     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    (Argued: October 18, 2005    Question Certified to the New York
5    Court of Appeals: February 23, 2006      Decided: May 21, 2007)

6                              Docket No. 05-1305-cv

7                    -------------------------------------

8    PATRICIA COLAVITO, as personal representative of Robert Colavito,
9                                Deceased,

10                              Plaintiff-Appellant,

11                                          - v -

12   NEW YORK ORGAN DONOR NETWORK, INC., ROB KOCHIK, SPENCER HERTZEL,
13   GOOD SAMARITAN HOSPITAL MEDICAL CENTER, DOE, I and II, M.D. DR.,

14                             Defendants-Appellees.

15                   -------------------------------------

16   Before:     JACOBS, Chief Judge, CABRANES, and SACK, Circuit
17               Judges.

18               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.      In light of the

26   Court of Appeals' response, summary judgment granted by the
1    district court (Dora L. Irizarry, Judge) in favor of all of the

2    defendants is:

3                Affirmed.

4                              Denise Winter Luparello, Hicksville, NY,
5                              for Plaintiff-Appellant Patricia
6                              Colavito, as personal representative of
7                              Robert Colavito, Deceased.

 8                             Richard E. Lerner, Wilson, Elser,
 9                             Moskowitz, Edelman & Dicker P.C., New
10                             York, NY, for Defendants-Appellees New
11                             York Organ Donor Network, Inc., Robert
12                             Kochik, and Spencer Hertzel.

13   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.   The New York Organ Donor Network ("NYODN") sent one of

18   Lucia's kidneys to Florida, where Colavito resided.   But contrary

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.   When

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.   That one, however, was by then in the process of being

26   implanted in the other patient.   Colavito, thinking that he had

27   an enforceable right to the second kidney, brought suit against

28   the defendants for fraud, conversion, and violation of New York




                                       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.   Colavito v. N.Y. Organ Donor Network, Inc., 356 F.

6    Supp. 2d 237, 241 (E.D.N.Y. 2005) ("Colavito I").       It also

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   Public Health Law, Articles 43 and 43-A.       Id. at 241-47.

11              Colavito appealed to this Court.     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.       Colavito v. N.Y. Organ Donor

16   Network, Inc., 438 F.3d 214, 232-33 (2d Cir. 2006) ("Colavito

17   II").   Specifically, we asked

18              (1) Do the applicable provisions of the New
19              York Public Health Law vest the intended
20              recipient of a directed organ donation with
21              rights that can be vindicated in a private
22              party's lawsuit sounding in the common law
23              tort of conversion or through a private right
24              of action inferred from the New York Public
25              Health Law? (2) Does New York Public Health
26              Law immunize either negligent or grossly
27              negligent misconduct? (3) If a donee can
28              bring a private action to enforce the rights
29              referred to in question 1, may the plaintiff
30              recover nominal or punitive damages without
31              demonstrating pecuniary loss or other actual
32              injury?

33   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   In its

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."     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."   Id. at 57, 860 N.E.2d at 722, 827

17   N.Y.S.2d at 105.   The court concluded that inasmuch as Colavito

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.     Id.

20             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.    The Court

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

10   plaintiff recover nominal or punitive damages without

11   demonstrating pecuniary loss or other actual injury?"      Id.

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               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.    That assumption underlies the Court of Appeals'

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).    But neither the district court in

26   Colavito I, nor we in Colavito II, ever actually decided whether

                                       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.     See Colavito I,

4    356 F. Supp. 2d at 240; Colavito II, 438 F.3d at 223.     Colavito

5    himself refused to concede that a successful transplant was

6    impossible.    See Colavito II, 438 F.3d at 223 ("Although he will

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.").     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."    Chertkova v. Conn. Gen. Life Ins. Co., 92

15   F.3d 81, 88 (2d Cir. 1996) (citing Singleton v. Wulff, 428 U.S.

16   106, 120-21 (1976)).    However, "whether we do so or not is a

17   matter within our discretion."    Id.

18               We think this is an appropriate case in which to

19   exercise our discretion to decide this issue in the first

20   instance.    Colavito's contention throughout has been that

21   compatibility is immaterial.     See Colavito I, 356 F. Supp. 2d at

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

                                       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.     Colavito II,

4    438 F.3d at 223.    Indeed, there is ample evidence to that effect.

5    See, e.g., Burke Dep. 7:22-12:7, May 10, 2004; Gaston Aff. ¶¶ 6-

6    10, May 13, 2004.     At the same time, Colavito himself presented

7    no evidence to the district court that would have raised a

8    genuine issue with respect to compatibility.    The notion that

9    Lucia's second kidney might have been successfully transplanted

10   to Colavito is, on the evidence in the district court record,

11   speculative at best.    A party may not defeat a Rule 56 motion

12   based on conjecture alone.     See McClellan v. Smith, 439 F.3d 137,

13   144 (2d Cir. 2006).

14             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.    The defendants

20   were therefore entitled to summary judgment.2




          2
            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             Accordingly, we affirm the district court's grant of

2   summary judgment to the defendants on all of Colavito's claims.




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