UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THERESE CRUZ, Plaintiff - Appellant,

v. THE AMERICAN NATIONAL RED CROSS, d/b/a Ameri can 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 cl aim 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 dive rsity of citizenship, the district court granted summary judgment for the Red Cross because Ms. Cruz failed to establish a

* After examining the briefs and appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 12 triable question as to whether the Red Cross vi olated 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 bl ood drive. She alleged that when the phlebotomist inserted the need le 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 phlebotom ist 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 co nduction 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 allege d that the Red Cross phlebotomist was negligent during the blood donation procedur e, missing Ms. Cruz’s vein, puncturing an artery, and damaging her median and radi al nerves. She also alleged that the phlebotomist was negligent b ecause she failed to immedi ately stop the blood draw and provided incorrect treatme nt 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 devi ation from that standard occurred during Ms. Cruz’s blood draw. In fact, he testifie d that he thought “the act of drawing the Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 23 blood” resulted in some injury but that he had no “opinion specifi cally that there was a person who did this that in some way wa s negligent . . . in the manner [the blood draw] was done.” Id. , vol. II, at 74. After the close of discovery, the Re d Cross moved for summary judgment, arguing that Ms. Cruz’s failur e to provide an expert opi nion 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 car e or deviated from the applicable standard of care for performing blood donations or th at its alleged negligence proximately caused her injuries. In op posing the motion, Ms. Cruz argued that the applicable standard of care was esta blished 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 st andard of care. The court explained that determining whether the phle botomist’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 lega l 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 (10t h Cir. 2007). A court Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 34 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 judgm ent as a matter of law.” Fed. R. Civ. P. 56(a). We review the dist rict court’s grant of summary judgment de novo, applying that same st andard 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 omit ted). “[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 e xpert testimony is to educate the fact finder as to otherwise alien terminolo gy and technology and thus preclude his rendering judgment on somethi ng he knows nothing about.” McKee ex rel. McKee v. City of Pleasanton , 750 P.2d 1007, 1011 (Kan. 198 8) (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 devi ation from the standard” without expert testimony. Gaumer v. Rossville Truck & Tractor Co. , 202 P.3d 81, 84 (Kan. Ct. App. Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 45 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 tr aining, 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. A pp. 2016) (expert testimony re quired to prove railroad breached duty of care to electrician in ne gligence case involving workplace exposure to unreasonable ergonomic risk factors); Gaumer , 202 P.3d at 84 (standard-of-care expert required in negligence suit involvi ng sale of complex farm machinery). Ms. Cruz acknowledges that phlebotomy is a professi on that requires technical skill and training, and she describes in de tail the extensive training the Red Cross requires its phlebotomists to complete before performi ng blood draws. But she contends expert testimony wa s unnecessary to establish th e applicable standard of care because that standard is determin ed by the Red Cross’s own policies and procedures for blood draws, which provide that blood s hould be drawn from a vein, not an artery. Operating fro m the assumption that the Re d 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, b ecause classification of th e claim does not determine whether expert testimony is required to establish the app licable standard of care. See Tudor v. Wheatland Nursing L.L.C. , 214 P.3d 1217, 1221-22 (Kan. Ct. App. 2009). Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 56 its phlebotomist deviated from that standard by drawing blood from her artery. And, because the parties disputed the material fact whethe r 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 th ere was a genuine fa ctual dispute about whether the Red Cross phlebotomist drew bl ood from Ms. Cruz’s artery. Rather, the issue is whether Ms. Cruz s howed she could give the ju ry the tools it needed to decide whether the phlebotomist deviated fr om the applicable standard of care in performing her blood draw. The district co urt concluded that she failed to do so, explaining that “[t]he phl ebotomy process is extrem ely complex and involves language that is alien and tec hnical.” Aplt. App. at 238. Thus, “[t]his process is not within the general purview of a commo n 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 unde rstand the nature of the st andard 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 offe r expert opinion testimony to establish the applicable standard of care and that her failure to do so entitled the Red Cr oss to judgment as a matter of law. See McKee , 750 P.2d at 1012-13 (affirm ing summary judgment based on lack of expert architectural standard-of-care testimony); Bacon , 756 P.2d at 420, 424 (affirming summary judgment in medical malpra ctice case for lack of expert standard-ofAppellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 67 care testimony); Gaumer , 202 P.3d at 84 (affirming summa ry judgment for failure to provide expert testimony on sta ndard of care applicable to seller of used hay baler). We are not persuaded othe rwise by her insistence that the Red Cross’s internal policies and procedures estab lished the applicable standa rd 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 testim ony by relying on the de fendant’s alleged violation of its own policies and training mate rials. Such policies may be relevant in determining whether a defenda nt’s employee was negligent in a particular case, but they do not establish a legal duty or the app licable industry-wide standard of care.
See McKee , 750 P.2d at 1012 (holding that contr actor’s deviation from project plans and specifications did not “automatically re nder[] [it] liable for negligence” and that the plaintiff had to prove it was an unr easonable 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 co mpany’s internal policies do not alter the applicable standard of car e” but may be admitted to s how negligence if “the jury is instructed that th ey are not admitted as legal standa rds 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)). Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 78 CONCLUSION We affirm the district court’s judgment.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 21-3105 Document: 010110713028 Date Filed: 07/19/2022 Page: 8