retroactively. A statute should not be given retroactive operation unless its words make that imperative.” Smith v. State Farm Mutual Auto Ins. Co., 278 F.Supp. 405, 410 (E.D.Tenn.1967); Miles collected the plasma, processed it, and manufactured and distributed the KONYNE–HT Lot No. 20P010 to Erlanger Hospital in 1984–1985 before § 68–32–102 became effective. The Court held there was no language in the statute which indicated that the Tennessee General Assembly intended the statute to have retroactive application. Section 68–32–102 cannot be retroactively applied to hold Miles liable in damages to plaintiff.
The Court held that the claim was time barred being outside the statute of limitations. Section 68–32–102 contains no reference to a statute of limitations or statute of repose. However, in Tennessee, “the gravamen of an action, rather than its designation as an action for tort or contract, determines the applicable statute of limitations.” Pera v. Kroger Co., 674 S.W.2d 715, 719 (Tenn.1984).
“all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. It shall include, but not be limited to, all actions based upon the following theories: … negligence; … breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever.”
“Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28–3–104, 28–3–105, 28–3–202 and 47–2–725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date of which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.”
“The anticipated life of a product shall be determined by the expiration date placed on the product by the manufacturer when required by law but shall not commence until the date the product was first purchased for use or consumption.”
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