Court ponders responsibility of drug-maker in AIDS case


A woman who believes she contracted AIDS from her husband, who worked with the virus in a Maryland laboratory, is asking the state's highest court to breathe new life into her lawsuit against his former employer.

Named only "Jane Doe" in court papers, the woman wants the court to rule that the company should have protected her by warning her husband more than a decade ago that he might have been infected with HIV-2 at work. The woman's husband is dying of acquired immune deficiency syndrome, according to her attorney.

But a lawyer for Pharmacia & Upjohn Co., now part of Pfizer Inc., contends that the company should not, based on a potential health problem, have obligations to strangers - people who are not its employees or its consumers, but might be sexual partners of its workers.

Yesterday, lawyers for the woman and the pharmaceutical company, which had a production plant in Montgomery County that was closed in 1991, tangled before the state Court of Appeals, where key issues in the case have landed. In February, the 4th U.S. Circuit Court of Appeals asked the state's highest court to decide how far an employer's duty extends under Maryland law.

"They have reason to know he may be infected, and they don't have a duty to tell the worker so he can protect his wife? That defies common sense," said Stephen B. Mercer, a lawyer for the woman, who is in her 50s.

Her husband was a $12-an-hour lab technician for Pharmacia, handling HIV-1 and the rarer HIV-2. In 1989, he received a false positive test for HIV-1. Mercer contends that the company knew that result meant he might have contracted HIV-2 and should have told him so that he could take precautions with his wife.

But the judges said changing social and sexual mores make drawing a line for who might have a claim problematic.

"Why are you attempting to limit it to spouses?" Judge Dale R. Cathell asked Mercer.

Mercer contended that a spouse is easily identified, and advising the worker about a potential health condition is not burdensome.

But Stephen E. Marshall, an attorney for Pharmacia, told the judges that the details of this case do not reflect the way the real world operates. Employees are tested for health conditions, but employers do not know the results, much less every potential ramification, he argued.

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