Doe v. Pharmacia & Upjohn Co.

RAKER, J. In this Certified Question case, pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 2002 Repl.Vol., 2004 Cum.Supp.), §§ 12-601 through 12-613 of the Courts and Judicial Proceedings Article, and Maryland Rule 8-305, the United States Court of Appeals for the Fourth Circuit has certified the following questions of Maryland law: “(1) For purposes of a negligence cause of action, does a commercial manufacturer of two strains of HIV (‘HIV-1’ and ‘HIV-2’), which conducts blood tests on its employees who have been exposed to HIV while on the job, and which manufactures test kits for HIV-1, owe a legal duty to its employees’ spouses to exercise reasonable care in conducting testing, including testing for both strains of the virus?” “(2) For purposes of a negligence or negligent misrepresentation cause of action, does a commercial manufacturer of two strains of HIV (‘HIV-1’ and ‘HIV-2’), which conducts blood tests of its employees who have been exposed to HIV while on the job, owe a legal duty to its employees’ spouses to exercise reasonable care in informing the employees of the nature of the test results, including the fact that a ‘false positive’ test result for HIV-1 may indicate an HIV-2 infection?” ⁴¹⁰ Our answer to both of these questions shall be NO. 1 I. We recite the facts as set out in the Certification Order. “Jane Doe has been married to, and living as husband and wife with, John Doe since 1971. Between 1974 and 1991, John Doe was employed by Pharmacia as a laboratory technician at its Montgomery County, Maryland, viral production facility. Pharmacia cultivated pathogens at this facility for use in diagnostic test strips manufactured and sold by Pharmacia and others. John Doe’s primary job responsibilities included the daily feeding, growing, and harvesting of pathogens for large scale propagation.

Pharmacia closed this facility in 1991. “In 1984, researchers discovered that the primary causative viral agent of acquired immune deficiency syndrome (‘AIDS’) is HIV. By 1986, two types of HIV, designated as ‘HIV-1’ and ‘HIV-2,’ had been discovered. The first reported case of HIV-2 in the United States was in 1987, and there have been few reported HIV-2 cases in the United States. Both HIV-1 and HIV-2 have the same modes of transmission and are associated with AIDS.

Compared with persons infected with HIV-1, those with HIV-2 are less infectious early in the course of infection. “Beginning in 1984, approximately 80% of the viral production at the Pharmacia facility where John Doe worked was HIV-1 and HIV-2. Pharmacia cultivated and harvested HIV cultures on a daily basis and shipped them to another facility for incorporation into a test for HIV antibodies. Between 1985 and 1991, John Doe was exposed to high concentrations of HIV-1 and HIV-2 while on the job. “At some point around 1985, Pharmacia (through its agent) began testing its employees, including John Doe, who ⁴¹¹ were exposed to HIV in the workplace every six months. Pharmacia manufactured the test strips that were used in this testing.

Although Pharmacia was aware of the existence of HIV-2, commercial test kits were not available in the United States to test for an injurious exposure to HIV-2 before 1991 because of the statistically insignificant incidence of the virus. Therefore, Pharmacia’s testing was limited to detection of HIV-1. However, Pharmacia possessed the materials, knowledge, and capability to manufacture its own test strips to detect HIV-2. “The testing conducted by Pharmacia consisted of a two-part protocol whereby an initial screen (the Elisa test) would, if positive, be followed by a confirmatory test (the Western Blot) for HIV-1. By 1989, Pharmacia was aware that the HIV tests being used would detect core proteins present in both HIV-1 and HIV-2, and that while the HIV-2 proteins (among other factors) could cause a positive result on the Elisa test, the Western blot test would confirm only the presence of HIV-1.

Thus, as of 1989, a person infected with HIV-2 could test positive on the Elisa test but negative on the Western blot test. This type of result was considered to be a ‘false positive’ for HIV-1. “John Doe consistently tested negative until 1989, when he received a positive result on the Elisa test. John Doe was retested, and the result was negative. John Doe’s subsequent tests were negative. “Pharmacia did not counsel or warn either John Doe, Jane Doe, or its testing agent about the potential negative ramifications of a ‘false positive’ test.

However, Pharmacia (and/or its agent) did tell John Doe after the ‘false positive’ test that the Western Blot test failed to confirm the presence of HIV-1; that the test result could have been caused by factors unrelated to exposure to IIIV; that the test result did not indicate that he was infected with the virus that causes AIDS; and that the test result did not indicate a significant risk to his health. Neither Jane Doe nor John Doe was aware that a ‘false positive’ test could indicate an HIV-2 infection. ⁴¹² “In October 2000, John Doe was admitted to the hospital where he was found to be suffering from multiple AIDS-like conditions. Although John Doe tested negative for HIV-1, he tested positive for HIV-2 and was diagnosed as having AIDS. John Doe became infected with HIV-2 while handling the virus as a Pharmacia employee. “Upon learning that he was infected with HIV-2, John Doe immediately informed Jane Doe.

Subsequent testing of Jane Doe revealed that she also is infected with HIV-2. Jane Doe was John Doe’s only sexual partner and was known as such by Pharmacia. Jane Doe became infected with HIV-2 because of unprotected marital relations with John Doe. The Does would not have engaged in unprotected marital relations had they been aware that John Doe was infected with HIV-2. “Pharmacia was aware at times pertinent to this case that HIV-2 was a pathogen that could have significant consequences, including death for humans, and that it could be transmitted by sexual contact and exchange of body fluids.

Pharmacia also knew that the spread of HIV-2 between sexual partners could be effectively prevented through behavior modification and the use of barrier devices. Pharmacia also learned, subsequent to the conclusion of John Doe’s employment, that at least one co-worker of John Doe’s at the Montgomery County facility had unexpectedly become infected with one or more lethal pathogens that had been propagated in that facility; however, despite having this knowledge, Pharmacia did not warn the Does of any danger.” (Citations and footnotes omitted.) II. Jane Doe filed a tort action in the Circuit Court for Montgomery County against Pharmacia & Upjohn Company, Inc. (“Pharmacia”). Pharmacia removed the case to the United States District Court for the District of Maryland and subsequently filed a motion to dismiss pursuant to Fed. Rule Civ.

Pro. 12(b)(6). Ms. Doe amended her complaint to allege nine ⁴¹³ claims, including five claims sounding in negligence. 2 Pharmacia moved to dismiss the amended complaint. Following a hearing, the District Court dismissed the complaint with prejudice. Doe appealed to the United States Court of Appeals for the Fourth Circuit.

On appeal, Doe contended that the District Court erred in holding that under Maryland law Pharmacia did not owe her a duty of care. The Court of Appeals for the Fourth Circuit certified the questions of law to this Court.

III

Ms. Doe argues before this Court that Pharmacia owed her a duty of care as the spouse of an employee who had a foreseeable risk of contracting HIV from her husband. Pharmacia should have known, Ms. Doe contends, that Mr. Doe was or could have been infected with the HIV Pharmacia manufactured and that he risked transmitting the disease to his wife. Doe also contends that Pharmacia was morally blameworthy in manufacturing a legal human pathogen for commercial purposes and in failing to inform Mr. Doe that he was infected. Finally, Ms. Doe claims that the interests of society in protecting public health and limiting the spread of disease are furthered by imposing a duty of care on Pharmacia, the entity in a position to prevent further contamination and spread of disease.

Pharmacia maintains that it did not owe a duty of care to Ms. Doe. Pharmacia argues that the relationship between it and Ms. Doe, the wife of its employee, is too attenuated for the company to be burdened with a tort duty. In response to Ms. Doe’s position, Pharmacia notes that foreseeability alone is not sufficient to establish a legal duty. Pharmacia argues further that if it were to owe a duty of care to Ms. Doe, then it ⁴¹⁴ would owe a duty to an indeterminate number of people, stretching tort duty beyond manageable bounds.

IV

Ms. Doe’s causes of action all sound in negligence. In Maryland, to state a claim of negligence, a party must allege and prove facts demonstrating “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Dehn v. Edgecombe, 384 Md. 606, 619 , 865 A.2d 603, 611 (2005); Horridge v. Social Services, 382 Md. 170, 182 , 854 A.2d 1232, 1238 (2004); Patton v. USA Rugby, 381 Md. 627, 635-36 , 851 A.2d 566, 570 (2004). Ordinarily, we begin our analysis of a negligence action with the question of whether a legally cognizable duty exits. Patton, 381 Md. at 636 , 851 A.2d at 571 ; Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003).

The certified question raises only the issue of duty, and, thus, our sole focus in this case is on whether Pharmacia had a legal duty to protect Ms. Doe from injury or harm by exercising reasonable care in testing Mr. Doe and by warning him of the possibility that he had contracted HIV-2. The existence of a legal duty is a question of law, to be decided by the court. Dehn, 384 Md. at 619-20 , 865 A.2d at 611 ; Patton, 381 Md. at 636 , 851 A.2d at 570 ; Hemmings v. Pelham Wood, 375 Md. 522, 536 , 826 A.2d 443, 451 (2003). For over a century, this Court has explained the rationale for the duty requirement as follows: “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.

It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the ⁴¹⁵ injury.... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.” W. Va. Central R. Co. v. State ex rel.

Fuller, 96 Md. 652, 666 , 54 A. 669, 671-72 (1903); accord Patton, 381 Md. at 636 , 851 A.2d at 570-71 ; Bobo v. State, 346 Md. 706, 714 , 697 A.2d 1371, 1375 (1997); Ashburn v. Anne Arundel County, 306 Md. 617, 626-27 , 510 A.2d 1078, 1083 (1986). Duty is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Dehn, 384 Md. at 619 , 865 A.2d at 611 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed.1984)); Patton, 381 Md. at 636-37 , 851 A.2d at 571 (same). There is no set formula for the determination of whether a duty exists. Coates v. Southern Md. Electric, 354 Md. 499, 509 , 731 A.2d 931, 936 (1999); Ashburn, 306 Md. at 627 , 510 A.2d at 1083 .

We have applied a “foreseeability of harm” test, “which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote consequences.” Coates, 354 Md. at 509 , 731 A.2d at 936 (quoting Rosenblatt v. Exxon, 335 Md. 58, 77 , 642 A.2d 180, 189 (1994)). We also have looked at the relationship of the parties. See Dehn, 384 Md. at 619 , 865 A.2d at 611 (describing duty as “based upon a relationship between the actor and the injured person”); Coates, 354 Md. at 509 , 731 A.2d at 936 (stating that the relationship of the parties is “inherent ... in the concept of duty”); 1 Dan B. Dobbs, The Law of Torts § 229 (2001) (stating that “[relationship of the parties is so pervasively important in determining existence and measure of duty that it often goes unmentioned”). At its core, the determination of whether a duty exists represents a policy question of whether the plaintiff is entitled to protection from the defendant.

See Rosenblatt, 335 Md. at 77 , 642 A.2d at 189 (stating that “ultimately, the ⁴¹⁶ determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiffs interests are, or are not, entitled to legal protection against the conduct of the defendant”); Ashburn, 306 Md. at 627 , 510 A.2d at 1083 (quoting Keeton et al., supra, at § 53 as commenting that duty “is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection”); Dobbs at § 229 (quoting Keeton et al., supra, at § 54 and stating that “duty should be constructed by courts from building blocks of policy and justice”). Accordingly, we have articulated the following non-exhaustive list for balancing the policy considerations inherent in the determination of whether a duty exists: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” Patton, 381 Md. at 637 , 851 A.2d at 571 (quoting Ashburn, 306 Md. at 627 , 510 A.2d at 1083 (citations omitted)). In cases involving personal injury, “the principal determinant of duty becomes foreseeability.” Jacques v. First Nat’l Bank, 307 Md. 527, 535 , 515 A.2d 756, 760 (1986). In reviewing the underlying grant of a motion to dismiss, we must assume the truth of the well-pleaded factual allegations of the complaint, as well as the reasonable inferences that may be drawn from those allegations.

Horridge, 382 Md. at 175 , 854 A.2d at 1234-35 . Assuming the accuracy of the allegations within the complaint, Pharmacia manufactured HIV-2. As a laboratory technician for Pharmacia, Mr. Doe was exposed to high concentrations of HIV-2. It was foreseeable that Mr. Doe could contract HIV-2.

As HIV-2 can be transmitted through sexual relations, it should have been ⁴¹⁷ foreseeable to Pharmacia that Mr. Doe’s wife