Indiana Law Review


Notes

AIDS-Related Litigation: the Competing Interests
Surrounding Discovery of Blood Donors' Identities

I. Introduction

First recognized in 1981, Acquired Immunodeficiency Syndrome
(AIDS) has escalated to the forefront of national concerns.' As of June,

1985, 10,533 AIDS cases had been reported by the Centers for Disease
Control (CDC). 2 Scientists predict that by 1987, 40,000 individuals will

be diagnosed to have the incurable disease.^ One class of individuals
affected, approximately two percent of the total AIDS population,"^ are
those who contracted the disease through blood transfusions. The fol-
lowing hypothetical illustrates the plight of individuals who contracted
AIDS from blood transfusions necessitated by another's negligence.

John Doe, a married father of two children, is injured in an au-

tomobile accident because of the negligence of a hit and run driver.

Doe is taken to a local hospital where he receives multiple units of
blood to replace the blood lost through his injuries. Eventually, Doe is
released to his home and family.

One year later. Doe's third child is born. For some reason, the
infant has persistent fevers and unexplained body rashes. Doe is weak,
has night sweats, and is unable to report to work regularly. His wife,

'See Goldsmith, Not There Yet, But "On Our Way" in AIDS Research, Scientists
Say, 253 J. A.M.A 3369 (1985).

^See Marwick, "Molecular Level" View Gives Immune System Clues, 253 J. A.M.A.

3371 (1985). See also Centers for Disease Control. U.S. Pub. Health Serv., Update:

Aquired Immunodeficiency Syndrome-United States, reprinted in 255 J. A.M.A. 593, 593

(1986):

Between June 1, 1981, and Jan. 13, 1986, physicians and health departments in

the United States notified the CDC of 16,458 patients (16,227 aduhs and 231
children) meeting the acquired immunodeficiency syndrome (AIDS) case definition

for national reporting. Of these, 8,361 (51% of the adults and 59"/o of the

children) including 71% of the patients diagnosed before July, 1984, are reported
to have died. The number of cases reported during each six-month period

continues to increase . . . although not exponentially, as evidenced by the length-

ening case-doubling times ....

(footnotes omitted). The case-doubling time as of January, 1986, is eleven months as

compared to a doubling time of five months in July, 1982. Id. at 593.

^Krim, AIDS: The Challenge to Science and Medicine, 1985 Hastings Center Rep.

Special Supplement 3.

"Centers for Disease Control, U.S. Pub. Health Serv., Update: Acquired Immu-

nodeficiency Syndrome — United States, reprinted in 253 J. A.M.A. 3391 (1985) [hereinafter
cited as CDC].

561



562 INDIANA LAW REVIEW [Vol. 19:561

who is experiencing similar symptoms, is unable to keep up with their
three children.

Over time, Doe, his wife, and their infant child are diagnosed as

having AIDS. The doctors explain that Doe most likely received the
virus in one of the blood transfusions necessitated by the accident. Doe
then passed the virus to his wife through the sharing of body fluids.

She, in turn, passed the disease to their child in utero.

In the pending negligence lawsuit against the driver of the hit and

run automobile, Doe*s survivors seek to discover the names and addresses
of the nonparty donors whose blood he received. They seek this infor-

mation to prove aggravation of injuries, the development of AIDS which
caused Doe's death, in order to receive full compensation for the injuries

caused by the driver.^ The issue, then, is whether Doe's survivors should

be entitled to discover the names and addresses of the blood donors.

In a recent decision involving a similar fact situation. South Florida

Blood Service, Inc. v. Rasmussen,^ the Florida Court of Appeals denied

discovery of the donors' identities.^ In Rasmussen, the plaintiff served

the nonparty blood bank with a subpoena duces tecum requesting the

identities of the donors whose blood the plaintiff had received.* Asserting

the rights of the donors, the blood institutions, and society, the blood

bank opposed discovery.^ The court held that the plaintiff's interest must
yield to the donors' privacy interests and the societal and institutional

interest of maintaining an adequate and healthy national blood supply.'*^

Recognizing the
*

'great public interest" involved, however, the court

certified this issue to the Supreme Court of Florida:

Do the privacy interests of volunteer blood donors and a blood
service's interest in maintaining a strong volunteer blood donation

system outweigh a plaintiff's interest in discovering the names
and addresses of the blood donors in the hope that further disco-

very will provide some evidence that he contracted AIDS from
transfusions necessitated by injuries which are the subject of his

suit?"

'The aggravation of injuries doctrine holds a tortfeasor liable for all foreseeable

intervening causes that increase the plaintiff's injuries Applying the doctrine to the hy-

pothetical fact situation, the hit and run driver is liable for aggravated injuries resulting

from the medical treatment of Doe's injuries. Because Doe required blood transfusions

to treat his injuries, and because the blood transmitted AIDS to Doe, the tortfeasor is
liable for the development of the disease and Doe's resulting death. See W. Keeton, D.
DoBBS, R, Keeton & D. Owen, Prosser and Keeton on Torts 303-10 (5th ed. 1984).

"467 So. 2d 798 (Fla. Dist. Ct. App. 1985).
'Id. at 804.

'Id. at 800.

'"M. at 804.

''Id. at 804-05 n.l3.



1986] AIDS 563

The Florida Supreme Court has yet to rule on this question.'^
Because the incubation period for the AIDS virus can last for five

years or longer,'^ the majority of transfusion transmission lawsuits have

yet to surface."* Therefore, many courts will face the Rasmussen issue,
or variations thereof, long after the Florida Supreme Court reaches its

decision.

The purpose of this Note is to analyze the interests involved in such

a fact situation, through a balancing test similar to that used in Ras-

mussen,^^ and to show that the plaintiff*s interest in preserving his right

to meaningful discovery, as well as his right to full compensation, deserves

far greater weight than it has thus far been accorded. Specifically, this

Note will demonstrate that the case law does not support Rasmussen'

s

sweeping extension of the disclosural right to privacy.'^ This Note will

also show that the societal interest in maintaining an adequate and

healthy blood supply, in light of the development of a highly accurate

test for the detection of the AIDS virus in donated blood, '^ will not
be compromised by allowing discovery.

II. The Disease Itself

To appreciate fully the complexity of the legal issues involved in a
case such as Rasmussen, it is essential to understand the nature and

effects of AIDS. Recognized as a disease entity since 1981,'^ AIDS has
been declared the nation's top health priority by the federal government.'^

As of June, 1985, $5.6 billion in medical treatment and lost income

had been attributed to the 10,533 disease victims. ^^ Because the disease

is predicted to double its number of victims every ten to twelve months,^'
and because there is no known cure or vaccine for the fatal virus, ^^ the
number of individuals ultimately to be infected is incalculable.

'The petitioner filed his brief with the Supreme Court of Florida on July 17, 1985.

See Brief for Appellant, Rasmussen v. South Florida Blood Service, Inc., No. 67,081

(filed July 17, 1985) (hereinafter cited as Appellant's Brief].

'^Krim, supra note 3, at 5.

'*See Marwick, Blood Banks Give HTLV-III Test Positive Appraisal at Five Months,

254 J. A.M.A. 1681, 1683 (1985) (opinion of James Curran, M.D., of the Centers for

Disease Control) ("Because of the long incubation period, there will continue to be cases

of AIDS occurring associated with blood transfusions.").
"In order to determine whether discovery should be allowed, the Rasmussen court

balanced the competing interests presented by South Florida and the plaintiff. 467 So. 2d

at 801.

^^See infra notes 136-37 and accompanying text.

^^See infra notes 49-52 and accompanying text.

"^Goldsmith, supra note 1, at 3369.

'"The New Victims, Life, July, 1985, at 12, 19.
^"Marwick, supra note 2, at 3371. See also Indianapolis Star, Aug. 5, 1985, at 1,

col. 1 (45 confirmed AIDS cases in Indiana with 29 deaths); Indianapolis Star, Sept. 14,

1985, at 6, col. 1 (of the 13,074 AIDS victims in the United States, 6,611 have died).

^'Krim, supra note 3, at 3.



564 INDIANA LA W REVIEW [Vol. 19:561

Defined by the CDC as **a disease, at least moderately predictive
of a defect in cell-mediated immunity, occurring in a person with no

known cause for diminished resistance to that disease, "^^ the AIDS virus
has been given three names: (1) Human T-lymphotropic Virus Type III
(HTLV-III); (2) Lymphadenopathy-Associated Virus (LAV); and (3) AIDS-

Associated Retrovirus (ARV).^"* Transmission of the virus occurs through

the sharing of body fluids, such as sperm, blood, and tears, and through

the repeated use of unsterilized skin-piercing instruments.^^ Although no

cases of transmission through saliva have been documented,^^ some
scientists suggest that this mode of infection is possible.^^ It is not
believed that the virus is transmissible through purely casual contact

such as touching.^*

Once introduced into the blood stream, the AIDS virus infiltrates
the T-4 lymphocyte cells. ^^ The T-4 cell, which has been described as

the '*true conductor of the immune orchestra,** is responsible for ac-
tivating nearly all of the immune system's disease-fighting processes. ^^

Once infected, these cells manufacture the AIDS virus instead of fighting
infection.^' Ultimately, the immune system of the AIDS patient is so
depressed that normally benign infections become life threatening.^^

The AIDS virus, which is believed to have originated in Africa,"

"Miller, O'Connell, Leipold & Wenzel, Potential Liability for Transfusion - Associated
AIDS, 253 J. A.M.A. 3419, 3419 (1985) [hereinafter cited as Miller].

'"Carlson, Bryant, Hinrichs, Yamamoto, Levy, Yee, Higgins, Levine, Holland, Gard-
ner & Pederson, AIDS Serology Testing in Low- and High-Risk Groups, 253 J. A.M.A.
3405 (1985).

"Centers for Disease Control, U.S. Pub. Health Serv., World Health Organization
Workshop: Conclusions and Recommendations on Acquired Immunodeficiency Syndrome,
reprinted in 253 J. A.M.A. 3385 (1985) [hereinafter cited as W.H.O.].

^''Krim, supra note 3, at 4.

"Elrod, Now a Household Word, It's Invading "Straight World,'' Indianapolis Star,
Aug. 4, 1985, at 1, col. 1 (quoting Dr. Kenneth Fife of the Indiana University School
of Medicine).

''W.H.O. , supra note 25, at 3385.

^''Marwick, "Molecular Level" View Gives Immune System Clues, 253 J. A.M.A.
3371 (1985).

^°M at 3375 (quoting Anthony S. Fauci, M.D., Director of the Nat'l Inst, of Allergy
and Infectious Diseases, Nat'l Insts. of Health).

''Id. at 3375.

''Id. See Centers for Disease Control, U.S. Pub. Health Serv., Questions and Answers
About Acquired Immunodeficiency Syndrome (AIDS), at 2-3 (1985) [hereinafter cited as
Questions and Answers] (The two opportunistic diseases most often responsible for the
death of AIDS patients are Kaposi's Sarcoma, a normally rare disease most often seen
in elderly males, and Pneumocystis Carinii Pneumonia (PCP), which is ordinarily seen
only in patients whose immune systems are suppressed secondary to leukemia or drug
therapy.).

"Wallis, AIDS: A Growing Threat, Time, Aug. 12, 1985, at 44 (citing virologist
Myron Essex of the Harvard School of Pub. Health).



1986] AIDS 565

occurs primarily in homosexual or bisexual men, intravenous drug abu-

sers, and hemophiliacs. ^"^ The sexual partner of anyone in these three
groups is considered to be at high risk to develop the disease. ^^ Fur-

thermore, the disease has been found in purely heterosexual individuals

who have a history of multiple sexual partners or contacts with pros-
titutes.^^ In fact, some authorities suggest that a separate AIDS category
should be established to represent heterosexuals who have multiple part-
ners.

^^

It is estimated that up to one million Americans have been exposed

to the AIDS virus. ^* Of that million, it is further estimated that five to
ten percent will develop AIDS.'' The remaining ninety to ninety-five per-

cent will either carry the virus without developing symptoms or will develop

AIDS-Related Complex, a mild version of the pure disease.'*" It is be-

lieved that this ninety to ninety-five percent may transmit the virus whether
or not they themselves develop clinical manifestations of the disease.'*'

Approximately two percent of the AIDS cases are attributable to
blood transfusions.'*^ Of the ninety-two transfusion transmission cases
under investigation by the CDC in June, 1985, eighty of the patients
had received the blood during operations."*^

Prior to 1985, blood centers did not employ uniform AIDS screening
techniques."*^ Most centers posted signs informing those at high risk for

the disease to refrain from donating blood. "*^ Other centers provided

"Krim, supra note 3, at 3. See also CDC, supra note 4, at 3387 (Haitians no longer

represent a specific high-risk category).

"See Questions and Answers, supra note 32, at 3-4. See also Goldsmith, More

Heterosexual Spread of HTLV-III Virus Seen, 253 J. A.M.A. 3377 (1985).
'"Goldsmith, supra note 35, at 3378-79.

"Dean F. Echenberg, M.D., Ph. D., Director of the Bureau of Communicable

Disease Control, San Francisco, suggests a separate category for heterosexuals with multiple

partners. James W. Curran, M.D., and Harold W. Jaffee, M.D., of the Centers for

Disease Control, however, do not predict a great rise in the number of heterosexual AIDS

cases. However, the experts agree that prostitutes may become functional "reservoirs"

for viral transmission to heterosexuals. Id. See also Wallis, supra note 33, at 43 (the

CDC reports 118 cases of heterosexually transmitted AIDS).
'"Krim, supra note 3, at 5. In late 1984, it was established that New York, California,

New Jersey, and Florida were the states of origin for seventy-five percent of the AIDS

cases. The remainder of the cases were traced to 41 other states plus Puerto Rico and

the District of Columbia. See Reports on AIDS Published in the Morbidity and Mortality
Weekly Report, (CDC) at 71 (Nov. 30, 1984).

^'*See Krim, supra note 3, at 5.

*^Id.

''Id. See also Rasmussen, 467 So. 2d at 805 n.l (Schwartz, C.J., dissenting).

^CDC, supra note 4, at 3391.
"'Miller, supra note 23, at 3419.

""Office of Technology Assessment, Blood Policy and Technology, H.R. Doc. No.

260, 99th Cong., 1st Sess. 101 (1985) [hereinafter cited as O.T.A.].

''Id.

L



566 INDIANA LAW REVIEW (Vol. 19:561

means by which the donors could anonymously indicate that their

blood should not be used for transfusion."*^ Still others conducted sur-

rogate tests for AIDS/^ Many blood organizations declined to question
donors about sexual habits because of moral and ethical considerations/*

In March, 1985, the Food and Drug Administration licensed the
HTLV-III test for use in detection of AIDS antibodies/^ Currently, the
test is performed on all blood and plasma collected in the United States /''

The test, which is 99.8 percent accurate,^' does not diagnose AIDS; it

merely detects the presence of antibodies to the virus, indicating that a

person has been exposed to the disease." Because of the test's effectiveness

in detecting the AIDS antibody, medical science may have solved the
problem of transfusion transmission of the disease. However, because

the incubation period for the virus is estimated to range from two

months to five years or longer," and because one lot of infected blood

could expose up to one hundred recipients, ^'* the majority of transfusion

related cases have yet to surface.

Regardless of the mode of transmission, there is no known cure for
AIDS." Because the virus mutates one hundred to one thousand times
faster than any other virus, scientists have been unable to study its outer

coat long enough to decode its secret formula and prepare a vaccine. ^^

Although scientific evaluation of AIDS continues, those afflicted with
the disease today face almost certain death."

As noted by the majority in Rasmussen, **The public has reacted
to the disease with hysteria. Reported accounts indicate that victims of

AIDS have been faced with social censure, embarrassment, and discrim-
ination in nearly every phase of their lives, including jobs, education.

*^Id. (The American Red Cross adopted a method whereby donors could call the

center after donation to indicate whether their blood should be used for transfusion.)

*'Id.

""Miller, supra note 23, at 3421.

"'Levine & Bayer, Screening Blood: Public Health and Medical Uncertaintyy 1985
Hastings Center Rep. Special Supplement 8.

"^Id.

"Wallis, supra note 33, at 44 (accuracy reported by the National Institutes for

Health).

"Levine & Bayer, supra note 49, at 8.
"Questions and Answers, supra note 32, at 1.
'"Miller, supra note 23, at 3419.

"Krim, supra note 3, at 2.

"•Wallis, supra note 33, at 47 (statement of William Haseltine, M.D., affiliated with
Harvard University's Dana-Farbour Cancer Institute). See also Krim, supra note 3,
at 4-5.

"Krim, supra note 3, at 2-7 (Although the mortality rate has thus far been 47

percent, the ''case fatality rate — the likelihood that any given patient will die of AIDS
— is 100 percent.") Id. at 6.



1986J AIDS 561

and housing.''^* The characteristics of the disease, compounded by the
reaction of society, clearly complicate the judicial process in AIDS-related

lawsuits. The intricacy of the situation was aptly described in a recent

discussion of transfusion transmission liability:

Despite common law precedents governing contaminated blood,
there is no predetermined common law rule or formula that can
be applied per se to AIDS lawsuits with a reasonably clear result.
The AIDS issue is framed in medical, ethical, and political
considerations and questions. It involves the politics of multiple

advocacies. ^^

Rasmussen, one of the first published cases addressing AIDS,^ presents
one court's approach to the multifaceted issues the disease presents.

III. South Florida Blood Service, Inc. v. Rasmussen

Donald Rasmussen, while sitting on a bus bench, was struck and

seriously injured by a hit and run driver who was leaving the scene of
a prior accident.^' Thereafter, Rasmussen was hospitalized for his injuries.

In the course of medical treatment, he received fifty-one units of blood.^^

Subsequently, Rasmussen was diagnosed as having AIDS, which, **in

all medical probability," was contracted through one of the transfusions

necessitated by his injuries.^^ That disease ultimately caused his death.

^

In the suit against the hit and run driver, Rasmussen^^ sought to

discover the names and addresses of the blood donors in order to prove

aggravation of injuries.^ Served with a subpoena duces tecum,^^ non-

party South Florida Blood Service, Inc. (South Florida), the blood

supplier, refused to comply with discovery. Thereafter, South Florida

moved to quash the subpoena, or for a protective order, claiming that

'"467 So. 2d at 800.

^"Miller, supra note 23, at 3419-20.

'*In the first published decision addressing AIDS, LaRocca v. Dalsheim, 120 Misc.

2d 697, 467 N.Y.S.2d 302 (N.Y. Sup. Ct. 1983), the court held that removal of AIDS
victims from the prison was not justified because precautions were taken to prevent

transmission of the disease to other prisoners.

'•'Appellant's Brief, supra note 12, at 4.

"^Rasmussen, 461 So. 2d at 800.

"Id. at 801 n.6.

'•^Appellant's Brief, supra note 12, at 4.

'•'Although the plaintiff was deceased at the time of the Rasmussen decision, the

court referred to the party seeking discovery as Rasmussen. For clarity, the same reference

will be used in this Note. See Rasmussen, 467 So. 2d at 800 n.2.

"^Id. at 800.

"^Id. Rasmussen requested "any and all records, documents and other material

indicating the names and addresses of the blood donors" whose blood Rasmussen received.

Id.



568 INDIANA LA W REVIEW [Vol. 19:561

Rasmussen had shown neither good cause nor justifiable reason for the

release of the "confidential" information/* The trial court denied the

motion, and a petition for certiorari followed. ^^

The Florida Court of Appeals initially recognized Florida's liberal

discovery rules which allow for the discovery of any non-privileged matter

which is relevant to the lawsuit.^^ The court further noted that it had

the power, pursuant to the rules of discovery, and on the showing of

good cause, to limit or prohibit discovery which would cause embar-

rassment, oppression, harassment, or undue invasion of privacy.^' **In

deciding whether good cause has been shown," the court stated, **it is

necessary to balance the competing interests that would be served by

the granting or denying of discovery. "^^ The court identified the relevant

interests as: (1) the plaintiffs interest in pursuing meaningful discovery

to receive full compensation for his injuries; (2) the donors* interest in

maintaining their constitutional right to privacy in the nondisclosure of

personal matters; and (3) the societal and institutional interest in main-

taining an adequate and healthy national blood supply.^^

Ultimately, the Rasmussen court decided that the interests of the

donors, the blood organizations, and society combined to outweigh the
plaintiff's interest in pursuing meaningful discovery.^"* The details of the
majority's reasoning in Rasmussen will be discussed in the following

analysis of whether the issue was properly decided.

IV. The Balancing of the Interests

A. The Plaintiff's Interest: Aggravation of Injuries

The plaintiff's interest in a case like Rasmussen, proving aggravation

of injuries'' is the most evident and undisputed interest involved. In fact,

it is the only interest upon which the court's decision will have an une-

quivocal result. If discovery is denied, the plaintiff can proceed no fur-

ther in his pursuit of meaningful discovery. The effect of such a premature

halt in discovery will leave the plaintiff unable to prove causation or refute

the defendant's claim that the disease was contracted through other

means. '*^

*^id.

"'Id,

^°Id. at 801. ("Florida Rule of Civil Procedure 1.280 allows for discovery of any

matter, not privileged, that is relevant to the subject matter of the action.").

''Id.

''Id.

''Id. at 801-04.

''Id. at 804.

"See supra note 5.

''Appellant's Brief, supra note 12, at 2. It stated:

Rasmussen's need for the discovery is absolute. Defendants below are vigorously

attempting to prove an alternative source of Rasmussen's affliction. They have



1986] AIDS 569

It has long been a precept of tort law that a tortfeasor may be
held liable for foreseeable aggravation of the injuries that he caused. ^^

This doctrine operates to hold the tortfeasor liable for negligent medical

treatment of the plaintiffs injuries.^* According to Prosser, ''Where the

injured plaintiff subsequently contracts a disease, similar principles are

applied. If the injury renders the plaintiff particularly susceptible to the

disease, . . . there is little difficulty in holding the defendant [liable] for

the consequences of the disease and its treatment. '*^^ Therefore, a plaintiff

such as Rasmussen has the right to recover fully for the actions of the

tortfeasor, including recovery for the development of AIDS which caused
his death, if and only if he can prove that he contracted the disease

through the blood necessitated by his injuries.*^

Such a plaintiff also has the right to discover '*any matter, not

privileged, that is relevant to the subject matter of the action.'*^' Because

the most predictable defense to an aggravation of injury claim would

be to assert that the plaintiff acquired the disease through another

source,*^ the plaintiff must obtain discovery of the donors' identities in

order to refute that defense. Thus, the plaintiffs need for the information

is two-fold: it is necessary to prove one element of his prima facie case,

causation, and to defeat the defense' of infection from an alternate

source.

attempted to show him to be an intravenous drug abuser and homosexual. They
also rely heavily on the South Florida Blood Service's voluntary statement of

"fact" that none of Rasmussen's donors have become victims of AIDS. Plaintiff's
primary source of contrary evidence begins with the discovery of the names and

addresses of his donors.

Id. This portion of the appellant's brief was stricken because the Florida Court of Appeals

had not considered the information. Telephone conversation with George Bender, attorney

for Rasmussen, April 25, 1986.

"W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts
309-10 (5th ed. 1984).

"'Id.

"'Id.

""Appellant's Brief, supra note 12, at 6 ("Full recovery for Rasmussen's death against

the defendants below will . . . turn on the answer to a single question: What was the
source of Rasmussen's AIDS?").

"'Fla. R. Civ. P. 1.280. The Florida discovery rule is similar to the federal rule.

See Fed. R. Civ. P. 26(b).

"^See Rasmussen, 467 So. 2d at 805 (Schwartz, C.J., dissenting), wherein the dissent

maintained:

Treating first the plaintiff's interest in securing the information in question, it

must be emphasized — although the court does not mention the fact — that
the defendant below apparently on the ground that Rasmussen may himself have
been a member of a "high risk" group, severely contests the fact that he acquired
AIDS in the blood transfusion process. Thus, far from a matter of purely
tangential concern ... it is of absolute necessity to his and his survivors' right

and ability to recover that they secure information that one or more of the
donors is suffering from or is a potential carrier of the lethal affliction.

(footnote omitted).



570 INDIANA LAW REVIEW [Vol. 19:561

The plaintiff's interest in discovery, briefly discussed in Rasmussen,

was conceded to be **legitimate."" However, the court stated that the

weight of the plaintiffs interest was tempered by the possibility that

any evidence discovered would have "questionable" probative force. *"*

The court based this conclusion on two facts: first, according to South

Florida, none of the donors had been diagnosed as having AIDS, and

second, even if the donors, or one of them, was determined to be at

high risk to develop AIDS, that fact would not confirm that one of
them had transmitted the disease. ^^

The court's reasoning illustrates why the disease process itself must
be thoroughly understood before the legal issues arising therefrom can

be appreciated. It is well established that a person may carry and transmit
the AIDS virus without ever developing the disease. ^^ It is further known
that a person exposed to AIDS may develop the disease many years
after exposure.^^ The **fact" that none of the donors has been diagnosed

as having AIDS is, therefore, of tenuous probative value. Moreover, if
medical science accepts and asserts the fact that certain groups of in-

dividuals are more likely than not to develop AIDS,** the establishment

of the fact that one or more donors had characteristics indicative of

these high-risk groups does have probative value. There is, of course,

no doubt as to the probative force of discovering that one of the donors

had AIDS or died therefrom, a possibility not considered by the Ras-
mussen court.

In concluding its discussion of the plaintiffs interest, the Rasmussen
court stated, **[s]ince the probative value of the evidence which might

be discovered is questionable, Rasmussen's interest in the information

is slight when compared with the opposing interests which we now
discuss."*^ The significance of Rasmussen's interest, therefore, was dis-

counted from the outset of the balancing test.

B. The Societal and Institutional Interest in Maintaining an Adequate

and Healthy National Blood Supply

South Florida, which asserted the interests of the blood organizations,

the donors, and society, contended that the precedential effect of Ras-
mussen, should discovery be allowed, would compromise the national

blood supply.^ This argument, based in part on a series of predictions,

"467 So. 2d at 801.

^Id.

''Id.

"""Id. at 805 n.l (Schwartz, C.J., dissenting).

"'See Krim, supra note 3, at 5.

"''See Goldsmith, supra note 1, at 3369 (homosexual and bisexual men, hemophiliacs,
and intravenous drug abusers are at high risk to develop AIDS).

•^^467 So. 2d at 801.

*^/t/. at 804.



1986] AIDS 571

proceeded as follows. Initially, South Florida asserted that the twin aims

of all national blood suppliers — providing blood which is both adequate
in amount and free from disease — depends on the maintenance of an
all volunteer donation system.'" Such a system, which the National Blood

Policy advocates,^^ provides blood less likely to be contaminated with

infectious disease than that which is received from paid donors. Because

the majority of AIDS victims are homosexuals or intravenous drug
abusers, and because the plaintiff sought to show that one of the donors

had AIDS at the time of donation or was at high risk to develop the
disease. South Florida assumed that the plaintiff's only possible use of

the information would necessarily entail probing into the intimate details
of the donors' lives. ^^ The fear of such intrusive questioning, South

Florida predicted, would inhibit prospective donors from donating blood

and, therefore, compromise the national blood supply.^'*

South Florida was not alone in its assertion. The Council of Com-
munity Blood Centers (CCBC), **a national association of independent,

non-profit regional and community blood centers operating in 33 states

across the nation, *'^^ and the American Blood Commission (ABC), '*a

non-governmental organization established to help assure all the people

of the nation of a safe and adequate supply of blood and blood

components,"^ joined South Florida as amicus curiae opponents to

discovery in the Rasmussen case.^^ An historical perspective of the na-
tional blood organizations lends clarity to their position in a case like

Rasmussen.

In 1975, the federal government voiced its concern for the estab-

lishment and maintenance of a safe and adequate national blood supply

by issuing the National Blood Policy (NBP).^^ It encouraged an all-

voluntary donation system in order to meet the policy goals of quality,

accessibility, efficiency, and maintenance of an adequate blood supply.^

Despite the fact that the NBP was never enacted, it **became the focal
point around which blood banking policy has evolved over the last

decade.'"^

«/</.

""S^e infra note 213.

^467 So. 2d at 804.

"Brief for Amicus Curiae Appellee Council of Community Blood Centers at 5,

South Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798 (Fla. Dist. Ct. App.

1985) [hereinafter cited as Brief for CCBC]. See also Rasmussen, 467 So. 2d at 801.

"^See Brief for Amicus Curiae Appellee American Blood Commission at 1 , Rasmussen

V. South Florida Blood Service, Inc., No. 84-1403 (filed Aug., 1985) [hereinafter cited as

Brief for ABC].

"The ABC joined as amicus curiae appellee on the appeal to the Florida Supreme
Court.

'"O.T.A., supra note 44, at 3.

'^Id.



572 INDIANA LAW REVIEW [Vol. 19:561

Originally formed to implement the NBP,'°' the ABC has coordinated
the endeavors of the nation's three major blood suppliers: '^^ the American

Red Cross (ARC), the CCBC, and the American Association of Blood
Banks (AABB)J^^ Through the efforts of these blood organizations and

the ABC, the voluntarily-donated portion of the national blood supply
increased from 89 percent in 1971 to 97.8 percent in 1980.'^ Because

donated blood has less chance of infection with disease than blood that

is purchased, '°^ the result of this increase in voluntary donations is a

healthier blood supply.

With the advent of AIDS, the blood organizations face a new issue:
the impact that the disease will have on the collection and use of blood

and blood products. '°* A 1985 Blood Policy and Technology Report
recognized this as a pressing issue. '^^ This report also recognized a related

issue: "[S]hould the names of AIDS patients be made available, to what
extent, and to whom?'"**'

It is precisely these two issues which will surface in cases like

Rasmussen. South Florida, the ABC, and the CCBC urged that the
release of the donors' names be disallowed in order to prevent endangering

the national blood supply.'^ They cited their efforts of the past ten

years in the development of a nearly all-voluntary donation system and

asserted that allowing discovery would decrease such donations.'"^ The

organizations further noted the general reluctance of individuals to donate

blood, despite the fact that the donation process involves no more than

approximately forty-five minutes."* The reluctance to donate has tra-
ditionally been attributed to fear — of the needle, of pain, and of un-
specified consequences."^ Currently, because of a lack of public awareness,

many people refuse to donate on the erroneous assumption that they
may contract AIDS through donation alone. "^ The organizations con-
tended that to add the fear of later identification and questioning to

'"^/(y. at 3-4.

"V</. at 5.

""5ee Rasmussen, 467 So. 2d at 804.

'"*O.T.A., supra note 44, at 12.

""M at 1.
'""/f/. at 16.

"^Rasmussen, A61 So. 2d at 804; Brief for ABC, supra note 96, at 3; Brief for
CCBC, supra note 95, at 5; Brief for Appellee South Florida Blood Service at 6, South
Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798 (Fla. Dist. Ct. App. 1985)
[hereinafter cited as Brief for SFBSJ.

""See supra note 109.

'"Brief for CCBC, supra note 95, at 7.
"Vc^. at 19.

"V</. at 17.



1986] AIDS 573

this multitude of public concerns would inhibit prospective donors to

the point of depleting the voluntary sector of the blood supply.'"*

Notwithstanding the merit of this argument at the time of the

appellate court decision in Rasmussen, its current force, in light of the

development of a highly accurate test for the detection of the AIDS
antibody in donated blood, is virtually insignificant. The HTLV-III test
for AIDS antibodies was declared 99.8 percent accurate after five months
of use."^ Such a high degree of accuracy means, in effect, that at least

99.8 percent of the AIDS-contaminated blood will be diverted from the

national bloodstream at the time of donation. The threat of later ques-
tioning by a plaintiff like Rasmussen, therefore, will be virtually non-

existent.

Arguably, the blood organizations could assert that donors may fear
that they will fall into the 0.2 percent of AIDS-infected blood which

may slip through the system undetected. However, this is a balancing
process which the courts must undertake; remoteness of degree is properly

assessed in such a process."^ The minute possibility of later questioning

must be outweighed by the plaintiffs unequivocal need for discovery.

C. The Donors* Interest: The Constitutional Right to Privacy

In Rasmussen^ South Florida, the CCBC, and the ABC asserted
that blood donor records are protected by the constitutional right to

privacy in the nondisclosure of personal matters."^ They further asserted

that the release of the donors' identities, coupled with the anticipated

use of the information, could only lead to a violation of the donors'

right to privacy."*

"^Brief for ABC, supra note 96, at 3; Brief for CCBC, supra note 95, at 16-20;
Brief for SFBS, supra note 109, at 6.

"'5ee Marwick, supra note 14, at 1681-83. In a recent meeting of the National

Institutes of Health, the Food and Drug Administration, and the Centers for Disease
Control, the implications of the HTLV-III test were discussed. As one CDC official stated:

[The findings of studies] clearly demonstrate the screening test is valid for

antibody. We have found that in a group of blood donors — persons at low
risk of HTLV-III exposure and with a low prevalence of infection -— and in
a group of gay men who are at high risk of HTLV-III exposure and with a
high prevalence of infection with HTLV-III, that the test is highly specific. It

correctly identifies those in both groups who had a high probability of infection.
Id. at 1683. Noted as a "tremendous accomplishment" in the halt of transfusion trans-

mission of AIDS, the test has gained the support of the leading national health agencies
and blood organizations. Id.

""See infra notes 153-58 and accompanying text.

'"See Rasmussen, 467 So. 2d at 801. See also Brief for ABC, supra note 95, at 13-
7.

""See Brief for ABC, supra note 96, at 7; Brief for CCBC, supra note 95, at 13-
14; Brief for SFBS, supra note 109, at 6. It should be noted that South Florida did not

feel constrained to protect the rights of its donors when it released to the defendants in



574 INDIANA LAW REVIEW [Vol. 19:561

The Rasmussen court initially identified two recognized zones of

privacy:"^ (1) the zone encompassing the right to autonomous decision

making, typified by cases such as Roe v. Wade^^^ and its progeny; and

(2) the zone encompassing **the interest in avoiding disclosure of personal

matters," recognized in cases such as Whalen v. Roe.^^^ Immediately

looking to Rasmussen's potential use of the donors' identities, the court

stated:

It is evident Rasmussen needs more than just the names and

addresses of the donors. His interest is in establishing that one

or more of the donors has AIDS or is in a high risk group.
Because the groups at highest risk are homosexuals, bisexuals,

intravenous drug users and hemophiliacs, it is obvious that Ras-

mussen would have to probe into the most intimate details of

the donors' lives, including their sexual practices, drug use and

medical histories. Both the courts and the legislature have rec-

ognized these areas as sanctuaries of privacy entitled to protec-

tion.'^^

Ultimately, the court concluded that Rasmussen's anticipated use of the

information, along with the potential **oppressive effects of possible

disclosure outside the litigation," amounted to an interest falling within

the disclosural right to privacy.
'^^

Thereafter, the Rasmussen court adopted a balancing test as the

appropriate means by which to assess the competing interests of the

donors' privacy and the state's interest **in fair and efficient resolution

of disputes.'"^'* The weight of the state's interest, the court explained.

Rasmussen the identities of individuals who donated blood to the plaintiff following his
initial hospitalization. See Appellant's Brief, supra note 12, at 2.

Donors* names and addresses have been produced in the past by blood banks

in Florida and the South Florida Blood Service in particular. In this very litigation

blood banks, including the South Florida Blood Service have produced to

defendants below names and addresses of donors of blood received by Rasmussen
without objection.

Id. This portion of the appellant's brief was stricken because the Florida Court of Appeals

had not considered the information. Telephone conversation with George Bender, attorney

for Rasmussen, April 25, 1986.

The doctrine of waiver, which is beyond the scope of this Note, may apply in cases
like Rasmussen where the blood bank has released its donor records to other litigants.

E.g., In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1314 (7th Cir. 1984)

("protection from disclosure is available only when the party asserting a privilege has

maintained confidentiality") (footnote omitted).
""467 So. 2d at 802.

'^MIO U.S. 113 (1973).

'^'429 U.S. 589 (1977).

^^^Rasmussen, 467 So. 2d at 802. But see Miller, supra note 23, at 3421 (The American

Red Cross questions blood donors about the use of intravenous drugs.).
'^^Rasmussen, 467 So. 2d at 802.

''*Id. at 803.



1986] AIDS SIS

is proportional to the relevancy and necessity of the requested information

to the disposition of the lawsuit. '^^ Despite Florida's* liberal discovery

policy and the fact that the information was relevant and vital to the

resolution of Rasmussen's wrongful death claim, the court held that the

donors' privacy rights, combined with the societal and institutional in-

terest in maintaining **the free flow of donated blood," outweighed the

interests of Rasmussen and the state. '^^

1. Judicial Interpretation of the Constitutional Right to Privacy. —
Although there is no express constitutional right to privacy, '^^ the Supreme

Court has identified a right to privacy in relation to explicit and implied

constitutional guarantees. Some of the explicit guarantees which have
been interpreted to give rise to a right to privacy include privacy in

one's associations as guaranteed by the first amendment, '^^ privacy in

relation to unrestricted reading in one's home as guaranteed by the first
and fourteenth amendments, '^^ and privacy as guaranteed by the fourth

amendment's prohibition against unreasonable searches and seizures. '^^

The Supreme Court initially identified an implied right to privacy

in Griswold v. Connecticut. ^^^ In that case, the Court recognized a

privacy right for which no specific constitutional guarantee existed —
the right of married persons to use contraceptives. The right to privacy

in marital decisions involving contraception, the Court explained, em-

anates from the **penumbras" surrounding the specific guarantees in the

Bill of Rights. '^^ More simply stated, * Various guarantees create zones
of privacy.'"" Because the marital association concerns a relationship

lying within the zone of privacy created by several fundamental con-

stitutional guarantees, the Court held the Connecticut statute, which

invaded that privacy zone, unconstitutional.'^"*

Since Griswold, the parameters of the right to privacy have been

tested:

[From the time of Griswold] American constitutional lawyers

and scholars have been probing for the shape and boundaries

of that evanescent and floating notion: privacy. The protections

comprehended by that term have been variously grounded in the

First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments.

''Id.

'"Id. at 804.

''See Whalen v. Roe, 429 U.S. at 607 (Stewart, J., concurring).
See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

^"Stanley v. Georgia, 394 U.S. 557 (1969).

Katz V. United States, 389 U.S. 348 (1967).
''381 U.S. 479 (1965).

'''Id. at 484.

'''Id.

'''Id. at 485-86.

I2K

130



576 INDIANA LAW REVIEW [Vol. 19:561

While most recently these **rights of privacy" have found an-

chorage as a portion of liberty protected by the due process

clauses, their precise scope remains uncertain, still in the stage

of exploration.'^^

Although the parameters of the constitutional right to privacy remain

obscure, its application has been limited to protecting only rights so

personal that they are "fundamental'* or ** implicit in the concept of

ordered liberty. *"^^ The Supreme Court has defined fundamental rights

as those involving marital activities, procreation, family relationships,

child rearing and education, and contraception.'^^

In Rasmussen, the plaintiff sought to discover only the names and

addresses of the blood donors. '^^ The court, looking immediately to the

anticipated use of the requested information, held that blood donors*

identities are protected by the disclosural right to privacy. '^^ In order

to balance more precisely the donors* rights against those of the plaintiff,

however, it is necessary to recognize that the right to disclosural privacy

asserted in Rasmussen is two dimensional. First, the right to nondisclosure

of blood donors' names entails a right to anonymity. Second, the right

to nondisclosure of the intimate details of one's sexual, medical, and

drug use histories entails a right to keep intimate facts private. In order

to obtain constitutional protection on either dimension, the requested

information must constitute facts so personal that they are **implicit in

the concept of ordered liberty.**''^ The primary issue for resolution,

then, is the scope of the disclosural right to privacy.

2. The Disclosural Right to Privacy. — Since its decision in Griswold,
the Supreme Court has frequently alluded to the disclosural right to

privacy without ruling on it."*' For example, in Planned Parenthood of
Central Missouri v. Danforth,^'^^ the Court sustained the validity of

maintaining abortion records because they served a valid purpose and

because there was no evidence that the information would be misap-

plied."*^ Similarly, in Nixon v. Administrator of General Services,^"^ the

'^'J. Torke, Constitutional Law, Judicial Review and Private Morality 2 (1983) (un-

published material).

'"Roe V. Wade, 410 U.S. at 152 (quoting Palko v. Connecticut, 302 U.S. 319, 325

(1937)).

"'Id.

""467 So. 2d at 801.

''"Id. at 804.

'*"See supra note 136 and accompanying text.

""J. NowAK, R. Rotunda, & J. Young, Constitutional Law 761 n.22 (2d ed.
1983). See also Brief for Amicus Curiae Appellant Miami Herald Publishing Co. at 7,
Rasmussen v. South Florida Blood Service, Inc., No. 67,081 (filed Aug. 1985) [hereinafter
cited as Brief for Miami Herald].

'«428 U.S. 52 (1976).

"'Id.

""433 U.S. 426 (1977).



1986] AIDS 577

Court held that, even assuming a right to privacy existed, that right

was outweighed by the national interest in archiving the presidential

records."*^ A variety of state courts have followed suit in their inter-
pretation of the disclosural right to privacy.''*^

The Rasmussen court relied upon Whalen v. Roe for the existence
of the disclosural right to privacy.''*^ In Whalen, the Supreme Court
noted that the case law recognizes two types of privacy interests —
nondisclosure of personal information and autonomy in decision mak-
ing.'*^ A closer look at Whalen, however, reveals that although the Court
stated that in some circumstances *'[the] duty ... to avoid unwarranted
disclosures [of data compiled for public purposes] . . . arguably has its

roots in the Constitution," it did not reach the merits of the constitutional

issue.
'"^^

In Whalen, the propriety of a New York statute requiring recordation
of the identities of individuals receiving Schedule II drug prescriptions

was challenged as violative of both the disclosural and decision-making

privacy zones. '^^ The appellant physicians and patients contended that
the recording and storing of information concerning individuals' drug

use **creates a genuine concern that the information will become publicly
known and that it will adversely affect their reputations.'"^' Such threat
'of reputational harm, the appellants asserted, would make physicians
hesitant to prescribe needed drugs and patients hesitant to pursue health

care.'"

The Supreme Court, however, found no indication that the statute's

security measures would not be enforced.'" Although the Court rec-

ognized that the data could be exposed in litigation over improper

prescribing, it rejected that basis for disqualification of the recording

system.'^"* Such a '^remote possibility that judicial supervision of the

'''Id.

''''See, e.g., Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984) (patients' qualified
privacy interest in their medical records must yield to the state's interest in the administration
of criminal justice); Denoncourt v. Commonwealth, State Ethics Comm'n, 470 A.2d 945,
949 (Pa. 1983) ("government's intrusion into a person's private affairs is constitutionally

justified when the government interest is significant and there is no alternate reasonable
method of lesser instrusiveness") (footnotes omitted); In re June 1979 Allegheny County
Investigating Grand Jury, 415 A.2d 73, 77 (Pa. 1980) (held that because the court could
take necessary precautions to ensure confidentiality if the patient tissue reports were adduced
at trial, production of those reports did not violate the federal or Pennsylvania consti-
tutions). See also infra note 167.

'^^467 So. 2d at 802.

''""Whalen, 429 U.S. at 599.

'""Id. at 605-06.

''''Id. at 599-600.

'"Id. at 600.

"'Id.

"'Id. at 600-01.

"'Id. at 601-02.



578 INDIANA LAW REVIEW [Vol. 19:561

evidentiary use of particular . . . information will provide inadequate

protection against unwarranted disclosures," the Court stated, was in-

sufficient to invalidate the program.'" The fact that the information

would, by definition, be disclosed to the Board of Health, the Court

stated, was analogous to

a host of other unpleasant invasions of privacy that are associated

with many facets of health care .... [D]isclosures of private
medical information to doctors, to hospital personnel, to in-

surance companies, and to public health agencies are often an
essential part of modern medical practice even when the disclosure
may reflect unfavorably on the character of the patient. '^^

Ultimately, the Whalen Court held that neither the instant nor the

remote menace of unwarranted disclosure posed by the recording system

was adequate to invalidate the statute on fourteenth amendment grounds.'"
The Court specifically reserved judgment on privacy issues related to

the unauthorized exposure of collections of private data, whether or not

the exposure was intentional.'^^

The Supreme Court also addressed the disclosural right to privacy

in Paul V. Davis.^^^ The plaintiff in Paul had been arrested for shoplifting.

After publication and distribution of a police report labeling the plaintiff

as a shoplifter, the charges were dropped. Davis filed suit under section

1983 of Title 42,'^ alleging a violation of rights guaranteed by the first,

fourth, fifth, ninth, and fourteenth amendments.'^'

In its discussion of the plaintiffs claim of denial of due process,

the Court described Davis' interest as one '*in reputation alone. '*'^^ Such

an interest, the Court held, could not find protection in the Due Process
Clause.'" Specifically in relation to the multi-amendment privacy claim,

'''Id.

''"Id. at 602.

'"M at 603-04.
'''Id. at 605-06.

We are not unaware of the threat to privacy implicit in the accumulation of
vast amounts of personal information in computerized data banks. . . . The

collection of taxes, the distribution of welfare and social security benefits, the

supervision of public health, the direction of our Armed Forces, and the en-
forcement of the criminal laws all require the orderly preservation of great

quantities of information, much of which is personal in character and potentially

embarrassing or harmful if disclosed. . . . [We] do not [today] decide any question

which might be presented by the unwarranted disclosure of accumulated private

data — whether intentional or unintentional ....
Id.

'^•^424 U.S. 693 (1976).
'«'42 U.S.C. § 1983 (1982).

'"424 U.S. at 694.

'"'Id. at 711-12.

'"'Id. at 712.



1986] AIDS 579

the Court noted that a reputational interest was far removed from the

areas it considered entitled to privacy.'^" The Court stated:

[Davis] claims constitutional protection against the disclosure of

the fact of his arrest on a shoplifting charge. His claim is [not]

based upon any challenge to the state's ability to restrict his
freedom of action in a sphere contended to be **private'* ....
None of our substantive privacy decisions hold this or anything
like this, and we decline to enlarge them in this manner. '^^

Because the personal privacy right claimed by the plaintiff was not
* implicit in the concept of ordered liberty,'' the Court denied it con-

stitutional protection
.

'

^

Because the Supreme Court has recognized the disclosural right to

privacy but never upheld it, the boundaries of that right remain obscure.

As stated by Justice Stewart in his Whalen concurrence, the Constitution
provides no general right to privacy. '^^ The protection of the right to

be **left alone," the Justice stated, remains with the states. '^^

3. The Right to Anonymity. — As stated previously, the interest in
nondisclosure of only the blood donors' identities is essentially an interest

in anonymity. The Supreme Court has not addressed the precise issue

of whether the disclosure of identity alone may be constitutionally pro-
hibited.'^^ Applying the Supreme Court's general test for privacy, how-

ever, the donors' names and addresses are protected from disclosure

'""'Id. at 713.

"M29 U.S. at 607 (Stewart, J., concurring). It is interesting to note that in 1984,

the Florida Supreme Court stated that "there is ... no per se federal constitutional right

to disclosural privacy." Rasmussen did not discuss this case. See Forsberg v. Hous. Auth.,

455 So. 2d 373, 374 (Fla. 1984) (per curiam).

'"^Whalen, 429 U.S. at 608 (Stewart, J., concurring).

'^''A variety of lower federal courts have addressed the issue of whether individuals'

identities alone may be disclosed. See, e.g., Payne v. Howard, 75 F.R.D. 465 (D.D.C.

1977) (defendant dentist ordered to release names of nonparty former patients to plaintiff

so that the plaintiff could obtain the former patients' consent to release of their medical

records); Lincoln American Corp. v. Bryden, 375 F. Supp. 109 (D. Kan. 1973) (plaintiff's

interest in discovering stockholders' names outweighed legislative policy of maintaining

the confidentiality of stockholder lists because the information was relevant to the plaintiffs'

claims and the court used its discretionary power to limit the scope of the plaintiffs'

discovery); Connell v. Washington Hosp. Center, 50 F.R.D. 360 (D.D.C. 1970) (despite

the defendant/hospital's contention that release of nonparty former patients' names could

lead to disclosures that the patients were treated for venereal disease or sexual aberrations,

the plaintiffs were entitled to discover the former patients' identities for three reasons:

(1) the plaintiffs needed the testimony of former patients to proceed in their negligence

suits; (2) the hospital had an undue advantage because it could contact former patients

to help defend the lawsuits; and (3) the names disclosed in discovery were protected by

an absolute privilege).



580 INDIANA LAW REVIEW [Vol. 19:561

only if that information implicates ^^fundamental" rights. '^'^ Because one's

name is far removed from the personal areas defined as fundamental,'^'
it is unlikely that any court would invoke the Constitution to protect

merely the identities of voluntary blood donors.

Aside from the privacy decisions of the United States Supreme Court,

the opponents to discovery in Rasmussen argued that **in tissue donation

cases, the donor's right to privacy has been found to extend to the

donor's identity.'"^^ Head v. Colloton,^''^ the only reported case ad-
dressing the issue of whether a donor's identity may be discovered, at
first glance appears to support nondiscovery in a case such as Rasmussen.

However, that case and its holding must be limited to its specific fact

situation.

In Head, the plaintiff sought to discover the name of a woman
who had undergone compatibility testing to donate bone marrow to a
member of her family. Without the donor's consent or knowledge, the
hospital placed her name on its registry of potential donors for use in
an experimental donation program. Thereafter, the plaintiff learned of

the donor's existence and sought to discover her name in order to solicit
a donation for his own use. After the donor informed the hospital that
she was not interested in making a donation, the plaintiff sought to

compel discovery so that he could personally pursue the matter.'^"* The

court denied discovery. '^^

On these facts alone, this situation differs greatly from one where
a plaintiff has received the blood of a voluntary donor and has died

as a result. Moreover, the Head court was referring to a potential donor,
whom the plaintiff, a member of the general public, wished to contact
to solicit a bone marrow donation. '^^ In a case like Rasmussen's, the
link is much closer than that between a potential donor who does not
wish to donate and an unknown member of the general public; one of
the donors in Rasmussen's case has voluntarily donated his or her blood,

which, **in all medical probability," passed to the plaintiff the disease

which ended his Hfe.'^^

Aside from the disparity in facts, the Head case was decided solely
on state statutory grounds.'^* Although the Head court noted the con-

'™S^e supra text accompanying notes 136-37.

'^^Brief for CCBC, supra note 95, at 13 (citing Head v. Colloton, 331 N.W.2d 870
(Iowa 1983)).

'"331 N.W.2d at 870.
''*Id. at 873.

'''Id. at 877.

''"Id. at 873.

'"See supra text accompanying note 63.

'"•Discovery was denied on the basis of Iowa's public records statute. 331 N.W.2d
at 876 (citing Iowa Code § 68A.7(2) (1973)).



1986] AIDS 581

stitutional right to privacy and stated that the right could be as * important

to a potential donor as to a person in ill health, '"^^ its decision was

not constitutionally based. When viewed in light of its specific facts and
holding, the Head case offers little guidance to a court considering the
claim of a blood donor's constitutional right to remain anonymous.'*"

4. The Right to Nondisclosure of Personal Information. — In Ras-
mussen, the court concluded that information concerning one's sexual,

medical, and drug use histories falls within "sanctuaries of privacy entitled

to protection.*"*' On this basis, and on the possibility that disclosure
outside of the litigation could lead to donor discrimination and em-

barrassment, the court held that the donors' identities were protected

by the disclosural right to privacy.'*^ To support its holding that personal
information regarding sexual and drug use histories is privileged, the

Rasmussen court cited three federal court decisions: Priest v. Rotary, ^^^

Lampshire v. Procter & Gamble Co.,''^^ and Plante v. Gonzalez.^^^
In Priest, the plaintiff alleged employment discrimination in the form

of sexual harassment.'*^ In order to support his defense that the plaintiff

was attempting to "pick up" male customers while on duty, the employer-

defendant sought to discover the identities of the plaintiff's sexual part-

ners for the previous ten years. '*^ Through this information, the defendant

hoped to reveal evidence of habit, motive, or intent, which would be

admissible under exceptions to the rule prohibiting the use of character

evidence.'** The Priest court denied discovery for three reasons. First,

despite the defendant's contentions to the contrary, the information was

'^''331 N.W.2d at 876.

'""In Bishop Clarkson Memorial Hosp. v. Reserve Life Ins. Co., 350 F.2d 1006 (8th

Cir. 1965), the court addressed the question whether a hospital could withhold records

of patient-policyholders from an insurance company when the patients had consented to

the inspection. The court held that the hospital could not withhold the records. This

decision was based in part on the fact that because Nebraska law required hospitals to

maintain patient records, the records were "quasi-public." "[Quasi-public] records . . .

may be inspected by any person having an 'interest such as would enable him to maintain

or defend an action for which the . . . record sought can furnish evidence or necessary

information.' " Id. at 1011 (quoting Pyramid Life Ins. Co. v. Masonic Hosp. Ass'n of

Payne County, Okla., 191 F. Supp. 51, 54 (W.D. Okla. 1961)). Accord Connell v.

Washington Hosp. Center, 50 F.R.D. 360 (D.D.C. 1970). Blood donor records may be

obtainable as "quasi-public" records because blood banks are required by federal law to

maintain donor records. See Add'l Standards for Human Blood and Blood Products, 21
C.F.R. 640.4(e), 640.64(d), 640.72(a)(2) (1985).

""467 So. 2d at 802.

'"Vf/. at 804.

'"98 F.R.D. 755 (N.D. Cal. 1983).

"^94 F.R.D. 58 (N.D. Ga. 1982).
"'^575 F.2d 1119 (5th Cir. 1978).

""•Pr/e^/, 98 F.R.D. at 756.

'*'Id.

'"'Id. at 758 (citing Fed. R. Evid. 404, 406).



582 INDIANA LAW REVIEW [Vol. 19:561

sought to prove that the plaintiff acted in conformity with past be-

havior. '^^ Second, the probative value of the information was marginal.'^

Third, the discovery may have been pursued with the intent to discourage
the plaintiff from prosecuting her Title VII'^' lawsuit. '^^ In a case like

Rasmussen, none of the Priest bases for denying discovery is present.

The information is extremely relevant to the proposition that the plaintiff

contracted AIDS through a blood transfusion,'^^ the use of the infor-
mation is not proscribed by the procedural rules, and the plaintiff has

no ulterior motive to inhibit a lawsuit. Furthermore, the evidence sought

to be discovered would not be offered to impinge the character of the

blood organization or the blood donors.

In Lampshire, also relied upon by the Rasmussen majority, the

plaintiff intended to support her products liability claim with the results

of a CDC study on Toxic Shock Syndrome (TSS).'^^ The defendant
opposed the use of the TSS report and sought additional information
about the study. Although the CDC agreed to release all relevant doc-
uments, it refused to include identification of the women involved in
the study. '^^ On consideration of the protective order requested by the
CDC, the court noted that the TSS report contained personal information
concerning women who were in no way related to the lawsuit.'^ From
the affidavits presented by both parties, the court concluded that **the

validity of the CDC studies can be addressed without actually contacting
the subjects. '"^^ Because the defendant had not shown that the identities

of the women were relevant to disputing the vaUdity of the study, the
court granted the protective order. '^* In Rasmussen's case, by comparison,

the identification of the donors is clearly relevant to proving the ag-

gravation of injury claim. The plaintiff does not wish to use the in-

formation to prove a statistical probability that he contracted AIDS
through a blood transfusion; he already has medical testimony to that

effect.'^ Rasmussen's need, the same as any plaintiff in his position,

is to identify the donors to establish the causal link between the de-

velopment of AIDS and a specific donor(s) whose blood he received.^^

Furthermore, the donors in Rasmussen were not totally removed from

^'"Priest, 98 F.R.D. at 760.

"^Id. at 761.

'"42 U.S.C. §§ 2000e-2000e-17 (1982).

'•"'Priest, 98 F.R.D. at 761-62

'•"See supra notes 80-82 and accompanying text.

"^Lampshire, 94 F.R.D. at 59.

'"'Id.

'•^Id. at 60.

'"'Id.

'""Id. at 60-61.

'"^See supra text accompanying note 63.

2""S^e supra note 82.



1986] AIDS 583

the circumstances that culminated in the lawsuit. Each of them donated

blood that the plaintiff received. One or more of them, **in all medical
probability," passed to the plaintiff the disease that caused his death. ^°'

In Plantej the Fifth Circuit Court of Appeals appraised the validity

of financial disclosures required by Florida's Sunshine Amendment.^^^

The amendment, which required public disclosure of the financial status
of public officials, was enacted following "political scandals'' involving

Florida officials. ^°^ Faced with the narrow issue of financial privacy, the

Plante court held that the interests of the public outweighed the opposing

confidentiality interests.^*^ A case like Rasmussen involves issues distinct
from those of Plante. The issue is not the financial privacy of public

officials. Moreover, no public disclosure of the data is required. Indeed,

the Plante court, like the Supreme Court in Whalen, recognized the

disclosural privacy right but did not, by its ruling, define the scope of

that right.2^^

On the basis of these three decisions, it is entirely unclear whether
information concerning a blood donor's drug use, medical, or sexual

histories would be entitled to constitutional protection. On the basis of
the Supreme Court's privacy decisions, however, it is unlikely that such

information would find protection in the Constitution.^^ The Court has

narrowly limited the invocation of the right to privacy to areas **implicit

in the concept of ordered liberty. "^^^ Moreover, although the Court has

recognized the disclosural right to privacy, it has never upheld that right.

The Rasmussen case presents competing interests similar to those in

situations the Supreme Court has addressed. ^^^ As in Whalen,^^ the

threat of injury to reputation is remote. If the court ordered protective

^"'See supra note 63 and accompanying text.
^"^575 F.2d at 1119, 1122 (citing Fla. Stat. Ann. § 112.3145 (West Supp. 1978)).
''''Plante, 575 F.2d at 1122.

''^Id. at 1137-38.

^"'M at 1132-35.

^"^One amicus opponent to discovery in Rasmussen cited Whisenhunt v. Sprodlin,

104 S. Ct. 404 (1983), as authority for the statement that the Supreme Court "specifically
held that the constitutional right to freedom from public intrusion encompasses sexual

conduct between consenting adults." Brief for CCBC, supra note 95, at 11. In Whisenhunt,
however, certiorari was denied. The dissenters to the denial expressed their view that
because fundamental rights were implicated, "the notice requirement of the Due Process
Clause demands particular precision in this case." Whisenhunt, 104 S. Ct. at 409 (Brennan,
Marshall, Blackmun, J. J., dissenting).

'""'See supra notes 136-37 and accompanying text.
^""In the only reported case of AIDS victims claiming constitutional protection, a

New York court held that the Equal Protection Clause did not apply to prisoners with
AIDS because that clause "requires that similarly situated people be treated equally. . . .
AIDS victims are not similarly situated." Cordero v. Coughlin, 607 F. Supp. 9 (S.D.N.Y.
1984) (mem.).

""See supra notes 148-58 and accompanying text.



584 INDIANA LA W REVIEW [Vol. 19:561

discovery measures,^'^ and if the measures were breached, word of the

donor's possible affiliation with AIDS could leak to the public. Whether
such a far removed and hypothetical result would find protection in the

Constitution, in the face of the vital state interest of promoting fair

and efficient litigation, is doubtful.^"

Similar to the plaintiff in Paulj^^^ the donors in a case like Rasmussen

may suffer injury from the disclosure of facts affecting their reputations.
However, the Supreme Court in Paul flatly refused to recognize one's

reputation as the basis for constitutional protection. In fact, the Court

denied relief despite the fact that the potentially damaging information

had been disclosed in published form, and that the person facing potential

injury himself asserted the claim.^'^ Rasmussen is distinguishable from

Paul on several points. Initially, a court may regard information con-
cerning a blood donor's medical, drug use, and sexual histories as more
**intimate" than information concerning one's police record. ^''* On this
basis alone, a court may consider a blood donor's reputational interest
greater than the interest asserted in Paul. However, the remaining dis-

tinctions between Paul and Rasmussen indicate that discovery should be

allowed. In Rasmussen, for example, only the potential for disclosure

of personal information exists.^'^ Furthermore, public disclosure of even

the donors' identities is not required and discovery would be subject to

judicial control. ^'^ In addition, the blood donors' constitutional rights

^'"Federal courts' discretion in issuing protective orders is almost unlimited. Federal

Rule 26(c) allows the court to **make any order which justice requires to protect a party

or person from annoyance, embarrassment, oppression, or undue burden or expense."

Fed. R. Civ. P. 26(c) (emphasis supplied).

^""The purpose of discovery is to provide a mechanism for making relevant infor-

mation available to the litigants. 'Mutual knowledge of all the relevant facts gathered by

both parties is essential to proper litigation.' Hickman v. Taylor, 329 U.S. 495, 507

(1974)." Fed. R. Civ. P. 26 advisory committee note.

^'^See supra notes 159-66.

'''Paul, 424 U.S. at 712.

'''See United States v. Westinghouse Electric Corp.. 638 F.2d 570, 577 (3d Cir. 1980)

("Information about one's body and state of health is matter which the individual is

ordinarily entitled to retain within the 'private enclave where he may lead a private life.' ").

''^See Brief for Miami Herald, supra note 141, at 20-21. It argued:

There may, in fact, be no need for any such probing discovery. Upon receipt
of the list of names, Rasmussen may discover that one or more of the donors
have died from or are suffering from AIDS by simply checking the names
against public death records or other records maintained by the Center for

Disease Control, United States Department of Health and Human Services. He
may discover all are perfectly healthy. Those on the list with AIDS, or who
may themselves be in a "high risk" group, may be willing to disclose this fact
under the circumstances of this case, or, as Judge Schwartz suggests, there may
be donors who are ill, but do not know they may be suffering from AIDS.
Any such individuals might find Rasmussen's discovery beneficial.

Id.

''*'See supra note 210.



1986] AIDS 585

are being asserted, without their consent or knowledge, by an institution

which may have an ulterior motive for opposing discovery. Therefore,
in cases like Rasmussen, the courts must consider whether a blood

organization should be allowed to assert the privacy rights of its blood

donors. This issue is of special importance because blood organizations

may assert these rights on the pretext of protecting their donors while,
in reality, they are attempting to insulate themselves from liability.^"

5. The consideration of blood bank liability for transfusion of AIDS.
— As noted in the analysis of AIDS, blood centers did not employ
uniform AIDS screening techniques prior to the institution of the HTLV-
III test for antibodies in March, 1985.^'^ As previously indicated, many

centers refused to question their donors about sexual habits because of

moral and ethical considerations.^'^ One author recently noted this practice
and identified it as a legitimate basis for blood bank Habihty in transfusion

transmission cases:

[The philosophy] that direct questions regarding a donor's sexual

preference are inappropriate because of moral and ethical con-

siderations allows for a defensible argument that reasonable

precautions were not taken to preclude high risk groups from

donating blood. In considering the catastrophic consequences

involved in contracting AIDS, a court could ask if the American

Association of Blood Banks and Public Health Service recom-

mendations are adequate, even if accepted and practiced as the

standard of care by the medical community. . . . [C]ourts have

been willing to hold that a standard that is accepted by the

medical community is of itself unacceptable due to the severity
of the damage that results from following such a standard. ^^°

^'^One court recently noted the irony of allowing an individual who has a "stake"
in the outcome of the suit to oppose investigation of the matter by asserting the con-

stitutional rights of a third person. In United States v. University Hospital, 575 F. Supp.

607 (E.D.N.Y. 1983), the federal government was investigating whether a hospital had

wrongfully withheld medical care from a deformed infant whose parents refused to consent

to surgical treatment. The parent-intervenors asserted that the child's medical records were

protected by the constitutional right to privacy. The court stated in dictum:

The defendants' reliance upon the constitutional right of privacy is extremely

weak. In the instant action, plaintiff is, at least implicitly, alleging the possibility

that the parents of Baby Jane Doe, in refusing their consent to surgical procedures,

were not acting in the best interests of the child. It would be highly paradoxical

if an individual's right to privacy could be asserted by that individual's parent

or guardian, purportedly acting in that individual's own best interests, for the
purpose of precluding an inquiry into the question of whether the parent or

guardian was in fact acting in the individual's best interests.

Id. at 615-16.

^'"See supra notes 44-48 and accompanying text.

''"Id.

""Miller, supra note 23, at 3421. See also Appellant's Brief, supra note 12, at 11

("A blood bank's potential total failure to screen high risk groups from donation by



586 INDIANA LA W REVIEW [Vol. 19:561

The almost certain prognosis of death in AIDS cases may call for the
highest possible standard of care in blood donor screening. The fact

that a blood collection center adhered to a protocol requiring less, even

if approved by medical authorities, may be insufficient to avoid liability
in the courtroom."'

Because a blood organization's basis for liability may be extremely
broad in AIDS-related cases, and because the majority of transfusion

transmission lawsuits have yet to surface,"^ it would be advantageous

for a blood bank to ensure the confidentiality of its donor records.

Therefore, in cases like Rasmusserty the courts should not address claims

of constitutional rights until they are asserted by the individuals possessing

those rights. Should the blood donors become involved in a lawsuit,

they would face no obstacle to the assertion of their rights. That is,

the nonparty donors, if faced with oppressive questioning, could move
for a protective order just as nonparty South Florida did in Rasmussen.^^^

Moreover, the courts possess virtually unlimited discretion by which to

protect the donors' rights, if and when they are asserted.""* On this
basis, and in view of the remoteness of the possibility that the donors'

intimate lives will be probed, the courts should grant discovery of the

blood donors' identities. By granting discovery, the courts will promote
fair and efficient litigation, prevent blood banks from masking their

own liability, and reserve their judicial discretion for the protection of
those who may choose to assert their constitutional rights.

V. Conclusion

AIDS-related lawsuits present multifaceted issues for which no clear

guidelines exist. As the dimensions of the disease unfold, the legal
implications compound. Rasmussen presents one court's version of a

proper balance of the interests involved in the issue of donor discovery.

Its status as the initial precedent in a rapidly expanding field could

engender many analogous decisions. Caution should be used, however,
in following the "law" of Rasmussen; as noted by the dissent in that

case, it appears that the majority **put its thumb on the scales" of
justice."^

The plaintiff's interest in pursuing meaningful discovery in the hope

of obtaining full compensation must be accorded the weight it deserves.

There is no form of discovery incapable of becoming oppressive; if all

available methods would never surface if the donors' names were suddenly to become

totally confidential and non-discoverable.").

^^'Miller, supra note 23, at 3421.

^^^See supra notes 13-14 and accompanying text.

"'467 So. 2d at 800.

""See supra note 210.

"'467 So. 2d at 805 (Schwartz, C.J., dissenting).



1986J AIDS 587

potentially intrusive discovery were prohibited on the basis that it might
meet resistance, few disputes would reach resolution in the legal forum.

Moreover, the courts have broad discretion in molding the form and

scope of discovery. In a case like Rasmusseriy the names of the donors

need not be brought into court, and the form of questioning can be

controlled. The state interest in ensuring the fair and efficient resolution
of disputes, along with the plaintiffs interest, should not be preempted

by the remote possibility of abusive discovery when the court itself
possesses the means to control the discovery process, should the need

ever arise.

Rasmussen's interpretation of the disclosural right to privacy must

be recognized for what it is — a broad extension of the Supreme Court's
interpretation of that right. The case law upon which this extension was
predicated does not support the Rasmussen conclusion; neither do the

decisions of the United States Supreme Court. There is no **generar'

constitutional right to privacy. Aside from the right of privacy applied

in relation to specific constitutional guarantees, the Supreme Court has

narrowly limited the extension of the right to areas of fundamental

concern: marriage, procreation, child rearing, education, contraception,

and family relationships. Moreover, the Supreme Court has never upheld
the disclosural right to privacy. A court choosing to extend that right
to the drug use, medical, and sexual histories of voluntary blood donors

must appreciate the magnitude of such an extension; it cannot be easily

reconciled with cases like Whalen, Pauly and Nixon. Futhermore, there

is a distinct possibility that a blood organization may have a self-serving
ulterior motive for its tactics — the avoidance of prosecution.

Although lawsuits involving transfusion transmission of AIDS have
just begun to surface, that particular mode of transmission, in light of
the highly accurate HTLV-III antibody test, is virtually at an end. The

assertion, therefore, that the fear of later questioning may prevent
individuals from donating their blood is no longer of significant weight.

Applying the Whaleri^^^ test of remoteness, this interest must take second

place to the unequivocal interest of the plaintiff.

It is entirely possible that a proper **balance" of the interests may,

in different fact situations, lead to diametric results. The concern, as

the courts approach AIDS-related issues, is not that one result be uni-

formly reached; rather, it is that the respective interests be accorded

their true legal weight.

Denise Clare Andresen

"See supra notes 148-58 and accompanying text.