The Wall Street Journal - 06 May 1992
Milo Geyelin, Staff Reporter of The Wall Street Journal

The ruling was sought by the defendant in the suit, Goodyear Tire & Rubber Co., whose attorneys argued that the results would bear on the size of potential damages. The decision in the company's favor by a federal judge in Philadelphia is believed to be the first of its type in the nation.

The decision hinged on the possibility that the plaintiff could have the human immunodeficiency virus. AIDS-rights activists reacted with alarm, saying the judge's decision could be expanded to require plaintiffs in such cases to undergo HIV testing merely because they belong to a group most at risk of contracting HIV.

"I think if courts are going to permit testing, it clearly must be for a solely medical foundation and not a determination based on so-called risk groups," said Evan Wolfson, a staff attorney at the Lambda Defense and Education Fund in New York, an advocacy group that specializes in AIDS-related legal issues.

The case, before Judge James McGirr Kelly, involves a mechanic who was maimed in June 1989 when the rim of a truck tire he was mounting exploded in his face. The plaintiff sued Goodyear, the rim's manufacturer, and several other defendants, seeking, among other damages, compensation for lost future earnings.

The question on HIV testing is sensitive because under Pennsylvania law, as in most states, HIV tests are confidential. In this case, the plaintiff, who had a history of intravenous drug use before the accident, agreed to be tested while he was recuperating from his injuries at the Hospital of the University of Pennsylvania in June 1989.

He tested negative, but six months later, when he returned to the hospital for an unrelated emergency, he indicated to a nurse he had tested positive for the virus, according to a notation in hospital records.

Attorneys for Goodyear argued they were entitled to examine the plaintiff's medical records, including the HIV test. Judge Kelly granted that request in March. When the records indicated no evidence of HIV, Goodyear's attorneys asked the judge to order new tests. The judge agreed last week, saying the 1989 test "is not evidence of the plaintiff's current condition."

"Plaintiff's status with regard to AIDS/HIV infection is highly relevant and actually vital to an evaluation of plaintiff's claims for future lost wages, medicals and disability," Judge Kelly wrote in an opinion.

The confidentiality of medical records had been an issue in regards to the HIV status of medical personnel, in efforts to have mandatory testing of prison inmates and in civil lawsuits involving infected people and their sexual partners. Courts hearing these issues have produced inconsistent results.

Generally, parties in lawsuits can't be required to turn over any medical records unless the state of the individual's health is "really and genuinely in controversy," said Philadelphia attorney William Myers, who represents the plaintiff. To investigate a possible health problem, the opposing party has to show that there's good reason to believe that a problem exists and that its disclosure would be relevant to the case.

Mr. Myers contends the AIDS issue shouldn't be raised in this case because his client has already tested negative for HIV. The nurse's notation indicating that he told her otherwise, he said, was an error.

Mr. Myers acknowledged that the question of life expectancy is relevant when determining how much should be paid for lost future wages. But he added that the ruling is dangerous because it might "open the door for HIV testing" in other cases whenever a plaintiff appeared to be in a high-risk group.

Morton F. Daller, Goodyear's attorney in Philadelphia, said that the request for new tests in this case hinged specifically on the hospital record indicating that the plaintiff told a nurse he had tested positive. He said, in his view, the fact that the plaintiff had used drugs intravenously was sufficient ground to seek a test.

"I would argue the case has broad significance," said Mr. Daller. "Wherever there is probable cause, a court can order testing."

Junda Woo contributed to this article.

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