[1] Gay Men's Health Crisis, et al. v. Bowen, Sec'y H.H.S., S.D. N.Y., AIDS Litigation Reporter 10/28/88 (Announcement of filing of Complaint).

FACTS: Several service organizations filed suit against the federal DHHS regarding language in legislation authorizing funding for AIDS education. The groups contend that the statutory prohibition against funds being used "to provide AIDS education, information, or prevention materials and activities that promote or encourage, directly, homosexual activities"--and requires that the material be presented in a manner "judged by a reasonable person to be inoffensive to most educated adults beyond that group"--violates the groups' First and Fifth Amendment rights and inhibits their ability to produce federally funded AIDS prevention or education materials which are medically accurate and effective.

[2] Ware, et al. and on behalf of Plymouth Brethren No. 4 et al. v. Valley Street High School District, et. al., Superior Ct., Nassau Co., New York. AIDS Litigation Reporter 3/10/89 and 3/24/89. (Announcement of Complaint).

FACTS: Plaintiffs were members of a strict religious group who reside in and around Valley Stream and who have approximately 35 children attending Valley Stream High School district. The tenets of the group's religion require that it keep itself separate from the larger society and its influences as far as possible. Also, the religious tenets of the members flatly proscribe sexual relations outside of marriage, require abstinence, and forbid exposure to instruction concerning sexual relations and moral teachings other than those imparted by members of the community to members of the community.

They seek to exempt their children from the required AIDS education program. They believe that the AIDS education program offends their conscience and religious beliefs because it details and recommends immoral practices as if they were acceptable, and otherwise exposes the children to influences which petitioners consider inimical to their religious, moral, ethical, and personal well-being.

Plaintiffs filed a petition demanding that the children be exempt from attending the AIDS education program required under state education regulations. They maintained that the program violated their first amendment right to free exercise of religion, and to privacy and freedom to supervise and to rear their children.

Plaintiffs attempted to have the school district exempt the children from attendance. The district determined that it could not do so because it was bound by state educational regulations. The plaintiffs' children withdrew from the classes and were subject as a result to the school's disciplinary sanction.

Plaintiffs maintained that their absence from the program posed no public health threat to the members of the larger society as the members of the group's community involve themselves consistently and continuously in instilling exemplary ethical and moral behavior in all members of the community and their children, including the teaching of abstinence from sexual relations outside of marriage.

Plaintiffs sought--(a) a declaration that forced attendance would violate the religion provisions of the first amendment and their implied fundamental right to privacy and freedom from governmental interference with their liberty to supervise and rear their children,--and (b) an injunction restraining the school district from compelling their children to participate in the AIDS instruction.

The Supreme Court, after a hearing, lifted the temporarily imposed injunction. The injunction was immediately reinstated by the Appellate Division.

Prior to the action being heard on the merits, Education Commissioner Thomas Sobol, on March 13, 1989, granted the children a temporary exemption.

[3] Bean v. Board of Supervisors, California Superior Ct., Los Angeles Co. SOURCE: ACLU (Complaint and supporting documents, 3/10/87).

FACTS: Plaintiffs include SCLC and NAACP, as well as one patient who denies having received any education about how to prevent getting the disease. They allege that no plan for AIDS education has been drafted by the county and that county expenditures for minority populations average less than three cents per minority resident. They believe that the Los Angeles County public education program about AIDS fails to address the growing AIDS epidemic within minority communities.

ISSUE: Whether Los Angeles County should be compelled (a) to stop expending public funds for programs which do not provide for public education about AIDS within minority communities and (b) to develop a plan for appropriate education within 30 days.

[4] Coffee v. Cutter Biological, 809 F.2d 191 (2d Cir. 1987).

FACTS: Plaintiff is a hemophiliac who contracted AIDS after receiving Koate, a blood product manufactured by defendants. Plaintiff alleges that the blood used in manufacturing Koate contained HIV and caused him to contract AIDS. Plaintiff sued on the ground that the Koate was in a defective and dangerous condition when administered and, under a theory of breach of warranty or strict liability, the defendants should be held liable for plaintiff's injuries.

The blood manufacturer contends that Connecticut's blood shield statute (Conn. Gen. Stat. sec. 19a-280) bars such claims. Plaintiffs contend that the blood shield statute was not intended to protect commercial producers of blood products and that Koate is not a component or derivative of blood as required by the blood shield statute.

ISSUE: Whether the Connecticut blood shield statute protects commercial blood product producers and whether clotting products are covered by the statute?

HOLDING: The blood shield statute was intended to preclude the assertion of product liability claims arising out of the sale of blood components. It therefore protects commercial blood product manufacturers.

REASONING: The plain language of the statute states that supplying blood or blood derivatives shall be considered a medical service.

Blood product manufacturers are therefore beyond the purview of general products liability statutes and the claims derived therefrom. A commercial manufacturer is equally protected. Although the blood shield statute fails to define the term "blood bank", such term is defined in an analogous statute, the anatomical donations statute. (Conn. Gen. Stat. sec. 19a-272(e). There, the term is defined as a "facility for storage of human bodies or parts thereof." "Parts" is further defined to include blood. Under that statute, transfers from blood banks are protected from products liability claims. The public policy which supports the immunization of anatomical parts distributors argues that immunization is necessary to protect the continuous supply of such items. The court determined that the policy behind the anatomical parts law was similar to the blood shield law and adopted its definition of blood bank which did not distinguish between commercial ventures and not-for-profit organizations. Thus, blood banks are facilities for storage of human bodies or parts thereof - whether commercial or non-profit - and covered by the blood shield law. The claims for damages under both a theory of strict liability and breach of warranty were dismissed.

[5] Jones v. Miles Laboratories, 700 F. Supp. 1127 (N.D. Ga. 1988).

FACTS: Plaintiff, a hemophiliac with AIDS, claims that defendant, a manufacturer of Koate, a blood clotting product, was negligent in the manner in which it collected plasma, that it failed to eliminate HIV infected plasma, and was responsible for his contracting AIDS.

Some of the plasma which was used to create the Koate used by plaintiff was donated by Whitfield who died of AIDS in October 1983. Whitfield had not told his physician or the blood collection center that he was homosexual. He told his physician that he was gay just before he died of AIDS. The newspapers reported his death and also that he was the first person to die of AIDS in Austin. The head of the blood center saw the article and determined that he had donated blood on many occasions in 1982 and 1983. The plasma center traced Whitfield's donations and notified the blood products' manufacturers to whom they had been sent. These manufacturers in turn notified hospitals and doctors who had purchased tainted Koate. Hospital records indicated that plaintiff had received tainted Koate in September 1983 before Whitfield's death and announcement to his physician that he was gay in October 1983.

In 1982 and 1983, it was routine practice in the plasma industry in Texas to ask a donor if he was homosexual. When this practice began was not made clear at the trial. In January and February 1983, the blood bank asked Whitfield if he was gay. He denied being gay. In March 1983, the FDA issued regulations recommending that plasma centers take certain measures to screen out donors in high risk groups; this would include asking if the donor was homosexual.

ISSUE: Whether the blood manufacturer was negligent in the manner it screened donors such that it should be held liable for injury to the plaintiff?

HOLDING: No, the blood manufacturer was not negligent in the manner in which it collected blood.

REASONING: In order to be held liable for negligence it must be shown that the defendant failed to conform to the standard of the industry evidenced by ordinary reasonable care as practiced by a reasonably prudent manufacturer. Before the development of blood screening tests, the standard practice, as exercised by the ordinary reasonably prudent plasma center, did not include either screening or testing of blood for signs of AIDS. Therefore, the defendant cannot be held liable.

[6] Jones v. Miles Laboratories, Inc., 705 F. Supp. 561 (N.D. Ga. 1987).

FACTS: Same case as above, but here the plaintiffs were pursuing claims in strict liability and in negligence. The defendant brought a motion for partial summary judgment regarding the strict liability claim. This motion would eliminate the strict liability claim from the litigation.

Defendant contends that the Georgia blood shield statute immunizes it from products liability claims which do not require the plaintiff to prove negligence or fault even though defendant is a for-profit enterprise.

ISSUE: Does the Georgia blood shield statute protect defendant, a commercial blood product manufacturer, from liability without a showing of negligence?

HOLDING: The Georgia blood shield statute protects the defendant from liability without a showing of fault.

REASONING: The Georgia blood shield statute protects those who transfuse, procure, etc. blood from liability without a showing of fault. This is founded on the public policy of guaranteeing the availability of blood. The statute makes no distinction between for-profit and not-for-profit enterprises. Public policy does not support such a distinction either. Therefore, the court granted the motion for partial summary judgment and dismissed the claim for damages under a theory of strict liability.

[7] Doe v. Travenol Laboratories, Inc., 698 F. Supp. 780 (D. Minn. 1988).

FACTS: Plaintiff, a hemophiliac, had AIDS Related Complex. He claimed he contracted HIV from an antihemophilic factor and sued defendant blood manufacturer for breach of warranty, strict liability and negligence.

ISSUE: Whether, under Minnesota law, the recipient of a tainted blood product may recover from the blood supplier for injury on the ground that the sale of the blood brought the transaction under the commercial code and therefore permitted action in strict liability and breach of warranty?

HOLDING: No, the sale of blood is not a commercial transaction.

REASONING: Both statutory law and common law, for public policy reasons, protect suppliers of blood and blood products from claims of strict liability and breach of warranty. To do otherwise would require them to protect against defects for which they could not test. Legislatures feared that the threat of products liability suits, which do not require a finding of fault, would drive the suppliers out of business. It has therefore been held that the purchase of blood is not a sale but a service. Therefore no strict liability claim will lie. In addition, because breach of warranty claims must be based on the sale of goods and the supplying of blood is not a sale but a service, no claim for breach of warranty will lie either. In addition, Minnesota's blood shield law, Minn. Stat. sec. 525.921, specifically requires that the use of any part of a body for the purpose of transplantation in the human body shall not be construed as a sale of such part for any purpose.

This decision dismissed only those claims of strict liability and breach of warranty. It did not dismiss the negligence claims.

[8] Kirkendall v. Harbor Insurance Company, 698 F. Supp. 769 (W.D. Ark. 1988).

FACTS: Plaintiff suffers from AIDS which he claims he contracted from blood containing HIV received by transfusion during surgery on March 28, 1985. The defendant insurance company is the liability insurance carrier for Blood Systems Inc. ("BSI"), a non-profit corporation engaged in the business of supplying blood to various medical entities and hospitals.

BSI did not screen the blood used in the transfusion for HIV. The ELISA test was licensed on March 2, 1985. The blood center ordered 400 testing kits which it received on March 12, 1985. Training representatives from Abbott Laboratories, which manufactured the test, trained the blood center employees on March 18-19, 1985. Routine blood testing began March 23, 1985. The infected unit of blood which was given to plaintiff was donated on March 6, 1985. After the training period, blood bank employees tested new blood and not blood in the inventory. This was the practice of the industry.

At the time of the donation, the donor was asked questions regarding his health and given the information regarding high risk groups and self-exclusion as recommended by the FDA and the blood banking community. The policy of the industry at the time was to seek cooperation rather than confrontation for fear of a decline in blood donors. In addition, it was believed that members of risk groups would deny membership if asked directly.

No surrogate HIV tests were done on the blood. Plaintiff provided no evidence to show that had such tests been performed the HIV infected blood would have tested positive for other viruses and thus been discarded.

The plaintiff alleges that the blood was a "product" supplied in a "defective condition" which rendered it "unreasonably dangerous" and therefore BSI should be held strictly liable for the consequential injuries--without the plaintiff having to show that BSI was negligent.

Plaintiff also argues that BSI was negligent in screening its donors and failing to test the blood for the presence of the HIV antibody.

Plaintiff maintains that the defendant was negligent because it should have asked donors direct questions regarding membership in a high risk group rather than simply requesting voluntary exclusion.

Plaintiff maintains that defendant was negligent also because it did not perform surrogate tests on the blood.

Plaintiff also argues that defendant was negligent because it chose to test new blood after it received (and had been trained to use) the ELISA test. Plaintiff maintains that defendants should have tested blood in their inventory.

ISSUE: Whether any of the acts which plaintiff contends were negligent violated the standard practice of the blood industry at the time of the transfusion.

HOLDING: None of the acts were negligent.

REASONING: No evidence was adduced to prove that had the questions been asked the donor would have responded candidly or that because of his answers he would have been excluded. Nor was there any proof that had the surrogate tests been performed the blood would have been found to have been infected with other viruses and therefore rejected. Therefore, the blood bank's failure to question donors or to surrogate test the blood cannot be found to be the proximate cause of the plaintiff's injury. In addition, given the "window" period in which blood infected with HIV will not show antibodies, it cannot be proven that antibodies would have been detectable in the blood collected on March 6, 1985. Regarding the defendant's failure to test its inventory, the evidence showed that this was the standard practice of the industry. The court determined that unless the entire industry could be found at fault, the defendant had met the standard of care practiced by the industry and therefore could not be held to have been negligent.

[9] Poole v. Alpha Therapeutic Corporation, 698 F. Supp. 1367 (N.D. Ill. 1988).

FACTS: Stephen Poole was a hemophiliac who became infected with HIV after using defendant manufacturer's Factor VII product from 1975 until 1987. The defendant did not heat treat the blood used in producing Factor VII nor did it warn the deceased of this risk of infection. His widow sues the defendant in, among other claims, strict liability and for her own emotional distress. The defendant moves to dismiss these claims.

ISSUE I: Whether the Illinois blood shield statute protects manufacturers of blood products from strict liability actions?

HOLDING: The statute protects manufacturers from strict liability actions.

REASONING: Under the Illinois blood shield statute, processors of blood products are immune from suit under claims of strict liability. Therefore, plaintiff's claim for damages under this theory must be dismissed. Her claim for damages for negligent infliction of emotional distress must be dismissed also.

ISSUE II: Whether a claim for compensation for negligent infliction of emotional distress requires a showing of physical injury or illness resulting from the emotional distress?

HOLDING: The plaintiff must allege physical injury or illness in order to recover for emotional distress.

REASONING: Illinois law requires that the plaintiff allege physical injury or illness. Here, plaintiff failed to make such an allegation. Hence, her claim for damages under this theory must be dismissed also.

[10] Doe v. Miles Laboratories, Inc. and Cutter Laboratories Division, 675 F. Supp. 1466 (Md. 1987).

FACTS: In 1983, plaintiff was given "konyne" a blood coagulant factor, manufactured by defendants, which was infected with HIV. Plaintiff sued alleging strict liability, breach of warranty and negligence and strict liability - failure to warn. Defendant sought summary judgment regarding the claims of breach of warranty, strict liability and strict liability - failure to warn.

ISSUE: Whether a manufacturer of a blood coagulant in Maryland can be held liable for HIV infection from a blood product made from blood donated in 1983?

HOLDING: The Maryland blood shield statute (in effect in 1983) permitted suit in strict liability and breach of warranty against a manufacturer of blood products.

REASONING: The blood shield statute in effect in 1983 shielded manufacturers from suits only for serum hepatitis infection. It did not exempt them from suits for HIV until it was amended in 1986. Nor did Maryland's statute which immunizes those who administer medications protect manufacturers as they are not ones who administer treatments. Nor did the common law exempt the manufacturers from strict liability suits as such protection was available only to those who provide a service. Nor did public policy support exemptions. The court determined that the "best view is to consider blood containing undetectable diseases to be a defective product and therefore that strict liability is applicable."

However, the court found that the defendant could not be found to have had a duty to warn. In order to find such a duty, it must be found that in the exercises of ordinary care, the defendant knew or should have known of the risk or hazard. In 1983, there was no test which defendant could have used to detect the virus. Therefore in the exercise of ordinary care, it could not have known of the risk. Hence, no duty to warn existed.

The plaintiff's husband sued for loss of consortium. The court found that neither this claim nor that for punitive damages were compatible with claims under strict liability because such damages evaluate the conduct of the defendant, while strict liability looks to the product. The court, therefore, granted summary judgment and dismissed those demands for damages--for loss of consortium and punitive damages relating to the strict liability claims.

[11] Kozup v. Georgetown University, 663 F. Supp. 1048 (D.D.C. 1987).

FACTS: The plaintiffs, parents of an infant who contracted AIDS as a result of a blood transfusion given at birth in 1983, sued the hospital which administered the blood transfusion and the blood bank which collected the blood donation. The blood had been donated in October 1982 by an individual who subsequently developed AIDS and died of opportunistic infections. At the time of his donation, the donor was asymptomatic for AIDS.

The plaintiffs sued defendants under a variety of legal theories arising out of the procedures defendants used to collect and screen the plasma. They argued: that defendants were negligent; that they breached an implied warranty of merchantability of the product they sold; that they were strictly liable (liable regardless of their care); that they failed to obtain the informed consent of the parents; and violated the District of Columbia Consumer Protection Act. Much of plaintiffs' arguments turn on allegations that the defendants knew or should have known certain facts about AIDS at the time of the transfusions.

ISSUE I: Whether, at the time of the transfusion, the defendants knew or should have known that contracting AIDS from blood was a material risk of transfusion and that defendants' failure to so inform the plaintiffs was a failure to warn creating negligence?

HOLDING: The defendants did not fail to properly inform the parents.

REASONING: In order for defendants to be found negligent under a failure to inform theory, they must have failed to inform the parents of a material risk. A risk is material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster or risks in deciding whether or not to forego the proposed therapy. The physician's liability for nondisclosure is to be determined by foresight, not hindsight; that is, it is to be judged by the knowledge available at the time. In January 1983, there was still no consensus in the medical or blood banking communities that AIDS was transmitted by a blood-borne agent. The belief was that there was only a one in 3.5 million chance of contracting AIDS from a transfusion. The court did not consider this a material risk. Because the risk was not material, the physicians could not be liable for non-disclosure of the one in 3.5 million risk.

Plaintiffs must also show that the hospital's failure to warn caused them to unknowingly undertake the risk; that if they had been informed they would have decided against the treatment. The court held that no reasonable jury would find that had the plaintiffs been informed of the one in 3.5 million chance of contracting AIDS they would have refused to let the hospital transfuse their son. The transfusions were absolutely necessary to save his life.

ISSUE II: Whether the blood bank (the American Red Cross) is liable for failing to provide the hospital with information regarding the one in 3.5 million risk of contracting AIDS.

HOLDING: No, the blood bank is not liable for non-disclosure.

REASONING: The same facts and reasons that immunize the physicians from liability for failure to inform also protect the blood bank.

ISSUE III: Whether the hospital was negligent in not offering the parents the option of directed donations.

HOLDING: No, the hospital was not liable for failing to apprise the parents of directed donations.

REASONING: In order to be held liable for negligence, the plaintiffs must show that the hospital violated a standard of care. For a hospital that standard is established by looking at the conduct of the medical profession. Proof that in hindsight, hospitals should have been offering such options, does not prove that the hospitals violated the then current standard of care. Because of the limited knowledge extant at the time, no hospital either in Washington, D.C. or the U.S., was offering such an alternative. Therefore, the hospital did not violate the standard of care.

ISSUE IV: Whether the blood bank, the American Blood Red Cross, violated its own standards of care extant at the time?

HOLDING: The blood bank did not violate its own standards of care.

REASONING: Again, because it was not known at the time of the transfusion that AIDS had an asymptomatic carrier state, no screening programs had been developed.

ISSUE V: Whether the hospital may be held strictly liable or liable for breach of implied warranty of merchantability?

HOLDING: The hospital will not be held to a theory of strict liability or to implied warranty of merchantability.

REASONING: Public policy argues against holding the hospital liable under either a strict liability theory or an implied warranty. To do otherwise would make the hospital an insurer; that is, that no matter how careful it was, if the patient were harmed as a result of impure blood, the hospital would be liable for its provision of blood to patients. The public need for hospitals argues against imposition of such broad liability.

ISSUE VI: Whether the immunity granted to hospitals should be extended to blood banks?

HOLDING: The blood bank will not be held to a theory of strict liability or to implied warranty of merchantability.

REASONING: The public policy that protects hospitals from claims for strict liability - the scientific inability to screen all carriers of infection despite due care - coupled with the public interest in assuring the ready availability of blood, must be extended to blood banks even though they are commercial ventures. The concern for the Nation's blood supply compels such an outcome as does the inability to screen out the infection.

ISSUE VII: Whether the hospital and blood bank may be held liable under the Washington, D.C. Consumer Protection Act?

HOLDING: The hospital and blood bank are not liable under the Washington, D.C. Consumer Protection Act.

REASONING: In order to come under the Act, the defendants must manufacture a product and their activities must constitute trade practices. The court held that it is "unnatural" to force a blood transfusion into the ordinary commercial sales mold. Nor can the sale of blood by a not-for-profit blood bank be considered a commercial transaction. The American Red Cross did not become a merchant because it accepted money in exchange for the blood.

[12] Shelby v. St. Luke's Episcopal Hospital and Shelby v. Gulf Coast Regional Blood Center, 1988 WL 28996 U.S.D.C., S.D. Tex. 1988.

FACTS: Plaintiff, the husband of Marie Shelby who died of AIDS, sued the hospital--in which she was transfused on July 18, 1984--and the blood bank which collected the blood which was used. He alleged that the blood used was infected with HIV. He argued that the blood bank was negligent in failing to warn Marie Shelby that the blood might be infected with HIV, failed to adequately screen donors of blood, and failed to warn donors, likely to be carrying HIV, of the risk posed to recipients by donations. Plaintiff also sued the blood bank for breach of express and implied warranties of fitness and merchantability of the blood.

Defendants argued that all of the blood transfused to Ms. Shelby was screened according to FDA and AABB industry standards in effect at that time.

ISSUE: Whether a blood bank can be held liable under a theory of breach of warranty, or, negligence for a recipient's contracting AIDS when it follows the standard practices of the industry in effect at that time?

HOLDING: No, the blood bank cannot be held liable under either theory.

REASONING: The Texas blood shield statute (Tex. Civil Practice and Remedies Code, sec. 77.0033) protects from all claims blood banks that do not pay cash for blood--except for negligence, gross negligence and intentional torts. In addition, the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) does not create a right of action for breach of warranty, or strict liability, when the activity involved is the transfer of blood by a blood bank that does not pay cash for blood. Body parts and blood have been held not to be commodities subject to sale or barter that would give rise to warranty claims. The blood shield statute, therefore, completely protects the blood bank from liability except for negligent acts.

Negligence exists only if the defendant has deviated from the applicable standard of care in the industry or profession and such deviation is the proximate cause of plaintiff's injury. There was no proof here that defendant did not follow the standard screening and collection practices in effect in 1984. Therefore, the claim for negligence will not lie.

[13] McKee v. Cutter Laboratories, 1989 WL 5558 (6th Cir. Ky.).

FACTS: Plaintiff's deceased husband was a hemophiliac who died of AIDS in 1983. Plaintiff sued the manufacturer of Koate, a blood product, on the ground that the manufacturer should be held strictly liable (liable without proof of negligence) for her husband's death on the ground that the blood from which it made the Koate used by her husband was tainted. She also argued, in the alternative, that the defendant was negligent in its production of Koate because it did not heat treat the blood products.

She argued that the Kentucky blood shield statute which protects the manufacturer of blood products from suits in strict liability is unconstitutional as it deprives her of a right of action that existed prior to the adoption of the Kentucky State Constitution. Defendant argued that the blood shield law is constitutional and it protects it from strict liability claims. In response to plaintiff's allegations of negligence, defendant argues that it produced Koate in accord with the known practices of the time.

ISSUE I: Whether the Kentucky blood shield statute constitutionally protects producers of clotting factors from strict liability claims?

HOLDING: The blood shield statute is constitutional and protects clotting factor manufacturers.

REASONING: A statutory denial of a cause of action will be constitutional only if the cause of action at issue did not exist under the common law prior to the adoption of the Kentucky Constitution. The court found that the statute was constitutional because actions in strict liability did not exist prior to the adoption of the Kentucky Constitution in 1891. Therefore, the blood shield statute did not preclude an extant cause of action.

The Kentucky blood shield statute (KRS sec.139.125) designates the procurement, processing or distribution of blood or blood products to be a service and not a sale for any purpose. Strict liability claims require that the transaction include the sale of a product in the marketplace. By denominating the procurement, processing and distribution of blood or blood products to be a service, the legislation protected manufacturers of clotting products from strict liability claims.

ISSUE II: Whether the defendant's failure to heat treat the blood was negligence?

HOLDING: The defendant's failure to heat treat the blood was not negligence.

REASONING: In order to show that the defendant was negligent, the plaintiff must show that the defendant failed to follow the accepted practices of the industry at the time. Plaintiff contends that because a German blood clotting product producer was using heat treatment in the 1970s and subsequently used it to destroy HIV, such a procedure was known and should have been used. The court found, however, that the heat treatment was not known in 1983 to destroy HIV and therefore the defendant could not be held liable for not using it.

[14] Samson v. Greenville Hospital System, 295 S.C. 359, 368 S.E. 2d 665 (1988).

FACTS: In January 1984, plaintiff received a blood transfusion at defendant's hospital. The blood used had been donated in December 1983. After the transfusion, the blood bank which supplied the blood determined that the blood transfused had been infected with HIV. Before she learned she was infected, plaintiff became pregnant and gave birth to a son. Both plaintiff and her son tested positive for HIV. They sued the hospital for damages on several theories, including breach of implied warranty of merchantability and fitness. They argued that the South Carolina blood shield statute was unconstitutional as it violated equal protection by treating victims of blood-product related torts differently from victims of non-blood product related torts.

ISSUE: Whether the South Carolina blood shield statute improperly distinguishes between blood-product related tort victims from non-blood product related tort victims?

HOLDING: The statute does not violate the equal protection clause.

REASONING: The equal protection clause will be satisfied if: 1) the classification bears a reasonable relation to the legislative purpose sought to be effected; 2) the members of the class are treated alike under similar circumstances and conditions; and 3) the classification rests on some reasonable basis. The legislative purpose sought to be met by the statute is to encourage a readily available supply of blood and blood products. The statute reflects a legislative judgment that to require providers to serve as insurers of the safety of these materials might impose such an overwhelming burden as to discourage the gathering and distribution of blood. To ensure that such services remain adequate and affordable, legislatures have chosen to limit liability to defects that are the result of negligence. By exempting the manufacturers from strict liability claims, the statute helps to ensure the continuing supply of blood and blood products. The statute is thus reasonably related to the purpose sought to be effected.

Equal protection also requires that members of the statutory class be treated alike under similar circumstances and conditions. Equal treatment must extend to both the privileges conferred and liabilities imposed. The court found that the plaintiffs' claim that the statute irrationally distinguished between blood product tort victims and non-blood product tort victims was without merit. The lack of man-made substitutable product for blood and blood products created the requisite difference in the classes to support a difference in treatment.

The court found to be without merit plaintiffs' claims that the statute lacked a reasonable basis because there was no empirical data proving that protecting blood providers from liability on implied warranty theories generates a more adequate supply of safe blood, and that there was a "tremendous difference" between hepatitis victims and AIDS victims. It recommended that the plaintiffs address their concern over the lack of empirical data to the legislature and found that the difference between AIDS and hepatitis to be without constitutional significance.

[15] Roberts v. Suburban Hospital Association Inc., 532 A.2d 1081 (Md. App. 1987).

FACTS: Plaintiff contracted AIDS from a blood transfusion during surgery. He sued the blood bank and the hospital in strict liability for their actions.

ISSUE: Whether Maryland law immunizes blood banks and hospitals from strict liability for blood transfusions which cause injury?

HOLDING: Although the statute in effect at the time of the transfusion protected blood banks from strict liability for only hepatitis claims, the court found that the common law protected them from strict liability claims for HIV as well.

REASONING: The court first found that providing blood for transfusion purposes was not the provision of a product, but rather the provision of a service. The contract between the parties was not for a product but for the expertise of the health care providers, the blood was subsumed within that relationship and not separate from it. The statute in effect at the time of the suit protected blood banks from strict liability claims only concerning hepatitis claims. However, the court found that most states, either by statute or common law, protected blood banks from all strict liability claims. It found no reason to draw a distinction between HIV and hepatitis. The policy supporting one - that of protecting the continuing flow of blood - was the same as for the other. It therefore held that the common law protected the blood bank from a claim in strict liability for HIV infection.

[16] Hyland Therapeutics, Div. of Travenol Laboratories, Inc. v. Superior Court (Gallagher), 220 Cal.Rptr. 550 (Cal.App. 8th Dist. 1985).

FACTS: A hemophiliac contracted AIDS in 1984 after being treated with clotting products manufactured from human blood by Miles Laboratories, Inc. (of which Cutter Laboratories is a division) and Hyland Therapeutics (a division of Travenol Laboratories, Inc.). He subsequently died. His heirs sue the involved laboratories in negligence and strict product liability theories.

ISSUE I: Whether the California Blood Shield statute protects the manufacturers from liability without a showing of fault?

HOLDING: The blood shield statute protects the manufacturers.

REASONING: The California Blood Shield statute, Health and Safety Code, section 1606, states that "the procurement, processing, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body shall be construed to be, and is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and shall not be construed to be, and is declared not to be, a sale of such whole blood, plasma, blood products, or blood derivatives, for any purpose or purposes whatsoever." Because these activities are designated to be services and not sales, a consumer of a product may not sue the manufacturer or distributor of that product for injury incurred through the use of the product without proving that the manufacturer or distributor was negligent.

ISSUE II: Is the statute constitutional?

HOLDING: The statute does not violate the Constitution.

REASONING: In order for the statute to be constitutional it must be rationally related to the legislative goal. Plaintiffs argued that the purpose of section 1606 was to shield blood donors and suppliers from strict liability for injury arising out of the therapeutic injection of blood into a human being, thereby encouraging and promoting the constant availability of an adequate blood supply. They argued that the need to protect this particular therapeutic need is limited to blood for transfusion purposes and should not be extended to commercial preparation of blood products for therapeutic purposes other than transfusion. The court found that the public policy supporting the need to protect those who supply blood for transfusions supported a similar need to protect those who manufacture blood products. The protection granted by the statute was therefore rationally related to the legislative goal and was constitutional.

[17] Doe v. Cutter Biological, Miles Laboratories, Travenol Laboratories, Armour Pharmaceutical Corp., Alpha Therapeutics Corp., and the USA, U.S.D.C. for the District of Hawaii, AIDS Litigation Reporter 1/27/89 (Summary dismissal).

See Case 443

[18] Doe v. Red Cross Blood Services, 1988 U.S. Dist. LEXIS 16360 (S.C. 1988), AIDS Litigation Reporter 3/24/89.

FACTS: Plaintiff, Jane Doe underwent an operation on January 9, 1985 during which she was given a unit of blood which apparently was HIV infected. The American Red Cross, South Carolina region, had collected the blood five days earlier from a volunteer donor. No screening test was performed on the blood because at the time there was no direct test for HIV antibody available. Doe maintained that the Red Cross was negligent in failing to employ a surrogate test to identify and exclude blood donors who were in high risk groups. She further alleged that the nurses who drew the blood from the donor were reckless, wanton and grossly negligent in failing to permanently disqualify the infected donor five months earlier based upon the health history he gave at that time.

Doe claimed that although the practice in the blood banking industry at the time was not to use surrogate tests to screen out high risk donors the Red Cross actions can be considered apart from the conduct of those generally recognized and accepted by other blood banks.

The Red Cross responded by arguing that the standard by which professionals are measured is that of the generally recognized and accepted practices in the profession. They argue that the transfusion of blood is a professional medical service and thus they are covered by this separate standard of care.

Doe further alleged that the statutory limitation on damages recoverable from a charitable organization violated equal protection.

ISSUE I: Whether transfusing blood is a professional medical service which is to be judged by the separate standard of care of the generally recognized practices of the profession?

HOLDING: The transfusion of blood is a professional medical service; the blood bank's conduct is to be measured against that of other members of the blood banking community.

REASONING: Statutes relating to other aspects of the blood banking business characterize it as a skilled medical service. The court therefore held that the provision of that service should be treated as a professional service. Therefore, in order to maintain an action against a blood bank, the plaintiff must prove that the blood bank's conduct did not conform to the generally accepted and recognized conduct of the service evidenced by that of other blood banks. Here, where there was no test for AIDS and the common practice was not to use surrogate tests, the South Carolina Red Cross would not be found to be negligent as its conduct conformed to that of other blood banks.

ISSUE II: Whether the statutory cap on damages recoverable from a charitable organization violated equal protection?

HOLDING: The equal protection clause is not violated by the cap on recoveries from charitable institutions.

REASONING: The equal protection clause requires that the classification bear a reasonable relation to the legislative purpose sought to be effected, that the members of the class are treated alike under similar circumstances and conditions, and that the classification rests on some reasonable basis. The court found that the purpose of the classification was to provide different treatment for charitable organizations. The legislative intent was to encourage such endeavors by protecting them from unlimited liability. The court found that the legislative cap on recoveries was reasonably related to the statutory intent.

The plaintiff claimed that the statute was unconstitutional because it impacts differently on large and small charitable organizations. The court found that these varying impacts did not offend the equal protection clause.

The plaintiff also argued that the statute affected plaintiffs unconstitutionally in that it affects only those whose claims for actual damages exceed the cap. The court found that potential plaintiffs were not treated differently because the same monetary cap applies equally to the entire class of plaintiffs.

The court found that the statute was rationally based in that there was a reasonable relationship between promoting charitable activities and limiting the liability of entities that engage in such activities.

The court permitted the addition of individually named defendants to remain. The statute which protects charitable organizations permits the naming of individual defendants only if either the charitable organization cannot be determined at the time of the suit or if the plaintiff alleges that the individually named employees acted recklessly, wantonly or grossly negligent. Because plaintiff alleged that the nurses acted in such a manner, she was permitted to sue the nurses individually.

[19] Segal v. Cutter Biological Division of Miles Laboratories, S.Fla. AIDS Litigation Reporter 6/24/88 (Announcement of jury verdict).

A jury verdict in one of the first blood products cases to reach that stage found for the defendant laboratories. The plaintiff had claimed that the blood bank had failed to use due care in reviewing the health status of a donor who later died of AIDS. The jury verdict came after three hours of deliberation. NB: the donor in this case is the same as in Jones v. Miles (a Georgia case).

[20] Carroll v. Blood Center of Southeastern Wisconsin, Wisconsin Circuit Ct., Milwaukee Co., AIDS Litigation Reporter 3/24/89 (Announcement of settlement).

FACTS: During a heart operation, plaintiff, a 63 year old man, received HIV infected blood. He sued the blood supplier on the ground that it failed to properly screen the units he received. The plaintiff alleged that the blood bank had begun testing on March 7, 1985. The blood infused into plaintiff had been received the day before but remained in the hospital untested until it was infused into the plaintiff in April 1985. At trial, the plaintiffs argued that the blood bank was negligent because it had distributed the blood without testing it for HIV, had not replaced the blood that had been distributed when supplies were sufficient to do so; and did not notify its client hospitals of the situation.

JURY DECISION: After trial, a jury awarded the plaintiff $3.9 million: $2.5 million for past and future pain, suffering and disability; $1 million for his wife's loss; $89,000 for past and anticipated medical expenses; and $345,000 for lost earning capacity.

SETTLEMENT: On March 6, 1989, plaintiff's attorney announced that the parties had agreed to a settlement in order to avoid a lengthy appellate process. The plaintiff would receive an undisclosed amount less than the jury verdict but, according to his attorney, "very favorable and still very much a record in dollars in AIDS cases."

[21] Thomas v. Mississippi Blood Services, 1st Judicial Circuit Ct., Hinds Co., AIDS Litigation Reporter 3/10/89 (Decision) and 2/10/89 (Announcement of filing of motion for dismissal).

A motion to dismiss a complaint against defendant was granted upon the agreement of both that Mississippi Blood Services did not participate in the collection of plasma, separation, testing, manufacture, production, distribution or sale of Factor VIII which allegedly infected plaintiff.

[22] Sloan v. Central Indiana Regional Blood Center, Circuit Ct., Warren Co., Indiana, AIDS Litigation Reporter 7/15/88 (Announcement of settlement).

The widower of a woman who received HIV-infected blood during a transfusion before 1984 has settled his action against the blood bank. The amount of the settlement, although not made public, must be less than $500,000, the cap placed on malpractice awards by statute.

[23] Baker v. Wadley Blood Center, Texas District Ct., Denton Co., Texas, AIDS Litigation Reporter 1/13/89 (Announcement of jury verdict).

A jury rejected the claim of the widow of a man who received HIV- tainted blood that the blood bank was negligent in their screening of donors, failure to use surrogate tests, and failure to prevent high risk individuals from donating blood. The blood was transfused before the HIV test was available. The defense had argued that the infection resulted from an "unavoidable accident" stemming from a "new and independent cause not reasonably foreseeable."

[24] C.W. v. Belle Bonfils Blood Center, District Ct., Denver Co., Colorado, AIDS Litigation Reporter 4/14/89. (Announcement of jury award).

A jury found that Belle Bonfils Blood Center negligently supplied unscreened HIV-infected blood which was transfused into C.W. although tests for HIV were available 9 days before. Prior to C.W.'s transfusion, the blood bank had tested 327 units of blood but did not inform either the hospital nor the attending physician of the availability of screened blood. The physician testified that although the procedure was necessary, it could have been postponed for the necessary hour in order that the tested blood could arrive.

The jury found that the blood bank was negligent in using untested blood units from the blood bank inventory and rejected defense claims that the risk of HIV transmission was minor. C.W. was awarded $2,225,000 for pain and suffering, $1,400,000 for financial losses, and $1,350,000 for physical impairment and disfigurement. Her husband was awarded $500,000 for loss of consortium.

The award is subject to challenge under Colorado's tort-reform law which limits non-economic damages in such cases to $550,000.

[25] Dale v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 4/14/89 (Super. Ct., Cal. 1989), (Announcement of ruling).

The trial court ruled that the award to a woman, who argued that she was infected with HIV after being transfused with HIV-infected blood provided to her by Irwin Memorial Blood Bank, will be limited by the Medical Insurance Compensation Recovery Act to $250,000. The court rejected the plaintiff's arguments that the blood bank was not a clinic, a health care facility or dispenser as required under the act. The court held that the blood bank was a supplier of health care services and came within the act.

On a separate matter, the court ruled that the time period within which the plaintiff must file her claim began from the time she was diagnosed as suffering from ARC and not from when she tested HIV- positive. The one year period would thus run from March 1987 and not March 1986. Her suit was therefore filed timely.

[26] Cushing v. Lily Truck Leasing, Superior Ct., Suffolk Co., Mass., AIDS Litigation Reporter 2/10/89 (Announcement of jury award).

A Massachusetts jury awarded a truck driver $3 million for having become infected with HIV during an operation necessitated by an accident caused by his employer's negligent maintenance of a truck. A steering malfunction caused him to veer off the road and he suffered a serious leg injury. During the operation on his leg he was transfused with HIV infected blood. The jury found that Cushing would not have contracted AIDS but for the negligence of the trucking company in not keeping the truck in good repair.

The blood bank was not sued because the operation took place before the blood could be reasonably tested for HIV.

[27] Porter v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 1/13/89 (Announcement of private settlement).

An out-of-court settlement was reached between the estate of an attorney who died of transfusion-contracted AIDS and the blood bank that supplied the blood. The deceased was transfused with HIV infected blood during a March 1983 operation. The blood was from among a group of 333 hepatitis B-tainted units that, instead of being destroyed, were distributed by the blood bank. The amount of the settlement was not disclosed.

[28] Boatwright v. Parklane Medical Center, AIDS Litigation Reporter 3/10/89 (Announcement of private settlement of lawsuit).

Plaintiffs filed a complaint against the Parklane Medical Center for allegedly transfusing HIV-tainted blood into him during an operation in 1985. The parties settled out-of-court in a settlement. Estimates are that the agreed upon damages were over $900,000

[29] Doe as parents of Doe v. Children's Medical Center et al., Court of Common Pleas, Montgomery Co., Ohio, AIDS Litigation Reporter 3/11/88 (Announcement of mistrial and complaint).

The family of a fourteen year old boy who developed AIDS from a tainted blood product filed suit against the hospital for misdiagnosing his condition. The hospital diagnosed the boy as having hemophilia and treated him with a blood clotting factor which was tainted. The hospital performed only one blood test when it made its original diagnosis. The parents claim the diagnosis was incorrect. The hospital claimed the boy had a rare form of hemophilia which goes into remission at puberty.

After a trial, the jury was unable to reach a verdict and a mistrial was declared.

[30] Karson v. United Blood Services, Circuit Court of Cook County, Illinois County Department, Law Division, No. 87 L 21945, August 8, 1988 (Source: Richard C. Bollow, Esq., Law Offices, Jenner & Block, Attorneys for Defendant). Defendant's Memorandum In Support Of Its Motion For Summary Judgment.

FACTS: In January 1982, plaintiff received transfusions of blood, contaminated with HIV, which were provided by defendant. Plaintiff first became aware of his HIV infection in August 1986 and filed a personal injury complaint in late 1987. He died in April 1988 and the administrator of his estate brought this action.

The plaintiff contends defendant was negligent because (1) defendant failed to screen donors in 1982 who were in high risk groups who may have had AIDS, and (2) defendant failed to test blood received from blood donors for non-A, non-B hepatitis when persons with that type hepatitis were allegedly at high risk for having AIDS.

Defendants contend that Illinois blood banks, such as the defendant, may be held liable only for the failure to exercise due care, as measured by the current state of the medical arts; and that pursuant to this statutory standard of liability, defendant exercised due care and therefore cannot be held liable for damages under theories of negligence liability.

Moreover, defendant contends in January 1982 when plaintiff received his transfusion it was not known that AIDS was spread by blood; it was not known that AIDS was the result of a virus; the virus had not been identified; no test that could indicate exposure to AIDS was yet available; no blood bank screened donors who were in high risk groups who might have AIDS; and no blood bank performed tests for non-A, non-B hepatitis as a surrogate for testing for AIDS.

ISSUE I: Was defendant negligent by failing to screen donors in 1982 who were in high risk groups who may have had AIDS?

ISSUE II: Was defendant negligent by failing to test blood received from blood donors for non-A, non-B hepatitis when persons with that type hepatitis were allegedly at high risk for having AIDS?

HOLDING: Summary judgment for the defendant was granted by Circuit Court Judge Edwin M. Berman. No notice of appeal was filed. The court did not issue an opinion.

REASONING: According to defendant's counsel: The reasons given orally by Judge Berman were not transcribed and do not appear in the order entered. However, the Judge's reasons were that in January 1982 it was not known that HIV could be transmitted through blood or blood products.

[31] Collins v. American Red Cross, E.D. Pa., AIDS Litigation Reporter 3/24/89 (Complaint).

FACTS: The widow of a detective sued physicians, a hospital and the American Red Cross for their failure to warn her husband of the risks of blood transfusions prior to his undergoing heart surgery in 1983. Plaintiff claims that the defendants - the treating physicians, hospital and blood supplier - were negligent in failing to warn of the then known risks of infection from transfused blood; that they were engaged in an "ultrahazardous activity and therefore liable for their conduct even without a showing of negligence; that they supplied a defective product for which they are liable under the theory of strict products liability.

[32] Huskey et al. v. Cutter Group Products, Miles Laboratories, Hyland Therapeutics and Baxter Healthcare Corp., U.S.D.C. E.D. Tenn., AIDS Litigation Reporter 8/12/88 (Announcement of complaint).

FACTS: In 1973, Billy Bruce Huskey was diagnosed as hemophiliac. He was treated with blood clotting products produced by defendants. In 1985, he was found to be HIV positive. Plaintiffs sued the blood manufacturers on various theories: strict liability, on the ground that the blood products were designed so that they became defective and unreasonably dangerous; negligence in that defendants failed to warn of the risk of contracting HIV; and upon a theory of general negligence on the ground that defendants failed to exercise due care in the manufacture of these products.

[33] Ray v. Cutter Laboratories et al., U.S.D.C. S.D. Fl., AIDS Litigation Reporter 5/13/88 (Announcement of complaint).

FACTS: The parents of three HIV-infected hemophiliac sons sued the manufacturer of the blood clotting factor with which they were treated for negligent manufacture, failure to warn and strict liability. The boys began treatment with the product prior to the approval of the ELISA test.

[34] Smith v. American National Red Cross, U.S.D.C. Md., AIDS Litigation Reporter 2/26/88 (Announcement of complaint).

FACTS: Plaintiff sued the blood bank which provided the blood transfused into him in early 1985. He claims that the blood bank's failure to perform surrogate marker tests on the donated blood for AIDS was negligent and reckless behavior which renders the bank liable in strict liability, breaches of warranties and lost of consortium.

[35] Wyatt v. Seattle Plasma Center, U.S.D.C. W.D. Wash., AIDS Litigation Reporter 11/13/87 (Announcement of lawsuit).

Plaintiffs alleged that the blood bank and various laboratories that supplied the blood which made the clotting factor given to their four year old hemophiliac son was tainted with HIV. They claimed that the blood bank was negligent in the manner it screened donors. They also claim that the blood bank made warranties that any virus in the blood would be inactivated by heat treatment and that the product was free from AIDS contamination.

Plaintiffs also sued on the theory of market share liability. Under this theory, plaintiff alleged that the AIDS-contaminated products they purchased are generic and that they may not be able to identify which defendants collected, produced or marketed the contaminated products which caused the specific injury. Liability would be apportioned through an evaluation of defendants' market shares.

[36] Osborn v. Irwin Memorial Blood Bank, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 2/24/89 and 2/10/89 (Motions).

FACTS: Plaintiffs are Michael Osborn, a five year old, and his parents. Prior to Michael's undergoing heart surgery, his parents went to defendant blood bank regarding blood needed for his surgery. The blood bank receptionist misrepresented to them information regarding the blood bank's directed donor program such that the parents agreed to have the boy transfused with blood collected from blood bank donors. Some of the transfused blood was infected with HIV. Michael became infected with HIV.

The parents sued and the jury awarded them $750,000. The defendants asked that the court reduce the award on the ground that it was in excess of $250,000, the statutory limit set by the California Medical Insurance Compensation Reform Act.

ISSUE: Whether the actions of the blood bank amounted to negligent conduct by a professional medical service organization such that recovery would be limited by the statute.

[37] Marcella v. Brandywine Hospital, Court of Common Pleas, Chester Co. Pennsylvania, AIDS Litigation Reporter 7/29/88 (Announcement of complaint).

The plaintiff received a series of transfusions in early 1985 which she contends infected her with the HIV. She sued the hospital and blood bank for their negligent failure to test the blood.

[38] Doe v. Werner, Circuit Ct., Milwaukee Co., Wisconsin, AIDS Litigation Reporter 5/27/88 (Announcement of complaint).

A transfusion-infected woman (Doe) who underwent open heart surgery on March 15, 1985, filed suit against the blood bank, the hospital and her physician for negligence. The claim against the blood bank rests on a claim that they failed to properly screen the donated blood. The claim against the hospital is based on a claim that it failed to test the blood, failed to apprise her of the risks of blood transfusions and failed to properly train the treating physicians so that they were aware of the ELISA test. The action against the treating physicians is grounded on claims that they were negligent in failing to advise Doe of the possibility of postponing the surgery in order to test the blood and failing to advise Doe of the risks of blood transfusions.

[39] Polikoff v. Regents of the University of California for San Diego County, Superior Ct., San Diego Co., California, AIDS Litigation Reporter 2/12/88 (Announcement of lawsuit).

FACTS: In January, 1984, the plaintiff's now deceased husband underwent open heart surgery. The husband contracted both hepatitis B and AIDS. The wife was infected by her husband. She sued the hospital for negligence in failing to properly screen the transfused blood. She claims that had the blood been properly screened for hepatitis B, it would have been discarded.

[40] Fox v. Stanford University Medical Center, Superior Ct., Santa Clara, California, AIDS Litigation Reporter 2/12/88 (Announcement of complaint).

The estate of a transfused AIDS patient filed suit against the hospital where the surgery was performed and against the decedent's treating physicians for not apprising them that the hospital was scheduled to begin screening blood a month later. The surgery was elective and could have been postponed until the blood had been screened.

The plaintiffs charged that the hospital deliberately, and with wanton disregard to the health of the patients, kept this information secret so as to not interfere with the hospital's surgery practice. They allege that had the information been made public, a virtual shut-down of the surgical procedures involving transfusions would have occurred and that the hospital, knowing this and concerned about the fiscal effects of such a shut-down, withheld the information.

[41] Matheson v. Irwin Memorial Blood Bank, San Francisco Superior Ct., No. 864196. SOURCE: ACLU and AIDS Policy & Law 1987 (Complaint filed 9/18/86).

FACTS: In 1983, plaintiff was transfused with HIV infected blood provided by defendant blood bank. Plaintiff initiated litigation against the blood bank. Subsequent to filing the lawsuit, the plaintiff had a brain biopsy positive for toxoplasmosis, a parasitic infection associated with AIDS, and committed suicide.

ISSUE I: Whether defendant was negligent in providing blood contaminated with HIV, even though the blood in question was screened more than a year before a screening test was available?

ISSUE II: Whether defendant could be held liable for plaintiff's suicide?

[42] Allen v. Irwin Memorial Blood Bank, San Francisco Superior Ct., No. 863602, Date filed: 9-4-86. SOURCE: ACLU: clipping on [Buraff Pub. 1986, Washington, D.C.].

FACTS: Plaintiff received HIV-contaminated blood units while pregnant in 1982. Defendant blood bank notified her of possible contamination in September 1985 at which time she was called in for a blood test for antibodies to HIV. The test showed a positive result. Plaintiff gave birth to two children diagnosed as HIV positive. One died of AIDS. Plaintiff contends that the blood bank was negligent and is therefore is liable for the wrongful death of her child and intentional infliction of emotional distress to her and her family.

ISSUES: Whether the blood bank was negligent?

Article also cites Borchelt v. Irwin Memorial, SF Superior Ct No. 838193; APL Aug. 27, p.1.

Settlement of case brought by family of a 72-year old female who died after receiving "infected" blood in 1983. Infection appears to have been with an "AIDS-associated virus".

[43] Mason v. Regional Medical Center of Hopkins County, Trover Clinic, Inc., and John Doe, 121 F.R.D. 300 (W.D. Ky. 1988).

FACTS: Plaintiff sued the hospital (at which she received a transfusion which allegedly infected her with HIV) as well as the blood bank that provided the infected blood. She requested that the court order the blood bank to provide her with the identity of the blood donor so that she could question him about the procedures used by the blood bank regarding screening. "John Doe" sought to intervene on behalf of the donor to prohibit the disclosure of the donor's name.

ISSUE: Whether concern for the privacy rights of the donor and that disclosure might inhibit others from donating blood and thereby endanger the nation's blood supply can be met and still provide the plaintiff with the access she needs to proceed with her suit?

HOLDING: The plaintiff's privacy rights can be protected by a properly fashioned protective order such that the plaintiff may have access to the information.

REASONING: While the court found that the constitutional right to privacy had not yet been extended to preclude the disclosure of blood donor's identities, it found that the state rules regarding discovery require that discovery not be used to harass or annoy, and that conditions be imposed by the court to prevent embarrassment, etc. The court ordered John Doe to respond to interrogatories, but also ordered that procedures, such as a limitation on the number of lawyers per party who could have access and a prohibition against further disclosure, be followed to maintain confidentiality.

Regarding the public policy question, the court opined that although other courts (Taylor v. West Penn Hospital, No 6087-00206, Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division 1987 and Rasmussen v. South Florida Blood Services, Inc. 500 So. 2d 533 Fla. 1987) previously had "little difficultly" finding that revelation of donors' names would deter voluntary blood donations, in Tarrant County Hospital District v. Hughes, (734 S.W.2d 675 (Tex.App. - Ft.Worth 1987, cert. den. 108 S.Ct.1027) the court reached the opposite conclusion. The court here stated that such policy making was for the legislature to make, not the court, and did not decide the issue.

[44] Belle Bonfils Memorial Blood Center v. District Court in and for the County of Denver, et al., 1988 Colo. LEXIS 174 (S. Ct. of Colo. Nov. 28, 1988) as amended; 763 P.2d 1003 (1988), petition for rehearing denied Nov. 28, 1988; amended Jan. 10, 1989.

FACTS: K.W., her husband and her son sued the Blood Center for alleged negligence in the manner in which they screened blood donors and tested blood. They alleged that this negligence allowed blood infected with HIV to be distributed to hospitals and to be transfused into K.W. who later contracted AIDS.

K.W. sought the name of the donor of the infected unit of blood. By agreement between the parties, she was provided with the donor's card with identifying information deleted. The card showed that of the 30 screening questions the donor was required to answer, he answered 4 in a manner which required further investigation by the blood bank personnel. The card further showed some notation indicating some additional information regarding the four questions, but did not provide sufficient information from which it could be determined if the blood bank's screening policies had been followed or, if they were, in what manner.

The trial court ordered that the blood bank provide the name of the donor to the court so that K.W. could provide the court clerk with written interrogatories to send to the donor to answer.

ISSUE: Whether providing discovery in this fashion violated the donor's right to privacy or the public policy to encourage blood donations?

HOLDING: The discovery procedures established by the court balanced the plaintiff's right to know with the donor's privacy interest.

REASONING: The donor's name was not protected by the doctor-patient privilege. The doctor-patient privilege is statutory and thus the terms of the statute must be strictly interpreted. Here, the staff person drawing the blood was not a physician nor was the name and address taken as information needed to diagnose or treat the donor. The drawing of blood for a donation did not fall within the doctor- patient privilege.

Sections 25-4-1402,3, et seq. of the mandatory reporting statutes (which provide for the confidentiality of the names of HIV positive persons reported to health authorities) the mandatory reporting statutes was not enacted until after the motion for disclosure was made. The court held it to be prospective and did not protect names already recorded. Therefore those statutes did not protect the donor's identity.

The court balanced the public interests, the interest of the donor and those of the plaintiff as well as the societal interest in allowing the plaintiff to obtain full discovery. The court found that because there was a genuine issue of negligence the interests must be balanced in allowing the plaintiff information needed to prosecute her claim. Under the circumstances of this case, the court determined that the public interest in not allowing blood banks to escape liability for negligence outweighed the policy of keeping donor's names strictly confidential to encourage the donation of blood.

The dissenting opinion argued that the statute enacted to protect HIV positive people was meant to protect those names already recorded. The dissent argued that it would be anomalous to protect prospectively only. In addition, the dissent opined that further discovery from the donor himself was unnecessary to prove negligence because the information on the donor card was sufficient. Finally, the dissent argued that the procedure created by the trial court would be burdensome to the donor, would have to result in additional interrogatories being filed by the blood bank, and might require the donor to obtain an attorney. The dissent argued that the disclosure and procedure placed an unnecessary burden on the donor and that therefore the request for further discovery from the donor should have been denied.

[44A] Rasmussen v. South Florida Blood Service, Inc., 500 So.2d 533, 56 A.L.R. 739 (Fla. 1987).

FACTS: In 1982, Plaintiff's now deceased husband was hit by a car and underwent surgery during which he was allegedly transfused with HIV infected blood. In her suit against the hospital, the plaintiff served a subpoena duces tecum on the supplying blood bank requesting "any and all records, documents and other material indicating the names and addresses of the (51) blood donors." The blood bank sought a court order permitting it to refuse to respond to the subpoena.

ISSUE: Whether the privacy interests of volunteer blood donors and a blood service's and society's interest in maintaining a strong volunteer blood donation system outweighed a plaintiff's interest in discovering the names and addresses of the blood donors in furtherance of discovery?

HOLDING: Maintaining the confidentiality of the blood donors' names outweighed the private interests of the plaintiff.

REASONING: Although the court agreed with the blood bank's argument that the blood donors' rights of privacy were protected by state and federal constitutions, it did not see the need to use the stricter test mandated by constitutional analysis. Rather, the court, relying upon Florida's discovery statutes, balanced the plaintiff's interests against those of society and the donors and found in favor of confidentiality.

It found the interests involved were adequately protected under discovery rules. Under the Florida discovery rules, any non- privileged matter that is relevant to the subject matter of the action is discoverable. However, the discovery rules confer broad discretion on the trial court to limit or prohibit discovery in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Under this authority, a court may act to protect the privacy of the affected person. In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it.

The discovery rules themselves provide a framework for judicial analysis of challenges to discovery on the basis that the discovery will result in undue invasion of privacy. This framework allows for broad discovery in order to advance the state's important interest in the fair and efficient resolution of disputes while at the same time providing protective measures to minimize the impact of discovery on competing privacy interests. The plaintiff had argued that she might not need to contact any of the donors because her inquiry could be limited to simply comparing names of the donors with the names of known AIDS victims in public records. However, because the subpoena did not contain any restrictions upon the use of the information sought, the court found that the plaintiff's claims of limited use were "disingenuous." The court determined that without the ability to guarantee against further non-disclosure, no disclosure could be granted.

The court then analyzed the societal interest in the continued supply of volunteers for blood donations. It found that society had a vital interest in maintaining a strong volunteer blood supply, a task that has become more difficult with the emergence of AIDS. The donor population has been reduced by the necessary exclusion of potential blood donors through AIDS screening and testing procedures as well as by the unnecessary reduction in the donor population as a result of the widespread fear that donation itself can transmit the disease. In light of this, it is clearly in the public interest to discourage any serious disincentive to voluntary blood donation. The court determined that there was little doubt that the prospect of inquiry into a donor's private life and potential association with AIDS would deter blood donations. It concluded that society's interest in a strong and healthy blood supply would be furthered by the denial of discovery in this case.

The court also addressed the plaintiff's interest in being able to fully litigate her claim. This interest "parallels the state's interest in ensuring full compensation for victims of negligence." However, it determined that the discovery order requested here would do little to advance that interest. It determined that the probative value of the discovery sought by Rasmussen was "dubious at best," while the potential for significant harm to most, if not all, of the fifty-one unsuspecting donors in permitting such "a fishing expedition."

[45] Gulf Coast Regional Blood Center v. Houston, 745 S.W.2d 557 (Tex. 1988).

FACTS: Houston was the trial judge presiding over litigation in which Baker, et al. sued Gulf Coast Regional Blood Center for negligence in the procurement of blood donations which Baker et al. alleged led to George Baker's becoming infected with HIV. As part of their pre-trial discovery, the Bakers sought identifying information about donors. After a hearing, the trial judge ordered the blood bank to disclose:

1. the names of the names and addresses of any donor of blood to George Baker known by the blood bank to have AIDS



2. the names and addresses of any donor of blood to George Baker whose AIDS status was unknown or was not available to the blood bank



3. any other information from any individual or entity that the blood bank believed knows the AIDS status of any of the donors donating blood to George Baker, and



4. to provide to the Baker's attorney, by number, the test results and all documents pertaining to those donors who tested negative for AIDS (no identifying information was requested regarding the sero-negative donors)

The court ordered that this information and documents be submitted to the court for in camera review before disclosure to the Baker's attorney and also issued an order further protecting the disclosed information and placing strong restrictions on the use and availability of donor information.

The blood bank appealed claiming that the order breached the usual confidentiality of blood donors and would jeopardize the continued supply of voluntary blood. It additionally claimed that the order violated the donors' constitutional right of privacy and that their right to privacy outweighed the Bakers' right to discover the donors' identities.

ISSUE: Whether the right of a plaintiff to discover the identities of seropositive blood donors in order to prosecute a suit against a blood bank for injuries incurred from infected blood outweighs the donors' right to confidentiality when the information is disclosed under conditions intended to protect that confidentiality?

HOLDING: The plaintiff's right to restricted discovery of the donors' identities outweighs the donors' right to unfettered confidentiality.

REASONING: While the court found that the donor's identities fell within the constitutional right to privacy, it opined that the right was not unlimited. Privacy interests could therefore be invaded when outweighed by a competing interest. Here, the blood bank failed to establish a societal interest paramount to the plaintiff's right to discovery of the donors' identity. The court rejected the blood bank's claim that the voluntary blood supply could be compromised if the identifying information were not held strictly confidential. It found that the conditions ordered by the trial court would provide sufficient protection. The court rejected the argument concerning the applicability of the recently enacted legislation protecting the identities of persons who give health information because it was enacted after the commencement of the suit and its effects were not retroactive.

[46] Doe v. University of Cincinnati, 1988 WL 137097 (Ohio App.).

FACTS: In July, 1984, during the course of an operation for the removal of a malignant brain tumor at defendant's hospital, plaintiff received a blood transfusion. The blood had been supplied from a blood bank which collected blood only from volunteers. The plaintiff was later found to be infected with HIV. She sued the hospital for negligence in having supplied her with infected blood. At the time of the blood donation and the surgery, no antibody test for HIV existed. The blood bank claimed to have screened its donors by providing them with a form requiring them to disclose name, address, social security number and health background. In addition, it provided potential donors with an AIDS information booklet which defined high risk groups.

Plaintiff sought pre-trial discovery of the HIV infected blood donor in order to determine if in fact those procedures were followed.

The defendant argued that providing the name of the blood donor, even on the condition that neither party would contact the donor, nor use his/her name in the court papers, etc., would violate the donor's right to privacy, Ohio's physician-patient privilege statute, and the rules concerning discovery of evidence which require the court to protect against the revelation of information that is "embarrassing, ..."

ISSUE: Whether a blood donor's right to privacy must yield to a plaintiff's need for information in order to litigate his or her claim?

HOLDING: Revelation of identifying information about an HIV infected blood donor was improper where the plaintiff presented no evidence that the information was required in order to proceed with the case.

REASONING: The court determined that the blood donor's right to privacy was protected by the state and federal constitutions, and not by the physician-patient privilege. The privilege did not exist in the blood donor situation. The statute that established the privilege to protect communications between a physician and patient defined the relationship as that of a treating one, and requires that the communication be made in the course of that treatment. It also required that the communication be made to a doctor. Here, the person who drew the blood was not a doctor, the information provided to the blood bank was not given for the purposes of treatment nor was the donor there for treatment. Hence there was no doctor-patient relationship and the information was not protected under the statute.

The donor's identity, however, will be protected under the constitutional right of privacy. That right involves, among other things, the right to avoid disclosure of personal matters. Where, as here, significant harm would befall the donor should his/her name be released, the right of privacy would outweigh the plaintiff's need to know.

The court further determined that disclosure, even under restrictive conditions, was inappropriate. The real harm lay in actual disclosure of the name.

[47] Krygier v. Airweld, Inc., 137 Misc.2d 306, 520 N.Y.S.2d 475 (1987).

FACTS: Plaintiff's husband was severely burned by an acetylene torch and underwent surgery during which he received HIV-infected blood from the New York Blood Center. The plaintiff sought discovery of the donors' identity in order to prepare for trial.

ISSUE: Whether the law protects against the disclosure of the donors' names?

HOLDING: The law protects the donors' identities.

REASONING: The court found that New York's codification of the physician-patient privilege protected the donors' identification. That statute precludes the disclosure of information which the doctor acquired in attending the patient and which was necessary to enable him or her to act in that capacity. The court found that since the blood is collected by either a specially trained physician, registered nurse, licensed practical nurse or phlebotomist, the necessary confidential relationship was established.

The court reviewed the policy supporting the physician-patient privilege. In essence, the statutory privilege seeks to protect the privacy of patients and prevent their embarrassment. Without such protection, the free flow of information necessary for proper diagnosis and treatment would be hampered.

The court found that the same reasoning was applicable to the relationship between a blood donor and the blood bank, especially when release of information might lead to embarrassment. The court therefore found that based only on New York's statutory protections, it would protect the donor's anonymity under its authority to issue protective orders "to prevent unreasonable annoyance, ..., embarrassment, . . . to any person." It found that such protection was necessary to maintain the free flow of blood and that that interest outweighed the plaintiff's right to disclosure of evidentiary material necessary to the prosecution of her suit. The court determined that since the blood was transfused before the existence of the antibody test for HIV, the liability of the blood bank would be premised on their screening and investigative procedures. The court found that "exposing donors to public scrutiny to determine what they may have told NYBC has only marginal utility in advancing the plaintiff's theory of liability."

[48] Tarrant County Hospital District v. Hughes, 734 S.W.2d 675 (Tex. 1987).

FACTS: A patient at Tarrant County Hospital, the child of Belinda Jackson, was given a blood transfusion. Jackson alleged that the blood was infected with HIV. In her suit against the hospital Jackson sought disclosure of the names of the donors of the blood used in her daughter's transfusion. The trial court ordered disclosure under very strict conditions, including a prohibition against contacting the donors either directly or indirectly. The hospital appealed on the ground that such disclosure would violate the donor's right to privacy and that the societal interest in maintaining a "healthy and effective blood donor supply clearly overrides any legitimate interest of the plaintiff in the disclosure of the blood donors' identities."

ISSUE I: Whether a plaintiff's right to information necessary to litigate her claim outweighs the donor's right to privacy?

HOLDING: The plaintiff's right outweighs the donor's privacy.

REASONING: The court held that the donor's identity did not fall within the statutorily protected privilege. The court determined that there was no physician-patient relationship on which confidentiality could be predicated. The donor had not come for treatment; the person who performed the screening was not a physician.

REASONING: The court disagreed with the Florida decision in Rasmussen. The Texas Supreme Court held that the trial court order compelling the hospital to identify blood donors was not an impermissible violation of their rights to privacy. It further held that the hospital had not established a societal interest that overrode the Jackson's right to discovery of the blood donors' identities.

In reaching this decision, the court applied a balancing test comparing the interest served by the order of disclosure, a state action, with the donors' interest in privacy. It found Jackson's interest in the identity of the blood donors legitimate. Without the information, it was unlikely she would be able to prosecute her cause of action against the hospital. It also found that there was no evidence presented to support the hospital's contention that the blood donors possess a need of anonymity greater than Jackson's need.

The court found that the trial court's order evidenced a "proper concern for the individual's right of privacy." It therefore found that the order did not establish an invasion of any constitutionally protected right of privacy of the blood donors. It therefore upheld the order granting conditional disclosure.

ISSUE II: Whether the order, crafted to protect the confidentiality of the donor and assist the plaintiff, hampers the maintenance of the blood supply?

HOLDING: The conditions placed on disclosure do not impair the protection of the blood supply.

REASONING: The trial court's order afforded the donors protection from public disclosure by its direction that the "plaintiff shall not directly or indirectly contact any 'donor' identified through records produced under this order nor undertake further discovery regarding such 'donors' until permitted to do so by further order of this court." The court held that the trial court's discovery order included adequate safeguards against the improper disclosure of the blood donors' identities.

[49] Stenger v. Lehigh Valley Hospital, Court of Common Pleas, Lehigh Co., Pennsylvania, AIDS Litigation Reporter 1/13/89 (Order).

FACTS: Donna Stenger underwent surgery and was transfused with HIV infected blood. After she became infected, while still unaware of her condition, she infected her husband, and also gave birth to a son who was also infected. The family sued the blood bank for negligence.

As a part of their motion for discovery, the family requested disclosure of the identity or identities of the donor/s who provided the blood transfused into Mrs. Stenger. The blood bank refused and moved for a protective order permitting them to not disclose the information. They argued that the identities are within the doctor- patient privilege and confidential.

ISSUE: Whether the names of the donor were privileged and thus beyond the reach of discovery?

HOLDING: The identities of the donors were privileged and beyond the reach of discovery.

REASONING: The court held that the identities were privileged, but not under the doctor-patient privilege, because only communications received from the patient are covered by the doctor-patient privilege and the court did not find that the identifying information fell within the definition of patient communications. The privilege was established to prevent the disclosure of patient communications that are "blacken the person's reputation" and disclosure of one's name does not usually have the effect. Rather the court determined that disclosure of the names could pose a serious threat to the patient's right not to have personal matters revealed in violation of the right to privacy. Here such disclosure could indeed blacken the parties name. Disclosure of the information had to be within the donor's discretion. Thus the court held it was beyond the reach of discovery.

[50] Howell, et al. v. Spokane and Inland Empire Blood Bank, Superior Ct., Spokane Co., Washington, AIDS Litigation Reporter 9/23/88 (Order).

FACTS: Plaintiff, a 70 year old man, sued the blood bank which provided the blood for a transfusion he received during knee surgery for providing HIV-tainted blood. During pre-trial discovery, the plaintiff demanded disclosure of the donor's identity. The court ordered that the plaintiff's attorney be given access to the donor's medical records, but limited to discovery any information outside of the donor's "identity, address, employer, place of employment and telephone numbers." The court did not preclude release of the donor's name in the event that the initial information uncovers "information warranting additional investigative efforts."

[51] Doe and Doe v. American National Red Cross, Circuit Ct., Davidson Co., Tennessee, AIDS Litigation Reporter 8/26/88 (Opinion).

FACTS: Doe, who was allegedly infected during a transfusion with blood supplied by defendant, sought disclosure of the donor's identity. Doe sought this information in order to interview the donor about the procedures used by the defendant to detect HIV. Plaintiffs also wanted this information to determine if the donor was "a homosexual or a prostitute."

ISSUE: Whether revelation of the donor's identity would violate his or her right to privacy such that the donor's right to privacy outweighed the plaintiff's interest in winning the lawsuit?

HOLDING: The donor's right to privacy outweighed the plaintiff's interest in winning the lawsuit.

REASONING: The court determined that the decision regarding disclosure of the donor's identity would be governed not only by the Tennessee discovery statutes enacted to protect targets of discovery from annoyance, embarrassment, oppression, or undue burdens but also because it found that the donor had a constitutionally protected right to privacy which was substantial and which exceeded the plaintiffs' interest in proceeding with their lawsuit. In addition, the court cited the public interest in the continued protection of the blood supply. The court determined that because the plaintiffs wanted to find out facts about the donor's "intimate life . . . and to paint his private life in the ugliest of colors;" and that a "faint possibility that a future donor could face such a public attempt is enough to turn him away no matter how innocent his life may be" disclosure was improper.

The court rejected the Tarrant court's response in providing some information under protective order. The court here also noted in passing that the plaintiff chose to litigate the case under a pseudonym and protect their own identities to protect against embarrassment, etc. while seeking disclosure of the donor's.

[52] Glessner v. Blood Center of Southeastern Wisconsin, John Doe, et al., Wisconsin Circuit Ct., Milwaukee Co. SOURCE: LAMBDA (Complaint and Answer filed March 1987).

FACTS: Plaintiff's husband died as a result of being transfused with HIV positive blood during an operation.

Plaintiff claimed that John Doe, the anonymous blood donor, knew he was HIV positive and knew that the virus would be transmitted to someone.

The defendant argued that the action against him should be dismissed as the allegations against him are void as a matter of public policy as they are scandalous, indecent, without any reasonable basis, scientifically impossible to prove, and further that if this plaintiff is permitted to make baseless allegations against this John Doe without any reasonable basis for such allegation, then this John Doe and other blood donors will be unreasonably subjected to the expense and embarrassment of litigation which will destroy the confidentiality and privacy of John Doe and other donors.

ISSUE: Whether the plaintiff's complaint against an anonymous blood donor is proper?

[53] Doe v. Johnston, Iowa Methodist Medical Center, et al., District Ct., Polk Co., Iowa, AIDS Litigation Reporter 9/9/88 (Announcement of complaint).

FACTS: Doe underwent a blood transfusion. The treating physician negligently ordered the transfusion in that he failed to warn Doe of the risk that the blood might be infected with HIV, that he failed to advise Doe of the option of using a donor-directed or autologous transfusion, and failed to obtain Doe's consent before the infusion.

[54] Kobey v. Alvarado Hospital, Superior Ct., San Diego Co., California, AIDS Litigation Reporter 9/9/88 (Announcement of complaint).

FACTS: Plaintiff was infected with HIV-tainted blood during a transfusion at Alvarado Hospital. He sued the hospital, not for causing the infection, but for their delay in advising him of the use of the tainted blood. According to the plaintiff, the hospital was advised by the supplier in February 1987 that the blood used in the October 1986 operation had been tainted. He did not learn of his infection until six months later when he was re-hospitalized for a suspected brain infection.

Plaintiff contends that the six month delay caused an irretrievable loss in medical treatment, that might have reduced or delayed his deterioration. That during that time period, he might have infected his wife (who so far has tested negative), and that he ignorantly entered into business dealings that he cannot now complete due to his deteriorated state. He alleged he would not have entered into those agreements had he known that he was infected. The hospital said it never received the February 1987 letter allegedly sent to them by the blood bank.

[55] Genetic Systems Corp. v. Abbott Laboratories et al., 691 F. Supp. 407 (D.D.C. 1988).

FACTS: Genetic sought to enjoin the execution of a contract between Abbott and the American Red Cross. After negotiating with both Genetic and Abbott for the purchase of HIV testing equipment, the Red Cross chose to give all of its business to Abbott. Genetic maintained that as the Red Cross handled 55% of all blood donations, this contract provided Abbott with more than 50% of the market and as such was a monopoly.

ISSUE: Whether Genetic presented sufficient evidence to convince the court that it will succeed in proving that the contract between Abbott and the Red Cross created a monopoly and that Genetic will suffer irreparable harm should the injunction not be granted?

HOLDING: The court was not persuaded that Genetic would succeed in proving that the contract created a monopoly nor that it would suffer irreparable harm if the injunction was not granted.

REASONING: In order to be a monopoly, more than 50% of the market must be controlled. Here, the court found that the market was not merely the United States, as claimed by Genetic, but Canada as well as other countries. Therefore, the fact that Abbott had 55% of the American market did not give it a monopoly over the international market. Therefore, the court could not find that Genetic would succeed in proving at trial that a monopoly had been created.

In addition, irreparable harm is that harm which cannot be compensated by monetary damages. Here, Genetic's damages were calculable and financial. The court discounted Genetic's claim of damage to reputation. As Genetic did not make the requisite showing to support its demand for an injunction, the request was denied.

[56] In the Matter of Southern Biotech, Inc., 37 B.R. 311 (Bankr. M.D. Fla. 1983).

FACTS: Southern Biotech is a corporation that collects blood components for the purpose of providing it to manufacturers of a variety of products including Factor VIII. Southern Biotech had contracts with two Florida prisons to operate plasmapheresis laboratories in the prisons. That contract required, among other things, that Southern Biotech operate the prison laboratories "in accordance with good and sound medical practice." Southern Biotech filed for bankruptcy and the trustee appointed to run the company sought to assume the contracts with the prisons in order to meet the debt owed the prisons. The Department of Corrections argued that the trustee should not be permitted to assume the executory contract with the prisons.

ISSUE: Whether the requirements of the bankruptcy law prohibit the trustee's assuming these contracts?

HOLDING: Assumption of the contracts was denied.

REASONING: The contract requirement that the prison blood laboratories be operated in "accordance with good and sound medical practice" precluded the trustee from assuring future performance as required. The court found that because there was no way of properly screening the prisoners' blood for HIV and because many prisoners were members of high risk groups who would not voluntarily remove themselves from the blood program, there was no way Southern Biotech could operate the program in accordance with "good and sound medical practice."

[57] NY State Society of Surgeons, et al. v. Axelrod, Sup. Ct. Albany Co., New York, 1988.

FACTS: Physicians' associations sued the state health commissioner to require him to designate HIV a sexually transmissible disease and thereby put into effect the state's reporting and testing regulations for sexually transmissible diseases.

The defendant responded that such designations were within the discretion of the state board of health and therefore beyond the reach of the court unless the failure to so designate could be shown to be arbitrary and capricious.

ISSUE: Whether the commissioner's refusal to designate HIV to be a sexually transmissible disease was arbitrary or capricious?

HOLDING: The commissioner's refusal to designate HIV to be a sexually transmissible disease was neither arbitrary nor capricious.

REASONING: The court determined that the legislation empowering the commissioner to make such designations did not require that all diseases which are transmitted through sexual acts be designated as sexually transmissible diseases by the commissioner; that the commissioner's duties required him to make judgments about the best ways to protect the public health; and that the evidence supported his decision not to so designate the disease. The court also reviewed the recently enacted NY AIDS statute which was specifically at odds with the procedures that would come into play if HIV were declared a sexually transmissible disease. It therefore denied the relief requested by the plaintiffs.

[58] McNamee, Cummins et al. and California Physicians for a Logical AIDS Response v. Kizer, Sup. Ct., Los Angeles Co., California. SOURCE: LAMBDA (Complaint filed 10/16/88), AIDS Litigation Reporter (Announcement of withdrawal of suit).

FACTS: Physicians' associations sued the state health commissioner to require him to designate HIV a sexually transmissible disease and thereby put into effect the state's reporting and testing regulations for sexually transmissible diseases. The plaintiffs withdrew the suit.

[59] Guardianship of Anthony, 402 Mass. 723, 524 NE 1361 (1988).

FACTS: Anthony is a moderately retarded man who resides at a home for the retarded. Previously the probate court had appointed a "permanent limited guardian ... with authorization to assent to the use of anti-psychotic medication in accordance with a substituted judgment treatment plan approved by the Court." Subsequently, the department moved to amend Anthony's medical treatment plan in order to remove a venereal wart which had been discovered on Anthony's body and, on the same day, a judge "reappointed" counsel and a guardian ad litem for Anthony.

In the course of these proceedings, the court inquired whether Anthony or his sexual partner had been tested for HIV. They had not been. The court, on its own motion, declared it would exercise its "superintendent powers over the Department of Mental Health," and determined that Anthony as well as his sexual partner should be tested and that neither Anthony's (nor a guardian's) consent was required. The home protested on the ground that testing could be stigmatizing, results could be misleading, and that, as recommended by the Surgeon General, there was already a safe sex education program in operation at the home.

ISSUE: Whether the probate court had the power to order Anthony and his sexual partner to be tested?

HOLDING: The court did not have the power to order the tests.

REASONING: The appellate court found that while the Probate Court has broad powers to fashion equitable remedies in matters relating to the guardianship of mentally retarded persons, its authority over matters relating to that guardianship is limited to fashioning relief in the best interest of the person under its jurisdiction. The court's power is to be exercised with the welfare of the ward in mind. Here, the Court had jurisdiction over Anthony because of the guardianship relative to decisions concerning the administration of antipsychotic medication. The order here was not specifically aimed at the welfare of the ward. Rather, the court ordered the testing because of its perception that it was necessary to meet a threat to the health of the residents of the home. Thus, the order was not within the court's jurisdiction based on guardianship, and was therefore void.

The appellate court specifically did not reach the issue of whether, under other circumstances, a court might order involuntary testing of home residents.

[60] Zabusky v. MBW Advertising Network, Inc. Superior Ct., New York Co., New York. SOURCES: LAMBDA and New York Law Journal, 8/13/88, p.27, col. 4.

FACTS: Plaintiff is the former employee of defendant. Defendant told people that plaintiff "probably had AIDS." Plaintiff sues defendant for defamation. Defendant demands that plaintiff undergo an HIV test based on the principle that truth is a defense to defamation.

ISSUE: Whether plaintiff has put his medical condition in issue and therefore may be required to take the HIV test?

HOLDING: The court refused to order the test.

REASONING: The court reasoned that forcing the plaintiff to undergo a test at a time well after the defendant's statements would do nothing to prove whether or not he was HIV positive at the time of the statement was made. It therefore refused to order the test.

[61] Adams v. Basso, Superior Ct. N.J., App. Div.Docket No. A-5583- 86T5. SOURCE: ACLU Order (12/22/87) and Amicus Curiae Brief, ACLU.

FACTS: Plaintiff, a corrections officer, was accidentally pricked when he was trying to secure an inmate found in his cell with a needle. Two inmates allegedly had shared the needle. The officer, as a private citizen, sought a court order to force the inmates to submit to HIV antibody testing.

The plaintiff presented no evidence to show that either defendant was a probable carrier, that the needles had been shared, that the needle-stick constituted a significant exposure or that testing defendants' blood would have the reassuring effect plaintiff sought.

The trial court granted the plaintiff's request to have the inmates tested.

ISSUE: Whether the trial court was justified in ordering mandatory blood testing of the two inmates?

HOLDING: The court's order was improper.

REASONING: The court found insufficient evidence to support a belief that the defendant was a carrier, that the needle had been shared or that the needle-stick constituted a significant exposure. The appellate court determined that plaintiff's request for relief had been rendered moot by the passage of time. His most reliable recourse to determine whether he had contracted the disease was by testing his own blood for HIV antibodies.

[62] Doe v. Conly, M.D. and Geisinger Clinic, U.S.D.C.M.D. Pa. SOURCE: LAMBDA (Complaint filed March 1988).

FACTS: Plaintiff had gone to Dr. Conly for treatment of a skin rash which he alleges in no way resembled any disease or condition associated with AIDS. He also asked to be treated for diabetes. At no time did he request an HIV test. At no time did the physician request permission to draw blood for such a test or provide any indication that plaintiff might be at risk. At no time did the physician apprise plaintiff that the confidentiality of the results could not be guaranteed. Plaintiff alleges that had he been asked, he would not have permitted the testing. He tested positive. When informing the plaintiff of his test results, the physician did not provide any counselling. The plaintiff sues for invasion of privacy, battery, breach of contract, breach of duty to deal in good faith, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and supervisory negligence.

[63] Doe v. Dyer-Goode, M.D., Court of Common Pleas, Philadelphia Co., Pennsylvania. SOURCE: LAMBDA (Complaint filed March 1988).

FACTS: Plaintiff and his fiance went to defendant for the purpose of pre-marital blood testing. The only test required was for syphilis. Without obtaining plaintiff's consent, defendant allegedly had his blood tested for HIV. She called him and informed him that he had tested positive and provided no counselling. Subsequently, plaintiff tested negative. He sued for invasion of privacy (failure to obtain his consent to be tested), non-consensual testing (a statutory privilege), breach of contract (the doctor's testing went beyond the scope of their agreed to services), and negligence because of her failure to provide the plaintiff with counselling when she informed him of the test results.

[64] Doe v. Wills Eye Hospital and Wieland, M.D., Court of Common Pleas, Philadelphia Co., Pennsylvania. SOURCE: LAMBDA (Complaint filed March 1988).

FACTS: Defendant physician performed an HIV test on plaintiff without obtaining his informed consent. The physician informed the plaintiff of his positive test results without providing any counselling. Plaintiff sues for invasion of his right to privacy. He also sues the hospital for negligence arising out of their failure to establish adequate HIV testing protocols and supervisory guidelines.

[65] Doe v. Maccabees Mutual Life, District Ct., Harris Co., Texas, 190th Jud. Dist. 88-55795. Source: ACLU (Original petition filed 10/26/88).

FACTS: Doe, applying for insurance coverage, was told by the insurance agent that he must submit to a blood test. The agent assured Doe that the test was to determine if Doe had a history of hepatitis and would not determine whether he was positive for the HIV.

On 2/9/88, a technician employed by Equifax came to Doe's office to draw his blood. Doe balked at signing the consent form which allowed for HIV testing, until it was amended by the technician to exclude such testing. The technician told him that she would write "amended" on the form to limit the test to testing his liver, as requested, and Doe initialled the amendment.

Subsequently, the sample was sent to a laboratory where it was tested for HIV antibodies, the results were positive, and the laboratory released those results to the defendant. Defendant in turn, sent Doe a letter in March 1988 requesting a signed authorization to release 'important information that has come to light'. Doe complied, and the defendant informed Doe's physician that the blood sample drawn 2/9/88 had tested positive for HIV antibodies.

ISSUE I: Whether the Insurance Company (Maccabees) and the phlebotomist's employer (Equifax) breached oral agreements not to test Doe's blood for HIV antibodies?

ISSUE II: Whether the phlebotomist committed battery by drawing blood for a test the plaintiff specifically did not consent to?

ISSUE III: Whether Maccabees or Equifax was guilty of fraudulent misrepresentation, in inducing Doe to undergo the blood test by assuring him that there would be no test for HIV-antibodies?

ISSUE IV: Whether Maccabess or Equifax or the blood processing lab which informed Maccabees of the test result, were guilty of intentional infliction of emotional distress?

[66] Doe v. Shasta General Hospital, Shasta Co., Cal. Superior Ct. No.92336, CA. SOURCE: ACLU. (Complaint filed: 9/9/87).

FACTS: Doe was a medically indigent person seeking treatment for a hernia at the defendant institution. As part of the work-up prior to surgical repair of the hernia, Doe went to the blood lab at the hospital, on February 3, 1987, to have blood drawn. He noticed a lab form for 'AIDS ANTIBODY SCREENING'. When asked if he wanted the HIV test, Doe specifically declined. A few hours later, on the same day, a lab employee called asking Doe to return to give more blood. He did return, and specifically asked if this blood was for an HIV test, and, when assured it was not, he then allowed his blood to be taken.

On Feb. 20, 1987, without Doe's knowledge or consent his attending physician ordered the blood tested for HIV, and disclosed the results to hospital administrators, and then entered a note in Doe's patient chart that "administrator and medical director and president of the society" felt that the defendant institution was "not equipped with facilities to Rx AIDS [sic]".

On Feb. 25, 1987, Doe's physician convinced Doe that he would die if he had the operation at a local hospital, and should seek treatment in San Francisco. However, the physician refused to make a referral to anyone in San Francisco. Doe's subsequent calls to the hospital director seeking a referral were ignored. Finally Doe sought legal assistance and left a message to that effect, and on March 3, 1987, he received a call from a surgeon at the defendant hospital, who scheduled and performed a routine hernia repair on Doe.

ISSUE I: Whether disclosure of test results violated the state confidentiality statute?

ISSUE II: Whether testing blood without the written consent (and over express objections of the patient) violated state confidentiality statute?

ISSUE III: Whether the disclosures breached the Federal Constitutional and/or the California Constitutional rights to privacy?

ISSUE IV: Whether misdiagnosing Doe's HIV antibody status as "AIDS' constituted professional negligence?

ISSUE V: Whether the defendants' disclosure of the test results constituted intentional or negligent infliction of emotional distress?

ISSUE VI: Whether the defendants' refusal to treat or make a referral constituted professional negligence/abandonment?

ISSUE VII: Whether drawing blood without proper consent, constituted assault and/or battery?

[67] Doe v. Trident Cruise Services. SOURCE: ACLU (Complaint not yet filed).

FACTS: Plaintiff is a cruise ship waiter who was tested for HIV without his consent or knowledge during a routine physical. His employer was informed of the test results, also without plaintiff's consent or knowledge. Plaintiff was fired. He also received a letter from the testing doctor telling him to report his seropositive status to his employer.

[68] Doe v. Baptist Hospital and John Lamb, M.D., Chancery Ct., Davidson Co., Tennessee, 88-3459 - II. SOURCE: LAMBDA.

FACTS: Plaintiff slipped and fell and thought he had broken his leg. He was taken to the defendant's hospital when his leg was set by defendant Lamb. No medical history was taken and he was admitted to the hospital. Purportedly "routine blood tests" were done without his signing any consent form and without his being told that an HIV test was being done as well. After his discharge and still in pain from his leg, he returned to see defendant Lamb. Lamb told him that he had ordered the test and that it was positive. Lamb told plaintiff this when they were in an examining room with its door open. Their conversation was overheard in the waiting room.

ISSUE I: Whether the performance of the unconsented to HIV test constituted assault and battery?

ISSUE II: Whether the unconsented to HIV test constituted an invasion of privacy?

ISSUE III: Whether the manner in which Dr. Lamb apprised plaintiff of his test results constituted a breach of confidentiality.

[69] Anonymous Fireman v. City of Willoughby, U.S.D.C.E.D. Ohio, AIDS Litigation Reporter 5/27/88 (Order).

FACTS: The City of Willoughby ordered that all firemen be tested for HIV. Plaintiff refused and sought an injunction barring the tests. He argued that the test violated his right to be free of unreasonable search and seizure.

ISSUE: Whether the test was an unreasonable search and seizure prohibited under the Fourth Amendment of the U.S. Constitution?

HOLDING: The federal court ordered a temporary injunction prohibiting further testing and ordering the return to the subject of any blood already drawn.

REASONING: Not available.

[69B] Dutch AIDS Patient Detained at United States Airport, Boston Globe, April 5, 1989 at 1, col. 2.

FACTS: Plaintiff, a Dutch visitor to America, who had been confirmed as HIV positive, was searched by customs officials at the St. Paul Airport in Minneapolis. The drug AZT was found in his luggage. Plaintiff was taken to a county prison, where he was detained. The Immigration and Naturalization Service contend that Plaintiff cannot enter the United States with an infectious and communicable disease. The plaintiff is seeking, from the Attorney General, a waiver that would allow his release and permit him to remain and visit in the United States. Federal law prohibits people with AIDS from visiting in this country without such a waiver.

[70] Local 1812, American Federation of Government Employees v. U.S. Department of State, et al., 662 F. Supp. 50 (D.D.C. 1987).

FACTS: Employees of the State Department sued the State Department to prohibit mandatory testing of employees as part of the required medical fitness program that was required for all employees seeking to qualify or who had qualified for service abroad.

ISSUE: Whether mandatory testing of employees for HIV was prohibited under the Federal Rehabilitation Act?

HOLDING: Such testing did not violate the Federal Rehabilitation Act.

REASONING: The court determined that for the testing program to be constitutionally valid and not violate the Federal Rehabilitation Act, the testing must be rationally related to the program's goal. Because HIV is not spread by casual contact, a screening program might appear not to be rationally related to its stated goal. Here, however, the purpose of the testing program was not to prevent contagion, but rather to ensure that employees of the foreign service were neither at risk of exposure to opportunistic infections in less developed countries nor endangering the public service because of the host country's perception of HIV and those infected with it.

Such testing and its consequential re-assignment was not prohibited under the Rehabilitation Act. That statute requires that the handicapped person be "otherwise qualified". The court held that HIV infected foreign service employees are not "otherwise qualified" for foreign service abroad.

[71] Batten, et. al. v. Lehman, United States District Court for the District of Columbia, Civil Action No. 85-4108, January 18, 1986 (Sources: National Prison Project; Navy Office of the Judge Advocate General). Memorandum of Points and Authorities in Support of Plaintiff's Motion for a Preliminary Injunction; Praecipe.

FACTS: Plaintiffs were all members of the Delayed Entry Program in which they signed an enlistment agreement for subsequent duty status at a future date. After plaintiffs were inducted into Navy service and commenced basic training, their blood was tested for the presence of HIV. The results of the blood test were positive for HIV. Navy regulations required that seamen who have been inducted and who have been on active duty for 180 days or less, and who test positive for the antibody, are to be released from the Navy. Therefore, in accordance with the policy of the Navy, the plaintiffs were given "entry level separations" on the ground of "erroneous enlistment". Plaintiff Batten's medical board report lists " HIV disease" as the reason for the separation on the grounds of a condition existing prior to entry.

Plaintiffs contend the Navy action was inconsistent with the AIDS regulation of the Secretary of Defense applicable to all the military services; that the plaintiff's discharge on the grounds of "erroneous enlistment" violates other regulations of the Navy; and that plaintiffs would suffer irreparable harm if their discharges are not stayed; and that the Navy policy was arbitrary and capricious.

On January 16, 1986 plaintiffs sought a preliminary injunction barring the Secretary of the Navy from separating plaintiffs from the Navy and from enforcing that portion of the Navy policy which directs the separation of individuals who are in initial military training and who test positive for exposure to HIV.

HOLDING: The Court denied plaintiff's motion for a preliminary injunction and the defendants' motion to dismiss and restrained the defendants from taking further action adverse to the plaintiffs pending appeal to the Circuit Court.

REASONING: There is a rational difference between the value to the Navy of personnel with six months training and experience and those who have been on active duty for only a few days.

Subsequently, (a) on January 24, 1986 plaintiffs Batten and Dunlap voluntarily dismissed the complaint without prejudice to its renewal after proceedings before the Board for the Correction of Naval Records or at any other time; and (b) on January 28, 1986 all remaining plaintiffs voluntarily dismissed the action without prejudice to its renewal after proceedings before the Board for the Correction of Naval Records or at any other time.

[72] Attorney General Shannon and Jane Doe v. United States Department of Labor and the Office of Job Corps, United States District Court, Boston, Massachusetts, April 4, 1989 (Source: News Release, Attorney General (Mass.) April 4, 1989; Boston Globe, April 5, 1989). Complaint.

FACTS: Jane Doe responded to a Job Corps program advertisement and enrolled in the Job Corps in August, 1988. She had a medical examination which included a test for HIV antibodies, as is required by Job Corps policy for program applicants. Persons testing positive are excluded from the residential Job Corps program. In September, 1988 Doe contends she was summoned from class, informed she had tested positive, and immediately dismissed from the Job Corps program.

The plaintiffs seek an order enjoining the Job Corps from requiring testing for the presence of HIV antibodies and from using the result of any HIV antibody test to exclude Massachusetts residents from residential Job Corps programs. The plaintiffs allege that mandatory HIV testing does not prevent the spread of AIDS. On the contrary, they content that the Job Corps policy of terminating participants who have tested positive contributes to the spread of AIDS because it results in taking persons out of a structured and monitored environment and placing them back in a setting where there is a greater likelihood that they will transmit HIV to other persons.

Moreover, the plaintiffs contend that the Job Corps policy on HIV discriminates against persons who have, or are perceived as having, a disability in violation of federal handicap discrimination law.

ISSUE: Does the Job Corps policy discriminate against persons who have or are perceived to have a disability in violation of federal handicap discrimination law?

[73] Dorsey v. U.S. Department of Labor, McLaughlin, Job Corps, et. al. U.S.D.C. D.D.C. SOURCE: LAMBDA (Complaint filed July 1988).

FACTS: Plaintiff, a participant in a Job Corps program, was involuntarily tested for HIV under the Job Corps mandatory testing program and found to be seropositive. He was then discharged. He sued for money damages arising from his dismissal and for a declaration by the court that the testing policy was unconstitutional. He claimed that it violated the Federal Rehabilitations Act and the due process clause of the 14th Amendment.

ISSUE: Whether the mandatory testing program was either discriminatory or violative of due process?

[74] U.S. v. Moore, 669 F. Supp. 289 (D. Minn. 1987), aff'd. 846 F.2d 1163 (8th Cir. 1988).

FACTS: Moore was a prisoner in a federal corrections facility who had been informed that he was HIV positive. He bit two corrections officers: one on the leg twice, leaving a four inch saliva stain; the other also on the leg, breaking the skin and leaving a mark that was visible five months later at the trial. After the incident, the prisoner stated that he had intended to kill the officers. Testimony at trial showed that HIV is transmissible through blood or semen, that it could pass during a bite, especially if the biter had ill- fitting teeth or gum problems which the prisoner had. The prisoner was charged and convicted of two counts of assault with a deadly weapon. He appealed.

ISSUE: Whether in order to convict a biter of assault with a deadly weapon, it must be shown beyond a reasonable doubt that HIV can be transmitted through a bite?

HOLDING: In order to support such a verdict, the evidence need not rely solely on the transmission of HIV.

REASONING: Evidence at trial showed that the infectious microorganisms in the mouth render it a route of transmission for serious diseases, of which under certain circumstances can be a dangerous instrument. The conviction was affirmed.

[75] People v. Markowitz, Superior Ct., Los Angeles, California, AIDS Litigation Reporter 3/11/88 (Announcement of acquittal).

FACTS: Markowitz, a mental patient who claimed to be HIV positive, was arrested and charged with at- tempted murder and attempted poisoning for trying to sell his blood to a blood bank. He made a variety of statements indicating that he sold his blood for money. The attempted murder charge was dismissed on the ground that there was no evidence that Markowitz was trying to kill a particular person.

The jury acquitted him of the attempted poisoning charge.

[76] State of Florida v. Sherouse, 536 So.2d 1194, 14 FLW 222 (App. Ct. 5th Dist. 1989).

FACTS: Prostitute, who knew she was HIV-positive, was charged with, among other things, attempted manslaughter. The prosecution claimed that by oilering or agreeing to engage in sexual intercourse when she knew of her infectivity she had committed the crime of attempted manslaughter. The defendant moved to dismiss the attempted manslaughter charge on the ground that the crime of attempted manslaughter requires that the actor intend to cause the death of another.

ISSUE: Whether engaging in sexual intercourse with knowledge of one's infectivity evidenced an intent to cause the death of another?

HOLDING: The defendant's actions did not make out the crime of attempted manslaughter.

REASONING: To convict a defendant of attempted manslaughter proof of a certain degree of criminal intent on the part of the defendant to kill is required. Mere culpable negligence is not sufficient to establish such intent. While the defendant here may certainly have acted in a culpably negligent fashion, there was no evidence from which a jury could Find that her alleged conduct evidenced an intent to kill.

[77] State of Indiana v. Haines, Superior Ct., Tippecanoe Co., Indiana, 3/11/88 (Announcement of dismissal of charges). SOURCE: Affidavits, pleading and court transcripts.

FACTS: Haines who has ARC was charged with, among other things, attempted murder. The charge arose when rescue workers came to his assistance while he was attempting suicide. During the incident, Haines scratched, bit and covered the workers with his blood. The jury convicted Haines on three counts of attempted murder.

ISSUE: Whether the facts of this case can support a charge of attempted murder?

HOLDING: The facts do not support a charge of at- tempted murder.

REASONING: The prosecution failed to present evi- dence showing that the rescue workers could have been exposed to HIV when they were sprayed with the defendant's blood. Without evidence showing that the victims were at risk, a charge of attempted murder is insupportable. [The conviction on a charge of assault remained.]

AUTHORS' COMMENTS: This case was subsequently reversed on appeal with a charge of attempted murder upheld.

[78] State of Alabama v. Brock, AIDS Litigation Reporter 10/28/88 (Announcement).

FACTS: An HIV infected Alabama prison inmate who was found guilty of biting a prison guard has had 15 years added to his term of incarceration for robbery. The guard has so far tested negative. Ala- bama prison officials announced that they will seek at- tempted murder charges in future similar incidents.

[79] State v. Beason, Circuit Ct., Lane Co., Oregon, AIDS Litigation Reporter 2/12/88 (Announcement of dismissal of charges).

FACTS: The District Attorney announced the drop- ping of charges of reckless endangerment against a man whose sexual activity was labeled "a substantial risk of serious physical injury to other persons" by a grand jury. His behavior was so labeled because he allegedly engaged in sexual activity while knowing he was HIV positive. There was no allegation that the charges arose from activities not consented to. The District Attorney dropped the charges because of the reluctance of witnesses to testify.

[80] People v. Dunn, Florida Criminal Case. SOURCE: ACLU (A.P. release dated 9/28/87).

FACTS: A Florida prisoner stole a blood sample from the prison hospital laboratory, then gave serum to another inmate who bragged that he had put some in a guard's coffee. Prisoner was accused of conspiring to kill the guard by lacing his coffee with HIV-infected blood. In a plea agreement the accused pleaded no contest to a charge of introducing contraband into a state prison.

[81] South Carolina v. Phillips. SOURCE: ACLU (Letter from ACLU, South Carolina chapter, reviewing request for help from ACLU possibly as co-counsel, dated 8/8/87).

FACTS: Phillips was charged with rape and assault with intent to kill (attempted murder). The attempted murder charge was based on solicitor's belief that defendant knew he was infectious and deliberately attempted to transmit the disease.

[82] State v. Mercer, 208 Conn. 52,544 A.2d 611 (1988).

FACTS: The defendant was charged with felony-murder. Prior to jury selection, the court became aware of the fact that the defendant suffered from ARC. It held a hearing, that was not closed to the public, to determine if the defendant could be tried without causing a risk of contagion to court staff, the jury, etc. It accepted the testimony of medical personnel that there was no danger. During jury selection, the court apprised each prospective juror of the defendant's condition and the medical testimony regarding contagion and asked each juror if the defendant's condition would prejudice him or her and whether the prospective juror would prefer not to sit on the jury because of fear of contagion. The defendant did not object to either the hearing or the question of the jurors.

On appeal the defendant contended that the fact that he was suffering from ARC was extraneous to the question of his innocence or guilt, and that announcing it prejudiced the jury against him. The defendant claimed that the statement that he had ARC implied to the jurors that he was a homosexual or an intra- venous drug user, suggesting in either case that he had a widely condemned life-style. He further argued that because of the hysteria surrounding the transmission of HIV, the court's revelation engendered great anxiety among the jurors, which inevitably tainted the verdict. The defendant acknowledged that the court's disclosure may have been intended to minimize the prejudice engendered by adverse pretrial publicity surrounding the case, but he argued that the court's actions made matters worse: by dismissing all jurors who expressed hesitation in the presence of the remainder of the panel, the court legitimized AIDS-related fear and discrimination. As a result, he contended that the jury that convicted him could not have been impartial.

ISSUE: Whether the trial court, by exposing the jury to the fact that the defendant suffered from ARC denied him the presumption of innocence, a compoment of the right to a fair trial?

HOLDING: The trial court's action did not prejudice the defendant's right to a fair trial.

REASONING: The court compared the defendant's claims to those of one who claims that his right to a fair trial has been prejudiced by pre-trial publicity. There, the defendant must show a connection between the publicity and the existence of actual jury prejudice. A showing of actual prejudice is not necessary in extreme circumstances where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. Here, where there had been no examination of the jurors to determine the effect of the court's actions, the absence of such evidence could be excused only if the higher level of prejudice were shown.

In evaluating the effect of the disclosure, the court considered one factor, the defendant's failure to object, of particular significance. The court found that the defendant's failure to complain of the trial court's disclosure essentially represented acquiescence in its actions. Implicit in such acquiescence was his perception that the court's manner of proceeding would lessen rather than increase whatever prejudice resuIted from the previous public disclosure of his condition. The court found that the defendant's action vitiated his claim of prejudice and that he was not denied a fair trial by the court's actions.

[83] People v. Hawkrigg, 138 Misc.2d 764,525 N.Y.S.2d 752 (Suffolk Co. Ct. 1988).

FACTS: Defendant who was charged with third-degree sodomy, reckless endangerment, and endangering the welfare of child moved to dismiss the indictment. He argued that, among other reasons, the admission of his medical records to the Grand Jury proceedings was error.

ISSUE: Whether the presentation of the defendant's medical records to the Grand Jury proceedings was error?

HOLDING: The presentation of the defendant's medical records was not error.

REASONING: Facts contained in medical records remain privileged but their confidentiality can be waived by the patient's disclosure of them to third parties. Once publicly disclosed, there is no longer any reason for the privilege. Here, there was evidence before the Grand Jury of the defendant's disclosure of his condition to a number of persons prior to his engagement in the acts of deviate sexual intercourse. The defendant's argument that the limitations on a lay person's ability to testify regarding the existence or character of internal diseases was not relevant when the question was whether the lay person knew or should have known of his own particular condition. Here, there was evidence that the defendant knew of his condition and that it was transmissible by the very act he was accused of.

[84] People v. George, 137 A.D.2d 876,524 N.Y.S.2d 557(1988).

FACTS: Defendant was convicted upon his plea of guilty of attempted sodomy in the second degree and was sentenced to 11/3 to 4 years' imprisonment. The pre-sentence report apprised the court that the defendant was HIV positive. The report was unclear regarding whether the defendant knew he was infectious at the time of the crime. The defendant appealed. He argued that the fact of his illness and the question of his knowledge influenced the sentence.

ISSUE: Whether the fact that the defendant was HIV positive and the question regarding his knowledge of his infectivity at the time of the crime influenced the sentence?

HOLDING: The facts and questions surrounding the defendant's infectivity did not influence the sentencing judge's decision.

REASONING: Both defendant and his counsel had ample opportunity to review the sentencing minutes and make whatever objection to the report they wished to. No mention of the above was made. In addition, the sentencing court specifically stated that the AIDS question was not a factor in his decision.

[85] People v. Iarker 132 A.D.2d 629,517 N.Y.S.2d 783 (2d Dept. 1987), app. dism'd, 71 N.Y.2d 887,527 N.Y.S.2d 765, 522 N.E.2d 1063(1988).

FACTS: Parker, who is suffering from AIDS, was convicted of robbery in the second degree. On appeal, he argued, among other things, that he was denied a fair trial because he was kept out of the courtroom while the judge spoke to jurors about his condition. He maintained that the law requires that a defendant be personally present during the trial of an indictment.

ISSUE: Whether the court's exclusion of the defendant at this point in the proceedings denied the defendant a fair trial?

HOLDING: No, the court's exclusion did not deprive the defendant of a fair trial.

REASONING: Literal application of the direction that a defendant be personally present during the trial is not required. Substantive performance of its terms is all that is mandated. Here, the defendant's attorney and the prosecutor were in the courtroom when the judge spoke to the prospective jurors about the defendant's condition. Under the circumstances of this case, the court found that the trial court's comments did not constitute a material part of the trial and the defendant's absence had no effect on his opportunity to defend against the charges.

[86] Commonwealth of Pennsylvania v. Newman, 1989 WL 14977 (Pa. Super.), 1989 LEXIS 414 (Pa. Super. Feb. 28, 1989, filed).

FACTS: Defendant convicted of several (non-sexual) crimes. He claimed on appeal that the testimony of a doctor regarding the fact that the defendant's girlfriend suffered from AIDS was error requiring a new trial.

ISSUE: Whether the evidence introduced at trial that linked the defendant to a person with AIDS was prejudicial and required a new trial?

HOLDING: The admission of evidence of the girlfriend's illness did not require a new trial.

REASONING: In order for the admission of the testimony to require a new trial it must be shown that the error significantly contributed to the guilty verdict. The court found that the evidence was, if anything, useful to the defense as it showed that the defendant's passions were inflamed by watching his girlfriend deteriorate from AIDS. In addition, the testimony did not relate to the defendant's guilt or innocence and there was overwhelming proof of his guilt.

[87] State of Wisconsin v. Van Straten, 140 Wis. 2d 306,409 N.W.2d 448(1987).

FACTS: Van Straten was convicted of robbing a Dairy Queen ice cream store. During an attempted suicide he allegedly squirted his HIV-positive blood at police officers. There was extensive and wide-spread publicity about these events.

During jury selection, the court determined that in order to select a jury unprejudiced by the publicity and the issues of AIDS and homosexuality it raised, it would question four prospective jurors at a time, in chambers, regarding what had been revealed in the media. The court's questions presented the media versions of the attempted suicide and identified Van Straten as the subject of the stories. The questions also revealed Van Straten's homosexuality and possible bisexuality. The questions explored the prospective juror's prejudices regarding sexual preference. Several jurors, after questioning, revealed quite clearly that they could not be unbiased, while others satisfied the court that they could be.

ISSUE: Whether the court's in-depth questioning of prospective jurors which apprised them of facts that would not be relevant at trial denied the defendant a fair trial?

HOLDING: The court's questioning did not deny the defendant a fair trial.

REASONING: The selection of an impartial jury is conducted under the trial court's supervision and the voir dire (the questioning of jurors) is left to its discretion. In order to have denied the defendant a fair trial, the court's actions must amount to an abuse of discretion or must violate a rule of law.

The trial court had found that there had been extensive pre-trial publicity which threatened the fairness of the defendant's trial. The court had several options. It could authorize a change of venue. However, given the state-wide publicity, the appellate court agreed that this would have had little effect. It could have granted a continuance in order to let the publicity die down. The appellate court agreed with the trial court that the success of this option was questionable. The trial court could have conducted a general voir dire regarding pretrial publicity. Both courts found that this would not have revealed prejudices about homosexual. Finally, it could carefully voir dire the jury, which is what it did. The trial court had been concerned that even if prospective jurors did not immediately recognize Van Straten as the subject of the press reports, they could easily recognize him once the trial was underway. Such a realization might have been more likely given the large number of reporters attending a routine burglary trial.

The appellate court found that the trial court had no choice but to reveal that Van Straten was the "AIDS Prisoner" and exclude those who could not judge him fairly. Therefore the voir dire did not violate Van Straten's right to a fair trial.

Van Straten v. Wisconsin, 108 S.Ct. 304,98 L.Ed. 2d 263,56 U.S.L.W. 3321, (1988), Writ of Cert. to the Supreme Court of Wisconsin is denied.

[88] State of Washington v. Farmer, Court of Appeals, Washington, AIDS Litigation Reporter 2/10/89 (Announcement of decision).

FACTS: Stephen Farmer pleaded guilty to two counts of communicating with a minor for immoral purposes. After Farmer had negotiated the plea, he was the subject of national media attention as a result of court proceedings over whether he should undergo mandatory HIV testing in conjunction with separate charges. He argued on appeal that the significant negative publicity prevented him from having a fair trial on the communicating counts.

ISSUE: Whether the post-plea publicity prejudiced his right to a fair trial?

HOLDING: The post-plea publicity did not prejudice the defendant.

REASONING: None available.

[90] Barlow v. Superior Court, etc. County of San Diego, The People, as real party in Interest, 190 Cal. Rptr. 134,236 Cal. Rptr. I 34 (App. Ct. 4th Dist. 1987); Review denied May 26, 1987. Opinion withdrawn by order of the court.

FACTS: Barlow was arrested for biting two police officers and resisting arrest at a Gay Pride Day Parade. The bites drew blood. When he was taken to the police precinct, before being read his rights, he was asked if he was homosexual and if he was in- fected with HIV. He told the officers that he was a homosexual and that they should "take it that [he did] have AIDS for the officers' sake."

The district attorney sought a search warrant in order to take a sample of defendant's blood and then a court order allowing the blood taken to be tested for HIV and the results disclosed to the prosecution in order to recover evidence to determine if the defendant should be charged with attempted murder. The court approved the search warrant and the testing request but limited disclosure to the defendant and his counsel.

The defendant moved to have the search warrant set aside and the order permitting the test reversed on the ground that blood taken five weeks after the incident was not proof of the defendant's intent at the time of the crime. He additionally argued that the California statute requiring informed consent before the disclo- sure of an HIV test result barred,disclosure to the prosecutor.

ISSUE I: Whether the search warrant for the blood was properly granted?

HOLDING: The search warrant was not properly granted.

REASONING: Blood drawn and tested five weeks after an incident is not probative of the subject's state of knowledge at the time of the incident. The request for the search warrant should have been denied.

ISSUE II: Whether the statutory prohibition against disclosure of test results was intended to shield HIV positive persons from criminal liability for intentionally exposing another to the virus for the purpose of infliction of great harm or death?

HOLDING: The statutory prohibition against disclo- sure would have been violated by the disclosure.

REASONING: The court opined the importance of confidentiality and determined that the public safety would not be so compromised by failure to disclose the information that an exception should be read into the statute.

[91] State of Nebraska v. Patrick, District Ct., Douglas Co., Nebraska, Docket 120, No. 900. SOURCE: ACLU (Appeal filed 4/28/87).

FACTS: Patrick was convicted of several counts of soliciting prostitution. As part of sentencing the court ordered that Patrick submit to a blood test once a month for sexually transmitted diseases, with test re- suIts, if positive, to be published in the newspaper. The order was later amended by the court to provide that test results be made known only to plaintiff and the Health Dept.

ISSUE I: Whether Court below erred in requiring blood tests of any kind?

ISSUE II: Whether Court below erred in ordering that the test results be made public?

[92] Rice v. Palo Alto Municipal Court, Superior Ct., Santa Clara Co., California, AIDS Litigation Reporter 4/14/89 (Announcement of decision).

FACTS: Rice refused to leave his car after being stopped for drunk driving. When the police broke the car window to drag him out, both Rice and an officer, John Credi, were cut.

Under California law, a crime victim may request that his or her assailant be tested. The police officer requested that Rice be tested. The request for a search warrant to allow the blood test was supported by Credi's testimony that he might have exchanged blood with Rice during the scuffle and affidavits from Rice's mother and roommate stating that Rice was a homosexual.

ISSUE: Whether the evidence was sufficient to sup- port a search warrant?

HOLDING: There was sufficient evidence to support the warrant.

REASONING: The court found sufficient evidence to support the testing based on Rice's membership in a high risk group.

[93] Johnson v. Municipal Court, City and County of San Francisco, San Francisco Sherff Court of Appeals, 1st Dist., California, AIDS Litigation Reporter, 3/24/89 announcement of lower court decision, AIDS Litigation Reporter 4/14/89 (Decision on appeal).

FACTS: Johnson was accused of biting a sheriffs deputy during a Juvenile Court proceeding and ordered to undergo testing under Proposition 96. The court, however, stayed its order, to permit the defendant time to appeal. It also ordered the sheriffs department to submit a "written outline for maintaining the privacy of the test results."

ISSUE: Whether the court had the power to order Johnson to be tested against her will?

HOLDING: The court had the power to order the test.

REASONING: Not available.

[94] Dungo v. Non. James Ford, California Superior Court, AIDS Litigation Reporter 2/24/89.

FACTS: Dungo, in custody on suspicion of forcible sodomy and sexual battery attacked a security officer by biting his hand. The officer required emergency surgery to remove the bone and tooth fragments from a deep cut on his hand. Dungo's saliva and blood were found to have come in contact with the officer's open wound.

Under California's Proposition 96, involuntary testing of persons charged with sex offenses and persons involved with assaults on emergency personnel was made permissible.

ISSUE: Whether it was within the power of the court to order such testing under Proposition 96?

HOLDING: The testing could be ordered.

REASONING: Not available.

[95] State of Connecticut v. Volpe, District Ct., Fairfield, Connecticut AIDS Litigation Reporter 10/28/88.

FACTS: Volpe was charged with rape. The prosecution asked the court to order an HIV test pursuant to the statute which permits testing for venereal disease of those charged with sexual offenses. The defendant argued that HIV is not a venereal dis- ease and therefore testing would be unconstitutional.

ISSUE: Whether testing for HIV is permissible under the statute permitting testing for venereal diseases?

HOLDING: HIV testing is not permitted under the statute.

REASONING: The court found that the definition of a venereal disease is a disease that is transmitted almost exclusively through sexual contact. It also found that HIV is a viral infection that is transmitted in a number of ways, not "almost exclusively sexually." It therefore found that HIV is not a venereal disease and prohibited the testing of the defendant.

[96] In the Matter of the Department of Social Services on Behalf of Troy C. v. Janice 7, 137 A.D.2d 527 (2d Dept. 1988).

FACTS: During the course of her arrest on a warrant issued in conjunction with a child neglect proceeding in Family Court, Janice T. bit a sheriff causing a puncture wound. She was subsequently and separately charged with assault in the second degree. The Family Court judge ordered that she undergo HIV testing.

The plaintiff claimed that the trial court abused its discretion when it ordered the test.

ISSUE: Whether a judge presiding over a neglect proceeding in which the issue of the parent's fitness to ran custody does not involve a question of her serostatus may order the parent tested to determine if the sheriff she bit has been infected?

HOLDING: The testing order was an abuse of the court's discretion.

REASONING: The appellate court determined that a court may order a physical, psychiatric and psychological examination of the parent before it when the results of the testing are reasonably related to establishing the allegations contained in the petition before the Family Court. However, here, the Family Court judge acknowledged that the HIV test had nothing to do with the child and that it ordered the test because the parent bit the officer. Thus the test results would have no relevance to the pending ne- glect proceeding and the test order was improper.

[97] People v. Cook 143 A.D.2d 486,532 N.Y.S. 2d 940 (3d Dept. 1988), app. denied, 73 N.Y.S.2d 786,536 N.Y.S.2d 746, 533 N.E.2d 676(1988).

FACTS: Cook was convicted of rape. Upon the victim's request, the court ordered the defendant to undergo HIV testing and disclose the results to her. Cook refused. He maintained that the ordered testing and disclosure violated his constitutional rights.

ISSUE: Whether a court may constitutionally order a defendant convicted of rape to undergo HIV testing and disclose the results to the victim?

HOLDING: The court may constitutionally order testing and disclosure.

REASONING: The court balanced the defendant's Interests against the victim's interest in her safety and welfare and found that the order was proper.

[98] Commonwealth v. Winkelspecht, Court of Common Pleas, Luzerne Co., Pennsylvania AIDS Litigation Reporter 6/10/88 (Announcement).

FACTS: The defendant, awaiting trial on rape charges, agreed to be screened for HIV when he was requested to do so by the D.A. on behalf of the victim.

[99] Commonwealth v. Muson, Court of Common Pleas, Luzeme Co., Pennsylvania AIDS Litigation Reporter 1/29/88 (Order).

FACTS: A defendant in a rape case was ordered to undergo testing for HIV pursuant to the state's Disease Prevention and Control Act, a 1955 law.

[100] Shelvin v. Lykos, District Judge, 741 S.W.2d 178 (Tex. Ct. App., 1987).

FACTS: Shelvin was charged with aggravated robbery and two cases of aggravated sexual abuse. The District Attorney asked the trial court to order Shelvin to undergo an HIV test on the ground that, although charged with only two cases of sexual abuse, he was a suspect in as many as 10 others involving young males between the ages of 14 and 18. The D.A. argued that the parents of these children were concerned about Shelvin's HIV status and that the requested test was in the best interests of the victims and the protection of the inmates and staff members of the Harris County jail.

The lower court balanced Shelvin's interest in privacy against the "best interest of society", and held that the societal interest in maintaining a jail that was "safe and secure" for staff and inmates outweighed the defendant's interest in privacy, that the blood test is a minor intrusion to the individual and that the results of such test were needed for the jail's classification of the defendant. The court also determined that the test results would "certainly be of interest to anyone who has had recent sexual contact with the defendant [so] that they may obtain treatment and take appropriate caution regarding their own behavior in the future." It therefore granted the order for testing. However, it ordered that the test results be submitted to the court under seal and disclosure issues would be decided "at a later date." The blood was drawn and tested.

ISSUE: Whether the test results may be disclosed without Shelvin's consent?

HOLDING: No, the results cannot be disclosed without Shelvin's consent.

REASONING: The appellate court determined that none of the parties the trial court designated would be appropriate recipients of the information. County jails are governed by commissioner's courts, and the jail to which Shelvin was confined did not request the testing. "[W]ide-ranging deference must be accorded the decisions of jail administrators. They, and not the courts must be permitted to make difficult judgments concerning jail operations." The trial court's order therefore amounted to interference with the administration of the jail and was improper.

The appellate court also found the trial court's possible disclosure to Shelvin's sexual contacts would also be improper. The newly enacted Disease Prevention and Control Act specifically deals with the disclosure of HIV test results without the subject's permission. It requires sworn applications by health authorities for court orders for the management of a person "reasonably suspected of being infected with a communicable disease" in order to release the results. Without such a court order, disclosure is improper. Therefore, the trial court's order allowing disclosure to "anyone who has had recent sexual contact with the defendant" was improper.

[101] State v. Bullock Sup. Ct. Wisconsin, AIDS Litigation Reporter 11/11/88 (Order).

FACTS: Defendant charged with sexual assault upon a teen-age boy was ordered by the court to undergo HIV testing. The results were ordered to be kept confidential with the exception of disclosure to the district attorney, the defendant, the victim and his parents.

ISSUE: Whether such an order is proper.

HOLDING: The order was proper.

REASONING: Not available.

[102] Creek v. Herndon, Acting Commissioner of Corrections, Maryland Department of Public Safety and Correctional Services, Circuit Ct., Washington Co., Maryland, AIDS Litigation Reporter 2/24/89.

FACTS: Plaintiff was a corrections officer who was exposed to a prisoner's blood while coming to his aid after a suicide attempt. Plaintiff sought to have the prisoner tested for HIV. The state argued that the commissioner of corrections had no duty to order the testing and that the plaintiff alleged no contractual duty, or duty based in tort to require the commis- sioner to order the testing.

ISSUE: Whether the plaintiff had the right to have the prisoner tested?

[NOTE: The issue became moot because the prisoner agreed to disclose his HIV status.]

[103] Brown v. Torres, Sup. Ct., Bronx Co., New York, AIDS Litigation Reporter 4/14/89 (Announcement of agreement).

FACTS: During a scuffle incident to his arrest for the sale of stolen and forged buds passes, Torres stuck Officer Brown's thumb with a hypodermic needle. Based on his belief that Torres was a drug user, Brown requested that Torres be tested for HIV. Blood was drawn from Torres the day of the arrest and an order sought for testing it. The hospital refused to test it because Torres refused to give his consent. A lower court judge ordered that the blood be tested because it determined that Brown had a right to know if he was at risk of acquiring AIDS.

Torres changed his mind and agreed to be tested when he was offered an opportunity to plead to reduced charges if he agreed to let his blood be tested. The agreement provided that the results would be released only to Officer Brown.

[104] Doe v. Police Officers, U.S.D.C., E.D. Pa., Civil Action Nos. 88-1897 and 88-2865. SOURCE: ACLU (Filed 12/13/88).

FACTS: In the early hours of 4/14/88, the plaintiff was apprehended as a burglary suspect, and in the course of the arrest was bitten by a police dog which subsequently "caught a tooth" on an arresting officer's thigh. At the police facility, plaintiff was forced to disrobe, revealing mild acne on his chest, which one officer present identified as a symptom of AIDS. Officers decided that via the dog's teeth, the plaintiff might have given AIDS to one of the officers. An officer then struck the plaintiff. Plaintiff was then transported to a nearby hospital for treatment of his dog bites. An officer informed the treating physician that plaintiff was an AIDS carrier. Under coercive pressure from the police, and an earlier threat that if he did not cooperate with the medical staff that he would receive unspecified punishment at the hands of the police, plaintiff executed a form of consent for the HIV test.

Subsequently the defendant officers told other police personnel that the plaintiff was an "AIDS carrier". One officer testified in open court that the plaintiff "had been tested for and was a carrier of AIDS". Plaintiff's status as an "AIDS carrier" was transmitted to his custodians at the Correctional Facility where he was sent, and resulted in his being subjected to ridicule and mistreatment by fellow inmates, and to unnecessary medical isolation.

Plaintiff is not HIV-positive.

ISSUE I: Whether individual officers who disclosed confidential medical information violated the plaintiff's right to privacy?

ISSUE II: Whether officers who published inaccurate medical information, were guilty of defamation?

ISSUE III: Whether officers who used force to intimidate plaintiff to consent to the HIV test, violated plaintiff's right to Due Process under the Fourteenth Amendment?

ISSUE IV: Whether the officers intentionally inflicted emotional distress on the plaintiff?

ISSUE V: Whether the Police Department and Township denied plaintiff the protection of normal police procedures solely because of his perceived handicap as an "AIDS carrier", in violation of the Federal Rehabilitation Act?

[105] Doe v. City of Cleveland, United States District Court, Northern District, Ohio, Eastern Division, Case No. C86-696, November 20, 1987, (SOURCE: National Gay Rights Advocates). Pre-Trial Brief of Plaintiff.

FACTS: Plaintiff was taken into custody at the city jail. He contends one of the defendants assaulted him during the arrest. Information that he was suspected of having AIDS was entered on his Booking Information Card. Despite the fact that no charges were brought against the plaintiff, the defendant sent a copy of plaintiff's Booking Information Card to his employer, a McDonald's restaurant in Cleveland, with a handwritten note which stated: "Even though AIDS cannot be transmitted by contact, it is unfortunate that he is associated with McDonalds. I feel the person in charge should know in case it can help you in any way. Please, and I trust you will keep this information confidential. Respectfully yours."

The information contained on the Booking Information Card regarding "suspected AIDS" was false. Doe lost his job for a period of time. The plaintiff contends the imputation of a loathsome disease requires no proof of damages because by the nature of the words, they are considered naturally harmful and likely to cause actual loss.

Plaintiff brought suit for invasion of privacy.

ISSUE I: Whether defendant's actions constitute invasion of privacy?

ISSUE II: Is plaintiff required to prove actual loss in order to recover damages?

[106] Hooking Is Real Employment (HIRE) et al. v. Ledbetter, U.S.D.C. N.D. Ga. Atlanta Division. SOURCE: LAMBDA (Complaint 1987).

FACTS: The Georgia Department of Human Resources requires mandatory HIV testing of those convicted of prostitution.

Plaintiffs claim that such testing is a violation of their privacy, that as the results can be used at sentencing, the tests violate their right against self-incrimination, that the regulations are unreasonable as there is no data that reflects that female prostitutes can be infected with or transmit the virus at any greater rate than other females in the general population nor that prostitutes are a high risk group for HIV.

ISSUE: Whether the regulation is unconstitutional?

[107] People v. Burkett, NY Sup. Ct. App. Div. 1st Dept., IND#6736-87. SOURCE: ACLU (Filed 11/16/87).

FACTS: On Oct. 6, 1987, as part of plea-bargaining agreement, Burkett pled guilty to `lissault in the second degree. She had originally been charged with the more serious crime of assault upon a police offi- cer. The charges arose when Burkett bit one of the officer's fingers, after which she stated, "I hope you die, motherfucker. I have AIDS."

On Nov. 13, 1987, Burkett was sentenced to concurrent terms of 6 months incarceration and 5 years probation. Probation, however, was conditioned on her submitting to a blood test prior to her release from jail on Nov. 24, 1987, and to two further blood tests, on Feb. 24, 1988, and May 24, 1988. She was also ordered to disclose the test results to the District Attorney's Office. Her discharge from probation would take place upon completion of the three tests.

ISSUE I: Whether Federal and State constitutional guarantees of due process, privacy, freedom from compulsory self-incrimination and unreasonable searches and seizures protect a probationer from repeated searches of her blood for the presence of the HIV antibodies, in the absence of any new criminal activity?

ISSUE II: Whether the State and Federal Constitutions protect probationer from having to disclose the results of such tests to the prosecutor in the absence of any new criminal activities?

[108] Barrows v. Van Sciver, 3rd Circuit Court Judge, District Ct., 3rd Judicial District, Utah, AIDS Litigation Reporter 9/9/88 (Announcement of filing of complaint).

FACTS: Defendant was charged with masturbating in public. The court ordered that he be tested for HIV. The defendant argued that there is no statutory basis for the testing, nor any scientific basis either. The court that ordered the test based its decision on the fact that the charges made out a crime of moral turpitude.

[109] Cooper v. Florida, District Court of Appeal, 1st District, Florida, AIDS Litigation Reporter 4/14/89.

FACTS: Cooper was convicted of sexual battery, solicitation and aggravated battery against two children, 12 and 18, while they were in his custody. One victim was the child of Cooper's girlfriend. The child had been released by the juvenile court to Cooper's custody.

Four days before trial, Cooper tested positive for HIV. The jury was not informed of this fact.

Cooper appealed his sentence on the ground that it exceeded the recommended sentencing guideline without good cause.

ISSUE: Whether the sentence imposed which ex- ceeded the recommended sentencing guidelines was proper?

HOLDING: The sentence was proper.

REASONING: Cooper was sentenced to concurrent terms of 30 years on each of the two sexual battery counts, and 5 years on the solicitation, followed by a consecutive 10 year probationary period. In departing from the recommended sentence guidelines of I 2 to 17 years, the court gave three reasons: (I) the sexual offenses were committed in a calculated manner, (2) that Cooper perpetrated a fraud upon the court by obtaining custody of the child from the court and threatening him with return to jail if he did not comply with Cooper's advances, (3) the offenses were committed with total disregard of the high risk of transmitting HIV which Cooper should have known.

The appellate court found all three reasons valid and upheld the sentenced imposed by the trial court.

[110] Brooks v. State of Florida, 519 So.2d 1156, 13 FLW 485 (District Ct. of Fla. 1988).

FACTS: Brooks was convicted of grand theft. She was sentenced to thirty months' incarceration and twenty-four months' community control. The recommended guidelines for the sentence for grand theft is community control or twelve to thirty months' incarceration. Brooks is HIV positive and has a long history of prostitution.

Brooks contested the imposition of a sentence that was harsher than the guidelines recommended.

ISSUE: Whether the court's desire to protect the community from the spread of HIV from Brooks justified a sentence harsher than the recommended sentence?

HOLDING: No, the concern over the spread of AIDS was not one of the criteria the sentencing court could use to determine the sentence.

REASONING: The appellate court determined that while community control was selected in order to afford the defendant maximum supervision in order to protect the public from the spread of AIDS, her disease had nothing to do with the crime for which she was convicted. Using the sentencing process to effectuate an otherwise laudable concern was improper.

[111] State v. Waymire, 504 So.2d 953 (Court of Appeal of Louisiana, 1st Cir. 1987).

FACTS: Waymire was convicted of attempted aggravated rape. He was sentenced to 35 years of hard labor. He was diagnosed as having AIDS.

Waymire asserted that the trial court erred by imposing an excessive sentence, that the court erred in imposing a sentence based only on defendant's age, prior criminal history and the weight of the evidence, without consideration of the fact that he was diagnosed as having AIDS. He argued that this disease has caused a marked deterioration in his mental and physical condition which should have been considered by the trial court.

ISSUE: Whether the trial court properly weighed all of the factors in determining the defendant's sentence?

HOLDING: The court properly weighed the necessary elements in determining the defendant's sentence.

REASONING: The appellate court reasoned that the maximum sentence which could have been imposed for attempted aggravated rape was fifty years at hard labor. The trial court imposed a sentence of thirty- five years at hard labor.

The pre-sentence investigation report revealed that the defendant had AIDS. The transcript of the sentencing hearing reflects that, although the diag- nosis of AIDS had been confirmed weeks before the sentencing, the defendant did not urge his deteriorating condition as a mitigating factor at any stage of the proceedings prior to appeal. While the pre-sentence investigation report related a statement by an examining physician that defendant's condition had deteriorated to the point where it affected his ability to think, the doctor opined that defendant was competent to stand trial and assist counsel. The trial court stated it had reviewed the presentence investigation report, which included the diagnosis and the assessment of the physician. The appellate court found that the trial court appropriately reviewed all of the relevant information before imposing sentence. The appellate court could not say that the trial court erred in the weight it ascribed to the evidence of defendant's condition.

[112] State of New Jersey v Wright. 221 N.J. Super. 123,534 A.2d 31 (Super. Ct., 1987).

FACTS: Wright was an inmate serving a sentence for first degree robbery and lion of a weapon. He requested a reduction of his sentence based on the fact that he suffers from AIDS. At the time this case was heard by the Appellate Division, there were approximately three months left before he could be released on parole without court intervention. The inmate presented evidence that he had kicked his drug habit, was now very involved in an anti-drug campain, and that the stress of prison was exacerbating his condition.

ISSUE: Whether the inmate should be released three months early?

HOLDING: No, the inmate did not meet the require- ments to be eligible for this judicial discretionary relief.

REASONING: The appellate court opined that the original sentence was based on the trial court's assessment of the inmate's "unenviable criminal history" which was long and violent. The original sentence could be amended only if the inmate's medical condition warranted it. In evaluating this, the court must determine that a "severe depreciation of his health has occurred since the time of original sentencing." The court must also consider the nature and severity of the crime, his criminal record, the risk that might result to the public by his release, the defendant's role in bringing about his current state of health, the nature of that illness and the availability of appro- priate medical services in prison to adequately treat or cope with the illness. The inmate must show that reduction in his sentence is essential to prevent further deterioration in his health.

After reviewing the facts of the case, the court found that the inmate was receiving adequate care in the facility, that he was "a long time drug user who contracted this dreadful and fatal disease because of his unfortunate addiction", that his segregation on the AIDS unit did not cause stress that was not normally related to prison, that he was receiving AZT while in prison which had stabilized his weight loss, and that no medical testimony was presented to indicate that continued confinement would hasten his deterioration or that release was essential to prevent further de- terioration.

The court found that the circumstances did not war- rant reduction of the sentence.

In language warning of the opening of floodgates, the court stated: "If we were to establish the rule that every inmate who has contracted AIDS should be released, without regard to or consideration for the enumerated factors otherwise involved, we would be ignoring our sworn responsibilities under the law. This we will not do."

[113] People v. MarIon Brandow, 139 A.D.2d 819,527 N.Y.S.2d 120, (3d. Dept. NY 1988), App. denied, 172 N.Y.S. 856,532 N.Y.S.2d 506,528 NE2d 896(1988).

[114] People v. Chrtanowski, 1989 WL 15667 (N.Y. A.D. 2 Dept. 1989).

[115] People v. Ford, 143 App. Div. 2d 841,533 N.Y.S.2d 325 (2d Dept. N.Y. 1988).

[116] People v. Napolitano 138 A.D.2d 414,525 N.Y.S.2d 698 (2d Dept. N.Y. 1988).

FACTS: Defendants convicted of various felonies. On appeal they argue that the fact that they are HIV positive requires a reduction in their sentences.

ISSUE: Whether the fact that a defendant is HIV positive supports a request for a reduction in sentence.

HOLDING: A defendant's seropositivity alone is not sufficient to support a reduction in sentence.

REASONING: For an appellate court to reduce the sentencing decision of the trial court, the appellate court must find that the lower court abused its discretion in sentencing. The single fact that a defendant is HIV positive and was sentenced to a term of imprisonment is not evidence of abuse of discretion.

[117] State of Oregon v. Guayante, Circuit Ct., Lane Co., Oregon, AIDS Litigation Reporter 8/26/88 (Announcement of sentencing).

FACTS: Defendant was convicted of two counts of second degree rape, second degree sodomy and a single count of sexual abuse for his sexual relations with a 14 year old girl. He was sentenced to thirty years imprisonment which was ten years longer than usually recommended by state prosecutors for similar crimes. The court sentenced the defendant to the longer term because he was HIV-positive and that the defendant "callously" exposed the girl to HIV. The court stated "this crime. . . approaches attempted murder, whether or not you are charged with it."

[118] People v. Hammond, Sup. Ct., Queens Co., New York, 1/23/89, AIDS Litigation Reporter 2/10/89.

FACTS: Defendant was charged with the reckless endangerment of his homosexual lover. Shortly after his arraignment, he was diagnosed as having AIDS and ARC. He was unable to attend numerous court appearances because of his illness. He was admitted to the hospital and, after a month, his doctor indicated that his prognosis was poor.

ISSUE: Whether the fact that a defendant is in the terminal stage of an illness permits the court to dismiss the charges in the interest of justice rather than simply adjourning the matter until the defendant has died and the charges are statutorily dismissed?

HOLDING: Yes, the court may dismiss the case unconditionally under these circumstances.

REASONING: The court determined that the factors that are to be evaluated in determining whether charges pending against someone who has AIDS or ARC should be dismissed in the interest of justice are: (1) that the defendant is medically certified as terminally ill; (2) that the defendant does not present a danger to society; and (3) that the defendant will be placed in a supervised medical program or facility (including a proper home-family setting).

Here the defendant was certified as terminally ill, he was suffering from such opportunistic infections that he was confined to a wheelchair or bed and thus not a danger to society, and he would be living in a supervised environment with his mother, a home health aide and friends.

The court went on to urge the legislature to remedy the problems currently facing courts dealing with these defendants. There was no procedure under which these decisions could be easily made. The court opined that a motion to dismiss in the interest of justice does not state whether hearings are required, nor do they provide the statutory machinery by which the district attorney may examine the defendant. The court further opined that with the ever increasing number of HIV-infected defendants, a statute or procedure must be established to provide uniform treatment of the issue.

The court suggested that the Office of Court Administration create an "abatement calendar" which would remove such cases from the general court trial calendar with the proviso that the cases could be placed back on the trial calendar upon a good cause application by the District Attorney.

[119] People v. Moros, Sup. Ct., kings Co., New York, AIDS Litigation Reporter 12/9/88 (Order dated 11/15/88).

FACTS: Moros was charged with criminal possession of stolen property valued in excess of $3,000. The charges arose when he was arrested fleeing the scene of a residential burglary with a "voluminous quantity" of stolen property in his car.

Moros had a lengthy criminal record. He also had been diagnosed as having AIDS, but he had not yet - begun to suffer from opportunistic infections. He was ambulatory. His medical condition did not currently confine or restrict him.

Moros requested that the court dismiss the indictment against him in the interests of justice on the ground that he had AIDS and that "further prosecution would be unjust."

ISSUE: Whether the facts of this case warrant the dismissal of the indictment in the interests of justice?

HOLDING: No, the mere fact a defendant has been diagnosed as having AIDS is not sufficient to warrant the extraordinary relief of dismissal of the indictment.

REASONING: In order to be eligible for a dismissal in the interests of justice, a defendant must show some compelling factor clearly demonstrating that conviction or prosecution would result in injustice. The court must evaluate the nature of the offense, the extent of harm caused, the strength of the evidence, the character and condition of the defendant, the purpose and effect of punishment, and the impact dismissal would have on the public safety and the public's confidence in the criminal justice system.

Here, the court found that the nature of the offense and the defendant's lengthy criminal history argued against dismissal. In addition, the court found that the defendant's medical condition did not compel dismissal. He was not confined or restricted by it. Therefore, public safety was still a factor to be considered, especially given the defendant's long history of recidivism. The court found that the defendant was in the "early stages of a terminal illness" and that fact did not outweigh society's interest in prosecuting him, especially when he was "physically and mentally equipped to commit further crimes."

[120] People v. Quinn, Sup. Ct. Queens Co., New York, AIDS Litigation Reporter 11/11/88 (Announcement of decision).

FACTS: A defendant charged with assault and attempted murder who was suffering from AIDS and hospitalized, bedridden and in constant need of oxygen petitioned the court for dismissal of the indict- ment in the interests of justice.

ISSUE: Whether dismissal of the indictment would be in the interests of justice?

HOLDING: The dismissal was in the interests of jus- tice.

REASONING: The court found that the defendant's prognosis was very poor. He could not withstand a trial of any duration. The court also found that "even if he were tried and convicted, in his present state, it would appear that there would be no purpose in imposing a sentence of imprisonment on the defendant when he has been sentenced to a much harsher fate and indeed almost certain death from the AIDS disease."

[121] People v. Williams, Supreme Ct., New York Co., New York. SOURCES: ACLU and New York Law Journal 9/18/87, p.1.

FACTS: Plaintiff, a long-term intravenous HIV-positive drug user, first became ill while an inmate at Fulton Correctional facility in 1985. After release from prison, he was hospitalized from Nov. 6 through Nov. 18, 1986, during which stay he was diagnosed with pneumocystis carinii and AIDS.

He was later arrested for a robbery he admitted committing after his hospitalization. He sought dismissal of the robbery charges on the grounds that he was seriously ill with AIDS, incapacitated, unable to participate in his own defense, and had an extremely short life expectancy.

The prosecution argued that because Williams was an IV-drug abuser, releasing him would increase the spread of AIDS to the public, that dismissal would give the seriously ill "carte blanche" to commit crimes, and that Williams was better off incarcerated where he would receive continuing medical treat- ment.

ISSUE: Whether plaintiff's condition is sufficient to permit the New York court to dismiss the charges in the interest of justice?

HOLDING: The interests of justice permit dismissal of the charges.

REASONING: The court determined that Williams was physically incapable of committing any further criminal acts. He also lacked capacity to make decisions critical to defending himself. The court opined that "even if a man has not lived with dignity, our society's own self-respect demands that he be permitted to die in dignity."

[122] People v. Camargo 135 Misc.2d 987,516 N.Y.S.2d 1004 (Sup. Ct. Bronx Co. 1986).

FACTS: Defendant was charged with criminal sale and possession of cocaine. He sought dismissal of the indictment in the interests of justice on the ground that he suffered from AIDS, was currently unable to stand trial because of his condition (he could sit up for only one hour a day and remained bed-ridden for the remainder), suffered from extensive opportunistic - infections that have affected his brain, among other organs. His doctor testified that he had about four to six months to live.

ISSUE: Whether the court may dismiss the indictment in the interests of justice?

HOLDING: The indictment may be dismissed in the interests of justice.

REASONING: By statute, the relevant factors that must be evaluated in addressing a motion to dismiss in the interests of justice are (I) the seriousness and the circumstances of the offense; (2) the extent of harm caused by the offense; (3) the evidence of guilt; (4) the history, character and condition of the defendant; (5) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (6) the impact of a dismissal upon the confidence of the public in the criminal justice system; (7) the impact of a dismissal on the safety or welfare of the community; (8) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The court found that the charges were serious, not victimless, the evidence of guilt overwhelming, and that the history and character of the defendant did not work to his benefit. It also found that the defendant's past criminal history, although extensive, involved no crimes of violence, but reflected his status as a drug abuser who sold drugs to maintain his own habit. It found that the defendant's prognosis meant that he would be confined to a bed, whether in jail or out, and thus he would not be a threat to the community. It also determined that sentencing the defendant probably would never occur as he probably would die before he could be tried. It therefore held that dismissal of the indictment was in the interests of justice. The prosecution had asked that the court conditionally dismiss the indictment with the proviso that it could be restored to the calendar if the defendant's condition should change miraculously. The court determined that there was no statutory authorization for it to do this. It also determined that it should deal with the question directly and not simply adjourn the matter until after the defendant had died and the indictment would be abated by law.

[123] Nevada v. Keams, District Ct., Clark Co., Nevada, AIDS Litigation Reporter 4/14/89 (Announcement of sentencing).

FACTS: A Nevada prostitute was sentenced to 20 years imprisonment under a Nevada statute that permitted such sentences to be imposed on prostitutes who knew that they were HIV positive. Prostitution is a licensed activity in Nevada. However, the state prohibits prostitutes who know they are HIV positive from practicing their trade.

[124] People of California v. Dalton, Orange Co., California, AIDS Litigation Reporter 9/23/88 (Announcement of acquittal).

FACTS: Dalton was accused of the murder of his former room-mate. He defended his actions by claiming self-defense. Evidence was produced which showed that the deceased, Ihling, had tested positive for HIV, had threatened to transmit the infection to Dalton and had engaged in a course of both sexual and physical harassment since the two had become room-mates. The jury acquitted Dalton.

[125] State v. Saxon et al., 226 N.J. Super. 653, 545 A.2d 255(1988).

FACTS: Saxon and others escaped from a New Jersey prison and were taken back into custody soon after. At their trial on the escape charge, they sought to have the jury instructed that it should consider a defense of duress based on the evidence that the escapees were afraid they would be exposed to HIV if they were assaulted by other prisoners. The trial court refused to so instruct the jury.

ISSUE: Whether the trial court erred in not instructing the jury that it should consider whether the evidence presented made out a defense of duress?

HOLDING: The court's failure to so instruct the jury was not error.

REASONING: An escapee is not entitled to claim the defense of duress or necessity unless and until he has demonstrated that given the imminence of the threat, escape was his only reasonable alternative. In addition, the escapee must also present evidence justifying his continued absence from custody as well as his initial departure. An indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. Duress defenses have been recognized only in cases involving immediate threats of serious bodily injury, death, or forcible sexual attack. None of those factors were present in this case. The defendants failed to make a bona fide effort to surrender or return to custody as soon as they escaped the alleged hazardous conditions of the state prison. This was fatal to their assertion of a duress defense.

[126] Baker v. Wade, 553 F. Supp. 1121, 106 F.R.D. 527 (N.D. Tex. 1985), reversed, 769 F.Zd 289 (5th Cir. 1985), U.S. cert. denied, 478 U.S. 1022, 106 S.Ct. 3337(1986).

FACTS: "Dallas Doctors Against AIDS" and several Texas District Attorneys requested that a 1982 court decision finding the Texas statute criminalizing consensual homosexual acts unconstitutional be reconsidered. They claimed that evidence relating AIDS and homosexuality which was unavailable at the time of the trial makes a new trial necessary.

ISSUE: Whether information showing AIDS to be transmissible through unprotected homosexual sexual acts required the court to reconsider its finding that the statute criminalizing consensual homosexual acts was "newly discovered evidence" and therefore re- quired a new trial?

HOLDING: The evidence proffered by the "Dallas Doctors Against AIDS" and the District Attorneys was not "newly discovered."

REASONING: Reconsideration is appropriate when The party has evidence that could not have been discovered at the time of the trial, the new evidence will change the outcome of the trial and there was no fraud or misrepresentation in the testimony given at trial. The information that the movants offered was available to them at the time of trial. In addition, public policy argued for denial of the motion. The same evidence as offered here was presented at legislative hearings held to re-criminalize consensual homosexual acts and rejected by the legislature. There was no reason to believe that the "new" evidence would change the outcome of the trial. Finally, the court found that the movants' main witness has engaged in misrepresenting facts both before it and other bodies. It therefore discredited the movants' evidence and for all of the above reasons, denied the motion for a new trial.

N.B. The U.S. Supreme Court later held that state statutes which criminalize consensual sodomy between adults is not unconstitutional. See Bowers v. Hardwick, 106, S. Ct. 2841(1986).

[127] City of New York v. St. Mark's Baths, 130 Misc. 2d 911 (Sup. Ct., NY Co. 1986).

FACTS: The St. Mark's Baths was a commercial bath-house. City inspectors provided evidence that high risk sexual activity had been taking place at St. Marks on a continuous and regular basis.

They documented that on over 14 separate days, they observed 49 acts of high risk sexual activity (consisting of 41 acts of fellatio involving 70 persons and 8 acts of anal intercourse involving 16 persons).

Scientific evidence showed that cases of AIDS among homosexuals and bi-sexuals males are associated with promiscuous sexual contact, anal intercourse and other sexual practices which may result in semen-to-blood or blood-to-blood contact; that anal intercourse is considered high-risk for transmission; that fellatio is also a high risk activity.

Based on this evidence, the City sought an injunction to close the Baths. The action was taken pursuant to a State Sanitary Code regulation which authorized local officials to close any facilities in which high risk sexual activity takes place. More specifically, in 10 NYCRR 24-2.2, the regulation provided:

Prohibited Facilities: No establishment shall make facilities available for the purpose of sexual activities in which facilities high risk sexual activity takes place. Such facilities shall constitute a public nuisance dangerous to the public health.

In 10 NYCRR 24-2.1, the regulation furnished definitions:

1. "Establishment" shall mean any place in which entry, membership, goods or services are purchased.



2. "High Risk Sexual Activity" shall mean anal intercourse and fellatio.

The Public Health Council based this regulation on the Commissioner's "findings" that:

Establishments including certain bars, clubs and bathhouses which are used as places for engaging in high risk sexual activities contribute to the propagation and spread of such AIDS-associated retro-viruses.

The owner challenged the regulation on the ground that it was an invasion of defendants' patrons' rights to privacy and freedom of association under the United States Constitution.

Individual "frequent" patrons challenged the regulation on the ground that the state regulation violated their rights to privacy and freedom of association.

ISSUE: Whether the regulation empowering the City to close commercial establishments which were used as places for engaging in high risk sexual activities that contribute to the spread of HIV was constitutional?

HOLDING: The regulation was constitutional.

REASONING: The court reasoned that for the statute to be constitutional, the state must show that it serves a compelling state interest and that it is the least restrictive method of attaining that goal. The court found that the demonstrated death rate from AIDS during the first six months of 1985 was 1,248 and that this demonstrated a compelling state interest in acting to preserve the health of the population.

The court opined that where such a compelling state interest is demonstrated even the constitutional rights of privacy and free association must give way provided, as here, it is also shown that the remedy adopted is the least intrusive reasonably available.

The evidence of high risk sexual activity, which all occurred either in public areas of St. Marks or in enclosed cubicles left visible to the observer without intrusion therein, demonstrated the inadequacy of self-regulatory procedures by the St. Marks staff, and the futility of any less intrusive solution to the problem other than closure.

The court also found that it was "by no means clear that defendants' rights would in actuality, be adversely affected in a constitutionally recognized sense by closure of St. Marks. The privacy protection of sexual activity conducted in a private home does not extend to commercial establishments simply because they provide an opportunity for intimate behavior or sexual release."

Regarding the patrons who opposed the injunction, the court found that the closure of this bath house did not extinguish their opportunities for unrestricted association in establishments which avoided creating a serious risk to the public health. The court weighed the right of association for the purpose of entertainment or gratification against the state interest in preventing the spread of disease and found that the state's interest was greater.

The court recognized that the defendants were challenging the soundness of the scientific judgments upon which the Health Council regulation was based and were also arguing that facilities such as St. Marks, which attempted to educate its patrons with written materials, signed pledges, and posted notices as to the advisability of safe sexual practices, provided a positive force in combatting HIV and a valuable communication link between public health authorities and the homosexual community. The court determined that, while these arguments and proposals might have varying degrees of merit, they overlooked a fundamental principle of applicable law: that it is not for the courts to determine which scientific view was correct in ruling upon whether the police power has been properly exercised. The judicial function ended with the discovery that the relation between means and end was not wholly fanciful or an illusory pretense. The challenges to the scientific judgments must be addressed to the legislature.

[128] People v. 3MCS Inc. et al., Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 9/9/88 (Announcement of closing of bathhouses).

FACTS: A Los Angeles gay bathhouse permitted high risk sexual encounters.

Gay advocates argued that the facilities were the only public conduit of AIDS prevention material.

Law enforcement responded that the activities that went on in the facility were a threat to public health, and they closed the facility.

ISSUE: Whether the bathhouses were a health nuisance?

HOLDING: The bathhouses were a threat to the public health.

REASONING: The court stated that while gays might perceive closure as a "step backward" it was a "necessary step to save the gay population of Los Angeles." The court ordered the bathhouses temporarily closed.

[129] Los Angeles v. Benson, Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 5/13/88 (Brief in support of application for temporary restraining order).

FACTS: The owners of bathhouses in Los Angeles sought a temporary restringing order to prevent the county health department from closing bathhouses.

The plaintiff claims the bathhouses do not spread HIV and that they provide a forum for information of safe sex practices.

[130] Doe v. City of Minneapolis, 693 F. Supp. 774 (D.Minn. 1988).

FACTS: Plaintiffs are a frequent patron of adult bookstores, an infrequent patron and a bookstore owner. They challenged the constitutionality of Minneapolis' "open booth" ordinance that requires viewing booths in adult bookstores to be open to the common area.

ISSUE I: Whether the challenged ordinance unconstitutionally infringed on the plaintiffs' first amendment rights?

HOLDING: The ordinance did not unconstitutionally infringe on the plaintiffs' first amendment rights.

REASONING: The court reasoned that for the ordinance to be constitutional it must be shown that: 1) it is content neutral; 2) it serves a legitimate governmental objective; 3) leaves open ample alternative channels of communication; and 4) is narrowly tailored to serve the governmental purpose. Here, neither party disputed that the law was content neutral. It was shown to serve the valid governmental function of attempting to halt the spread of HIV based upon the evidence presented at Council hearings showing that high risk sexual activities took place in the booths and that such activity was a transmission route for HIV. The plaintiffs' disagreement with the evidence taken at the Council hearings did not show that the means of the statute were unreasonably related to the legitimate governmental public health goal.

The court also determined that the means were not unduly restrictive. Ample alternate channels of communication remained in that patrons could rent the films to watch at home or watch them in the open booths. The fact that some patrons might not be able to afford to rent the films did not outweigh the public interest in stopping the spread of HIV. The court rejected the plaintiffs' argument that the statute was overbroad as the same ends could be accomplished by requiring the stores to enforce the one person per booth rule and by having an opening at the bottom of doors of the booths that was the width of the booth and 24" high off the ground. The court found that the Council could properly reject this plan because a one-person per booth rule was in effect already and was not being obeyed.

ISSUE II: Whether the ordinance violated the plaintiffs'/patrons' right to privacy?

HOLDING: The ordinance did not unconstitutionally infringe the plaintiffs' right to privacy.

REASONING: The court opined that for a right to privacy to be infringed, the conduct sought to be protected must be part of the right to privacy. The court held that the right did not include the right to view such entertainments in private in a commercial establishment.

[131] Suburban Video, Inc. a.k.a. Superb Video v. City of Delafield, 694 F. Supp. 584 (E.D.Wis. 1988).

FACTS: Superb Video which sold sexually explicit books, magazines and video cassette sought a ruling declaring that the Delafield's ordinance regulating such businesses conflicted with freedom of speech and the right to due process. The ordinance required that viewing booths open onto a public area be without doors and that adult-oriented enterprises, but not other bookstores or movie houses, comply with an elaborate licensing scheme.

The application process required that all partners, officers, directors, and 5% shareholders file separate applications under oath and provide a detailed description of their personal appearance and history.

ISSUES: Whether an ordinance aimed at halting the spread of HIV by regulating the operation of commercial establishments dealing in sexually explicit material by prohibiting doors on viewing booths and requiring owners to provide detailed information about their personal appearance and past history violated the first amendment?

HOLDING: The ordinance was constitutional as to its regulation of the viewing environment, however, it was unconstitutional as to it licensing procedure.

REASONING: The court determined that once a law restricting first amendment rights is found to be content-neutral, it must be determined that its regulation is narrowly drawn as to its time, place and manner restrictions.

Here, the goal of the ordinance was to halt the spread of HIV. The court found that the ordinance was justified without reference to the content of the regulated speech and was therefore content-neutral.

The court reasoned that the ordinance compared favorably with previously approved regulations from other municipalities. The court approved of those cases finding that the first amendment freedom of speech included the right to watch sexually explicit material but did not include the right to masturbate unobserved in a commercial establishment.

The court found, however, that there was no rational connection between the requirement that applicants provide the personal details demanded by the ordinance. The color of the applicant's hair had no connection with the goal of halting the spread of HIV. These sections were declared unconstitutional.

[132] Berg v. Health and Hospital Corporation of Marion County, Indiana, 1989 WL 4911 (7th Cir.(Ind.)), affirming 667 F. Supp. 639 (S.D. Ind. 1987).

FACTS: Businesses offering customers private viewings of motion pictures sought an injunction against enforcement of an ordinance designed to decrease the spread of HIV. The ordinance prohibited doors on individual entertainment enclosures of commercial premises. Subsequent regulations were adopted to help administer and enforce the ordinance.

Plaintiffs claimed that the ordinance was an unconstitutional infringement on their first amendment rights as it was a prior restraint, was overly broad or unconstitutionally vague and not content neutral.

ISSUE: Whether an ordinance requiring the area in which entertainments are viewed for a fee be open to the public view was an impermissible intrusion on free speech?

HOLDING: The ordinance was neither a prior restraint, overbroad vague and was content natural.

REASONING: The court determined that such ordinances do not involve prior restraint in they do not ban the viewing of such entertainments but rather regulate the environment in which they are shown. Regarding the alleged overbreadth of the ordinance, the court found that the regulations effectively cured any overbreadth of the ordinance. Regarding the claim of unconstitutional vagueness, the court reviewed the statute under the test that requires that a person of ordinary intelligence have a reasonable opportunity to know what is prohibited. It found that read together, the ordinance and regulations described in great detail what was prohibited in the way of doors on individual entertainment enclosures.

The court also rejected the plaintiff's argument that the statute was not content neutral. It determined that the statute did not regulate the content of the entertainment but rather its secondary effects and the environment in which it is shown and therefore was content neutral. The court analyzed the ordinance as a time, place or manner regulation of expressive activity ordinance. It then evaluated the state's interest in the regulation and determined if the statute had allowed for reasonable alternate avenues of communication. The goal of the statute was to decrease the spread of HIV and the ordinance was designed to serve this substantial governmental interest. The regulations and ordinance allowed for other avenues of communication, it in no way restricted the hours or location, in fact, the court found open booth regulations to be the least burdensome means that can be imagined of controlling offensive and illegal activity within booths.

For all of the above reasons, the court found the ordinance constitutional.

[133] Broadway Book Inc. v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986).

FACTS: The City of Chattanooga, in an effort to regulate the problems encountered because adult-oriented bookstores were unregulated, passed an ordinance requiring such establishments to be licensed.

The City was concerned not only about the increased risk of the spread of AIDS, but it believed also that the environment of such establishments encouraged sex-related crimes. At City hearings testimony was adduced to show that exposure to the blood and semen in the closed booths in the stores could transmit HIV, as could the sex act conducted through the 'glory holes.' In response to this the City required licensing of the ownership of the establishment.

The licensee had to--be at least 18 years old and a person of good moral character and reputation in the community; not have a conviction for any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature in any jurisdiction within the five years immediately preceding the application; be a resident of Chattanooga continuously for 30 days prior to the application, and have not committed any violation of this ordinance within five years immediately preceding the date of the application. A $500 fee had to be submitted with the application; one-half of it was returned if the application was denied. The licenses are to be renewed annually upon application.

In addition, the ordinance required that the establishment be arranged physically so that all rooms or stalls or wherever the adult entertainment was provided would be visible from a common area of the premises.

ISSUE: Whether the ordinance unconstitutionally infringed upon the plaintiffs' first amendment rights?

HOLDING: Most of the statutory provisions are constitutional. Those relating to residency and the requirement that the licensee be of good moral character were held to be unconstitutional.

REASONING: In order to determine that the ordinance was constitutional, the court evaluated the governmental interests involved and weighed them against the individual rights infringed upon. To establish a substantial governmental interest, the court determined that it was necessary only that the City demonstrate that the evidence which it relied upon was reasonably believed to be relevant to the problem that the city addressed. Here, there was a rational relationship between the ordinance and the hazard it wished to alleviate. The plaintiffs contended that the ordinance created restrictions on the first amendments freedoms that were greater than essential to the furtherance of that interest.

The plaintiffs contended that within the constitutionally protected right of privacy was the right to watch videos in seclusion,. The court rejected this argument. It determined that the law was unclear whether the owners of theatres have standing to assert patrons' privacy rights. Further, that even if they did have standing to assert the patrons' right to watch the video that right did not provide to the patrons the right to masturbate themselves and others in the booth, even though they might have the right to do so in their own homes, they did not have the right to do so in public. As to the open booth requirement, the court found that it did not infringe upon the plaintiffs' right to privacy, and the court held it to be constitutional.

Plaintiffs also complained that disclosure of applicant's names and criminal records violated their first and fifth amendment rights.

The court reviewed the legislative goal. The City's legitimate goal of crime prevention made it clear to the court that the City had a substantial government interest in insuring that the persons who operated these establishments did not have criminal records. There had been no showing that these requirements would chill the plaintiff's first amendment rights. Nor was there a violation of their fifth amendment rights. In order for there to be a violation of the fifth amendment, there must be a threat of prosecution that is real, appreciable and not imaginary. It must be shown that there is a causal link between disclosure and probable prosecution. Filing an application makes no such connection.

The court also found that the $500 license fee was not excessively burdening on the plaintiff's first amendment rights. The City had demonstrated the cost of processing each application and monitoring compliance throughout the year. The license fee was not unconstitutional so long as it was imposed as a regulatory measure to defray the cost of investigating the applicants. The court determined that the portion of the fee attributable to enforcement to be justified.

The court also found that closure of the establishments during the early hours of the morning was not an infringement that was unconstitutional as the closure lasted for only a few hours a day. However, the court determined that the residency requirement violated the equal protection rights of the applicants. It reasoned that durational residence requirements must be measured by a strict equal protection test and are unconstitutional unless the government authority can demonstrate a compelling government interest. Here the governmental interest was not compelling Therefore, the court found that section of the ordinance was a violation of the equal protection clause.

In addition, the court determined that the good moral character provision permitted a prior restraint on the first amendment rights by requiring the licensing authority to exercise unguided subjective judgment. It found that the basis on which the the City could deny a license was too imprecise to be reviewed.

[134] District 27 Community School Board v. Board of Education, 502 N.Y.S. 325 (Sup. Ct. Queens Co.) 1986.

FACTS: Plaintiffs are a local school board and some individual parents who seek to enjoin the admission to school of an asymptomatic HIV positive child on the ground that the Commissioner of Health and the Chancellor of the Board of Education are required by law to exclude "carriers of communicable diseases" from school. They argue that because AIDS is a reportable disease under Department of Health regulations, it is also communicable and children with AIDS must automatically be excluded from school.

ISSUE: Whether a rule that automatically excluded all children with AIDS from school would illegally discriminate against those children?

HOLDING: Automatic exclusion would illegally discriminate against the children on the basis of handicap.

REASONING: The court first determined that not all reportable incidents are communicable. For instance, incidents of falls from windows must be reported and they are clearly not communicable. The court then determined that a rule requiring automatic exclusion would be unconstitutional. In order for such a rule to pass constitutional muster it must be rationally related to the legislated goal. Here the goal would be to protect other school children and school staff from the risk of infection. The court determined that although the possibility of infection from a bite could not be completely ruled out, it represented such a minimal risk that it could not form the rationale for automatic exclusion of all AIDS children.

The court also determined that such a ruling would violate the children's rights under the Federal Rehabilitation Law. It determined that New York City was a recipient of federal funds and that the children, if they were automatically excluded from the classroom, would be treated as having an impairment by the Board of Education. It determined that the children were otherwise qualified to attend school as they posed a minimal risk to others. The court refused to issue an injunction.

[136] City of New York v. Cinema 14 Theatre, AIDS Litigation Reporter 10/28/88 (Announcement).

FACTS: In response to a motion by the NYC Dept. of Health, a judge closed a theatre on the grounds that it was a public nuisance because high risk sex acts were permitted to take place, making the theatre an HIV risk.

[137] FCC v. Sable Communications, U.S. Supreme Court, October Term, 1988, No. 88-525. SOURCE: ACLU (Amicus Curiae brief of San Francisco AIDS Foundation in support of Sable Communications).

FACTS: This is a dial-a-porn case. The San Francisco AIDS Foundation argued that because sexually explicit telephone communications may play a positive role in curbing the AIDS epidemic, the nation's obscenity laws ought not to be construed so as to ban all such material. It also contended that there is direct evidence that some people consciously use 'Dial-a-Porn' as a form of 'safe sex' instead of engaging in sexual contact involving the exchange of bodily fluids. Records of the Foundation's safe sex workshops with gay men reveal that participants spontaneously named 'phone sex' as a safe sex substitute in every recorded session. Several AIDS prevention organizations issue safe sex guidelines listing phone sex as a form of safe sex.

ISSUE: Whether the FCC should ban the use of dial-a porn enterprises?

[138] People v. Martin and Martin, Sup. Ct., Albany Co., New York, AIDS Litigation Reporter 12/23/88.

FACTS: Defendants operated a hypnosis course for HIV positive persons. They did so without being licensed under the state education law. They claimed that participants would experience a reversal of their infection. The Martins allegedly told one participant that he would die if he dropped out.

ISSUE: Whether the Martins were perpetrating a fraud upon their customers?

HOLDING: The defendants were ordered to refund all monies to the participants and to stop conducting the course.

REASONING: Not available

[139] Minnesota v. TBA, Inc., District Ct., Stearns Co., Minnesota, AIDS Litigation Reporter 8/12/88 (Order granting temporary injunction and complaint).

FACTS: TBA, Inc. is a Las Vegas firm doing business in Minnesota, Florida and Nevada that manufacturers "AIDS home testing kits" which have not been approved by the FDA. All three states initiated a variety of actions, including the assessment of fines, in order to force the company to cease distributing the kit and cease advertising as well. The kits were sold by company representatives who received $15 on every $49.95 kit sold.

[140] Complaint by the E.P.A. against Georgia Steel and Chemical Company, AIDS Litigation Reporter 2/26/88 (Announcement of filing of charges).

FACTS: The E.P.A. has filed charges against a Georgia chemical company for advertising a mislabelled pesticide as effective against the AIDS virus. Federal law requires that all chemical manufacturers register their products and have labelling approved by the EPA. The claims regarding AIDS were not included when the company registered the product.

[141] People v. Ancient Gold et al., Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 12/28/87 (Announcement of filing of complaint).

FACTS: The California Attorney General's Office announced the filing of a civil complaint against two companies claiming to manufacture a cure for AIDS and other diseases. The companies are charged with false advertising and unfair competition. The suit requests $2,500 for each incident of false advertising. The product sold by the companies is colostrum, a milk product from cows who have recently given birth. The FDA prohibits the selling of milk taken from cows within five days of giving birth.

[142] Missouri v. Nave Airway, Inc. Circuit Ct., Jackson Co., Missouri, AIDS Litigation Reporter 7/29/88 (Announcement of complaint).

FACTS: The attorney general of Missouri filed suit against Nave Airways, Inc. for selling investment shares in a resuscitation device promoted to prevent the spread of HIV. The defendant earned approximately $68,000 from Kansas City area residents from the marketing scheme. NB: the suit was to enjoin the sale of the shares because no dividends were paid; not to specifically enjoin the sale of the device.

[143] Ageloff v. Delta Airlines and Epstein v. Delta Airlines, U.S.D.C., S.D. FLA, Case No. 86-8035-CIV-SCOTT. SOURCE: ACLU (Motion to limit evidence and order).

FACTS: Estate of passenger killed in an airplane crash brought suit against the airline for compensation for the death of decedent. Airline sought to introduce evidence at trial that the decedent's homosexual lifestyle and possible risk of HIV infection reduced his employment opportunities and decreased his life-span.

ISSUE: Whether homosexual lifestyle, and possible risk of HIV infection, can be introduced in evidence as to the damages in wrongful death suit, to show deceased had limited employment opportunities as a consequence of homosexuality, and a possibly decreased life-span due to risk of HIV?

HOLDING: Such evidence is inadmissible.

REASONING: The court determined that while such evidence may be arguably probative, such relevance is outweighed by the danger of unfair prejudice.

[143A] Miller and Miller v. NYC Health and Hospitals Corporation, Sup. Ct., New York Co., New York, 4/13/89, AIDS Litigation Reporter 4/29/89.

FACTS: While plaintiffs' child was being treated in defendant's hospital the child was transfused with HIV-tainted blood in a transfusion performed without parents' permission. They did not learn of their child`s infective status until four years after the transfusions, well after the 90 day time period prescribed by the statute, which requires that claims against New York City be filed within 90 days of the accrual of the injury. Defendant refused to accept the late notice of claim.

ISSUE: Whether the nature of the latency period of HIV infection requires that the statute barring late claims be waived?

HOLDING: The nature of the disease made the delay excusable.

REASONING: The court analogized the situation to that facing the court when determining whether infancy will provide an excuse for failure to file a timely claim against a City agency. That determination is left to the court's discretion. The factors to be considered are: whether the county acquired knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter and whether the delay would substantially prejudice the county in maintaining its defense.

The court found the delay excusable. The delay was excused by the inability of the claimant to discover the condition for some time after the occurrence. The maintenance of the defense would not be affected by any change in personnel as hospital records were available.

[144] Prego v. City of New York, 634 N.Y.S.2d 95 (Kings Co. 1988).

FACTS: Plaintiff is a physician who worked at Kings County Hospital. In January, 1983 while assisting an intern in drawing blood from an AIDS patient, the plaintiff was stuck by a needle which had been used in the treatment of the AIDS patient. The needle had been left among gauze and other refuse on the patient's bedding. The plaintiff was stuck as she proceeded to clear away what appeared to be ordinary refuse. The incident was immediately reported to hospital authorities who assured her that her risk in contracting HIV was minimal. In March, 1985, the hospital conducted a study at Kings County Hospital to determine the incidence, if any, of AIDS among health care workers. The plaintiff was advised that she had tested positive for HIV. For more than two years thereafter she exhibited no symptoms that would indicate that she was HIV positive. In November, 1987 however the plaintiff developed pneumocystis carinii pneumonia (PCP) which indicated that the plaintiff had AIDS.

Several months later she filed a notice of claim against the defendants and in June of 1988 this action was commenced.

The defendants claimed that the action was barred by the statute of limitation. They argued that the plaintiff's one year and ninety day time period in which to file a complaint ran from the date of the injury which, they claim was January 1983 when she was "injured" by being exposed to HIV.

ISSUE: Whether exposure to HIV falls within the definition of exposure to a toxic substance such that the time in which to file the claim will run, not from the time of exposure, but from the time the plaintiff discovered the injury or should have discovered the injury?

HOLDING: Exposure to HIV, under circumstances such as this, is exposure to a toxic substance and the time to file a claim will run from discovery or when discovery should have occurred, whichever is earlier.

REASONING: The court determined that the statute designating the statute of limitations for suits for exposure to toxic substances does not differentiate between chemically manufactured substances and substances that are otherwise produced. The purpose of the statute that permits suits for injuries due to exposure to toxic substances to accrue when discovered or when discovery should have occurred (whichever is earlier) is to prevent the injustice caused when the plaintiff is unaware of the exposure and therefore has no knowledge of the need for an action. The legislative goal applies equally to manufactured toxic substances as well as others. Therefore, the statute of limitations on exposure to the virus accrued upon discovery or when the plaintiff should have discovered the exposure whichever is earlier and the plaintiff's complaint was filed in time.

[145] DiMarco v. Hudson Valley Blood Services, 141 Misc.2d 59, 532 N.Y.S.2d 488 (Sup. Ct. Bronx Co. 1988).

FACTS: Plaintiff claimed to have been infected with HIV after being transfused with blood provided by defendant blood bank in January 1985. He sued the blood bank claiming negligence and medical malpractice. Suits sounding in negligence have a time limit of three years from the date of injury; medical malpractice, two and one-half from the date of injury.

Plaintiff argued in response to the motion to dismiss the claim of negligence that blood is a "toxic substance" and therefore the time period runs from either the date of discovery of the injury or when plaintiff should have discovered it, whichever is earlier. Plaintiff claimed the "foreign object" exception applies to his medical malpractice claim as it is based upon the discovery of a foreign object in the body of the patient, and therefore the action may be commenced within one year of the date of discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.

ISSUE I: Whether infected blood is a "toxic substance"?

HOLDING: HIV is not a toxic substance under the statutory definition.

REASONING: The court relied upon the plain language dictionary definition of "toxic": of, relating to, or caused by a poison or toxin 2. affected by a poison or toxin 3. poisonous" (1973 Ed., Webster's New Collegiate Dictionary ) and held that it did not fall within the ambit of a "toxic" substance exception created by the toxic substance statute. Therefore, the statutory time period in which to file a complaint would run from the date of the injury4 which was the date of the transfusion.

ISSUE II: Whether the virus was a "foreign object" which was left in the patient inadvertently and would thus come under the rule which permits actions to be filed 2 1/2 years after the date of the last treatment.

HOLDING: HIV is not a "foreign object."

REASONING: The "continuous treatment" doctrine refers to the fact that the 2 1/2 year the plaintiff has to file a complaint begins to run from the date of the last treatment where there has been "continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure" and the defendant allegedly left a foreign object in the plaintiff. The Court found a virus contained in the blood used in transfusions is not what is intended as a "foreign object". Therefore, the extended time period is inapplicable.

The complaint was dismissed as time barred.

[146] Mosele v. Bures, 139 Misc.2d 409, 528 N.Y.S. 976 (Sup. Ct. Suffolk Co. 1988).

FACTS: Plaintiff sued her physician for malpractice arising out of multiple blood transfusions. She alleged, among other things, that the blood transfusions may have exposed her to HIV. She had not been tested and refused to be tested. She stated that the psychological repercussions of a positive test result on her and her family, as well as the ensuing loss of confidentiality and stigma require that the court refuse to order the test.

The defendant sought a court order requiring that the plaintiff be tested as part of pre-trial discovery.

ISSUE: Whether a plaintiff, who claims she has been exposed to HIV because of the defendant's negligence may refuse to undergo an HIV test requested by the defendant?

HOLDING: The court ordered that the plaintiff undergo an HIV test at least 10 days prior to trial or else all references to AIDS would be removed from the legal papers and barred from trial testimony.

REASONING: Not available.

[147] Mondello et al. v. New York Hospital et al., Supreme Ct., New York Co., New York, AIDS Litigation Reporter 4/15/88.

FACTS: Plaintiff's wife died as the result of a transfusion of HIV-infected blood while she was pregnant. Their daughter also died at the age of six months as a result of the transfusion. In July 1987, after she died, her husband sued her physician who treated her until May 1985 for personal injury and for conscious pain and suffering. He also sued the treating physician and the hospital for conscious pain and suffering arising from her death. The suits were filed past the deadline for malpractice actions.

The plaintiff claims that all actions are timely because of the exception to the rule barring actions brought more than two and one-half years after the event permits actions when a "foreign object" is involved. When that is the case, the statutory exception permits the action to be brought two and one-half years after the time of discovery or when discovery should have reasonably occurred.

ISSUE I: Whether the "foreign object" exception applies to HIV transfusions?

HOLDING: The foreign object exception does not apply to HIV.

REASONING: The court determined that the statute establishing the foreign object exception was designed to cover clamps, sponges, surgical instruments and similar objects which the physician had not intended to leave in the body and which retained their original identity. The statute specifically excludes chemical compounds. The court refused to re-write the statute. It dismissed all counts except those specifically stipulated to by the parties and the count against the physician who treated the patient within two and one-half years of the filing of the law suit.

See also Dale v. Irwin Memorial Blood Bank re: California ruling that statute of limitations runs from time of diagnosis not of exposure. (Blood Transfusion section)

[148] Quintana v. United Blood Services, et al., District Ct., Denver, Colorado, AIDS Litigation Reporter 6/10/88 (Announcement of jury verdict).

FACTS: In a suit against a blood bank alleging negligent screening of donated blood and against two physicians for failure to properly diagnose and treat the plaintiff's HIV infection and for their failure to counsel the plaintiff regarding safe sex techniques and thus putting her husband at risk, a jury returned a verdict of $70,000 damages as against the physicians but found the blood bank was not liable for the manner in which it handled the donation in 1983.

[149] Chavez v. Los Angeles Co. U.S.C. Medical Center, et al., Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 6/10/88 (Complaint).

FACTS: A female patient at a psychiatric hospital was raped by an HIV-infected male patient, known to the hospital to be infective and sexually assaultive.

Plaintiff claims the defendants were negligent in not properly supervising or isolating the HIV positive sexually assaultive patient.

[150] Quinn v. Los Angeles County - U.S.C. Medical Center, Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 4/29/88 (Amended complaint) and AIDS Litigation Reporter 12/28/87 (Original complaint).

FACTS: Office employees of the defendant's hospital claim they have been exposed to HIV as well as other viruses by leaking pipes which carried waste from epidemiology laboratories through their office. The plaintiffs have reported the leaks to the hospital on numerous occasions.

ISSUE: Whether the defendants negligently exposed the plaintiffs to viruses?

[151] Watson v. San Francisco General Hospital, Superior Ct., San Francisco Co., California, AIDS Litigation Reporter 12/11/87 (Complaint).

FACTS: A nurse who worked with AIDS patients contracted CMV, an opportunistic infection from which many of the AIDS patients suffered. Her daughter was born suffering from the same disease. The nurse also passed it on to her husband.

The nurse claims the hospital was negligent in the manner in which it trained nurses regarding handling HIV infected products, and in its requiring that the nurses not wear gloves or gowns when treating such patients in order to not spread fear.

[152] Bannow v. Michigan Public Health Department, Ingham County Public Health Department, Michigan Circuit Ct., AIDS Litigation Reporter 3/10/89.

FACTS: Plaintiff was erroneously diagnosed as being HIV positive by county health departments. The agencies had insisted that there was no chance the results were incorrect and encouraged him to make his burial arrangements. Plaintiff terminated his college education and learned that he was not infected only while working for the Lansing AIDS Network and participating in an evaluation of AIDS testing services after three negative tests.

[153] Brown v. Shapiro, The Fertility Clinic, et al., Circuit Ct., Rock Co., Wisconsin, AIDS Litigation Reporter 11/11/88 (Complaint).

FACTS: Defendants used HIV-infected semen when they artificially inseminated Mrs. Brown. Although the semen was tested, the results were not made available until two weeks after the procedure. Mrs. Brown became pregnant, but miscarried. She alleged that she would have been forced to undergo a "therapeutic abortion because of her AIDS exposure." The donor of the semen was "unequivocally positive for AIDS, although apparently not symptomatic."

ISSUE: Whether the defendants are liable for negligently exposing Mrs. Brown to HIV?

[154] New Jersey E.P.A. v. Central Diagnostic Laboratories, Superior Ct., Middlesex Co., New Jersey, AIDS Litigation Reporter 8/29/88 (Announcement of closure of laboratory).

FACTS: The New Jersey Department of Health closed a medical diagnostic laboratory upon the indictment of the lab's manager on charges of reckless release of hazardous waste after the Health Department determined that the lab was involved in illegal dumping of HIV-infected blood.

[155] Christian v. Sheft, Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 4/29/89 (Announcement of decision on motion to reduce verdict or grant new trial).

FACTS: The trial court reduced the $21.7 million jury award to Rock Hudson's lover to $5.5 million. It determined that the jury could only hold defendant liable for emotional distress since there was no proof of physical debilitation due to the emotional stress. The court determined that the emotional stress must have decreased over time and that therefore the $14.5 million verdict was "so high that it must be concluded that the award is based in part on passion resulting from the jury's evaluation of the outrageous and reprehensible . . . conduct of Rock Hudson..." It therefore ordered a new trial unless the plaintiff accepted the lower award (which he did).

[156] Christian v. Sheft, Executor of the Estate of Rock Hudson, et al., Superior Ct., Los Angeles Co., California, AIDS Litigation Reporter 2/24/89.

FACTS: Rock Hudson and his personal secretary withheld from Christian the fact that Hudson suffered from AIDS while the two were having a sexual relationship despite Christian's inquiries. Christian continues to test negative for the disease.

The defendant responded that Hudson's physical condition was obvious, and plaintiff therefore was or should have been fully aware of his condition, the risk of exposure to HIV by intimate sexual contact with him, and that Christian had assumed the risk of contracting HIV.

The jury found that the Hudson was guilty of "outrageous conduct" and "reckless disregard" of Christian's well-being. The jury also found that Christian suffered severe emotional distress after learning Hudson had AIDS.

[157] Halverson v. Brand and Cohen, Sup. Ct. Pennsylvania, November 1986, LAMBDA (Opinion) and AIDS Litigation Reporter 4/29/88 (Announcement of oral argument on appeal of lower court ruling of dismissal).

FACTS: Plaintiff was a nurse. While assisting surgeons during an operation on a patient, which defendants knew was HIV positive but plaintiff did not, plaintiff's ungloved hand came in contact with the patient' saliva. The plaintiff has tested negative for HIV. Plaintiff claims the surgeon and the patient's treating physician were liable for negligent infliction of emotional distress for failing to advise her of her risk of exposure to HIV.

ISSUE: Whether the law permits an action for negligent infliction of emotional distress when the plaintiff suffers no physical injury?

HOLDING: Such an action cannot be maintained.

REASONING: Pennsylvania law requires proof of physical injury to support a claim for negligent infliction of emotional distress.

[158] Long v. Basile et al., Circuit Ct., City of Roanoke, Virginia, June 22, 1989. (Source: Kenneth Labowitz, Esq., Fagelson, Schonberger, Payne and Arthur). Motion for Judgment.

FACTS: In February, 1987, plaintiff Long requested that the two defendant physicians at a community hospital in Roanoke, Virginia test him for the presence of HIV antibodies because he had received blood transfusions in 1980. Defendant Basile ordered the HIV test during a hospital admission.

Defendants Cutter and Basile were notified of the test results, indicating the presence of HIV. Plaintiff contends defendant Basile said he would contact plaintiff if the test results were positive. Defendant Cutter, the admitting physician, was aware the test was performed.

Neither defendant notified the plaintiff of the test results and there is no indication in his hospital chart that either defendant tried to contact him about the test or warn him of the risks of transmission of HIV to others. He discovered in 1988 that he was infected when he was hospitalized. He had sex with several women during the period between the 1987 test and the 1988 discovery of his seropositive status. He notified most of his former sex partners and advised them to be tested. Plaintiff states that some of his partners tested positive and he believes he infected them.

Plaintiff now has AIDS and contends had he known earlier of his HIV status he would have sought treatment that might have postponed the onset of AIDS.

ISSUE I: Were the defendants negligent by failing to notify Long of his test results, particularly that it contained HIV?

ISSUE II: Were the defendants negligent by abandoning Long with regard to care and treatment of his HIV condition by failing to notify him of his test results and to take appropriate steps toward care and treatment of his condition?

[159] Johnson v. West Virginia University Hospital, West Virginia Circuit Court, Monongalia Co., AIDS Litigation Reporter 3/24/89 (Complaint filed 2/12/89).

FACTS: The hospital, plaintiff's employer, failed to inform him, a security guard, that a patient who was exhibiting violent and abusive behavior was infected with HIV. During a violent incident involving the patient in the emergency, Johnson and other officers attempted to subdue the patient and during that incident, the patient bit Johnson on the arm and drew blood.

ISSUE; Whether the hospital was negligent in not informing Johnson of the HIV status of the violent patient?

[160] Adams v. Leesburg State Prison, Superior Ct., Cumberland Co., New Jersey, AIDS Litigation Reporter 6/24/88 (Complaint).

FACTS: While coming to the aid of an apparently unconscious prisoner, a prison guard was stabbed with a hypodermic needle by the prisoner.

The guard filed suit against the prison for failing to test either him or the inmate immediately after the incident, to provide counselling, and for exposing his reputation to damage and ostracism by making statements to the media.

[161] C.A.U. v. R.L., Ramsey Co., Minnesota, Dist. Ct. No.86- 11C480825. SOURCE: ACLU (Complaint 11/05/86).

FACTS: Plaintiff started dating the defendant in May 1984, and continued to date him for more than a year during which time they had sexual relations. During the same period the defendant was hospitalized several times. Plaintiff now brings suit claiming that while the two were lovers she was exposed to the HIV virus.

Defendant argues that plaintiff assumed the risk voluntarily.

ISSUE I: Whether defendant knew or should have known that he was HIV positive because of his illnesses, his previous sexual activities and the plethora of publicity about HIV in the news media, and was negligent in failing to inform plaintiff?

[162] J.M.F. v. Emerson and Hematology Oncology Consultants, 1989 WL 21781 (Mo. App. 1989).

FACTS: Plaintiff was employed by defendants. Defendant Emerson directed her to use a lancet and draw blood from a seropositive patient. After she finished, she, defendant Emerson and a nurse became involved in an argument regarding the disposal of the lancet. The argument caused plaintiff to become confused while she was disposing of the lancet and she cut her finger with it. Plaintiff has not tested positive.

The plaintiff claims that Emerson was negligent because he knew that plaintiff was not trained to draw blood from a patient who was HIV positive, that both he and the nurse who were present in the examining room knew how to handle such patients and that defendant Emerson was negligent in instructing plaintiff to use a lancet instead of a syringe to obtain the blood from the HIV positive patient. Plaintiff claims that, despite her negative test results, she should be compensated for the psychological injury to her caused by the fact that she does not know and will not know for some time whether she has been infected.

The action is precluded by the Workers' Compensation Law because Emerson was a supervisory employee.

ISSUE I: Whether Dr. Emerson's conduct removed him from the role of supervisory employee such that will permit him to be sued for negligence?

HOLDING: Dr. Emerson's conduct was that of a supervisory employee. He may not be sued for negligence. Plaintiff's claim must be brought as one for Workers' Compensation.

REASONING: The court determined that to state a claim against a supervisory employee, the injured employee must allege something more than the general failure to fulfill the general duty of supervision and safety; something "extra" is required to impose tort liability. A supervisory employee must act outside the scope of his or her supervisory responsibility and while outside that role, breach the personal duty of care owed to the employee. The court found that plaintiff failed to allege anything other than a breach by Dr. Emerson of his duty of proper supervision. None of the acts alleged by plaintiff to have caused her injury were beyond the scope of supervision. Therefore, she failed to plead actionable negligence.

ISSUE II: Whether Dr. Emerson's insistence that plaintiff draw blood from an HIV positive patient violated the Missouri practical nurse licensing law?

HOLDING: No, his actions did not violate the licensing statute.

REASONING: The court determined that the Missouri statute establishing the requirements for practical nurse licenses set forth the requirements and defined the responsibilities of a practical nurse. It did not state that the drawing of blood from an HIV positive patient was restricted to those with such a license. Further, even if it did, it did not create for a private party a cause of action against one who violated the statute.

[163] Mapplethorpe v. NY Historical Society, Sup. Ct., New York Co., New York AIDS Litigation Reporter 11/11/88 (Announcement of withdrawal of suit).

FACTS: The Historical Society fraudulently obtained the deathbed signature of Samuel Wagstaff which gave the Society a silver collection valued as high as $600,000. Mapplethorpe maintained that at the time the agreement was executed, AIDS had so affected Wagstaff's brain that he was unable to understand the nature of the contractual terms or make rational judgments concerning them.

The suit was withdrawn and no details of the agreement withdrawing the suit were made public, although it was disclosed that the collection would be sold at auction.

[164] Estate of George O'Shields, Probate Court, Fulton Co., Georgia, AIDS Litigation Reporter 2/24/89.

FACTS: Decedent died of AIDS one month after executing his will disposing of his $200,000 estate by giving the bulk of it to his long time friend, various individual possessions to other friends, and his 11 year old car and some jewelry to his father and brother.

The father and brother contest the will on the ground that at the time of its execution, the decedent was suffering from AIDS dementia and was under the influence of the friend who received the bulk of the estate. They presented an expert witness, who, based on his reading of the decedent`s medical records which had no notations discussing any lack of capacity, found that the decedent lacked such capacity.

The proponents of the will presented the testimony of the decedent's treating physician, who testified that she saw and spoke to the decedent in the days surrounding the execution of the will and saw no sign of incapacity and believed that he was competent to make a will at the time. She also testified that the decedent had spoken to her of a rift in the family.

ISSUE: Whether the will should be set aside?

HOLDING: No, the will should not be set aside.

REASONING: The court found that those contesting the will presented no credible evidence that the testator was incapacitated at the time he signed the will. Evidence of rift in the family additionally supported the will.

[165] Davis v. Walker, U.S.D.C. N.D. Alabama, AIDS Litigation Reporter 12/28/87 (Opinion).

FACTS: Plaintiff was arrested by defendant who was the sheriff of Tuscaloosa County. He alleges that the sheriff placed him in a cell with another inmate who was later diagnosed as having AIDS. During their time together, the two shared coffee and cigarettes. Plaintiff claims he would not have done so had he known the other inmate had AIDS. Plaintiff does not allege that he has contracted the disease. He sues the sheriff for negligently failing to screen all in-coming prisoners for HIV infection. He claims that this negligence violated his civil rights.

ISSUE: Whether the sheriff's failure to test all in-coming inmates for HIV violated the plaintiff's civil rights?

HOLDING: The failure to screen did not violate the plaintiff's civil rights.

REASONING: In order for negligence to rise to the level of a civil rights violation it must be shown that the state's actions were founded upon a callous disregard for the health and welfare of the inmates. Here, the court found that the decision to not screen all inmates is one to be made by the sheriff. The court determined that the sheriff is in the best position to determine whether wide-scale screening was necessary. In addition, although exposing inmates to contagious diseases has been held to violate the civil rights of the inmates where there has been a showing that the authorities recklessly disregarded the risk, here there was no allegation that the sheriff knew the inmate had AIDS.

The court also determined that the sheriff's decision was reasonable based on the manner in which the infection is spread. Given that the known routes to transmission required participating in conduct prohibited within the prison system, the court found that the sheriff could properly eschew screening and testing each inmate in favor of stringent enforcement of rules against homosexuality and intravenous drug use in the jail.

[166] Wiggins v. Maryland, 76 Md. App. 188, 544 A.2d 8, (1988), cert. granted, 314 Md 95, 548 A.2d 845 and rev'd en banc 315 Md 232, 554 A.2d 356 (1989).

FACTS: During Wiggins' trial for murder, the court, because it thought that Wiggins might be HIV positive, permitted court officers to wear rubber gloves during the trial.

After conviction, the defendant appealed on the ground that the officers' wearing gloves deprived him of a fair trial.

ISSUE: Whether the wearing of rubber gloves by the court officers deprived defendant of a fair trial?

HOLDING: The wearing of rubber gloves deprived defendant of a fair trial.

REASONING: The court reasoned that because the trial testimony included evidence that a number of the participants in the events - both witnesses and co-defendants - were drug users and/or homosexuals and HIV is widely known to attack these groups, the jury could have inferred from the guards' attire that the defendant was HIV positive and was either a drug abuser or homosexual. The court found that because the trial court had not determined that the defendant was HIV positive that the order permitting the guards to wear gloves was without a sound basis. The trial court's order undermined the fairness of the fact-finding process and diluted the principle that guilt is to be established by probative evidence and not irrelevant and prejudicial information presented to the jury. [The decision did not address the question of whether such attire would have been permissible had there been a foundation for claiming that the defendant was HIV positive.]

[167] Peacock (In the Matter of), 59 B.R. 568 (Bankr. S.D. Fla. 1986).

FACTS: At a pre-trial conference in the Bankruptcy Court, counsel for the debtor announced that his client was HIV positive. Because some judges in Broward County, Florida had previously required HIV positive individuals to wear face masks during courtroom proceedings, counsel asked the bankruptcy judge whether or not he would require any special precautions to be taken during the trial when the debtor was present in the courtroom.

ISSUE: Whether the fact that a person is HIV positive will require special precautions against contagion to be taken in the courtroom?

HOLDING: No special precautions need be taken.

REASONING: Because HIV is not spread by casual contact, there is no need for precautions to be taken in the courtroom.

[168] Doe v. Philadelphia Sheriff's Office (Source: Press Release dated February 23, 1988, from the Philadelphia AIDS Task Force).

FACTS: Sheriff's deputies refused to transport a criminal defendant to court because they believed he had AIDS. This caused his case to be adjourned and forced him to spend unnecessary time in jail and also delayed his trial. The defendant sued the Sheriff's Office for discrimination. The case was settled. As part of the settlement, the Sheriff's Office agreed to 1) undertake a mandatory AIDS training program for all of its deputies, 2) promulgate a new AIDS policy stressing confidentiality and non- discriminatory behavior when handling defendants with AIDS, and 3) institute disciplinary action for disclosure of a defendant's AIDS diagnosis while in the Sheriff's custody. Plaintiff was awarded legal fees.

[169] Re: Jefferson County District Court Judges, (Source: AIDS Law & Litigation Reporter, January 1989).

FACTS: Jefferson County (Birmingham, Alabama) District Court Judges have required defendants who are HIV positive to enter their pleas and receive sentences by telephone. The trials are for criminal cases. One Jefferson County judge stated his fear of infection from defendants who are HIV positive when defendants personally enter pleas. Accordingly, the judge would require that pleas be made by telephone, from behind glass, or by closed circuit television. Moreover, the judge would dismiss the case if forced to personally hear cases.

[170] Stenger et al. v. Lehigh Valley Hospital, et al. and The Morning Call (Appeal of), 554 A.2d 954 (Pa. Super. 1989).

FACTS: The Stengers are involved in litigation against a hospital and blood bank. They allege that because of the hospital's negligence and blood bank's negligence, Mrs. Stenger was transfused with HIV infected blood. She then transmitted unknowingly the virus to her husband. While taking depositions during that suit, the Stengers requested that newspapers covering the litigation be precluded from having access to the depositions. The Morning Call and other newspapers asked the court for permission to intervene and argue against the protective order.

ISSUE: Whether the First Amendment provides the press with the right to pre-trial discovery material?

HOLDING: No, the right to free press does not extend to pretrial material.

REASONING: The right to publish freely does not create an unrestrained right to gather information. Rather, the presumption of openness for access to a criminal trial may be overcome by an overriding interest based on findings that closure is essential to preserve higher values. Even a criminal trial, where the defendant is guaranteed an open and public trial may be closed under certain circumstances.

The public's right of access can be compromised further in civil proceedings and even further, where, as here, the information is sought to be obtained from pre-trial discovery. At this early stage the parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action. This rule further provides that discovery is not limited to matters that will be admissible at trial, so long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. The discovery rules often allow extensive intrusion into the private affairs of both litigants and third parties. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery, it is necessary for the trial court to have the authority to issue protective orders.

In addition, such pretrial depositions and interrogatories are not public components of a civil trial. Discovery rarely takes place in public.

Because of these factors, pre-trial discovery may be protected from disclosure in order to save a party from unreasonable embarrassment, annoyance or humiliation. The court found that the publication of pre-trial discovery information would add to the already publicized misery of the family and precluded disclosure of the information.

[171] Schneider v. Flowers, 137 Misc. 2d 512, 521 N.Y.S. 2d 647 (Sup. Ct. 1987).

FACTS: Plaintiff in civil action requested special calendar preference and early trial date on the grounds that he was suffering from AIDS and was in imminent danger of death.

ISSUE: Whether to grant a special trial preference date when a party has AIDS?

HOLDING: The special preference is granted.

REASONING: New York law "provides that under special circumstances, a case should be given preference and advanced to the head of the trial calender." Special circumstances have included, in the past, advanced age, poverty, and severe illness. In this case the medical prognosis of the plaintiff indicated that he was in "imminent danger of death." The court's decision in this case establishes that a party afflicted with AIDS must be entitled to the same early trial preference that any other litigant suffering from a severe illness receives.

[172] Murphy v. Community Hospital of the Monterey Peninsula, Superior Ct., Monterey Co., California, AIDS Litigation Reporter 9/9/88 (Announcement of granting of trial preference and order).

FACTS: A court has granted a request for a trial to an AIDS sufferer who is suing the hospital which allegedly transfused her with HIV infected blood. This allows the plaintiff to stop the statutorily required arbitration. It was the plaintiff's contention that the defendants were deliberately slowing the arbitration process in the hope that she would die before their completion. The court ordered the case to trial.

D. Prejudice to the Trial Court's Decision

[173] Elam v. Alcolac (Source: AIDS Law & Litigation Reporter, January 1989). Decision.

FACTS: Plaintiff's attorney used the phrase "chemically induced AIDS" to describe injuries alleged to have been sustained by thirty- one persons when exposed to toxic waste from defendant's chemical plant. The trial court found defendant guilty of negligent behavior and that plaintiff's attorney had failed to use the more appropriate phrase -- "chemically induced immune disregulation."

ISSUE: Did the use by plaintiff's attorney of the phrase "chemically induced AIDS" prejudice the trial court's decision?

HOLDING: The plaintiff's attorney inappropriately used the phrase "chemically induced AIDS". The case was ordered to the trial court for determination of damages.

REASONING: A jury cannot but be moved to sympathy for those who, without social blame, have been victims to such a disease, and cannot but be inflamed to punish a defendant whose misconduct induced the havoc of AIDS.

IX. FAMILY LAW

A. Divorce