Destroyed HIV Samples Aren’t Lawsuit Fodder

     CHICAGO (CN) – The Food and Drug Administration cannot be sued for destroying human saliva and blood samples being used to develop a self-administered HIV test, the 7th Circuit ruled.
     On-Site Screening, a Washington-based medical technology company, had been storing the samples in a Bedford Park, Ill., laboratory in October 2004 when a fire inspector noticed HIV-positive labels and notified the FDA.
     The FDA assigned special agent Jocelyn Ellis to investigate the legality of keeping hazardous specimens in the lab, which also produces consumer shampoos and deodorants.
     With the written permission of the laboratory’s owner, Ellis took possession of the specimens as evidence and kept them in an Illinois Department of Public Health Lab until the conclusion of the investigation four years later.
     When neither On-Site Screening nor the laboratory faced criminal or civil action, On-Site Screening owner Ronald Lealos asked Ellis to return the specimens. Lealos later learned that a motor failure in the Department of Public Health’s storage refrigerator had caused them to spoil.
     Lealos and his company filed suit under the Federal Tort Claims Act, alleging bailment, negligence and breach of internal agency rules.
     U.S. District Judge Joan Gottschall allowed the case to proceed to discovery, uncovering about 2,000 pages of documents regarding the investigation, but later granted summary judgment to the government.
     Claims that arise over property detained by law-enforcement officers do not meet the criteria for waiver of sovereign immunity under the FTCA, Gottschall ruled.
     The 7th Circuit affirmed.
     “No matter how On-Site characterized its claims, they arose in respect to a law enforcement officer’s detention of property making any attempt to amend futile,” Judge John Tinder wrote for a three-member panel.
     The court also rejected On-Site’s contention that Ellis had “seized” the specimens, rather than “detaining” them.
     “Even if On-Site is right, and the government in fact seized On-Site’s specimens, the seizure of property is a natural and seemingly necessary predicate to the subsequent detention of that property,” Tinder wrote.
     On-Site also should not get to amend its complaint because it was impossible to avoid dismissal on the basis of sovereign immunity, the panel found.

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