UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THERESE CRUZ, 

 Plaintiff - Appellant, 

v. 

THE AMERICAN NATIONAL RED 

CROSS, d/b/a American Red Cross, 

 Defendant - Appellee. 

No. 21-3105 

(D.C. No. 6:19-CV-01107-EFM) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, KELLY, and CARSON, Circuit Judges. 

_________________________________ 

 Therese Cruz asserted a negligence claim in Kansas state court against The 

American National Red Cross alleging that she was injured during a blood donation. 

Following removal of the case to the United States District Court for the District of 

Kansas pursuant to 28 U.S.C. § 1332 on diversity of citizenship, the district court 

granted summary judgment for the Red Cross because Ms. Cruz failed to establish a 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 19, 2022

Christopher M. Wolpert 

Clerk of Court

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triable question as to whether the Red Cross violated the applicable standard of care. 

She now appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND 

 Ms. Cruz donated blood at a Red Cross blood drive. She alleged that when the 

phlebotomist inserted the needle in her arm she felt a sharp pain. During the blood 

donation procedure, she also experienced dizziness, nausea, and swelling, tingling, 

and numbness in her arm. Based on these reactions, the phlebotomist terminated the 

blood draw early. She bandaged Ms. Cruz’s arm and told her to lie down. 

Ms. Cruz’s side effects continued, so she was transported to a hospital. 

 About a year later, Ms. Cruz went to a hospital complaining of right arm pain. 

After another hospital visit and a nerve conduction study that “show[ed] the presence 

of an entrapment of the median nerve at wrist level,” she was diagnosed with carpal 

tunnel syndrome. Suppl. App., vol. I, at 31. 

 In her complaint, Ms. Cruz alleged that the Red Cross phlebotomist was 

negligent during the blood donation procedure, missing Ms. Cruz’s vein, puncturing 

an artery, and damaging her median and radial nerves. She also alleged that the 

phlebotomist was negligent because she failed to immediately stop the blood draw 

and provided incorrect treatment after the procedure. Ms. Cruz’s only expert offered 

opinions about the nature of her alleged injuries, but he offered no opinions as to the 

standard of care the Red Cross and its phlebotomists must follow during a blood 

donation procedure, or whether any deviation from that standard occurred during 

Ms. Cruz’s blood draw. In fact, he testified that he thought “the act of drawing the 

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blood” resulted in some injury but that he had no “opinion specifically that there was 

a person who did this that in some way was negligent . . . in the manner [the blood 

draw] was done.” Id., vol. II, at 74. 

 After the close of discovery, the Red Cross moved for summary judgment, 

arguing that Ms. Cruz’s failure to provide an expert opinion about the applicable 

standard of care was fatal to her claims because without an expert, she could not 

show either that it breached any duty of care or deviated from the applicable standard 

of care for performing blood donations or that its alleged negligence proximately 

caused her injuries. In opposing the motion, Ms. Cruz argued that the applicable 

standard of care was established by the Red Cross’s internal standards for 

phlebotomy, which stated that blood is to be drawn from a vein, not an artery, and 

her expert opined that Ms. Cruz’s blood was drawn from an artery. 

 The district court granted the motion, concluding that Ms. Cruz was required 

to present expert testimony to establish the applicable standard of care. The court 

explained that determining whether the phlebotomist’s actions fell below the relevant 

standard of care and proximately caused Ms. Cruz’s injuries is beyond the knowledge 

and experience of a lay jury and required the application of special experience and 

training. 

STANDARD OF REVIEW

 Kansas law governs the substantive legal issues presented in this diversity 

action, but federal law governs the standard for granting summary judgment. Stickley 

v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). A court 

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must “grant summary judgment if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). We review the district court’s grant of summary judgment de 

novo, applying that same standard and viewing the evidence in the light most 

favorable to Ms. Cruz as the non-moving party. See Janny v. Gamez, 8 F.4th 883, 

898-99 (10th Cir. 2021). 

DISCUSSION

 To recover for negligence under Kansas law, “the plaintiff must prove the 

existence of a duty, breach of that duty, injury, and a causal connection between the 

duty breached and the injury suffered.” Nero v. Kan. State Univ., 861 P.2d 768, 772 

(Kan. 1993) (internal quotation marks omitted). “[N]egligence is never presumed” 

from injury. Nold ex rel. Nold v. Binyon, 31 P.3d 274, 285 (Kan. 2001). 

 One purpose of the “requirement of expert testimony is to educate the fact 

finder as to otherwise alien terminology and technology and thus preclude his 

rendering judgment on something he knows nothing about.” McKee ex rel. McKee v. 

City of Pleasanton, 750 P.2d 1007, 1011 (Kan. 1988) (internal quotation marks 

omitted). Thus, whether expert testimony is necessary to prove negligence depends 

on whether the fact finder can understand “the nature of the standard of care required 

of [the] defendant and the alleged deviation from the standard” without expert 

testimony. Gaumer v. Rossville Truck & Tractor Co., 202 P.3d 81, 84 (Kan. Ct. App. 

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2009), aff’d on other grounds, 257 P.3d 292 (Kan. 2011).1

 When a plaintiff is 

attempting to establish negligence based on a departure from the reasonable standard 

of care in a profession that requires technical skill or training, expert testimony is 

required to establish such a departure. See McKee, 750 P.2d at 1012-13 (standard-ofcare expert required in negligence case against architect and contractor); Bacon v. 

Mercy Hosp. of Ft. Scott, 756 P.2d 416, 420, 424 (Kan. 1988) (standard-of-care and 

causation expert required in medical malpractice case); Smart v. BNSF Ry. Co., 

369 P.3d 966, 977 (Kan. Ct. App. 2016) (expert testimony required to prove railroad 

breached duty of care to electrician in negligence case involving workplace exposure 

to unreasonable ergonomic risk factors); Gaumer, 202 P.3d at 84 (standard-of-care 

expert required in negligence suit involving sale of complex farm machinery). 

 Ms. Cruz acknowledges that phlebotomy is a profession that requires technical 

skill and training, and she describes in detail the extensive training the Red Cross 

requires its phlebotomists to complete before performing blood draws. But she 

contends expert testimony was unnecessary to establish the applicable standard of 

care because that standard is determined by the Red Cross’s own policies and 

procedures for blood draws, which provide that blood should be drawn from a vein, 

not an artery. Operating from the assumption that the Red Cross’s internal policies 

and procedures establish the appropriate industry standard, Ms. Cruz maintains that 

1

 We need not decide whether Ms. Cruz’s claims were for ordinary negligence 

or medical malpractice, because classification of the claim does not determine 

whether expert testimony is required to establish the applicable standard of care. See 

Tudor v. Wheatland Nursing L.L.C., 214 P.3d 1217, 1221-22 (Kan. Ct. App. 2009). 

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its phlebotomist deviated from that standard by drawing blood from her artery. And, 

because the parties disputed the material fact whether the phlebotomist drew blood 

from an artery instead of a vein, Ms. Cruz maintains that the district court erred by 

granting summary judgment. 

 But the question here is not whether there was a genuine factual dispute about 

whether the Red Cross phlebotomist drew blood from Ms. Cruz’s artery. Rather, the 

issue is whether Ms. Cruz showed she could give the jury the tools it needed to 

decide whether the phlebotomist deviated from the applicable standard of care in 

performing her blood draw. The district court concluded that she failed to do so, 

explaining that “[t]he phlebotomy process is extremely complex and involves 

language that is alien and technical.” Aplt. App. at 238. Thus, “[t]his process is not 

within the general purview of a common juror’s knowledge, and without expert 

testimony on the standard of care common to the phlebotomy process, a trier of fact 

would not be able to understand the nature of the standard of care” by which to 

measure Ms. Cruz’s blood draw. Id. at 238-39. 

 We agree with the district court’s determination that, under Kansas law, 

Ms. Cruz was required to offer expert opinion testimony to establish the applicable 

standard of care and that her failure to do so entitled the Red Cross to judgment as a 

matter of law. See McKee, 750 P.2d at 1012-13 (affirming summary judgment based on 

lack of expert architectural standard-of-care testimony); Bacon, 756 P.2d at 420, 424 

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care testimony); Gaumer, 202 P.3d at 84 (affirming summary judgment for failure to 

provide expert testimony on standard of care applicable to seller of used hay baler). 

 We are not persuaded otherwise by her insistence that the Red Cross’s internal 

policies and procedures established the applicable standard of care. She cites no 

authority, and we are aware of none, holding that a plaintiff can avoid her burden to 

produce expert standard-of-care testimony by relying on the defendant’s alleged 

violation of its own policies and training materials. Such policies may be relevant in 

determining whether a defendant’s employee was negligent in a particular case, but 

they do not establish a legal duty or the applicable industry-wide standard of care. 

See McKee, 750 P.2d at 1012 (holding that contractor’s deviation from project plans 

and specifications did not “automatically render[] [it] liable for negligence” and that 

the plaintiff had to prove it was an unreasonable deviation from the applicable 

professional standard of care); see also Therrien v. Target Corp., 617 F.3d 1242, 

1256 (10th Cir. 2010) (recognizing that “a company’s internal policies do not alter 

the applicable standard of care” but may be admitted to show negligence if “the jury 

is instructed that they are not admitted as legal standards of duty, but as evidence of 

the measure of caution which ought to be exercised in situations to which the 

[policies] apply” (internal quotation marks omitted)). 

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CONCLUSION

 We affirm the district court’s judgment. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

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