Five tissue banks sued for buying stolen cadaver parts will not be allowed out of the cases merely because the paperwork that accompanied the body parts appeared to be in order.
Judge William Martini of the U.S. District Court for the District of New Jersey made that clear in a pair of rulings last Tuesday that denied the banks' motions for summary judgment.
The banks argued that because they were provided with seemingly valid consent forms, they had good-faith immunity under the Anatomical Gift Act of New York, where the suits were filed before being consolidated before Martini.
Martini agreed with the tissue banks that the consent forms appeared to be facially valid, and recognized there was a precedent where an eye bank was granted summary judgment on the same ground, but said it would be premature to decide the issue without allowing discovery on whether the banks were aware the consent forms were fabricated.
"To accept the Tissue Bank Defendants' argument, that summary judgment could be granted based solely on the consent forms without examining whether the Tissue Bank Defendants knew the consent forms were invalid, is to suggest that the Gift Act insulates potentially complicit tissue banks as long as they have received a completed consent form, even if there is evidence that the tissue banks knew, or had constructive knowledge, that the forms had been falsified," he wrote.
The plaintiffs argued in court papers that the tissue banks "turned a blind eye" to myriad irregularities such as "cookie cutter" documentation, with consent in every case purportedly given by phone, and the "incredible assembly-line volume of body parts from this single source," Biomedical Tissue Services of Fort Lee, N.J.
David Field, the lawyer for defendant LifeCell Corp., a Branchburg, N.J., tissue bank, says Martini's decision "only postpones an ultimate determination of the applicability of this defense until some discovery has been taken." Field, with Lowenstein Sandler in Roseland, N.J., says his client was dragged into the case because of its deep pockets.
The other tissue bank defendants are Regeneration Technologies Inc. and Tutogen Medical Inc., both in Alachua, Fla.; Lost Mountain Tissue Bank in Kennesaw, Ga.; and The Blood and Tissue Center of Central Texas in Austin.
The suits, Graves v. Biomedical Tissue Services, 06-cv-5655, and Kennedy-McInnis v. Biomedical Tissue Services, 06-cv- 5140, are among a handful of "donor" cases filed by family members dismayed that their loved ones' remains were cut up and sold for profit.
Most of the more than 500 suits consolidated before Martini in In re Human Tissue Products Liability Litigation, 06-135, are "recipient" cases, brought by people who received transplants of pilfered and sometimes diseased body parts. They fear they will contract the cancer, hepatitis, HIV and other diseases that killed the tissue donor.
It is unclear whether the immunity defense could be used in the recipient cases, since no such motion has been filed. The defense arguably applies there, too, says David Kott, of McCarter & English in Newark, N.J., who represents The Blood and Tissue Center.
The New York immunity provision, N.Y. Public Health Law §4306(3), is based on the Uniform Anatomical Gift Act, some form of which has been adopted in every state.
For instance, the New Jersey version, N.J.S.A. 26:6-58.1, which is almost identical to New York's, is broadly worded: "A person who acts in good faith in accordance with the provisions of this act is not liable for any damages in any civil action or subject to prosecution in any criminal proceeding for any act or omission of the person."
Field, on the other hand, thinks the immunity argument is not a good fit with the different theory of liability in the recipient cases, which is based on putting an item into the stream of commerce and does not depend on the tissue banks' knowledge.
Jason Macias, the liaison counsel for the plaintiffs in the recipient cases, agrees, saying he does not expect to see similar motions. Macias is with Newark's Lite DePalma Greenberg & Rivas.
Two of the tissue companies that failed to get out based on immunity did win dismissal on a different ground on Nov. 13.
The Blood and Tissue Center was dismissed from Graves on the basis of an affidavit stating it had no record of receiving tissue taken from the decedent, Bradley Graves. Martini held the Graves family thus lacked standing to sue the center and dismissed the claims against it without prejudice.
He also let The Blood and Tissue Center, along with Tutogen Medical, out of the Kennedy-McInnis case for the same reason.
A pending defense motion in the recipient cases asks for dismissal on the basis there have been no reported illnesses from the transplanted tissue and there is no risk of any.
The motion is based on scientific evidence gathered at Martini's request. The plaintiffs' opposition papers are due Wednesday.