4th U.S. Circuit Court of Appeals rules HIV-maker owes no duty to

Ann Parks

A drug company that manufactured two strains of HIV owed no duty to the spouse of a former lab technician who contracted HIV-2 and passed it on to his wife, the Court of Appeals held yesterday.

Answering two questions certified to it by the 4th U.S. Circuit Court of Appeals, the state's top court concluded that Pharmacia & Upjohn (now part of Pfizer Inc.) was under no obligation to appellant Jane Doe to either conduct reasonable care in testing for the virus, nor to inform her husband that he might have been infected.

The court agreed with Doe that it was foreseeable that her husband could become infected with HIV-2, and foreseeable that she could contract the disease.

But foreseeability alone, the court said, was not sufficient to establish a duty.

The rationale for imposing a duty of care to Ms. Doe could apply to all sexual partners of employees, Judge Irma S. Raker wrote for the court. Such a duty could conceivably extend to any person contracting HIV from an employee, through any means - rendering tort law unmanageable, the court noted.

The law does not countenance the imposition of such a broad and indeterminate duty of care, Raker wrote.

The court saw no legitimate reason to distinguish married plaintiffs from others and refused to find a duty limited to spouses, as Jane Doe's attorney, Stephen B. Mercer, had proposed.

But a disappointed Mercer said yesterday that line-drawing questions shouldn't cause a court to give up.

Courts are confronted with the need to draw lines all the time, Mercer said - noting that in DES (diethylstilbestrol) litigation, brought by descendants of women who took the drug, some courts have allowed grandchildren to recover but not great-grandchildren.

Further, he said, an employer already has contractual obligations to spouses respecting such things as insurance and benefits.

Spouses are within a close relational orbit with employers, he said.

False positive

John and Jane Doe married in 1971. In 1974, John took a job at Pharmacia's now-closed Montgomery County facility cultivating large volumes of highly concentrated HIV-1 and HIV-2 for use in diagnostic test strips.

He handled 50 to 75 liters of the deadly pathogens on a daily basis, receiving $12 an hour for his work.

In 1985, Pharmacia began testing its employees every six months for HIV-1 exposure, there being no commercially available test for HIV-2 at the time. From 1985 until he left his job in 1991, John Doe tested negative for HIV-1 - save a single instance in 1989 when he received a false positive (a positive result on the initial Elisa screening test but a negative on the confirmatory Western Blot test).

Pharmacia never told John Doe that a false positive result for HIV-1 could indicate an HIV-2 infection. He continued to have unprotected sex with his wife.

By October 2000, he was suffering from AIDS-like symptoms. Both Does were tested and found to be infected with HIV-2, which is rare in the United States.

Because the husband's cause of action against his employer was barred by workers' compensation laws, Jane Doe alone sued the manufacturer in federal court in 2002. U.S. District Judge Peter J. Messitte granted the company's motion to dismiss on the grounds that Pharmacia owed no duty to her.

The 4th Circuit on appeal certified the matter to the state's highest court on the issue of duty and will likely now affirm Messitte's dismissal.

Equal force

The top court believed that the case was controlled by its January decision in Dehn v. Edgecombe, in which it determined that a woman who became pregnant after her husband's vasectomy could not maintain a separate cause of action against the doctor who provided the follow-up care.

Our reasoning in Dehn applies with equal force in the case sub judice, Raker wrote, noting that Jane Doe had no relationship with Pharmacia and was never an employee there.

And while preventing the spread of a highly lethal disease is indeed important, this is not a case in which an actor, such as a doctor, knew or should have known that an unsuspecting person had or was likely to have a disease and failed to advise that person, Raker wrote - a point Mercer found inconsistent with the court's foreseeability analysis.

If they didn't know or shouldn't have known, why would it be foreseeable in the first place? he theorized yesterday.

Counsel for Pharmacia could not be reached for comment by press time.

WHAT THE COURT HELD

Case:

Jane Doe v. Pharmacia & Upjohn Co., Inc., CA Misc. No. 13, Sept. Term 2004. Opinion by Greene, J. Filed August 11, 2005.

Issue:

Did a commercial manufacturer of two strains of HIV owe a duty to an employee's spouse to exercise reasonable care in testing employees for both strains; or to inform employees that a false positive for HIV-1 might indicate an HIV-2 infection?

Holding:

No. Although the harm was foreseeable, finding a duty of care to an employee's spouse would create a duty to an indeterminate class of plaintiffs, making tort law unmanageable.

Counsel:

Stephen B. Mercer for appellant; Stephen E. Marshall for appellee.

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