To a lay person, the obvious way to draft a blood shield statute would be simply to declare that a supplier of transfused human blood shall be liable for harm caused by infected blood only if the supplier was at fault for failing to detect the infection.
Property Versus Services In Blood Shield Statutes: Are There Tax Implications?
Most of the blood shield statutes take the belt-and-suspenders approach, also typical of the legal mind, and add to the service-not-product declaration an express statement that liability for transfused blood is to be based only on willful or negligent conduct.
New York, and states with similarly-worded blood shield statutes would be subject to the disadvantageous tax consequences that flow from categorizing their sales and donations of blood as services.
473, 488-90 (1994) (noting that only two states--New Jersey and Vermont--did not have blood shield statutes).
Armour Pharmaceutical C0.,(29) a federal district court in Pennsylvania held that strict liability and warranty claims against Factor VIII manufacturers were barred by the state's blood shield statute, and the court went on to dismiss enterprise and market share liability, noting the legislative policy underlying Pennsylvania's blood shield statute precluded reliance on either of these theories.
Courts uniformly have held blood shield statutes constitutional.(18)
Arkansas's 1971 blood shield statute exemplifies this understanding, finding as legislative fact that the "imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures inhibits the exercise of sound medical judgment and restricts the availability of important scientific knowledge, skills, and materials."(55) Therefore, declared the legislature, it was "the public policy of this state to promote the health and welfare of the people by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct."(56)
1989) (finding that plaintiffs strict-liability claims against a factor-concentrate manufacturer were barred by Kentucky's blood shield statute); Coffee v.
Part I also details the crippling effect of the blood shield statutes on product-defect litigation brought by hemophiliac plaintiffs infected with HIV and hepatitis from blood products.
Blood products were afforded virtual immunity from suit due to the widespread enactment of blood shield statutes by the states.
These laws are called blood shield statutes
, and they say that the delivery of blood is not a product but is a service."