___________


                                 ___________

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                                      *
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           Appellant,
                                      *
     v.                                    District Court for the
                                           District of Nebraska.
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                                      *
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                                      *

           Appellees.
                                 ___________



                        Filed:   July 12, 1996


Before  EAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES,*
     District Judge.



BEAM, Circuit Judge.


           Kipp   (Kipp)   appeals   the   district   court's           g
judgment to the gover
recover damages for the death of his mother (Cheryl Kipp)




     *The H                                                         t
                                                                    y

       1
                                                                        t
Judge for the District of Nebraska.
due to a blood transfusion contaminated with the human immunodeficiency
virus (HIV).   Because Kipp failed to prove causation, a required element
of his negligence claims, we affirm.


I.   BACKGROUND


     Kipp brought this negligence action under the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b) & 2671, both in his individual capacity and in
his capacity as the representative of Cheryl Kipp's estate.        The HIV-
contaminated blood was donated on January 16, 1985, at Camp Memorial Blood
Center (Blood Center) by Darryl Bonner when he was in basic training for
the United States Army in Kentucky.     Cheryl Kipp received the transfusion
in February of 1985 while undergoing a hysterectomy at Ehrling Bergquist
Hospital at Offutt Air Force Base in Nebraska.      In May 1989, Cheryl Kipp
died from complications associated with acquired immunodeficiency syndrome
(AIDS).


     Reported cases involving the transmission of AIDS through blood
transfusions first appeared in 1982.    In response to that newly-discovered
threat, in March 1983, the Food and Drug Administration (FDA) issued a
memorandum advising all establishments collecting blood for transfusion to
provide:   (1) educational programs informing persons in certain "high risk"
groups that they should refrain from donating blood until a definitive AIDS
test was developed; (2) re-education of personnel responsible for donor
screening to identify signs and symptoms of AIDS in potential donors; and
(3) a standard operating procedure whereby blood collected from a donor
suspected of having AIDS was labeled or quarantined and destroyed.


     In December 1984, the FDA issued another memorandum to all registered
blood banks in the United States.      In this document, the FDA stated that
blood banks should:   (1) provide educational materials to potential donors
in order to inform them of which




                                      -2-
groups were at high risk of contracting or carrying HIV; (2) ask donors
specific questions about their medical histories in order to determine
whether a donor may have contracted HIV; (3) provide donors with a
confidential means of preventing their blood or plasma from being used in
a transfusion or in making plasma derivatives; and (4) institute special
procedures for handling blood products known to be infected with HIV.
These December 1984 recommendations were adopted by the Army on February
13, 1985.


       In   January   1985,   when   Bonner    donated   his    blood,   there   was   no
scientifically reliable test to determine whether blood was infected with
HIV.   The Blood Center staff conducted an orientation, pursuant to their
standard procedure, for all potential blood donors, including Bonner.                  He
received a pamphlet that identified groups at high risk of contracting
AIDS, and requested people who thought they fell into one of these groups
to refrain from donating blood.       The pamphlet described specific signs and
symptoms of AIDS.       Additionally, a Blood Center employee read the AIDS
informational material aloud to potential donors.               Moreover, each donor,
including Bonner, received a card which requested information regarding
that person's health.         Bonner completed, and signed, the donor card on
which he indicated he was in good health.         Rachel Harris Demaree, a senior
sergeant at the Blood Center, conducted a confidential interview and
reviewed Bonner's answers on the donor card with him.                    Demaree and a
phlebotomist at the Blood Center then conducted a physical examination of
Bonner, during which his arms were examined and his vital signs obtained.
Demaree also checked Bonner for Kaposi's sarcoma, a rare form of cancer
sometimes associated with AIDS, but found no indications of the disease.
Later, however, Bonner tested positive for HIV.                In April 1989, he died
from AIDS-related complications.


       At trial, Kipp claimed that the Blood Center was negligent in its
screening of the blood because it failed to follow FDA




                                         -3-
recommendations on proper screening procedures.          After conducting a bench
trial, the district court held that Kipp failed to prove his negligence
claims and granted judgment to the defendants.           Applying a professional
standard of care analysis, the district court stated that Kipp failed to
provide any expert testimony on the standard of care for blood banks in
Kentucky    and   relied   instead   on    a    negligence   claim   based   on   FDA
recommendations, which the court concluded did not establish the applicable
standard of care.    The district court also affirmed the magistrate judge's
order prohibiting all of Kipp's lay witnesses from testifying due to a
violation of the court's progression order.


        On appeal, Kipp first contends that the industry standards of
military blood gathering are controlled by the Military Blood Program
Office (MBPO) operating under the FDA recommendations.               Because these
recommendations were not followed in the present case, Kipp asserts the
defendants' actions constitute negligence per se.            Kipp also argues that
the order to exclude all of his lay witnesses violates the law of this
circuit.   Finally, he alleges that under Kentucky law an ordinary standard
of negligence, rather than a professional standard, applies to blood banks.


        The defendants assert that the applicable standard of care under
Kentucky law is the professional standard.           They also contend, however,
that their actions satisfied any negligence standard.          Moreover, according
to the defendants, Kipp failed to establish any causal link between the
alleged deficiencies in the screening process and Cheryl Kipp contracting
AIDS.    The defendants also argue that striking all lay witness did not
"constitute a dismissal," as Kipp contends, because the magistrate judge
has broad discretion in fashioning remedies for a violation of a discovery
order, including prohibiting the admission of evidence.                Lastly, the
defendants raise the discretionary function exception to the Federal Tort
Claims Act as a defense.




                                          -4-
II.   DISCUSSION


      This tragic case requires us to determine whether Kipp proved that
the defendants were negligent in screening or taking the HIV contaminated
blood, thereby causing his mother to contract the fatal virus.             Kipp
asserts that the defendants' failure to comply with the FDA recommendations
constitutes negligence per se.        Moreover, according to Kipp, failure to
comply with the FDA recommendations also violated an applicable Kentucky
statute,2 thereby constituting negligence per se.            Assuming, without
deciding, the validity of Kipp's position, negligence per se would only
satisfy the duty and breach of duty elements of his negligence claims.      See
generally Restatement (Second) of Torts § 288B cmt. b (1965).        Therefore,
Kipp must still prove that the alleged breach--i.e., inadequate screening
of the donor for HIV--caused his mother to contract AIDS.       See, e.g., Peak
v. Barlow Homes, Inc., 

, 578 (Ky. Ct. App. 1988).


      Under Kentucky law, a plaintiff bears the burden of proving that a
defendant's negligent act or omission was "a substantial factor in bringing
about the injury."       See, e.g., Brown Hotel v. Levitt, 

(Ky.
1948).       In further refining this "substantial factor" analysis, the Supreme
Court of Kentucky reasoned:        "`In order to be a legal cause of another's
harm, it is not enough that the harm would not have occurred had the actor
not been negligent. . . .        [T]his is necessary, but it is not of itself
sufficient.'"       Deutsch v. Shein, 

, 144 (Ky. 1980) (adopting
and quoting the Restatement (Second) of Torts § 431, cmt. a (1965)); see
also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 41,
at 265 (5th ed. 1984) ("An act or omission




         2
      The statute that Kipp argues applies in this case mandates
that "[a]ll blood establishments within the Commonwealth shall be
licensed by the United States Food and Drug Administration and
remain in compliance with all applicable federal regulations." Ky.
Rev. Stat. § 214.452(1).

                                        -5-
is not regarded as a cause of an event if the particular event would have
occurred without it.").    Therefore, because Kipp based his negligence
claims on an inadequate screening theory, he needed to provide some
evidence that had the defendants complied with the FDA recommendations,
Bonner's infected blood would not have been taken and given to Cheryl Kipp.
See, e.g., Tennyson v. Brower, 

, 424 (E.D. Ky. 1993)
(stating that it is clear under Kentucky law that the plaintiff in a
negligence case bears the burden of proving that the negligent conduct had
such an effect in producing the harm that a reasonable juror would regard
it as a cause), aff'd, 

(6th Cir. 1994) (Table) (unpublished
disposition).


     We recognize the difficulty of demonstrating that Cheryl Kipp would
not have contracted AIDS had the defendants followed FDA recommendations
when, as in the present case, the donor died before trial.          If such
evidence existed, however, Kipp could have introduced it without the donor-
-e.g., if a friend saw Bonner about the time he donated his blood and the
friend observed physical manifestations of symptoms associated with AIDS.
Other courts have also recognized the difficulty of establishing causation
in this type of case and the importance of information about the donor in
order to enable the plaintiff to prove proximate cause.     See, e.g., Long
v. American Red Cross, 

, 663 (S.D. Ohio 1993) ("Whether the
employment of different tests or screening procedures would have produced
a different result is a vital link in the plaintiffs' attempt to prove
proximate cause.").   As one plaintiff in a different case argued in his
motion to compel:   "Without an opportunity to ask the donor how he would
have responded had the Red Cross followed proper screening procedures it
will be virtually impossible for the plaintiff to prove that the Red Cross'
negligence was the proximate cause of [the injury]."    Ellison v. American
Nat'l Red Cross, 

, 11 (D.N.H. 1993).   Nevertheless, even though
it may have been more difficult without




                                   -6-
the donor present, Kipp was not relieved of his burden of proving the
requisite causation element.


     Kipp asserts that the defendants failed to follow the procedures set
out in the FDA recommendations in several respects.      First, Kipp claims
that the defendants failed to implement the FDA recommendations of December
14, 1984, in a timely manner.   Next, Kipp argues that the FDA handout given
to potential blood donors stated that Haitian entrants to the United States
since 1979 should refrain from giving blood; while the FDA recommendation
contained the same restriction beginning in 1977.   Kipp also contends that
the defendants failed to include specific questions relating to symptoms
associated with AIDS (i.e., persistent cough or shortness of breath, white
spots or unusual blemishes in the mouth, persistent diarrhea) on the health
questionnaire card given to potential donors.     Finally, Kipp argues that
the defendants failed to provide a confidential means whereby donors can
prevent their blood from being used for transfusions.


     In fact, the record indicates that the defendants complied with the
March 1983 FDA recommendations.     And, at a minimum, they substantially
complied with the December 1984 FDA recommendations which had not yet been
adopted by the Army at the time of Cheryl Kipp's transfusion.   For example,
the specific AIDS-related symptoms that Kipp asserts needed to be on the
donor card were contained in the informational pamphlet provided to Bonner.
The one clear deviation was the date restriction on Haitian entrants, but
as with the other alleged deficiencies, Kipp failed to demonstrate that
Bonner's blood would not have been taken had the FDA recommendations been
followed verbatim.    Therefore, even if Kipp's factual assertions were
entirely accurate, he has failed to demonstrate that his mother would not
have contracted HIV had the defendants strictly complied with the FDA
recommendations.




                                    -7-
      Kipp has attempted to remedy the lack of proof on proximate cause
with two equally unpersuasive arguments.      First, Kipp asserts that the
blood transfusion with Bonner's contaminated blood is the only possible
source of the AIDS virus contracted by his mother.   While that may be true,
the   proper focus of our inquiry is whether the defendants' alleged
negligence--i.e., inadequate screening of potential donors--caused Kipp's
mother to contract the AIDS virus.   Kipp's view of the requisite causation
element erroneously focuses on the transfusion rather than on the alleged
negligence.   Second, at oral argument, Kipp's counsel erroneously attempted
to place the essential, and independent, requirement of proximate cause
under the umbrella of the negligence per se doctrine.          As we noted
previously, however, the negligence per se principle only establishes the
duty and breach of duty elements of a negligence claim.3   Here, Kipp failed
to demonstrate causation, i.e., that it was the Blood Center's inadequate
screening of blood donors that caused Cheryl Kipp's death.           Kipp's
arguments as to negligence per se are of no avail in proving the essential
element of causation.


      Because Kipp failed to prove causation, we need not discuss the other
issues pertaining to his negligence claims.    Moreover, we




       3
       We recognize that some of the cases from Kentucky seem to
suggest that the proximate cause requirement is satisfied when a
statute is violated and the resulting injury is the type
contemplated under the statute. See Blue Grass Restaurant Co.,
Inc. v. Franklin, 

, 597 (Ky. 1968) ("The ordinance
which was violated was intended to prevent the injury which
[plaintiff] sustained, therefore, the failure to comply must be
considered a proximate cause."). Later cases, however, make it
clear that Kentucky law does require a plaintiff to prove
causation, even in a negligence per se case. See, e.g., 

(applying Kentucky law and rejecting the
plaintiffs' argument that once the jury found the defendant's act
to be negligence per se, "the court should have ruled as a matter
of law that such negligence was a substantial factor in causing the
collision"); Britton v. Wooten, 

, 447 (Ky. 1991)
(stating that violations of administrative regulations constitute
negligence per se and the basis for liability "if found to be a
substantial factor in causing the result"); 

.

                                     -8-
have considered Kipp's argument that the district court erred in preventing
his lay witnesses from testifying and find it to be without merit.


III. CONCLUSION


     Kipp has failed to prove an essential element of his negligence
claims, namely that the screening procedures used by the defendants caused
his mother to contract AIDS.   Therefore, we affirm the district court's
order entering judgment for the defendants.


     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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