FILED 


JULY 23, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


MICHAEL J. YORK, ) No. 32363-3-111 

) 

Appellant, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CSL PLASMA, INC., flkIa ZLB ) 


PLASMA, a foreign corporation, ) 


) 


Respondent. ) 


LAWRENCE-BERREY, 1. - The trial court dismissed Michael York's lawsuit on 

summary judgment on the basis that it was filed outside ofthe applicable three-year 

period oflimitations. Mr. York appeals, arguing (l) the trial court erred in allowing the 

summary judgment argument to be heard without sufficient notice to him, (2) the medical 

malpractice statute applies because CSL Plasma is a health care provider, and (3) his 

lawsuit was timely under RCW 4.16.350 (applicable to health care professionals), or 

RCW 4.16.080(2) (applicable to negligence actions). We disagree and affinn. 

FACTS 

Around December 2008, Mr. York began donating blood plasma at a CSL Plasma 

collection facility located on Sprague Avenue in Spokane. The process ofdonating 
No. 32363-3-III 


York v. CSL Plasma, Inc. 


plasma, or plasmapheresis, is a process whereby the cellular portion of the blood is 

separated from the liquid portion (the plasma). The cellular portion of the blood is 

returned to the donor and the plasma is retained by the plasmapheresis device. The blood 

plasma retained during plasmapheresis is used in the manufacture of high-grade 

pharmaceuticals. Plasmapheresis is highly regulated by the government, including under 

Title 21 of the Code of Federal Regulations. All plasmapheresis facilities must undergo 

periodic inspections by the Food and Drug Administration. 

In April 2009, Mr. York volunteered to take part in a program called 

Immunizations with Immunogen Red Blood Cells (IRBC) as part of his blood plasma 

donation. Through the IRBC program, Mr. York agreed to be immunized with red blood 

cells that would stimulate his body to produce certain antibodies. The antibodies would 

then be collected in donated blood plasma. 

On April 22, 2009, Mr. York signed an informed consent form regarding the IRBC 

program. The form explained the process of immunization with the IRBC and the 

potential hazards of receiving red blood cells. The form explained that even though the 

red cells CSL Plasma uses are tested and carefully selected for the specific antibody they 

are intended to produce, there is the chance that a donor may develop unexpected 

antibodies. CSL Plasma promised that as long as the donor is receiving red cell 

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No. 32363-3-III 

York v. CSL Plasma, Inc. 

immunizations, CSL Plasma would perform a screening test on the donor's blood once a 

year to determine the presence of unexpected antibodies. Ifthe test showed unexpected 

antibodies, CSL Plasma said it would notifY the donor promptly. 

As for side effects from the program, the form stated, 

6. Some local skin reactions and/or slight rise in body temperature 

may occur after you receive an immunization of red cells. Such reactions 

are usually mild and infrequent. If you experience a serious reaction, you 

will not be given any further red cell immunizations. Local reactions at the 

site of injection may include redness, induration, tenderness, pain, swelling, 

itching and nodule formation may occur. 

7. Mild, generalized reaction which may include fever, malaise, 

fatigue, headache, nausea, vomiting, dizziness, myalgia, arthralgia and 

lymphadenopathy may occur. 

Clerk's Papers (CP) at 21. The form also contained a donor statement of consent and 

understanding, stating the donor read the form, understood the information, and was 

voluntarily participating .. Mr. York also signed a form titled "Disclosure of Origin of 

Immunizing Red Blood Cells." CP at 23. The form explained how the red blood cells are 

gathered, tested, and stored. 

Mr. York received two inoculations, one on May 1, 2009, and the other on June 5, 

2009. According to his complaint, the first inoculation caused a reaction. When Mr. 

York went in for the second inoculation, he told the doctor that he was developing a skin 

condition. Mr. York believed that lesions were forming around the veins directly below 

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No. 32363-3-111 

York v. CSL Plasma, Inc. 

the injection site. Mr. York was told not to be concerned and was given the second 

inoculation. 

Mr. York contends that he became sick with increasing severity after these 

inoculations. Although Mr. York asserts in his unsworn pleadings that he has numerous 

medical records which document numerous diseases, the only medical record pertaining 

to his own diagnosis attached to his summary judgment response is a September 11, 2009 

chart note from Dr. Chia Wang. Although the medical record shows it is comprised of 

four pages, Mr. York only attached the first page. We glean the following from this one 

page note: On September 3,2009, Mr. York sought medical care from Dr. Chia Wang. 

His chief complaint was parasitosis. 1 Dr. Wang performed a battery of tests on Mr. York. 

Mr. York returned to Dr. Wang's office on September 11,2009, during which time she 

prepared the chart note which contains the results ofthe earlier tests. According to the 

chart note, the tests results were normal, except for the presence of staphylococcus 

2 aureus.

1 "Parasitosis" is an infestation or disease caused by parasites. WEBSTER'S THIRD 

NEW INTERNATIONAL DICTIONARY 1639 (1993). 

2 A bacterium commonly present on skin and mucous membranes, especially those 

of the nose and mouth. Symptoms commonly include boils, carbuncles, and internal 

abscesses. TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1864 (17th ed. 1993). 

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No. 32363-3-111 

York v. CSL Plasma, Inc. 

Dr. Wang's chart note also discloses that she received a letter from CSL Plasma 

about Mr. York's involvement in the IRBC program. A medical doctor at CSL Plasma 

explained that on May 1,2009, Mr. York was given Rh-positive red cells from a donor 

who was compatible with Mr. York's profile, and on June 5, he was given similar cells 

from a different donor. Mr. York was Rh-negative. The CSL Plasma doctor explained 

that Mr. York was tested for viruses and had a serum protein and electrophoresis checked, 

all which came back negative. 

On September 12,2013, Mr. York, acting pro se, served a notice and complaint for 

personal injuries on CSL Plasma. On October 15,2013, Mr. York filed the summons and 

complaint with Spokane Superior Court. On December 9, CSL Plasma filed a motion for 

summary judgment, contending that Mr. York failed to bring suit within the three-year 

statute of limitations for a personal injury action. CSL Plasma maintained that Mr. 

York's action was time barred because he waited more than four years to bring his claim. 

The motion was sent to Mr. York on December 5 via Federal Express. The summary 

judgment motion hearing was initially set for January 10, 2014. 

On January 2, 2014, Mr. York filed his response to CSL Plasma's summary 

judgment motion. In that response, he also requested a continuance. Mr. York contended 

that the statute of limitations had not expired because he did not discover CSL Plasma's 

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No. 32363-3-II1 


York v. CSL Plasma, Inc. 


negligent acts until September 2013, when he found that a lawsuit was filed in federal 

court against CSL Plasma. See Maddy v. CSL Plasma, Inc., 2012 WL 1931245 (E.D. 

Wash.) (court order). The lawsuit involved another donor who developed a bacterial 

infection after donating plasma around the same time and at the same location as Mr. 

York. He maintained that CSL Plasma intentionally concealed the bacteria contamination 

that was related to his illness. Mr. York requested more time for discovery. He did not 

explain what information he could obtain through discovery that would be useful for 

opposing CSL Plasma's motion for summary judgment. 

CSL Plasma filed a reply in support of its summary judgment motion on 

January 6,2014. CSL Plasma explained that it had not received a formal request for 

discovery from Mr. York, but had received a document entitled "Continuing Discovery" 

that was not filed with the court. The document requested records from CSL Plasma and 

refers to his 2009 participation in the program. 

The summary judgment motion hearing did not occur on the scheduled date of 

January 10 or on the subsequently scheduled date of January 24. Mr. York showed up for 

these hearings but CSL Plasma did not. 

On January 22, CSL Plasma completed a note for hearing for the continued 

summary judgment motion, scheduling February 7 as the hearing date. The note for 

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No. 32363-3-III 

York v. CSL Plasma, Inc. 

hearing was file stamped January 27. The record does not show proof of service upon 

Mr. York, but Mr. York presumably received the notice on or before January 27 because 

he opposed the new hearing date in a written objection which he filed on January 28. 

At the beginning of the February 7, 2014 summary judgment hearing, Mr. York 

requested that the trial court strike CSL Plasma's motion for summary judgment for not 

being set in accordance with the time limits of CR 56. The court noted that Mr. York was 

objecting that the hearing was not properly set, but disagreed. The court reasoned that 

CSL Plasma originally filed its summary judgment motion on December 9,2013, to be 

heard on January 10,2014, yet that hearing date was eventually continued to February 7, 

2014. The court found that Mr. York had much more than 28-days' notice, as required by 

CR56. 

The trial court heard argument on CSL Plasma's summary judgment hearing and 

found that Mr. York's claims were time-barred. The court held that a three-year statute of 

limitations applied regardless ofwhether Mr. York's claim was considered a personal 

injury suit or a medical malpractice suit. 

Mr. York appeals. He contends that the trial court erred in granting CSL Plasma's 

motion for summary judgment. He maintains that the summary judgment motion was not 

properly before the court in accordance with CR 56. He also contends that his 

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No. 32363-3-III 

York v. CSL Plasma, Inc. 

claim is governed under the statute for injuries resulting from health care providers, 

RCW 4.16.3 50, and that the eight-year statute of repose applies. 

ANALYSIS 

1. Whether CSL Plasma complied with the time requirements ofCR 56 

Mr. York contends that CSL Plasma's motion for summary judgment should have 

been dismissed because CSL Plasma failed to appear for multiple hearings in January 

2014. Mr. York also contends that the motion was not timely filed. 

Mr. York provides no authority for the proposition that CSL Plasma's 

nonappearance at unconfirmed summary judgment hearings prevents CSL Plasma from 

arguing its motion on a confirmed date. We find no authority for such a contention. 

Moreover, CSL Plasma complied with the time requirements for CR 56. CR 56 

requires a summary judgment motion to be set at least 28 calendar days after it is filed 

and served. CSL Plasma mailed its moving papers to Mr. York on December 5, 2013. 

Pursuant to CR 6( e), the effective service date upon Mr. York was three days later, or 

December 8,2013. Because that day was a Sunday, CR 6(a) provides that the effective 

service date is the following Monday, December 9, 20l3. This also is the date when CSL 

Plasma filed its moving papers. The December 9, 2013 filing and service date would 

allow the summary judgment hearing to be no sooner than 28-days thereafter, or January 

8 

No. 32363-3-111 

Yorkv. CSL Plasma, Inc. 

6,2014. The eventual February 7, 2014 hearing date therefore clearly complies with 

CR 56(a). 

Mr. York does not argue that the trial court abused its discretion by refusing to 

continue the summary judgment hearing pursuant to his earlier written request. Even had 

he argued this on appeal, we would find no error, as Mr. York never described what facts 

his discovery request could disclose that would assist him in defending the summary 

judgment motion. See CR 56(0. 

Mr. York also challenges the setting of the summary judgment hearing under 

Spokane County LCR 40(b)( 1 0). He argues there is an inconsistency between 

LCR 40(b)(l0)'s requirement that all responding documents be served 7 days before the 

hearing, and CR 56's 28-day requirement. Mr. York conflates these two requirements. 

The local rule he cites discusses general motion practice, not summary judgment motion 

practice. Moreover, the local rule he cites discusses when his response is due, the state 

rule discusses when CSL's moving papers must be filed and served. But even if there is 

an inconsistency, CSL complied with the more onerous 28-day requirement. 

2. Whether CSL Plasma is a health care provider under RCW 4.16.350. 

This court reviews a summary judgment order de novo. Lunsford v. Saberhagen 

Holdings, Inc., 166 Wn.2d 264,270,208 P.3d 1292 (2009). All facts and inferences are 

9 

No. 32363-3-II1 

York v. CSL Plasma, Inc. 

viewed in the light most favorable to the nonmoving party. Id. Summary judgment is 

appropriate only if the pleadings~ affidavits~ depositions, and admissions on file 

demonstrate the absence of any genuine issues of material fact, and that the moving party 

is entitled to judgment as a matter oflaw. CR 56(c). 

The burden is on the moving party to show an absence of an issue of material fact. 

Young v. Key Pharm., Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989). If the moving 

party submits adequate affidavits to meet its burden, the burden shifts to the nonmoving 

party to set forth specific facts to rebut the moving party's contentions and show that a 

genuine issue exists. Seven Gables Corp. v. MGMlUA Entm 't Co., 106 Wn.2d 1, 13~ 721 

P .2d 1 (1986). The nonmoving party may not rely on speculation or argumentative 

assertions to defeat summary judgment. Id. 

Mr. York contends that CSL Plasma's statute oflimitations is governed by 

RCW 4.16.350, which addresses actions for injuries resulting from health care or related 

services. He maintains that CSL Plasma is required by federal regulation to have a 

physician perform their services, making CSL Plasma a health care facility. 

Generally speaking, RCW 4.16.350(3) governs the statute of limitations for any 

civil action for damages occurring as a result of health care that is provided by an entity 

employing a person licensed to provide hea1th care or related services, including, but not 

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No. 32363-3-II1 


York v. CSL Plasma, Inc. 


limited to, a hospital, clinic, health maintenance organization, or nursing home. Any civil 

action against an entity for professional negligence must be commenced within three 

years of the act or omission causing the injury, or one year after the patient discovered or 

should have reasonably discovered the injury, whichever occurs later, except that all 

claims must be brought within eight years after the injury-causing act or omission. 

RCW 4.16.350(3). 

The time for commencement of an action is tolled "upon proof of fraud, 

intentional concealment, or the presence of a foreign body not intended to have a 

therapeutic or diagnostic purpose or effect, until the date the patient or the patient's 

representative has actual knowledge ofthe act of fraud or concealment, or ofthe 

presence of the foreign body; the patient or the patient's representative has one year from 

the date of the actual knowledge in which to commence a civil action for damages." 

RCW 4.16.350(3). 

A cause of action for an injury resulting from health care is addressed in chapter 

7.70 RCW. While the chapter does not supply a definition of "health care," the term has 

been defined by Washington courts as '" the process in which [a physician is] utilizing the 

skills which he [or she] had been taught in examining, diagnosing, treating or caring for 

the plaintiff as his [or her] patient.'" Wright v. Jeckle, 104 Wn. App. 478, 481, 16 P.3d 

11 

No. 32363-3-III 

York v. CSL Plasma, inc. 

1268 (2001) (alterations in original) (quoting Branom v. State, 94 Wn. App. 964,969-70, 

974 P.2d 335 (1999». 

Here, RCW 4.16.350 does not apply to Mr. York's personal injury claim because 

CSL Plasma is not a health care provider. While CSL Plasma may be required to employ 

a physician, it does not provide health care services. In Doe v. Puget Sound Blood 

Center, 117 Wn.2d 772,819 P.2d 370 (1991), the court held that a person donating blood 

is not seeking treatment and is not protected by physician-patient privilege. Similarly, 

Mr. York was not seeking treatment when he donated plasma. He was not receiving care 

as a patient. He received compensation for donating plasma. His claim is not for injury 

occurring as a result of health care, making the statute of limitations in RCW 4.16.350 

inapplicable to Mr. York. 

3. Whether Mr. York's action is time barred under RCW 4.16.080(2). 

RCW 4.16.080(2) describes the following actions as being barred by a three-year 

statute oflimitations: "An action for taking, detaining, or injuring personal property, 

including an action for the specific recovery thereof, or for any other injury to the person 

or rights of another not hereinafter enumerated." Mr. York argues that the quoted 

subsection has no application to his claim because his claim does not involve personal 

property. Mr. York's argument ignores the last phrase, "or for other any injury to the 

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No. 32363-3-II1 


York v. CSL Plasma, Inc. 


person ... not hereinafter enumerated." This catch-all phrase has long been applied to 

personal injury actions, such as Mr. York's action. See In re Estates ofHibbard, 118 

Wn.2d 737,826 P.2d 690 (1992); Germain v. Pullman Baptist Church, 96 Wn. App. 826, 

980 P.2d 809 (1999); Hansen v. Watson, 16 Wn. App. 891, 559 P.2d 1375 (1977). 

"The general rule in ordinary personal injury actions is that a cause of action 

accrues at the time [of] the act or omission." Hibbard, 118 Wn.2d at 744. However, 

under the discovery rule, the statute of limitations will not begin to run until the plaintiff 

discovers, or should have discovered with the exercise of due diligence, the facts giving 

rise to the cause of action. Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599,123 

P .3d 465 (2005). The cause of action accrues under the discovery rule when a party 

knows or should have known the essential elements of the cause of action including duty, 

breach, causation, and damages. Green v. A.P.e., 136 Wn.2d 87, 95, 97, 960 P.2d 912 

(1998). 

"The discovery rule does not require a plaintiff to understand all the legal 

consequences of the claim." Id. at 95. "The general rule in Washington is that when a 

plaintiff is placed on notice by some appreciable harm occasioned by another's wrongful 

conduct, the plaintiff must make further diligent inquiry to ascertain the scope of the 

actual harm. The plaintiff is charged with what a reasonable inquiry would have 

13 
No. 32363-3-111 


York v. CSL Plasma, Inc. 


discovered." Id. at 96. The injured plaintiff must exercise due diligence to discover the 

harm and the cause. Id. at 95. 

Here, based on the record interpreted in the light most favorable to Mr. York, his 

cause of action accrued no later than when he was diagnosed with staphylococcus aureus 

by Dr. Wang on September 11,2009. Mr. York knew of his skin condition and suspected 

CSL Plasma's inoculations as the cause of the injury. He noticed skin lesions after the 

first inoculation and asked CSL Plasma about the injury. Mr. York was on notice that the 

injury could be caused by CSL Plasma's process. He was warned in the informed consent 

agreement that skin lesions could be a side effect of the process. Dr. Wang's notes verify 

that CSL Plasma's process was investigated as a cause of the injury. While there was no 

irrefutable proof at the time of the September 11, 2009 follow-up visit that CSL Plasma 

was the definite cause of his medical condition, Mr. York had enough information to 

connect CSL Plasma to the injury to establish the essential elements of a personal injury 

claim. Were we to otherwise hold that a plaintiffs cause of action is tolled until he has 

sufficient facts to irrefutably establish causation, many actions for personal injuries never 

would be time-barred. There is no authority which would support such an extreme 

holding. 

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No. 32363-3-II1 


York v. CSL Plasma, Inc. 


Thus, Mr. York's cause of action accrued no later than the September 2009 followup visit. The three-year statute of limitations of RCW 4.16.080(2) lapsed in September 

2012. Mr. York did not serve his personal injury complaint on CSL Plasma until 

September 12, 2013. His claim was time-barred. The trial court did not err in granting 

summary judgment in favor of CSL Plasma. 

Affirm. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Lawrence-Berrey, 

L"'_d <..0 <.s, 1. - ~v.r-"1' 

WE CONCUR: 

2-;dh-I C-;r- Siddoway, C.J. ~ 

~)& Brown, 1. 

15