Doe v. Pharmacia

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In the United States District Court for the District of Maryland CA-03-702-PJM IN THE COURT OF APPEALS OF MARYLAND Misc. No. 13 September Term, 2004 JANE DOE v. PHARMACIA & UPJOHN COMPANY, INC. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: August 11, 2005 In this Certified Question case, pursu ant to the M aryland Un iform Ce rtification 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 co nducts blo od tests on its employees who have been exposed to HIV while on the job, and which manufactures test kits for HIV -1, owe a le gal 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 re asonable 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? Our answer to both of these questions shall be NO.1 I. We recite the facts as set ou t in the Certification Order. 1 Because in deciding that there is no duty of care on the part of Pharmacia we need not reach the specific details that differentiate the questions certified to us today, we shall discuss and respond to the two certified questions as one. 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 Pharma cia 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 res ponsibilities included the daily feeding, growing, and harvesting of pathog ens for larg e scale prop agation. Ph armacia closed this facility in 1991. In 1984, researchers discovered that the primary causative viral agent of acquired immun e deficiency syndrome ( A IDS ) is HIV. By 1986, two types of HIV, designated as HIV-1 and HIV-2, had been discovered. The first reported ca se of HIV -2 in the United States was in 1987, and there have been few rep orted HIV -2 cases in the United States. Both HIV -l 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 Pharma cia facility where John Doe w orked w as HIV -1 and H IV-2. Pha rmacia cultivated and harvested HIV cultures on a daily basis and shipped them to another facility for inco rporatio n into a te st for H IV anti bodies . Between 1985 2 and 1991, John Doe was exposed to high concentrations of HIV-1 and HIV-2 while o n the job . At some po int around 1 985, Pha rmacia (thro ugh its agent) began testing its employees, including John Doe, who 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 n ot 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. Howeve r, 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 po sitive, be follo wed by a confirmatory test (the Western Blot) for HIV-1. By 1989, Pharmacia was aware that the HIV tests being u sed would detec t core proteins pre sent 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. Thu s, as of 1 989, a person inf ected with HIV-2 could test po sitive on the E lisa test but neg ative on the Western blot test. This type of re sult wa s consid ered to b e a fals e positiv e for H IV-1. 3 John Doe co nsistently 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. Pharm acia did not counsel or warn either Joh n Doe, Ja ne Doe , or its testing agent about the potential negative ramifications of a false positive test. Howe ver, Pharm acia (and/o r 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 HIV; that the test result did not indicate that he was in fected w ith 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 w as aware that a false positive test could indicate an HIV-2 infection. In October 2000, John Doe was admitted to the hospital where he was found to be suffer ing fro m mu ltiple AI DS-lik e cond itions. 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 Ph armac ia emp loyee. Upon learning that he w as infected with HIV -2, John D oe imme diately informed Jane Do e. Subseq uent testing o f Jane D oe reveale d that she also is infected with HIV-2. Jane Doe was John Doe's only sexual partner and was 4 known as such by Pharm acia. 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. Pharm acia 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. Phar macia also knew th at 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 Montgom ery County facility had unexpectedly become infected with one or more lethal pathogens that had b een propagated in tha t facility; however, despite having this kno wledg e, Pharmacia did not warn the Does of any dange r. (Citat ions an d footn otes om itted.) II. Jane Doe filed a tort action in th e Circuit C ourt 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 subse quently filed a m otion to 5 dismiss pursuant to Fed. Rule Civ. Pro. 12(b)(6). Ms. Doe amended her complaint to allege nine claims, including five claims sounding in negligence.2 Pharma cia move d to dismiss the amen ded co mplain t. Following a hearing, the District Cou rt dismissed th e compla int 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 M aryland law P harmacia did not owe her a duty of care. The Court of Appeals for the Fourth Circuit certified the questions o f law to this C ourt. III. Ms. Doe argues before this Court that Pharmacia ow ed her a duty of care as the spouse of an emplo yee who h ad a forese eable risk of contracting HIV fro m her hu sband. Ph armacia should have known, Ms. Doe contends, that Mr. Doe was or could h ave been infected w ith the HIV Pharmacia manufac tured 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. Fina lly, Ms. Doe claim s that the interes ts of society in protecting public health and limiting 2 The five causes of action grounded in negligence that Ms. Doe filed are as follows: negligent operation o f an HIV production facility; negligent failure to rule out an H IV-2 infection; negligent failure to test for HIV-2; negligent failure to warn of cross reactivity; and negligent misrepresentation. 6 the spread of disease are f urthered by im posing a d uty of care on Pharmacia, the entity in a position to prevent further contamination and spread of disease. Pharma cia 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 po sition, Pharm acia 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 would owe a duty to an indeterminate number of people, stretching tort duty beyond manageable bounds. IV. Ms. Doe s ca uses of ac tion 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 su ffered ac tual injury or loss, an d (4) that the lo ss or injury prox imately resulted from the defendant s breach of the duty. Dehn v. Edgecombe, 384 Md. 606, 619, 865 A.2d 60 3, 611 (20 05); 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 5 66, 570 (2004). Ordinarily, we begin our a nalysis of a negligence action w ith the question of wh ether a legally cognizable duty exits. Patton, 381 M d at 636, 85 1 A.2d a t 571; Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18 , 26 (2003 ). The certifie d question raises only 7 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 qu estion of law , to be decide d by the court. Dehn, 384 Md. at 61 9-20, 865 A.2d at 61 1; Patton, 381 Md. at 636, 851 A.2d at 570; Hemmings v. Pelham Wood, 375 Md. 522 , 536, 826 A.2d 4 43, 451 (2003). Fo r over a century, this Court has explained the rationale for the duty requirement as follows: [T]here can be no neg ligence 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 som e duty express ly or impliedly imposed. In every instance before negligence can be predicated o f a given a ct, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoide d the inju ry. . . . As the duty owed var ies 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 h as been no brea ch of d uty. W. Va. Central R. Co. v. 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 A rundel County, 306 Md. 617, 626-27, 510 A.2d 1078, 1083 (1986). Duty is an obligation, to which the law w ill give recognition and effec t, 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 )); 8 Patton, 381 M d. at 636-37, 851 A.2d at 571 (same). There is no set formula for the determination of wh ether a d uty exists. Coates v. S outhern M d. 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 foreseea bility 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 relation ship of the parti es. See Dehn, 384 Md. at 619, 865 A.2d at 611 (describing duty as based upon a relationship between th e actor and the injured pe rson ); Coates, 354 M d. at 509, 73 1 A.2d a t 936 (stating th at the relationship o f the parties is inherent . . . in the co ncept o f duty ); 1 Dan B . Dobb s, The Law of Torts § 229 (2001) (stating that [r]elationship of the parties is so pervasively important in determining existence and measure o f duty that it often goes unmen tioned ). At its core, the determination of whe ther a duty exists re presents a policy question of wheth er the pla intiff is e ntitled to protecti on fro m the d efend ant. See Rose nblatt, 335 Md. at 77, 642 A.2d at 189 (stating that ultimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiff s 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 co mmentin g tha t 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 ); 9 Dobbs at § 229 (quotin g Kee ton 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 forese eability of harm to the plain tiff, the degree of certainty that the plaintif f suffered the injury, the closeness of the connection betw een the defenda nt s conduct and the injury suffered, the moral b lame attach ed to the defen dant s con duct, the policy of preventing future harm, the extent o f the burde n to the defenda nt and con sequenc es 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 involv ed. Patton, 381 Md. at 637, 851 A.2d at 571 (quoting Ashburn, 306 Md. at 627, 510 A.2d at 1083 (citations omitted)). In case s inv olving perso nal in jury, 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 m otion to dism iss, we mu st assume th e truth of the well-pleaded factual alleg ations of the complain t, as well as the reasonab le inferences that may be d rawn f rom tho se allega tions. 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 labo ratory technician for Pharm acia, Mr. D oe was e xposed to high concentrations of HIV-2. It was foreseeable that Mr. Doe could contract HIV -2. As HIV-2 10 can be transmitted through sexual relations, it should have been foreseeable to Pharmacia that Mr. Doe s wife could contract the virus. That the injury to Ms. Doe may have been foreseeable does not end our inquiry. We have stated cons istently that f ores eeab ility alone is not suf ficient to establish duty. See Dehn, 384 Md. at 624, 865 A.2d at 614 (stating that m ere foresee ability of harm o r injury is insufficient to create a legally cognizable special relationship g iving rise to a legal duty to prevent harm ); Remsburg, 376 M d. at 583, 8 31 A.2d at 26 (stating th at [w]hile foreseeab ility is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law ); Valentine v. On Target, 353 Md. 544, 551, 727 A.2d 94 7, 950 (19 99) (noting that not all fo reseeable h arm gives rise to a duty; there are o ther factors to consider ) ; Ashburn 306 M d. at 628, 51 0 A.2d a t 1083 (stating that [t]he fact that a result may be foreseeable does not itself impose a duty in negligence terms ). Neither party has identified and we could not find any Maryland case holding that an employer has a duty to the spouse of an employee. In Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (200 5), a medic al malpractice case, we considered a similar assertion to the one made by Doe and held that there was no duty. Mr. Dehn underwent a vasectomy. According to Mr. Dehn, his primary care physician advised him that he could resume engaging in unprotected intercourse with his wife w ithout fear o f pregnan cy, despite the fa ct that requisite tests had yet to be performed. Mrs. Dehn subsequently became pregnant and sued her 11 husband s primary care physician, claiming that the physician had negligently counseled her husband. We addressed the question of whether Maryland recognizes an independent cause of action in a patient s wife against a doctor who acted negligently while treating her husband but who ha d no relation ship or direc t interaction w ith the wife. Id. at 610, 865 A.2d at 605. We held that the doctor ow ed no duty of care to Mrs. Dehn, and, therefore, Mrs. Dehn did not hav e an ind epend ent cau se of ac tion in n egligen ce aga inst the d octor. See id. at 622, 865 A.2d at 612. We reviewed Maryland case law on negligence involving physicians and third parties and concluded that although th e comm on law d oes not fo reclose the p ossibility of imposing a duty of care in the absence of a doctor-patient relationship to a third party who never receive d treatm ent from the doc tor, it will not do so except un der extraordinary circum stances . Id. at 621, 865 A.2d at 612. We quoted with approval the following reasoning and conclusion from the opinion of the Court of Special Appeals: There was no direct doctor-patient relationship betwe en Dr. Edgecombe and Mrs. Dehn. The two of them had never met or spoken to each other until the day of the trial. Dr. Edgecombe was Mr. Dehn s primary health care provider, not Mrs. Dehn s. Mr. Dehn, not Mrs. Dehn, was in the health care program that involved Dr. Edgecombe. . . . If a duty of care owed by Dr. Edgecombe to Mrs. Dehn is to be found, therefore, its source must be somewhere other than in a doctor-patient relation ship per se betwe en the tw o of the m. Id. at 622, 865 A.2d at 612-13 (quoting 152 Md. App. 657, 681, 8 34 A.2 d 146, 159-60 (2003)). 12 We rejected the argumen t advanced by M rs. Dehn that the foreseea bility of harm resulted in a special relationship sufficient to impose a duty of care in the absence of a traditional tort duty. See id. at 625, 865 A.2d at 614. Dehn pointed to the foreseeability that negligence in the care of her husband s vasectomy would result in her pregnancy and argued that the foreseeability was sufficient to create a duty. We noted our case law, discussed supra, holding that the existence of foreseeability alone is not sufficient to establi sh a d uty. See id. We then noted that Dehn could not have relied on the doctor s comments to her husband, because the doctor had not performed the vasectomy or provided post-operative care and the doctor had never met Mrs. Dehn p rior to trial. See id. at 626-27, 865 A.2d at 615. Fina lly, we stated our unwillingness to impose a legal duty on Dr. Edg ecombe with regard to Mrs. D ehn base d simply on h is alleged awareness that Mr. Dehn was married. Id. at 627, 865 A.2d at 615. We rejected Mrs. De hn s position , reasoning th at imposing a duty of care to Mrs. Dehn would create an expansive new duty. We stated as follows: A duty of care does not accru e purely by virtue of the marital status of the patient alone; some greater relational nexus between doctor and patient s spo use must b e established , if it can be establishe d at all, and he re it was no t. A duty of care to a non-patient is not one which Maryland law is prepared to recognize under these circumstances. The imposition of a common law duty upo n Dr. Ed gecomb e to the wife under these circumstances could expand traditional tort concepts beyond manage able bounds. The rationale for extending the duty wou ld apply to all potential sexual partners and expand the universe of potential plaintiff s. . . . Based on these rationales alo ne, a family practitioner who ostensibly provides after-care following a 13 sterilization procedu re perform ed by anothe r physician w ould owe a duty of care not just to the patient who underwent the operation but every sexual partner the patient encounters after the ope ration a possib ility the law does n ot coun tenanc e. Id. at 627, 8 65 A.2 d at 615 . Our reasoning in Dehn applies with equal force to the case sub judice.3 While the present case does not involve a doctor-patient relationship, the asserted obligation of Pharma cia is similar. Pharmacia had the respon sibility, according to Ms. Do e, to inform Mr. Doe of the meaning of the laboratory test results for his health and the implications of the results for his future conduct. In this context, an employer could owe a duty to a third party only in extraordinary circumstances. Su ch extraordinary circumstances do not exist in this case. Ms. Doe had no relationship with Pharmacia. There is no assertion in the complaint that she was ever an employee of Pharmacia, that she had ever been tested for HIV or any other disease by Pharmacia, or that she had ever had any contact with Pharmacia. 3 Ms. Doe does not claim that a special relationship existed between Pharmacia and herself. We have held that there is no duty to control the conduct o f a third perso n so as to prevent personal harm to another, unless a special relationship exists between the actor and the third person or betw een the actor an d the pe rson inju red. See Patton v. USA Rugby, 381 Md. 627, 637-38, 851 A.2d 566, 571 (2004); Ashburn v. Anne A rundel C ounty, 306 Md. 617, 628, 510 A.2d 1078, 1083 (1986); Restatement (Second) of Torts § 315 (1965). The creation of a special duty through a special relationship between the parties can be established either by (1) the inherent nature of th e relationship between the parties; or (2 ) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party. Remsburg v. Montgom ery, 376 Md. 568, 589-590, 831 A.2d 18, 30 (2003 ). Neither ba sis for a specia l relationship e xists in this case. First, there is no special relationship inherent in the nature of the relationship between an employer and the spouse of an employee. Second, Doe does not allege that Pharmacia undertook to protect or assist her. Indeed, there is no indication of any interaction between Pharmacia and Ms. Doe before M s. Doe co mmenc ed this suit. 14 Doe s proposed duty of care to her would create an expansive new duty to an indetermin ate class of pe ople. This Court has resisted the es tablishmen t of duties of care to indetermin ate classes o f peop le. See Dehn, 384 Md. at 627, 865 A.2d at 615 (stating that [t]he impositio n of a common law du ty upon Dr. Edgecombe to the wife under these circumstances could exp and tradition al tort concep ts beyond m anageab le bounds ); Walpert v. Katz, 361 Md. 645, 671, 762 A.2d 582, 596 (2000) (concluding that the rationale for the privity requirement in negligence cases involving econom ic harm is to a void liability to an indetermin ate class); Valentine, 353 Md. at 553, 727 A.2d at 951 (stating that [t]he class of persons to whom a duty would be owed under these bare facts would encompass an indetermin ate class of people, known and unknow n ); Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 744-45, 556 A.2d 1126, 1127 (1989) (stating that the claim of a to rt duty generates the specter of liability in an ind eterminate a mount fo r an indeterm inate time to an indetermin ate class, a liability that co ncerned J ustice Cardozo in Ultramares Corporation v. Touche, 255 N.Y. 17 0, 174 N.E. 441 , 444 (1931), and co ntinues to concern co urts today ). The concern w ith recognizing a duty that would encompass an indeterminate class of people is that a person ordinarily cann ot foresee lia bility to a boundless catego ry of people. See Walpert, 361 Md. at 671, 762 A.2d at 596 (explaining the limitation of duty as aimed at limit[ing] the defendant s risk exposure to an actually foreseeable extent, thus permitting a defendant to control the risk to which the defendant is exposed ). Additionally, we have 15 noted that the imposition of a duty to an indeterminate class would make tort law unma nagea ble. See Dehn, 384 Md. at 627, 865 A.2d at 615. The imposition of a duty of care in this case would create an indeterminate class of potential plain tiffs. Doe p ortrays her prop osed duty as limited to spouses. She claims that it was foreseeable that she would contract HIV while engaging in unprotected sex with her husband because it is foreseeable that a husband and wife will engage in sexual relations. Doe does not o ffer any legitim ate reason to support a distinction between married plaintiffs and other plaintiff s. The ration ale for imposing a duty of care to Ms. Doe could app ly to all sexual partners of emplo yees. See id. (declining to impose a duty of care based on the foreseeability that spouses would engage in sexual relations because [t]he rationale for extending the duty would apply to all potential sexual partners and expand the universe of potential plaintiffs ). T he potentia l class to whom Pharma cia would ow e a duty under Doe s theory is even greater than all sexual partners of its employees. It includes any person who could have con tract ed H IV-2 from the e mployee b y any means. The law does not countenance the imposition of such a broad and indeterminate duty of care. In Adam s v. Owe ns-Illinois, 119 Md. App. 3 95, 705 A.2d 58 (1998), the Court of Special Appea ls applied the same po licy of avoiding expansiv e new d uties to hold that an employer owed no duty to the wif e of its e mployee . A woman died from asbestosis, which she allegedly contracted from handling and washing h er husband s clothing. T he woman s estate sued her husband s employer for negligence. On appeal of an adverse jury finding, the 16 estate claimed error in the refusal of the trial court to instruct the jury on the duty of care owed by the em ployer to th e emp loyee. The intermediate appellate court affirmed, holding that the duty of care owed to the employee was not re levant to co nsideration o f the injury to the wife. Id. at 411, 705 A.2d at 66. The court reason ed that the plaintiff s position w ould create an overly broa d notion of duty. If liability were to rest on the wife s handling of her husband s cloth ing, t he em ploye r wo uld o we a duty to anyone who had close c ontact with its empl oyee. Id. Doe emphas izes two o ther factors to support the imposition of a duty of care. Doe asserts that Pharmacia w as morally blameworthy, because it manufactured a lethal human pathogen for commercial purposes, it knew that Mr. Doe was infected, and it did not inform him of that fact. Ms. Doe acknowledges in her complaint that Pharmacia was engaged in the legal production of HIV, that the pathogens produced by Pharmacia were utilized by research entities such as the National In stitute of Health, and that Mr. Doe voluntarily sought employment at Phar macia. T he alleged failure of Pharmacia to inform Mr. Doe of the possibility that the false positive could have indicated that he was infected with HIV-2 may support a finding of negligen ce against him. It does not support moral blameworthiness or a duty of care to Ms. Doe. Doe argues that there is a stron g public po licy to avoid the s pread of a highly commu nicable lethal human disease and to require the people or e ntities that are in a position to stop the spread of a disease to do so. Undoubtedly, Doe has articulated a valid and 17 important public policy. There is no indication, however, that the policy applies to this case. Accord ing to Doe s amended complaint, Pharmacia knew at the time it manufactured the HIV-1 test strips that certain antibodies to conditions other than HIV, including antibodies produced by pregnancy and other medical co nditions, cou ld cause a false positive Elisa test result. HIV-2 was one of a number of potential causes of a false positive. There was no test for HIV-2 available at the time, although, according to the allegation s in the com plaint, Pharma cia could have created a test for HIV-2. Additionally, Mr. Doe continued to have routine HIV tests following the false positive and never again had a false positive on the Elisa test. Thus, according to the facts alleged in the amended complaint, this is not a case in which an actor, such a s a doctor, kn ew or sho uld have known that an unsuspecting person had or was likely to have a disease an d failed to ad vise that perso n or a third p arty to avoid transmission of the c ontagio n. See, e.g., DiMarco v. Lynch Homes Chester County, Inc., 583 A.2d 422, 424 (Pa. 1990) (citing the p ublic policy concern of avoiding the spread of commu nicable diseases in a case concerning a physician who allegedly misadvised a patient exposed to hepatitis as to the prope r time period to abstain fro m sexua l activity); Skillings v. Allen, 173 N.W. 663, 664 (Minn. 1919) (citing public policy and holding that a physician had a duty to the parents who contracted scarlet fever from their daughter after the physician advised them that the disea se was not com municable). 18 We conclud e that the employer, in the circum stances of this case, ow ed no tort du ty to the spouse of its emplo yee. Accord ingly, we answ er the certified questions in the negative. CERTIFIED QUESTIONS OF LAW ANSWERED AS SET FORTH ABOVE. COSTS TO BE EQUALLY DIVIDED BY THE PARTIES. 19

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