AIDS Litigation in New Jersey: An Outline

This Outline was prepared by Mr. Kenny for an address he will give to the Joint Meeting of Essex and Morris County (New Jersey) Bar Associations, in Scottsdale, Arizona on March 20, 1997.

THE PROBLEM:

By the late 1970s, medical science believed that infectious disease was no longer a major threat in developed countries. The focus was on non-infectious pathologies, such as cancer, heart disease and degenerative conditions. And then AIDS struck. Since mid-1982, medical science has followed an epidemic resulting from human immunodeficiency virus (HIV), known initially as Human T-lymphotropic virus type II (HTLV III) or lymphadenophty-associated virus (LAV).

Reports filed with state and local health departments and compiled by the Centers for Disease Control (CDC) first alerted the CDC to AIDS. Five cases of an extremely rare type of pneumonia (PCP), characteristically caused by opportunistic infection in people with a profoundly impaired immune system, were diagnosed in the Los Angeles area. This pneumonia without underlying disease appeared in young homosexual men whose immune system had no apparent reason to malfunction. About the same time, the CDC received reports of increase in a type of cancer, known as Kaposi's sarcoma, which had been seen only rarely in the United States, predominantly in elderly men and patients receiving immunosuppressive therapy. Additional signs, primarily in young homosexual men, indicated a common cause of transmission sexually endemic to that community. By 1982, this syndrome had become known as Acquired Immuno Deficiency Syndrome (AIDS).

The first significant evidence that other modes of transmission were possible also came in 1982 when cases demonstrating the, now classic, symptoms were described among people who had been injected with blood or blood products but had no other explainable risk factors. These cases were first confirmed among hemophiliacs and then among blood-transfusion recipients, as well as people who shared hypodermic needles. In December 1982, PCP was reported in a 20 month old baby who had received at birth a blood-platelet transfusion from a man who had subsequently died of AIDS.

During the following months, several additional reports described cases of AIDS in people who had received blood transfusions an average of two years before the onset of their symptoms. These reports emphasized the need to prevent high risk people from donating blood and for the development of laboratory tests that could detect the AIDS agent in donated blood.

Because the disease appeared to be transmitted through exchange of blood or by sexual contact, many investigators believed by late 1982 that AIDS was caused by an infectious agent (most likely a virus) and was not the result of exposure to toxic substances or other environmental or genetic factors.

In March 1985, the Food and Drug Administration (FDA) approved an antibody test to determine whether individuals had AIDS antibodies, and by inference the AIDS virus. Because of a time span between transmission of the virus and production of antibodies, there still remains, however, a period during which one might be infected with undiagnosable HIV, even using the FDA approved testing methods.

BIBLIOGRAPHY:

Scientific American, October 1988 [Single topic issue devoted to AIDS];

Science LXXXIII, March 1983, pp. 36-45;

Randy Shilts, And The Band Played On (St. Martin's Press 1987).

THE BLOOD LIABILITY TIME LINE:

1978 First AIDS-like illnesses reported in U.S.; disease not positively identified until June 1981.

July 16, 1982 Centers for Disease Control publicly reports first three cases of AIDS in hemophiliacs.

Dec. 4, 1982 CDC presents Blood Products Advisory Committee with mounting evidence that AIDS is being spread through blood supply. No action is taken.

Jan. 14, 1983 National Hemophilia Foundation asks blood and plasma collectors to adopt screening procedures to discourage donations from high-risk groups -- specifically homosexual men, commercial sector complies, but blood banks continue to accept blood from all donors.

March 4, 1983 U.S. Public Health Service announces that high-risk groups shouldn't donate. Blood-banking organizations notify members March 7.

March 24, 1983 FDA issues donor screening guidelines, which some blood banks had begun to implement.

Jan. 12, 1984 The New England Journal of Medicine publishes CDC documentation of first 18 transfusion-associated AIDS cases. Blood banks continue only to screen donors.

March 6, 1984 Industry task force meets on surrogate testing. Blood bankers oppose the procedure; commercial collectors plan to test.

April 23, 1984 Secretary of Health and Human Services Margaret Heckler announces discovery of virus believed to cause AIDS; says test to identify contaminated blood will be available in six months.

March 2, 1985 FDA approves first AIDS antibody screening tests. Nationwide testing begins.

Money, March 1986.

THE LITIGATION:

BLOOD TRANSFUSION DEFENDANTS:

• Blood Centers -
• American Association of Blood Banks (AABB) - Snyder vs. American Ass'n of Blood Banks, 144 N.J. 269 (1996), aff'g 282 N.J. Super. 23 (1995)
• American Red Cross (ARC)
• Hospitals
• Physicians - Largey vs. Rothman, 110 N.J. 204 (1988)
• For Profit Corporations (Factor VIII to Hemophiliacs)

THEORIES OF BLOOD TRANSFUSION LIABILITY:

• Failure to perform surrogate testing
• Failure to adequately screen blood donors
• Inadequate warning of blood transfusion risks

OTHER BASES OF LIABILITY:

• Needle stick cases (storage and handling) - Williamson vs. Waldman, 291 N.J. Super., 600 (App. Div. 1996)
• Right of privacy and confidentiality of records - Estate of Behringer vs. Princeton Med. Ctr., 249 N.J. Super. 597 (Law Div. 1991)
• Transmission by health care providers
• Employment discrimination
• Sexual contact

DEFENSES:

• Denial of liability based on reasonable action to insure adequate supply of blood;
• Lack of adeqiate knowledge to utilize data or technology;
• Proximate causation;
• Statute of Limitations;
• Hemophiliacs - N.J.S.A. 2A:14-26.1[P.L. 1996, ck. 23]
• Other blood donees - N.J.S.A. 2A:14-2 & N.J.S.A. 2A:31-3
• Charitable immunity - Jacobs vs. North Jersey Blood Center, 172 N.J. Super. 159 (Law Div. 1979).

NATURE & COST OF DISCOVERY, INCLUDING USE OF EXPERT - Snyder vs. Mekhijian, 244 N.J. Super. 281 (1990), aff'd. 125 N.J. 328 (1991)

DAMAGES:

• Diminution in quality of life, pain and suffering;
• Emotional distress - DeMilio vs. Schrager, 285 N.J. Super. 183 (Law Div. 1995); Williamson vs. Waldman, 291 N.J. Super. 600 (App. Div. 1996);
• Wrongful death action;
• Loss of consortium.

VERDICTS AND SETTLEMENTS:

COLLATERAL ESTOPPEL - Batson vs. Lederlie Laboratories, 290 N.J. Super. 49 (App. Div. 1996)