Colavito v. N.Y. Organ Donor Network, No. 05-1305 (2d Cir. 2007)
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05-1305-cv Colavito v. N.Y. Organ Donor Network 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2005 4 5 (Argued: October 18, 2005 Question Certified to the New York Court of Appeals: February 23, 2006 Decided: May 21, 2007) 6 Docket No. 05-1305-cv 7 ------------------------------------- 8 9 PATRICIA COLAVITO, as personal representative of Robert Colavito, Deceased, 10 Plaintiff-Appellant, 11 - v - 12 13 NEW YORK ORGAN DONOR NETWORK, INC., ROB KOCHIK, SPENCER HERTZEL, GOOD SAMARITAN HOSPITAL MEDICAL CENTER, DOE, I and II, M.D. DR., 14 Defendants-Appellees. 15 ------------------------------------- 16 17 18 Before: JACOBS, Chief Judge, CABRANES, and SACK, Circuit Judges. In Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 19 43, 58, 860 N.E.2d 713, 722-23, 827 N.Y.S.2d 96, 105-06 (2006), 20 the New York Court of Appeals answered a question that we had 21 certified to it in Colavito v. N.Y. Organ Donor Network, Inc., 22 438 F.3d 214, 232-33 (2d Cir. 2006), as to whether the intended 23 recipient of an organ donation can bring a private cause of 24 action for common law conversion or under the New York Public 25 Health Law if he does not receive the organ. 26 Court of Appeals' response, summary judgment granted by the In light of the 1 district court (Dora L. Irizarry, Judge) in favor of all of the 2 defendants is: 3 Affirmed. 4 5 6 7 Denise Winter Luparello, Hicksville, NY, for Plaintiff-Appellant Patricia Colavito, as personal representative of Robert Colavito, Deceased. 8 9 10 11 12 13 Richard E. Lerner, Wilson, Elser, Moskowitz, Edelman & Dicker P.C., New York, NY, for Defendants-Appellees New York Organ Donor Network, Inc., Robert Kochik, and Spencer Hertzel. SACK, Circuit Judge. 14 The plaintiff's decedent, Robert Colavito ("Colavito"), 15 suffering from grave kidney disease, was the intended recipient 16 of two kidneys from the body of his late close friend, Peter 17 Lucia. 18 Lucia's kidneys to Florida, where Colavito resided. 19 to the wishes of the Lucia family, the NYODN designated the other 20 kidney for another recipient before it was known whether the 21 first one could be successfully transplanted to Colavito. 22 Colavito's doctor discovered that the kidney sent to Florida was 23 damaged and therefore incapable of being transplanted 24 successfully, he tried to obtain the second Lucia kidney from 25 NYODN. 26 implanted in the other patient. 27 an enforceable right to the second kidney, brought suit against 28 the defendants for fraud, conversion, and violation of New York The New York Organ Donor Network ("NYODN") sent one of But contrary When That one, however, was by then in the process of being Colavito, thinking that he had 2 1 Public Health Law Articles, 43 and 43-A, in the United States 2 District Court for the Eastern District of New York. 3 The district court (Dora L. Irizarry, Judge) granted 4 summary judgment to the defendants on the merits of Colavito's 5 fraud claim. 6 Supp. 2d 237, 241 (E.D.N.Y. 2005) ("Colavito I"). 7 concluded that a public policy against recognizing property 8 rights in human corpses barred Colavito's attempt to state a 9 cause of action for common law conversion or under the New York 10 Colavito v. N.Y. Organ Donor Network, Inc., 356 F. Public Health Law, Articles 43 and 43-A. 11 Colavito appealed to this Court. It also Id. at 241-47. We affirmed with 12 respect to the fraud claim, but certified to the New York Court 13 of Appeals questions as to whether, under New York law, Colavito 14 could maintain the causes of action for conversion or pursuant to 15 the New York Public Health Law. 16 Network, Inc., 438 F.3d 214, 232-33 (2d Cir. 2006) ("Colavito 17 II"). 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Colavito v. N.Y. Organ Donor Specifically, we asked (1) Do the applicable provisions of the New York Public Health Law vest the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit sounding in the common law tort of conversion or through a private right of action inferred from the New York Public Health Law? (2) Does New York Public Health Law immunize either negligent or grossly negligent misconduct? (3) If a donee can bring a private action to enforce the rights referred to in question 1, may the plaintiff recover nominal or punitive damages without demonstrating pecuniary loss or other actual injury? Id. at 233. 3 1 The New York Court of Appeals accepted the certified 2 questions. See Colavito v. N.Y. Organ Donor Network, Inc., 6 3 N.Y.3d 820, 846 N.E.2d 467, 813 N.Y.S.2d 37 (2006).1 4 subsequent response to the questions, Colavito v. N.Y. Organ 5 Donor Network, Inc., 8 N.Y.3d 43, 58, 860 N.E.2d 713, 722-23, 827 6 N.Y.S.2d 96, 105-06 (2006) ("Colavito III"), the Court concluded 7 that although the intended recipient of a donated organ might 8 have a common law right to it under New York law, no such right 9 exists for the "specified donee of an incompatible kidney." In its Id. 10 at 53, 860 N.E.2d at 719, 827 N.Y.S.2d at 102 (emphasis added). 11 The court also decided that whether or not a private cause of 12 action exists under the New York Public Health Law for the 13 disappointed intended recipients of organ donations, it is 14 available only to those who fall within the statutory term 15 "donee," which the court read the statute to "define[] as someone 16 who needs the donated organ." 17 N.Y.S.2d at 105. 18 could gain no medical benefit from the organs in question, he did 19 not "need" them and therefore was not covered by the Act. 20 Id. at 57, 860 N.E.2d at 722, 827 The court concluded that inasmuch as Colavito Id. The Court, "under the circumstances of this case," 21 decided certified question no. 1 -- "Do the applicable provisions 22 of the New York Public Health Law vest the intended recipient of 1 Colavito died between our decision certifying questions to the New York Court of Appeals and that court's resolution of them. His widow, Patricia Colavito, has been substituted as his personal representative for purposes of this litigation pursuant to Fed. R. App. P. 43(a)(1). 4 1 a directed organ donation with rights that can be vindicated in a 2 private party's lawsuit sounding in the common law tort of 3 conversion or through a private right of action inferred from the 4 New York Public Health Law?" -- in the negative. 5 concluded that in light of its answer to question no. 1, it was 6 not required to answer questions no. 2 -- "Does New York Public 7 Health Law immunize either negligent or grossly negligent 8 misconduct?" -- or no. 3 -- "If a donee can bring a private 9 action to enforce the rights referred to in question 1, may the The Court 10 plaintiff recover nominal or punitive damages without 11 demonstrating pecuniary loss or other actual injury?" 12 ("[U]nder the circumstances of this case, certified question No. 13 1 should be answered in the negative, and certified question Nos. 14 2 and 3 not answered as academic."). 15 Id. This leaves us a single further question for 16 resolution. The Court of Appeals, as a basis both for answering 17 our first question and deciding that the other two questions need 18 not be addressed, assumed -- understandably, in light of the 19 facts and the language of our prior opinion -- that Lucia's 20 kidneys were incompatible with Colavito's immune system, thus 21 preventing the organs from being successfully transplanted to 22 Colavito. 23 conclusion that Colavito had no common law property right in the 24 incompatible kidney (common law conversion) and did not "need" it 25 (New York Public Health Law). 26 Colavito I, nor we in Colavito II, ever actually decided whether That assumption underlies the Court of Appeals' But neither the district court in 5 1 there was a "genuine issue" of "material fact," Fed. R. Civ. P. 2 56(c), that would require a trial as to whether Lucia's kidneys 3 and Colavito's immune system were compatible. 4 356 F. Supp. 2d at 240; Colavito II, 438 F.3d at 223. 5 himself refused to concede that a successful transplant was 6 impossible. 7 not concede the point, the evidence strongly suggests that 8 neither of Peter Lucia's kidneys was, it turned out, suitable for 9 implantation in Colavito's body."). See Colavito I, Colavito See Colavito II, 438 F.3d at 223 ("Although he will We cannot decide the 10 propriety of the district court's grant of the defendants' motion 11 for summary judgment without determining whether compatibility 12 remains a genuine issue of material fact in this case. 13 Ordinarily, we "will not review an issue the district 14 court did not decide." 15 F.3d 81, 88 (2d Cir. 1996) (citing Singleton v. Wulff, 428 U.S. 16 106, 120-21 (1976)). 17 matter within our discretion." 18 Chertkova v. Conn. Gen. Life Ins. Co., 92 However, "whether we do so or not is a Id. We think this is an appropriate case in which to 19 exercise our discretion to decide this issue in the first 20 instance. 21 compatibility is immaterial. 22 240 (recognizing that Colavito "does not outright dispute 23 [compatibility] but instead argues that incompatibility has no 24 bearing on the fact that defendants misappropriated the second 25 kidney"); Colavito III, 8 N.Y.3d at 48, 860 N.E.2d at 716, 827 26 N.Y.S.2d at 99 (stating that Colavito maintains "that Colavito's contention throughout has been that See Colavito I, 356 F. Supp. 2d at 6 1 incompatibility is irrelevant to his claim"). We have 2 nonetheless noted that "the evidence strongly suggests that . . . 3 the Lucia kidneys were . . . useless to" Colavito. 4 438 F.3d at 223. 5 See, e.g., Burke Dep. 7:22-12:7, May 10, 2004; Gaston Aff. ΒΆΒΆ 6- 6 10, May 13, 2004. 7 no evidence to the district court that would have raised a 8 genuine issue with respect to compatibility. 9 Lucia's second kidney might have been successfully transplanted Colavito II, Indeed, there is ample evidence to that effect. At the same time, Colavito himself presented The notion that 10 to Colavito is, on the evidence in the district court record, 11 speculative at best. 12 based on conjecture alone. 13 144 (2d Cir. 2006). 14 A party may not defeat a Rule 56 motion See McClellan v. Smith, 439 F.3d 137, Because we conclude as a matter of law that Colavito 15 could not have derived a medical benefit from the organ and did 16 not "need" it, we also conclude that in light of the New York 17 Court of Appeals' answer to our first certified question, he had 18 no cause of action under either the New York common law of 19 conversion or the New York Public Health Law. 20 were therefore entitled to summary judgment.2 2 The defendants Chief Judge Jacobs, who subscribes to this analysis, adheres to the view (expressed in his dissent from the certification opinion) that Colavito could not in any event have had a medical "need" under the statute for both of Lucia's kidneys, and that the defendants therefore had no duty to hold the second (or transport it to Colavito) to hedge the risk that the first would be damaged or incompatible. See Colavito II, 438 F.3d at 234. 7 1 2 Accordingly, we affirm the district court's grant of summary judgment to the defendants on all of Colavito's claims. 8
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