Colavito v. N.Y. Organ Donor Network

05-1305-cv
Colavito v. N.Y. Organ Donor Network
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2005 3
(Argued: October 18, 2005 Question Certified to the New York 4
Court of Appeals: February 23, 2006 Decided: May 21, 2007) 5
Docket No. 05-1305-cv 6
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PATRICIA COLAVITO, as personal representative of Robert Colavito, 8
Deceased, 9
Plaintiff-Appellant, 10
- v - 11
NEW YORK ORGAN DONOR NETWORK, INC., ROB KOCHIK, SPENCER HERTZEL, 12
GOOD SAMARITAN HOSPITAL MEDICAL CENTER, DOE, I and II, M.D. DR., 13
Defendants-Appellees. 14
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Before: JACOBS, Chief Judge, CABRANES, and SACK, Circuit 16
Judges. 17
In Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 18
43, 58, 860 N.E.2d 713, 722-23, 827 N.Y.S.2d 96, 105-06 (2006), 19
the New York Court of Appeals answered a question that we had 20
certified to it in Colavito v. N.Y. Organ Donor Network, Inc., 21
438 F.3d 214, 232-33 (2d Cir. 2006), as to whether the intended 22
recipient of an organ donation can bring a private cause of 23
action for common law conversion or under the New York Public 24
Health Law if he does not receive the organ. In light of the 25
Court of Appeals' response, summary judgment granted by the 26

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district court (Dora L. Irizarry, Judge) in favor of all of the 1
defendants is: 2
Affirmed. 3
Denise Winter Luparello, Hicksville, NY, 4
for Plaintiff-Appellant Patricia 5
Colavito, as personal representative of 6
Robert Colavito, Deceased. 7
Richard E. Lerner, Wilson, Elser, 8
Moskowitz, Edelman & Dicker P.C., New 9
York, NY, for Defendants-Appellees New 10
York Organ Donor Network, Inc., Robert 11
Kochik, and Spencer Hertzel. 12
SACK, Circuit Judge. 13
The plaintiff's decedent, Robert Colavito ("Colavito"), 14
suffering from grave kidney disease, was the intended recipient 15
of two kidneys from the body of his late close friend, Peter 16
Lucia. The New York Organ Donor Network ("NYODN") sent one of 17
Lucia's kidneys to Florida, where Colavito resided. But contrary 18
to the wishes of the Lucia family, the NYODN designated the other 19
kidney for another recipient before it was known whether the 20
first one could be successfully transplanted to Colavito. When 21
Colavito's doctor discovered that the kidney sent to Florida was 22
damaged and therefore incapable of being transplanted 23
successfully, he tried to obtain the second Lucia kidney from 24
NYODN. That one, however, was by then in the process of being 25
implanted in the other patient. Colavito, thinking that he had 26
an enforceable right to the second kidney, brought suit against 27
the defendants for fraud, conversion, and violation of New York 28

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Public Health Law Articles, 43 and 43-A, in the United States 1
District Court for the Eastern District of New York. 2
The district court (Dora L. Irizarry, Judge) granted 3
summary judgment to the defendants on the merits of Colavito's 4
fraud claim. Colavito v. N.Y. Organ Donor Network, Inc., 356 F. 5
Supp. 2d 237, 241 (E.D.N.Y. 2005) ("Colavito I"). It also 6
concluded that a public policy against recognizing property 7
rights in human corpses barred Colavito's attempt to state a 8
cause of action for common law conversion or under the New York 9
Public Health Law, Articles 43 and 43-A. Id. at 241-47. 10
Colavito appealed to this Court. We affirmed with 11
respect to the fraud claim, but certified to the New York Court 12
of Appeals questions as to whether, under New York law, Colavito 13
could maintain the causes of action for conversion or pursuant to 14
the New York Public Health Law. Colavito v. N.Y. Organ Donor 15
Network, Inc., 438 F.3d 214, 232-33 (2d Cir. 2006) ("Colavito 16
II"). Specifically, we asked 17
(1) Do the applicable provisions of the New 18
York Public Health Law vest the intended 19
recipient of a directed organ donation with 20
rights that can be vindicated in a private 21
party's lawsuit sounding in the common law 22
tort of conversion or through a private right 23
of action inferred from the New York Public 24
Health Law? (2) Does New York Public Health 25
Law immunize either negligent or grossly 26
negligent misconduct? (3) If a donee can 27
bring a private action to enforce the rights 28
referred to in question 1, may the plaintiff 29
recover nominal or punitive damages without 30
demonstrating pecuniary loss or other actual 31
injury? 32
Id. at 233. 33

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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
The New York Court of Appeals accepted the certified 1
questions. See Colavito v. N.Y. Organ Donor Network, Inc., 6 2
N.Y.3d 820, 846 N.E.2d 467, 813 N.Y.S.2d 37 (2006).1 In its 3
subsequent response to the questions, Colavito v. N.Y. Organ 4
Donor Network, Inc., 8 N.Y.3d 43, 58, 860 N.E.2d 713, 722-23, 827 5
N.Y.S.2d 96, 105-06 (2006) ("Colavito III"), the Court concluded 6
that although the intended recipient of a donated organ might 7
have a common law right to it under New York law, no such right 8
exists for the "specified donee of an incompatible kidney." Id. 9
at 53, 860 N.E.2d at 719, 827 N.Y.S.2d at 102 (emphasis added). 10
The court also decided that whether or not a private cause of 11
action exists under the New York Public Health Law for the 12
disappointed intended recipients of organ donations, it is 13
available only to those who fall within the statutory term 14
"donee," which the court read the statute to "define[] as someone 15
who needs the donated organ." Id. at 57, 860 N.E.2d at 722, 827 16
N.Y.S.2d at 105. The court concluded that inasmuch as Colavito 17
could gain no medical benefit from the organs in question, he did 18
not "need" them and therefore was not covered by the Act. Id. 19
The Court, "under the circumstances of this case," 20
decided certified question no. 1 -- "Do the applicable provisions 21
of the New York Public Health Law vest the intended recipient of 22

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a directed organ donation with rights that can be vindicated in a 1
private party's lawsuit sounding in the common law tort of 2
conversion or through a private right of action inferred from the 3
New York Public Health Law?" -- in the negative. The Court 4
concluded that in light of its answer to question no. 1, it was 5
not required to answer questions no. 2 -- "Does New York Public 6
Health Law immunize either negligent or grossly negligent 7
misconduct?" -- or no. 3 -- "If a donee can bring a private 8
action to enforce the rights referred to in question 1, may the 9
plaintiff recover nominal or punitive damages without 10
demonstrating pecuniary loss or other actual injury?" Id. 11
("[U]nder the circumstances of this case, certified question No. 12
1 should be answered in the negative, and certified question Nos. 13
2 and 3 not answered as academic."). 14
This leaves us a single further question for 15
resolution. The Court of Appeals, as a basis both for answering 16
our first question and deciding that the other two questions need 17
not be addressed, assumed -- understandably, in light of the 18
facts and the language of our prior opinion -- that Lucia's 19
kidneys were incompatible with Colavito's immune system, thus 20
preventing the organs from being successfully transplanted to 21
Colavito. That assumption underlies the Court of Appeals' 22
conclusion that Colavito had no common law property right in the 23
incompatible kidney (common law conversion) and did not "need" it 24
(New York Public Health Law). But neither the district court in 25
Colavito I, nor we in Colavito II, ever actually decided whether 26

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there was a "genuine issue" of "material fact," Fed. R. Civ. P. 1
56(c), that would require a trial as to whether Lucia's kidneys 2
and Colavito's immune system were compatible. See Colavito I, 3
356 F. Supp. 2d at 240; Colavito II, 438 F.3d at 223. Colavito 4
himself refused to concede that a successful transplant was 5
impossible. See Colavito II, 438 F.3d at 223 ("Although he will 6
not concede the point, the evidence strongly suggests that 7
neither of Peter Lucia's kidneys was, it turned out, suitable for 8
implantation in Colavito's body."). We cannot decide the 9
propriety of the district court's grant of the defendants' motion 10
for summary judgment without determining whether compatibility 11
remains a genuine issue of material fact in this case. 12
Ordinarily, we "will not review an issue the district 13
court did not decide." Chertkova v. Conn. Gen. Life Ins. Co., 92 14
F.3d 81, 88 (2d Cir. 1996) (citing Singleton v. Wulff, 428 U.S. 15
106, 120-21 (1976)). However, "whether we do so or not is a 16
matter within our discretion." Id. 17
We think this is an appropriate case in which to 18
exercise our discretion to decide this issue in the first 19
instance. Colavito's contention throughout has been that 20
compatibility is immaterial. See Colavito I, 356 F. Supp. 2d at 21
240 (recognizing that Colavito "does not outright dispute 22
[compatibility] but instead argues that incompatibility has no 23
bearing on the fact that defendants misappropriated the second 24
kidney"); Colavito III, 8 N.Y.3d at 48, 860 N.E.2d at 716, 827 25
N.Y.S.2d at 99 (stating that Colavito maintains "that 26

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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
incompatibility is irrelevant to his claim"). We have 1
nonetheless noted that "the evidence strongly suggests that . . . 2
the Lucia kidneys were . . . useless to" Colavito. Colavito II, 3
438 F.3d at 223. Indeed, there is ample evidence to that effect. 4
See, e.g., Burke Dep. 7:22-12:7, May 10, 2004; Gaston Aff. ¶¶ 6- 5
10, May 13, 2004. At the same time, Colavito himself presented 6
no evidence to the district court that would have raised a 7
genuine issue with respect to compatibility. The notion that 8
Lucia's second kidney might have been successfully transplanted 9
to Colavito is, on the evidence in the district court record, 10
speculative at best. A party may not defeat a Rule 56 motion 11
based on conjecture alone. See McClellan v. Smith, 439 F.3d 137, 12
144 (2d Cir. 2006). 13
Because we conclude as a matter of law that Colavito 14
could not have derived a medical benefit from the organ and did 15
not "need" it, we also conclude that in light of the New York 16
Court of Appeals' answer to our first certified question, he had 17
no cause of action under either the New York common law of 18
conversion or the New York Public Health Law. The defendants 19
were therefore entitled to summary judgment.2
20

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Accordingly, we affirm the district court's grant of 1
summary judgment to the defendants on all of Colavito's claims. 2

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