Hepatitis, AIDS and the Blood Product Exemption from Strict Products Liability in California: A Reassessment
![handle is hein.journals/hastlj37 and id is 1121 raw text is: Hepatitis, AIDS and the Blood Product Exemption
from Strict Products Liability in California:
A Reassessment
According to California Health & Safety Code section 1606, suppli-
ers of blood and blood products provide a service, not a sale, for all
purposes whatsoever.' Traditionally, courts have interpreted section
1606 to preclude strict products liability actions against hospitals, blood
banks, and blood products manufacturers2 in cases involving hepatitis-
contaminated blood. The statute is under new scrutiny, however. Since
the discovery of Acquired Immune Deficiency Syndrome (AIDS),3 a
new line of cases has arisen in which plaintiffs who contracted the disease
from blood transfusions and blood products have challenged California
courts' traditional interpretation of section 1606. Whether the statute
will continue to preclude strict liability actions in the context of AIDS
contamination is uncertain; only one case has reached a California appel-
late court.4 Due to the devastating impact of AIDS on its victims, how-
ever, the time has come to reevaluate whether immunizing suppliers of
transfusible blood and blood products from strict liability furthers the
policies underlying the doctrine.
This Note reexamines the background of section 1606 and of the
public policy rationales underlying strict liability and concludes that sup-
pliers of transfusible blood, such as hospitals and blood banks, should
continue to be exempt from strict products liability in all contamination
cases. For purposes of this Note, transfusible blood means whole
blood or plasma that is always professionally administered, usually in a
hospital or other medical facility. Transfusible blood is not self-adminis-
trable and is not sold to consumers for home use; thus, it is not placed
into the general stream of commerce. To the extent that other entities
1. CAL. HEALTH & SAFETY CODE § 1606 (West 1979) provides in full:
The procurement, processing, distribution, or use of whole blood, plasma, blood
products, and blood derivatives for the purpose of injecting or transfusing the same,
or any of them, into the human body shall be construed to be, and is declared to be,
for all purposes whatsoever, the rendition of a service by each and every person, firm,
or corporation participating therein, and shall not be construed to be, and is declared
not to be, a sale of such whole blood, plasma, blood products, or blood derivatives,
for any purpose or purposes whatsoever.
2. See infra notes 55-57 & accompanying text.
3. See infra note 103 & accompanying text for a description of the disease.
4. Hyland Therapeutics v. Superior Court, 175 Cal. App. 3d 509, 220 Cal. Rptr. 590
(1985), rev'g Gallagher v. Cutter Laboratories, Inc., No. 548947 (Santa Clara Super. Ct. filed
May 11, 1984).
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Hepatitis, AIDS and the Blood Product Exemption from Strict Products Liability in California: A Reassessment
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