Osborn v. Irwin Memorial Blood Bank (5 Cal. App. 4th 234, 1992)

Opinion

PERLEY, J.

The trial in this case has been reported as the first in the nation where a blood bank was found liable in connection with transmission of the acquired immune deficiency syndrome (AIDS) virus by a blood transfusion.

In February of 1983, at the age of three weeks, Michael Osborn contracted the AIDS virus from a blood transfusion in the course of surgery on his heart at the University of California at San Francisco Medical Center. The blood used in the operation was supplied by the Irwin Memorial Blood Bank. Michael and his parents, Paul and Mary Osborn, sued Irwin and the University for damages on various theories. The only causes of action that survived defense motions for nonsuit and directed verdict were claims against Irwin for negligence, and intentional and negligent misrepresentation. After the jury returned a general verdict for plaintiffs, the court granted Irwin’s motion for judgment notwithstanding the verdict on the intentional misrepresentation and negligence claims. Irwin was thus held liable only for a negligent misrepresentation.

The cause of action for negligent misrepresentation was based on a statement to the Osborns by Irwin’s receptionist that blood donations could not be earmarked for use in Michael’s operation. That statement could be construed as a misrepresentation in light of evidence that Irwin’s policy at the time was to discourage rather than prohibit directed donations. Irwin offered to prove that Michael had a rare blood type and hence could not have received any blood from members of his family. Irwin also wanted to show that friends of the family who had agreed to donate for Michael could have provided only a small fraction of the rare blood he needed. This evidence was relevant to proximate cause. To the extent that Michael could not have used directed donations, a statement that prevented those donations did not affect the outcome of his case. However, the court excluded evidence associated with Michael’s rare blood type. We conclude that the court erred, that the error was prejudicial to Irwin and thus a new trial on the claim of negligent misrepresentation is required.

The most significant issue on appeal is whether Irwin was entitled to judgment notwithstanding the verdict on the issue of negligence. Qualified experts opined for plaintiffs that Irwin’s blood testing and donor screening practices prior to Michael’s surgery were negligent in light of concerns about AIDS at the time. On matters such as these that are outside common knowledge, expert opinion is ordinarily sufficient to create a prima facie case. Here, however, there was uncontradicted evidence that Irwin was doing as much if not more in the areas of testing and screening than any other blood bank in the country, and there is no question that it followed accepted practices within the profession. We hold that Irwin cannot be found negligent in these circumstances.

We also conclude that the University’s motions for nonsuit and directed verdict were properly granted, and accordingly affirm the judgment in favor of the University.

I. Introduction

A. Michael Osborn’s Medical Case

Michael Osborn was born on January 28, 1983, with isolated ventricular inversion, a rare and life-threatening heart condition that prevented unoxygenated blood from circulating to his lungs. He underwent surgery at the University on February 24, 1983, to repair this condition. It is undisputed that the surgery was necessary and successful. During the course of the procedure, Michael received 12 units or components of blood supplied by Irwin. The necessity of those blood transfusions is undisputed. Michael played normally and showed no symptoms of AIDS for over four years.

In August of 1987, the Osborns received a letter from the University recommending that Michael be tested for the antibody to the AIDS virus. The letter noted that he had received transfusions before April of 1985, at a time when no test for AIDS was available. Michael tested positive, and it is undisputed that he contracted AIDS from a transfusion he received incident to his heart surgery. In late February, 1988, Michael’s speech became slurred and he began walking with a limp. He was diagnosed with an AIDS-related brain tumor and underwent surgery for its partial removal. He was receiving medication for swelling of the brain at the time of trial herein. Michael testified briefly at the trial. We have been advised that he has died during the pendency of this appeal.

The donor whose blood transmitted the AIDS virus to Michael has not been identified.

B. Procedural History

This suit was filed in May of 1988. The first amended complaint included causes of action against the University for medical malpractice, breach of contract, intentional and negligent misrepresentation, intentional and negligent infliction of emotional distress, negligent screening of medical staff, battery, and simple negligence. Plaintiffs asserted claims against Irwin for negligence, breach of contract, intentional and negligent misrepresentation, intentional and negligent infliction of emotional distress, battery, and products liability.

The case was tried to a jury in November of 1988, after the court granted plaintiffs’ motion for calendar preference based on Michael’s illness. The University and Irwin moved for nonsuits when plaintiffs rested. The motion was granted on all claims except those of negligence, and intentional and negligent misrepresentation against Irwin, and those of malpractice, negligent misrepresentation and negligent infliction of emotional distress against the University. After Irwin and the University presented their defenses, the court granted the University’s motion for a directed verdict on the remaining claims against it.

Claims against Irwin for negligence, and intentional and negligent misrepresentation were submitted to the jury. Irwin requested a general verdict. The jury returned a 9-3 decision against Irwin, awarding damages of $550,000 to Michael and $200,000 to his parents.

Irwin then moved for judgment notwithstanding the verdict and a new trial. The motion for new trial was supported, inter alia, by the affidavits of five jurors stating that negligent misrepresentation was the sole basis for their finding of liability. Irwin also moved for entry of an amended judgment reflecting the damage limitations of the Medical Injury Compensation Reform Act (MICRA). Plaintiffs opposed Irwin’s motions and moved to strike the juror affidavits.

At the conclusion of the first hearing on the posttrial motions, the court granted Irwin judgment notwithstanding the verdict on the claims of intentional misrepresentation and negligence. The court acknowledged at subsequent hearings that Irwin had unsuccessfully urged throughout the case that claims against it were subject to MICRA. The court also acknowledged that it had erred in concluding that MICRA did not apply. Irwin argued that this error required a new trial. Irwin also argued that, if the court was not inclined to grant a new trial, it could amend the judgment to conform the damage award to MICRA. Irwin submitted that the general verdict could be recalculated in accordance with MICRA based on the evidence of damages at trial, and two juror affidavits about how much of the award represented unreimbursed medical expenses, pain and suffering, and future damages. Irwin suggested that the court could use “its remittitur power” and grant a “new trial conditionally” to effect this result.

The court decided to conditionally grant the motion for new trial, subject to plaintiffs’ acceptance of an amended judgment for reduced and deferred damages. The motion to amend the judgment was granted as follows: “[Irwin] shall pay a lump-sum payment to plaintiffs in the amount of $250,100 in present damages; future damages of $250,000 are to be paid to Michael Osborn periodically in equal annual installments commencing on his eighteenth (18th) birthday, and continuing each year until his sixty-fifth (65th) birthday. Inasmuch as the Court finds that Michael Osborn owes no duty of support to anyone, the Court, in conformity with the spirit and intent of [Code of Civil Procedure] § 667.7, hereby orders that any unpaid future damages revert to defendant Irwin in the event of Michael Osborn’s death prior to payment in full.” In between these sentences, which were typed on Irwin’s form, the court inserted the handwritten notation, “$165,207 for nursing care.”

Although the court granted plaintiffs’ motion to strike the juror affidavits, it appears to have generally accepted Irwin’s breakdown of present and future damages based on those affidavits. The $250,100 figure for present damages appears to represent $250,000 for Michael’s pain and suffering, plus $100 for his parents’ unreimbursed medical expenses. The $250,000 figure for future damages appears to cover Michael’s lost earnings. Although the $165,207 figure appears to cover Michael’s future nursing care, the court indicated in response to questions from the parties that this amount was payable in a lump sum as present damages. Since Michael was not expected to live to age 18 there was no real prospect for payment of any of the future damages awarded under the amended judgment. The court thus in effect reduced the award from $750,000 to $416,307.

Plaintiffs accepted the reduced award in lieu of a new trial and these appeals ensued. Plaintiffs contend that MICRA does not apply to Irwin, and thus that the court erred by amending the judgment in an attempt to conform it to MICRA. Plaintiffs also contend that the court misapplied MICRA when it provided for periodic future payments of lost earnings. Irwin contends that a new trial is required because certain of the jury instructions were erroneous, the court improperly used a remittitur, and it could not grant a partial judgment notwithstanding the verdict. Plaintiffs and Irwin discuss at length some of the evidence on Irwin’s alleged negligence, presumably on the issue of whether judgment notwithstanding the verdict was properly granted on that cause of action. Irwin contends that it is entitled to judgment on the claim of negligent misrepresentation, or that a new trial on this cause of action is required. Finally, plaintiffs contend that the court erroneously granted the University’s motions for nonsuit and directed verdict.

II. Claim of Negligent Misrepresentation Against Irwin

A. Background

Mr. and Mrs. Osborn knew that Michael’s heart surgery would entail blood transfusions, they had learned of AIDS from newspapers and television, and they were afraid that AIDS could be transmitted by blood. They therefore spoke with seven of Mary Osborn’s brothers and sisters, as well as thirty-five people at the office of Pacific Bell where they both worked, about donating blood for the operation, all of whom were willing to help. Three days before the operation, the Osborns asked Dr. Paul Stanger at the University whether they could arrange to have their blood, or the blood of family and friends, used in Michael’s surgery. Stanger told them that they would have to take up the subject of directed donations with Irwin.

After talking with Dr. Stanger, the Osborns went to Irwin and spoke with Irwin’s receptionist. They told the receptionist that they wanted to donate blood for use in their infant’s heart surgery because they were worried about AIDS. The Osborns testified that the receptionist advised them that their donations would be credited to Michael’s account, but could not be reserved specifically for his use. It was too soon after pregnancy for Mary Osborn to give blood, but Paul Osborn proceeded to make a donation. The claim of negligent misrepresentation is based on the receptionist’s statement to the Osborns that Irwin did not accept directed donations.

The Osborns introduced evidence that Irwin’s policy at the time was to discourage directed donations, rather than forbid them. A February 4, 1982, memorandum to Irwin personnel from its medical director, Dr. Herbert Perkins, indicates that directed donations were routinely accepted only in a few situations, not present in Michael’s case, where they were deemed medically justified. Directed donations were otherwise discouraged, according to the memo, but they would be accepted if the patient and the patient’s physician insisted on them. Dr. Perkins testified that Irwin’s staff was informed of this policy. At trial, however, the receptionist did not recall that Irwin had a policy on directed donations at the time, and neither did Brian McDonough, who was then Irwin’s executive director.

Recovery for negligent misrepresentation involving a risk of physical harm requires proof that: (1) the defendant had a duty to exercise reasonable care in giving the information in question; (2) the defendant gave false information with a degree of culpability at least equal to negligence; (3) the plaintiff actually and reasonably relied on the misrepresentation; and (4) reliance on the misrepresentation proximately caused the plaintiff’s injury or death. (Garcia v. Superior Court (1990) 50 Cal.3d 728, 735-737 [268 Cal.Rptr. 779, 789 P.2d 960]; Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1081 [274 Cal.Rptr. 342].) It is apparently conceded that there was sufficient evidence for the jury to conclude that Irwin’s receptionist negligently misrepresented its directed donations policy, and that the Osborns reasonably relied on that misrepresentation. Irwin’s arguments with respect to negligent misrepresentation focus exclusively on proximate cause.

Plaintiffs’ sole response to those arguments is that proximate cause “is not even an element” of the cause of action for negligent misrepresentation. That is obviously incorrect. (Garcia v. Superior Court, supra, 50 Cal.3d at p. 737; Weissich v. County of Marin, supra, 224 Cal.App.3d at pp. 1081, 1083-1084; see also, e.g., Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 376 [193 Cal.Rptr. 422] [defendant liable for injury “resulting from” reliance on misrepresentation]; Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 686 [81 Cal.Rptr. 519] [same]; BAJI No. 12.45 (7th ed. 1986) p. 32 [same]; Rest.2d Torts, § 311.)

B. Irwin Is Not Entitled to Judgment

Irwin contends that plaintiffs cannot establish a prima facie case that denial of directed donations proximately caused Michael to contract AIDS, because there is no scientific evidence that blood from family and friends is any safer than blood from routine (homologous) donations by the general public. Several witnesses testified without contradiction that as of February, 1983, there were no studies on the relative safety of directed donations. In support of its motion for new trial, Irwin submitted statistics it compiled in 1988 showing that there was no significant difference in the risk of contracting AIDS from homologous and directed donations. Irwin also submitted a 1987 study for the Washington State Legislature which reached the same conclusion.

Irwin has emphasized to us and to the trial court that the State of Washington refused to mandate directed donations in light of this study. We note that California enacted a law requiring allowance of directed donations, despite the alleged lack of evidence of their utility. Subdivision (a)(1) of Health and Safety Code section 1628, which evidently expired on January 1, 1992, provided that “No person shall prohibit any individual from ...['[[] [m]aking blood donations to be used directly for blood transfusions for an individual designated by the donor . . . .” (See also Health & Saf. Code, § 1645 [patients receiving blood transfusions must be apprised of the “positive and negative aspects” of directed donations].) We will nonetheless assume for purposes of Irwin’s argument that no studies have proven that the use of directed donations decreases the risk of contracting AIDS from a transfusion. Irwin submits that the absence of such proof precludes plaintiffs from establishing proximate cause by a preponderance of the evidence, and thereby dictates a judgment in Irwin’s favor on the claim of negligent misrepresentation. (See generally 1 Witkin, Cal. Evidence (3d ed. 1986) §§ 132, 133, 157 and authorities cited [burden of proof in civil cases]; Rest.2d Torts, § 433B.)

The concept of proximate or legal cause has “defied precise definition.” (Maupin v. Widling (1987) 192 Cal.App.3d 568, 573 [237 Cal.Rptr. 521]; see also Wright, Causation in Tort Law (1985) 73 Cal.L.Rev. 1735, 1737.) It is reasonably well settled, however, that the causation inquiry has two facets: whether the defendant’s conduct was the “cause in fact” of the injury; and, if so, whether as a matter of social policy the defendant should be held legally responsible for the injury. (See Maupin v. Widling, supra, 192 Cal.App.3d at pp. 573-574, and authorities cited; and Rest.2d Torts, § 431 [definition of legal cause].) The issue presented here is solely one of “causation in fact.”

Whether a defendant’s conduct actually caused an injury is a question of fact (Maupin v. Widling, supra, 192 Cal.App.3d at p. 573) that is ordinarily for the jury (Rest.2d Torts, § 434, subd. (2)(a)). The two widely recognized tests for establishing cause in fact are the “but for” rule, which asks whether the injury would not have occurred but for the defendant’s conduct, and the rule set forth in the Restatement Second of Torts section 431, subdivision (a), which asks whether the defendant’s conduct was a “substantial factor in bringing about the harm.” (Maupin v. Widling, supra, 192 Cal.App.3d at p. 574.) Our Supreme Court has recently observed that the “substantial factor” test generally subsumes the “but for” test. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-1053 [1 Cal.Rptr.2d 913, 819 P.2d 872].)

However the test is phrased, causation in fact is ultimately a matter of probability and common sense: “[A plaintiff] is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.” (Rest.2d Torts, § 433B, com. b.)

A causal connection between the misrepresentation and the harm is readily apparent, as a matter of common sense, in Michael’s case. Conduct can be considered a substantial factor in bringing about harm if it “has created a force or series of forces which are in continuous and active operation up to the time of the harm” (Rest.2d Torts, § 433, subd. (b)), or stated another way, “the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another” (Rest.2d Torts, §§ 439, 433, com. e.). A “continuous” chain of cause and effect is manifest here: Michael received blood from Irwin’s donor pool because Irwin misrepresented that directed donations were not available; and he contracted AIDS because Irwin’s blood was contaminated, just as his parents feared it would be.

A lack of evidence that directed donations are safer does not in any event preclude a finding that, but for the failure to allow those donations, Michael probably would not have contracted AIDS. In support of Irwin’s motion for new trial, Dr. Perkins declared that the risk of contracting the AIDS virus from a blood transfusion may have been as high as 1 in 100 in early 1983. However, Irwin does not argue that at this time it was more likely than not that any recipient of 12 units of blood would get the AIDS virus. If the chances of that happening were less than 50 percent, as is evidently conceded, then it is probable that Michael would not have been harmed by blood from 12 directed donations, or for that matter, any 12 units from Irwin’s regular donor pool other than those he actually received. It appears that directed donations probably would have saved Michael’s life.

We therefore hold that lack of scientific proof of the relative safety of directed donations is not conclusive in Irwin’s favor on the issue of proximate cause.

C. Irwin Is Entitled to a New Trial

Over Irwin’s objection, the court excluded evidence that Michael had a relatively rare blood type, A-negative. Irwin advised the court that this evidence would show that none of Michael’s family could have donated blood for him because their blood types were incompatible with his. This evidence would also have shown that the 35 friends lined up to donate for Michael probably could have provided only a small fraction of the rare blood he needed. Irwin argued that these facts were probative because they indicated that most all of the blood for Michael’s operation would have come from Irwin’s public donor pool even if no misrepresentation had occurred, and all of the directed donations arranged by his parents had been obtained.

Evidence associated with Michael’s rare blood type was relevant to proximate cause. The trial court appears to have excluded this evidence on the ground that the parents’ failure to secure directed donations stemmed from Irwin’s misrepresentation rather than Michael’s rare blood type. The court stated that “the problem . . . was not in the difficulty of getting the blood; it was in the fact that they asked, requested, and wanted to get to do it themselves, and they were turned down.” However, an additional problem presented by the rare blood type was the extent to which any of the directed donations that would have been obtained could have been used. Ordinarily, of course, “the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.” (Rest.2d Torts, § 432, subd. (1).) If directed donations for Michael would not have been feasible, a misrepresentation precluding those donations did not affect the outcome of his case. We conclude that the court erred when it excluded evidence relating to Michael’s blood type.

We also find that the error was prejudicial to Irwin. Erroneous exclusion of evidence is grounds for reversal if in light of the entire record . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Clifton v. Ulis (1976) 17 Cal.3d 99, 105-106 [130 Cal.Rptr. 155, 549 P.2d 1251]; Loftleidir Icelandic Airlines, Inc. v. McDonnell Douglas Corp. (1984) 158 Cal.App.3d 83, 95-96 [204 Cal.Rptr. 358].) The error may be deemed harmless if the excluded evidence was “immaterial or of so little materiality or value that its admission would not have had any substantial influence on the result,” or it “would have been merely cumulative or corroborative of evidence properly in the record.” (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 339, p. 346.) On the other hand, exclusion of admissible evidence on a material issue may be reversible error in a close case (id., at § 354, pp. 357-358 and precedents cited), especially where it has deprived a party of a crucial theory that would have supported a verdict in its favor (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 588 [86 Cal.Rptr. 465, 468 P.2d 825]). All of these factors militate in favor of a finding of prejudice in this instance.

This was not a case in which the proffered evidence was merely cumulative of other evidence in the record. In opening argument, counsel for the University stated that Michael’s parents’ blood could not have been used in the operation because it was incompatible with his. However, the court conferred with counsel after the opening arguments and advised the jury that “there will be no evidence of the blood type of Mr. and Mrs. Osborn.” Before the close of plaintiffs’ case and outside the presence of the jury, the court again ruled that evidence associated with Michael’s blood type would not be admitted. When Irwin attempted to ask its first witness whether 40 or 50 directed donors would necessarily be able to provide 12 units of blood for an operation, the court instructed the witness not to answer. A witness for the University, Dr. Stephen Cohen, later testified without objection that Michael had type A-negative blood and that this was “an unusual type.” This testimony enabled Irwin’s counsel to suggest to the jury that plaintiffs might not have been able to secure enough blood from directed donations to cover Michael’s operation. He argued that “We don’t know what would have happened to Michael Osborn if he had gotten a directed donation from one of those thirty-five people at the phone company, whether thirty-five would have been enough for his twelve units of what Dr. Cohen called rare blood.”

Although this argument perhaps planted some doubt about the feasibility of directed donations in Michael’s case, the jury was instructed that statements of counsel were not evidence, and they never learned that donations from Michael’s family could not have been used, or that 35 directed donations from outside the family were likely to have been insufficient. The jury proceeded to deliberate for over three hill days. During the course of their deliberations they asked to review various portions of the trial testimony, including the testimony of Irwin’s receptionist and the statements attributed to her by Michael’s father. After deliberating for more than two days, the jury sent a note to the court indicating that they had “reached an impasse. . . . Today we have taken our fourth vote and it remains at 7-5. We have considered the areas we feel are relevant, asked for testimony to be reread and now find ourselves arguing the same points over and over without achieving any changes in opinion.” The eventual verdict was split 9-3.

It appears that this was a close and difficult case for the jury, where an additional defense could have changed the result. The jury could well have been influenced by Michael’s inability to receive any blood from family members, and the likelihood that he would have needed far more than 35 other directed donations. This evidence might have led the jury to conclude that the misrepresentation caused no harm because most of Michael’s blood would have come from homologous donations in any event.

In light of Michael’s rare blood type, Irwin submits that plaintiffs will be unable to show that denial of directed donations was likely to have caused any harm, and hence that Irwin is entitled to judgment on the negligent misrepresentation claim. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403 [209 Cal.Rptr. 456] [no causal relation unless it is “more likely than not” that injury resulted from defendant’s action]; Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 533 [126 Cal.Rptr. 681] [same].) Dr. Perkins’s declaration in support of Irwin’s motion for new trial states in pertinent part that “[o]nly 6% of the blood donor population has A negative blood. In order to obtain 12 units of A negative blood for their son, the Osborns would have needed to bring in approximately 200 designated donors. [1] These people would also have to be suitable blood donors in terms of their own health. . . . From experience, we would expect 5% of the potential donor[s] to be rejected, requiring 10 more to replace them.”

Irwin’s briefs do not make the logic explicit, but presumably the argument is as follows: if some 210 donors would probably have been needed to obtain 12 units of type A-negative blood, then the 35 people who agreed to donate for Michael probably could have provided only 2 units of type A-negative blood; and if only 2 out of the 12 units of blood used in Michael’s operation would have been different if there had been no misrepresentation, then the odds that the misrepresentation affected the outcome of Michael’s case were less than 50-50 and plaintiffs cannot prove proximate cause. (See Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pp. 401-402 [affirming nonsuit where plaintiff’s expert could not testify to a greater than “50-50 chance” that defendant’s product contributed to development of disease].)

We do not have an adequate record to rule on this argument, or Irwin’s related claim that proximate cause cannot be established because there were “unanticipated blood requirements” in connection with Michael’s surgery. The argument that causation cannot be shown because of Michael’s rare blood type is premised on his receipt of 12 units of blood and the need for all of that blood to be type A-negative. Neither of these predicates is entirely clear from the record.

It is apparently agreed that the blood furnished to Michael came from 12 different donors. We infer this from Dr. Perkins affirmative response to the query by plaintiffs’ counsel, “We know that there were twelve donors of blood to Michael Osborn, correct?” But it further appears that Michael may have received a total of 12 blood “components,” rather than 12 whole units, and that not all of these “fractions” had to be type A-negative. We infer this from statements by defense counsel during their argument for the admission of evidence associated with Michael’s blood type: “The Court: ‘How many [units] did he actually get? Q] Counsel for Irwin: ‘Twelve units.’ [][] University Counsel: ‘Not the whole units.’ [SI] Counsel for Irwin: ‘Twelve components. . . .’[][] The Court: ‘The units, they don’t have to have the exact A negative.’ [][] University Counsel: ‘It has to be A negative for that surgery. That is the first four units. After that four, for any whole blood it has to be A negative. For any fractions, there are some other compatibles.’ ”

The foregoing suggests that Irwin may have overstated its case for the relevance of Michael’s rare blood type by implying, both at trial and on appeal, that over 200 directed donations would have been needed to find him sufficient compatible blood. On the other hand, we have found no indication in the record that 35 directed donations were likely to have been enough.

In these circumstances, we can do no more than conclude that Irwin should have been allowed to develop evidence tending to show that directed donations would not have been feasible in Michael’s case. This evidence was relevant to the issue of proximate cause and we deem it sufficiently material to require a new trial. Whether it justifies a nonsuit will be for the trial court to determine after the evidence is in. (Cf. Julrik Productions, Inc. v. Chester (1974) 38 Cal.App.3d 807, 812 [113 Cal.Rptr. 527] [appellate court declines to engage in factfinding process with respect to erroneously excluded evidence].) It is difficult for us to see how evidence relating to Michael’s blood type could be conclusive in Irwin’s favor, because plaintiffs can always argue that they could have found more directed donors if they had to. (Cf. Rest.2d Torts, § 434, subd. (2)(a) [proximate cause is jury question unless jury could not reasonably differ on whether defendant’s conduct was substantial factor in causing harm].)

We also have no way of properly evaluating the claim that plaintiffs cannot establish proximate causation because there was an “unanticipated” need for extra blood in connection with Michael’s surgery. Irwin asserts that: “it may reasonably be presumed” that any directed donations would only have covered the blood Michael needed “during” surgery; the University’s medical records disclose that eight of the twelve units or components of blood Michael received were administered postoperatively; this indicates that Michael had an “unforseen” need for blood; and this unforeseen need would have been met with blood from Irwin’s regular donor pool. Irwin also maintains that it was “effectively precluded” from making this argument at trial.

Irwin may have been dissuaded from making this argument by the rulings on evidence associated with Michael’s blood type, but the argument in any event was never made, and no evidence to support it was ever developed. Insofar as it appears from the testimony on Michael’s operation, the procedure went smoothly and was a complete success. We therefore do not know whether there was in fact any “unforeseen” need for blood in his case. This point, if valid, again appears relevant but not conclusive.

A new trial on the claim of negligent misrepresentation is required.

III. Claim of Negligence Against Irwin

A. Standard of Review

Most of the evidence at trial concerned the actions Irwin took, or allegedly should have taken, to safeguard its blood supply in early 1983 in light of concerns at the time that AIDS might be transmissible by blood. The issue on appeal is whether, in light of that evidence, Irwin was entitled to judgment notwithstanding the verdict on plaintiffs’ claim of negligence.

Well-settled standards govern judgments notwithstanding the verdict: “When presented with a motion for JNOV, the trial court cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied. [Citation.] (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110 [120 Cal.Rptr. 681, 534 P.2d 377, 74 A.L.R.3d 1282].) The same standard of review applies to the appellate court in reviewing the trial court’s granting of the motion. (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 515 [143 Cal.Rptr. 247, 573 P.2d 465]; Hauter, supra, at p. 111.) Accordingly, the evidence . . . must be viewed in the light most favorable to the jury’s verdict, resolving all conflicts and drawing all inferences in favor of that verdict.” (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343 [268 Cal.Rptr. 309], parallel citations and internal quotation marks omitted.)

B. Evidence

(1) Concerns About AIDS and the Blood Supply in Early 1983

Plaintiffs based their claim of negligence on Irwin’s acts and omissions in January and February of 1983. Although the donor whose blood infected Michael was not identified, there was testimony that red blood cells have a shelf life of only 35 days, and the jury could infer that the blood in question was collected sometime during these two months. To put Irwin’s procedures in proper perspective, it is necessary to outline the evidence on what was known about AIDS in early 1983, and the steps taken by blood banking organizations and regulators in light of that knowledge.

The first cases in the United States of what later became known as AIDS were reported in 1981. Most of the early cases involved male homosexuals, intravenous drug users or Haitian immigrants. In July of 1982, the Centers for Disease Control (CDC) reported that three heterosexual hemophiliacs, who were neither intravenous drug users nor Haitian immigrants, had contracted pneumocystis carinii pneumonia, an opportunistic infection associated with AIDS. This report suggested that AIDS might be transmissible by blood because these patients had received frequent injections of the blood product Factor VIII. However, Dr. Louis Aledort, who was then medical director of the National Hemophilia Foundation, testified that the report was discussed at an international conference on hemophilia shortly after its release and found to be inconclusive. According to Dr. Aledort and Dr. Paul Volberding, who began treating AIDS patients at San Francisco General Hospital in 1981, it was debated whether these cases involved an infectious agent in the blood, or suppression of the immune system from the chronic transfusions of concentrated blood proteins received by hemophiliacs.

In December of 1982, the CDC published a report by Dr. Perkins and others of a case of “possible transfusion-associated” AIDS. The case involved a 20-month old infant in the San Francisco area with symptoms resembling those seen among adults with AIDS. The infant received multiple transfusions shortly after birth, including platelets from a man who appeared to be in good health when he donated blood, but who began exhibiting symptoms associated with AIDS eight months later. The “editorial note” to this report, with footnotes omitted, states: “The etiology of AIDS remains unknown, but its reported occurrence among homosexual men, intravenous drug abusers, and persons with hemophilia A suggests it may be caused by an infectious agent transmitted sexually or through exposure to blood or blood products. If the infant’s illness described in this report is AIDS, its occurrence following receipt of blood products from a known AIDS case adds support to the infectious-agent hypothesis. [SI] If the platelet transfusion contained an etiologic agent for AIDS, one must assume that the agent can be present in the blood of a donor before onset of symptomatic illness and that the incubation period for such illness can be relatively long. ...[][] This report and continuing reports of ÁIDS among persons with hemophilia A raise serious questions about the possible transmission of AIDS through blood and blood products.”

These concerns led the CDC to convene a meeting on January 4, 1983. According to the invitation, the purpose of the meeting was “to formulate recommendations for the prevention of AIDS with special emphasis on possible transmission through blood and blood products.” The meeting was attended by 80 to 100 people, including representatives of all of the major blood banking associations, the Food and Drug Administration (FDA), the National Gay Task Force and the news media. Three of those in attendance, Dr. Perkins, Dr. Aledort, and John Hink of Cutter Laboratories, testified at trial. Dr. Perkins said that “the meeting degenerated into a series of discussions that indicated that nobody was in agreement as to what should be done.” Hink came to essentially the same conclusion in a memo two days after the meeting, in which he wrote that the “anti-discrimination position of the gays, self-serving comments of blood bankers and lack of data to provide legitimacy to many proposals resulted in an overall stalemate.”

The cause of AIDS was unknown and there was no test for it at the time, but the CDC presented data on the results of various surrogate tests, performed on the blood of a limited population of people who exhibited symptoms of AIDS, which might be used to determine whether a donor was at high risk for the disease. The CDC estimated that only 5 percent of normal controls would be positive in anti-HBc tests for the antibody to the hepatitis B core antigen. However, all 21 of the intravenous drug users in the CDC’s test group, and 88.2 percent of the 93 homosexuals or bisexuals in the group, tested positive for tiiis antibody. Hink wrote in his memorandum that an “ever recurring” proposal at the meeting was to conduct anti-HBc tests and reject all blood that tested positive. Hink noted that the cost of the test “bothered many but not CDC.” Dr. Aledort testified that “there was a great deal of beseeching and questioning and saying would somebody out there at least try and look at it.” Dr. Perkins wrote in a January 9, 1983, memorandum that although “doubt was expressed that the test would select a high risk group for AIDS. . . . [fjurther experimental studies are clearly warranted.”

The other “ever recurring” proposal at the CDC meeting, according to Hink, was to “[cjonduct an educational campaign on the subject [of AIDS] to all homosexual populations and allow them to voluntarily exclude themselves as blood and plasma donors.” Hink described gay rights advocates as “definitely in favor” of AIDS education, but “greatly opposed” to exclusion of gays as donors. In his January 9 memo, Dr. Perkins wrote that “[t]he issue of rejecting prospective donors simply because they come from a high risk group was even more controversial” than surrogate testing. Perkins reported that “There was almost complete agreement that any policy which excluded all gay male donors was irrational, unscientific, unwise, and could jeopardize the nation’s blood supply. . . . Some at the meeting obviously thought that working through leaders and physicians of the gay groups, it should be possible to obtain voluntary restriction of donation by those male gays who fit the AIDS stereotype (very large numbers of sexual partners, indiscriminately chosen). No one thought this should be mandatory . . . .”

On January 6, 1983, a committee of the American Association of Blood Banks (AABB) called a meeting to review what a witness at trial described as “the status of what blood banks could and should be doing” in light of the possibility that blood could transmit AIDS. The meeting was attended by representatives of the American Red Cross (ARC), the Council of Community Blood Centers (CCBC), and many of the other groups that had attended the CDC meeting two days earlier. On January 13, 1983, the AABB, ARC and CCBC issued a “Joint Statement on Acquired Immune Deficiency Syndrome (AIDS) Related to Transfusion,” which, according to a physician who participated in the January 6 meeting, represented the “[collective . . . agreement by those responsible for provision of blood transfusions in the United States.”

The statement noted that less than 10 of the more than 800 AIDS cases then reported were possibly linked to blood transfusions, that approximately 10 million transfusions occur annually, and that evidence of transfusions transmitting AIDS was “inconclusive.” The blood banking associations nevertheless believed that they “must respond to the possibility that a new and infectious illness has surfaced.” They recommended that prospective donors be asked about AIDS-related symptoms, including “night sweats, unexplained fevers, unexpected weight loss, lymphadenopathy or Kaposi’s sarcoma,” and that all positive or suggestive answers “be evaluated before anyone donates.” They also recommended that blood drives not target “groups that may have a high incidence of AIDS.” They felt, however, that it was “inappropriate” to ask prospective donors about their sexual preference, and they did not advise “routine implementation of any laboratory screening program for AIDS,” such as anti-HBc testing.

No other AIDS-related recommendations were made by these blood banking groups, and no AIDS-related guidelines were issued by the government, until March of 1983, after Michael’s operation.

On March 4, 1983, the Public Health Service issued a statement on AIDS prevention. The statement noted that the distribution of AIDS cases paralleled that of hepatitis B, and that the incidence of AIDS in hemophilia patients, intravenous drug abusers, and transfusion recipients suggested that AIDS was transmissible by blood. The statement observed that interested groups, including the American Association of Physicians for Human Rights and the National Gay Task Force, as well as the AABB, ARC and CCBC, had not agreed on the steps that should be taken to reduce this “potential risk” of AIDS transmission. The statement recommended that persons in high-risk groups refrain from donating blood, and it advised blood collection centers to inform potential donors of that recommendation. It also advised that studies be done to evaluate screening procedures, such as “laboratory tests as well as careful histories and physical examinations,” that might identify blood with a high probability of transmitting AIDS.

The FDA issued recommendations on March 24,1983. The FDA indicated that “[t]he major organizations engaged in blood collection have recently reached a consensus as to steps which should be taken to decrease the risk of transmitting AIDS by blood transfusion,” and it stated that its recommendations were consistent with those of the AABB, ARC and CCBC. The recommendations called for blood banks to: inform people at increased risk of AIDS to refrain from donating; instruct their personnel on the use of questions to detect AIDS symptoms or exposure to those with AIDS; and establish procedures for handling of blood collected from donors suspected of having AIDS. On April 4, 1983, the AABB specified standard operating procedures in accordance with the FDA recommendations. The AABB disseminated FDA-approved literature to be given to prospective donors and listed AIDS-related symptoms to be elicited by donor screening.

(2) Irwin’s Actions

Plaintiffs’ principal theory of negligence is that Irwin should have started anti-HBc surrogate testing for AIDS prior to Michael’s operation. plaintiffs also argue that Irwin’s practices with respect to donor questioning were negligent. The evidence of Irwin’s actions in these areas was as follows.

(a) Anti-HBc Testing

Dr. Perkins testified that Irwin acted on the assumption that AIDS could be transmitted by blood from the time of the December 1982 report of the infant who appeared to have contracted AIDS from a transfusion. Perkins noted that the anti-HBc test results reported by the CDC at the January 4 meeting were inconclusive because they were performed on people who exhibited symptoms of AIDS, and there was no data on “whether people who appeared to be healthy and were carrying this presumed virus” would test positive. He explained that the real need was for a test that would eliminate the asymptomatic donors, because routine medical screening would identify people with full-blown AIDS like those in the CDC’s test group. However, he “went home [from the CDC meeting] with a message that we ought to look into those tests and see if they would be useful.” Two days after the CDC meeting, Perkins wrote a memorandum to Irwin’s executive director and others outlining some of the difficulties he foresaw in evaluating surrogate tests for AIDS. His preliminary conclusion was “essentially that we will not learn anything.”

Dr. Marcus Conant invited Perkins to a meeting at the University on January 20, 1983, to discuss transfusion-associated AIDS. Conant estimated that 50 physicians attended the meeting, and he recalled that there was a split of opinion among them on the utility of surrogate testing. On that issue, Conant’s impressions were that “Dr. Perkins at that time did not feel that they had many high risk donors going to Irwin,” or that “the problem was as acute as I and others felt it was.” Conant said Perkins also expressed “concern about the cost of doing the [anti-HBc] test,” which was stated at the meeting to be $5. Perkins testified he “thought we were all in agreement” when the meeting concluded, but it later appeared “they misunderstood what I was saying.”

According to a telephone message, Conant called Perkins on January 28 to inform him “that a group of physicians from UCSF are planning to make a public statement next week concerning their demand that all blood be tested for hepatitis B core antibody.” On that date, Conant and Dr. David Altman circulated to other physicians the text of the proposed statement for their review and comment. The memo began: “Concern has been expressed that additional steps should be taken to screen blood at the Irwin Memorial Blood Bank that is being donated by gay men in San Francisco. To date no public group has made a statement about using hepatitis B core antibody as a screen. . . .” Perkins called Conant back on January 31 and told Conant that he “could understand the arguments which led to such a statement but was not ready to agree with it.” Perkin’s memo on the conversation noted that the proposed statement “failed to list the pros and cons of testing. I pointed out that the CDC data showed that 12% of known AIDS cases had negative] tests for anti-HBc, and that the frequency could be much greater in the incubation phase, [f] I pointed out that we would permanently lose 5% of our donors, and that many of these would be driven to hysterics no matter how we reassured them.”

On February 2, Conant, Altman and four other University physicians issued a press release stating: “It seems likely that the acquired immunodeficiency syndrome, AIDS, is caused by an infectious agent that is transmitted through sexual contact and/or blood or blood products, but neither the agent (or agents) nor the exact mode of transmission has been identified. Because of the strong possibility of an infectious agent being involved, the Centers for Disease Control has issued guidelines for medical personnel to follow in handling AIDS-related material .... [1] Although a serologic marker for AIDS is not yet available, two facts compel us to recommend th[e] following screening test: First, AIDS seems to be transmitted in a manner parallel to that of hepatitis B virus; second, in patients with AIDS there is a very high incidence of the antibody to the hepatitis B core antigen, anti-HBc, a very sensitive marker for hepatitis B virus infection. This test is now readily available to clinicians and laboratories. [|] We are recommending that the Irwin Memorial Blood Bank and other blood banks in New York and Los Angeles, where there is a high incidence of AIDS, investigate the feasibility of screening all donated blood for anti-HBc. . . .”

Four of the six physicians who signed this press release testified at trial. They all said that the release was not intended as a directive to Irwin to immediately begin anti-HBc testing, but rather to do a study of its feasibility. Advocates of anti-Hbc testing at this time included Bay Area Physicians for Human Rights (BAPHRA), an organization of health care providers dedicated to promoting the health concerns of lesbians and gays. Dr. Perkins testified that Irwin personnel met frequently with members of BAPHRA beginning in December of 1982. He said BAPHRA advocated surrogate testing in lieu of excluding donors on the basis of sexual preference because “[t]hey wanted something that would not stigmatize gays.”

Perkins indicated that Irwin had begun “moving to set up surrogate tests for evaluation purposes” in January of 1983. For various reasons, however, a protocol for meaningful testing could not be set up within a matter of weeks: “You have to decide what you are going to do, and that means consulting a lot of experts. You have to decide how you are going to do it. You have to make plans for what you will need, and you have to find out if the supplies will be available and you have to get them in. And then you have to begin to train your people on the procedures needed to do the test.” Perkins explained that, because of the high volume of samples that needed to be processed, Irwin could not simply hire trained people to begin testing immediately. Dr. Aledort estimated that it would take several months to set up the test.

Perkins said that Irwin had only a small amount of supplies for anti-HBc testing in early February. He told hospital representatives at a meeting on February 8 that Irwin was “embarking on a study” of the test. Perkins ordered 10,000 anti-HBc testing kits on February 10. According to his memo on that date, testing would begin as soon as the kits arrived, and 10,000 tests would be completed before Irwin decided “whether to make the test part of our routine.” Irwin did not begin its trial of anti-HBc testing until March of 1983, after Michael’s operation.

(b) Donor Questioning

On January 7, 1983, after returning from the CDC meeting, Dr. Perkins circulated a memo to Irwin personnel to immediately add three AIDS-related questions to the medical histories of prospective donors. These questions asked whether donors: had ever resided in Haiti; had problems with swollen lymph nodes in the last two years; or had unexplained fevers. Perkins estimated that Irwin collected 2,000-3,000 units of blood between January 7 and January 19, 1983, when it began asking additional questions about AIDS-related symptoms in accordance with the January 13 statement by the AABB, ARC and CCBC.

On February 8, 1983, Irwin began asking prospective donors whether they had had multiple sex partners who were intravenous drug users, Haitian immigrants, or homosexually active males. Perkins testified that Irwin worked with community leaders after the first report of possible transfusion-associated AIDS in December to get the message out that gays who had had large numbers of anonymous sexual partners should not donate blood. He said that the evidence at the CDC meeting was that only so-called “fast lane” gays were getting AIDS. By the end of January, however, cases of AIDS were appearing among gays who had not had numerous anonymous sex partners. This led Irwin to begin excluding gays as donors unless they had been celibate or monogamous for the period of time AIDS was believed to incubate. Perkins estimated that Irwin collected 8,000-10,000 units of blood between January 1 and February 8, 1983, when it began asking about sexual orientation. The language Irwin developed in this area “became common nomenclature throughout blood banking.”

It does not appear that Irwin’s donor questioning changed again before Michael’s operation. Between February 8 and April 7, 1983, nurses noted on donor medical history cards that all of Irwin’s AIDS-related questions had been asked. On April 7, the questions were incorporated into a new donor card. Perkins said that Irwin deferred printing the new cards pending the expected release of FDA recommendations in March. Questions on the new card covered all topics specified in the FDA’s March 24 recommendations and the AABB’s April 4 standard operating procedures for donor screening.

Perkins indicated that Irwin allowed adult and repeat donors to fill out their own cards to save time and encourage candid responses. The card that went into use on April 7 contained signature lines for the donor and a medical historian. It asked the donor to aver that “The medical history I have given is true and accurate to the best of my knowledge.” Perkins said that people would often deny being gay or bisexual, and that was “why we didn’t ask that question point blank.”

The evidence includes a letter written by Cutter’s John Hink to a physician at a plasma center on February 14, 1983, stating: “. . . You may have read about the Amer. Assn, of Blood Banks’ (and in particular the Irwin Memorial Blood Bank of San Francisco) reluctance to screen homosexual donors. They were concerned about the potential reduction in availability of whole blood (and possibly discrimination) but have given in to the tremendous pressure from the public and regulatory authorities. . . .”

(3) Expert Opinions

To assess the judgment notwithstanding the verdict, we must focus on the qualifications and testimony of plaintiffs’ experts: Dr. Thomas Asher; Dr. William O’Connor; and Dr. J. Garrott Allen.

Dr. Asher received a Ph.D. in microbiology from the University of London in 1950. He worked six years for the CDC, then known as the Communicable Disease Center, where his duties included investigation of hepatitis epidemics and disease diagnosis based on immune response. He worked eight years for Highland Laboratories, a large manufacturer of plasma products, which at the time had a whole blood bank. Asher became Highland’s director of quality assurance, and monitored “how efficiently we were running a whole blood bank equivalent to the type of blood banks” in this case. He then formed his own plasma products business, sold it, and started a second company, HemaCare Corporation, a commercial supplier of specialized blood products. Asher testified that about half of HemaCare’s activities could be considered a “very sophisticated form of blood banking.” He was on the board of directors of the American Blood Resources Association (ABRA), the trade association for the plasma sector of the blood industry, in 1982 and 1983. He addressed the Presidential Commission on the HIV Epidemic in the spring of 1988.

Asher testified that he had studied literature on the subject of AIDS and the results of others’ AIDS research. He said he first suspected AIDS was transmissible by blood “in mid 1982.” It was “very obvious” to him in early 1982 that AIDS had a similar epidemiology to hepatitis B, which was known to be an infectious disease that could be passed through blood. He described the July 1982 report of AIDS in hemophilia patients as “the smoking gun” that showed blood could transmit AIDS. Asher said that he had reviewed the evidence of Irwin’s actions in January and February of 1983 in response to concerns about AIDS. Based on that evidence, and his training and experience in the blood industry, Asher opined that Irwin’s actions were “insufficient and inadequate, [f] I feel that they failed to, to do certain things that other people knew of and that they should have done, that a prudent person would have done.”

Asher said that surrogate testing was economically feasible at the time, and in his view it made more “sense to perform surrogate testing and lose a percentage of donors than it did to take a chance of killing people or infecting people.” His company did not institute anti-HBc testing after the January 4 CDC meeting. However, it began taking total lymphocyte counts, another form of surrogate testing discussed at the meeting, and it rejected donors who fell below a certain count on this test. Asher’s company also “became much more thorough” in its medical history screening during this period. It started asking donors whether they were intravenous drug users or practicing homosexuals, and it required donors to attest that they were not in any of the groups at increased risk of AIDS.

Asher opined that the questions Irwin first asked upon Perkins’s return from the CDC meeting, which covered only Haitian residence, swollen lymph nodes and night sweats, were “inadequate” in light of the data then available. Asher thought that there “should have been more questioning covering all of the symptoms associated with AIDS, not these three criteria.” Asher further opined that the questioning on Irwin’s April 1983 donor card was inadequate. He said that donors could not have been expected to accurately interpret the card’s abbreviated sentences about AIDS. He also thought that Irwin should have asked its donors to attest to the best of their knowledge that they were not at risk for the disease.

Asher indicated that such an attestation was required by every company in the plasma sector of the blood industry “by sometime at the end of February or at the latest in March” of 1983. He also said he knew of a plasma company that was “doing a survey” of anti-HBc testing in “Late ’82, early ’83.” Asher admitted he knew of no blood bank that took lymphocyte counts or performed anti-HBc tests for AIDS in February of 1983. However, he maintained that all blood banks were “very slow to respond” to the AIDS problem because they are “geographic monopolies” that do not have to compete “in their predesigned boundaries” with other blood suppliers.

Dr. O’Connor graduated from medical school in 1981 and worked as a family practice physician. He became convinced that blood could transmit AIDS in July of 1982, when cases of the disease were report