Posted on 04/13/2008 8:20:52 AM PDT by ZacandPook
Ed, what peer reviewed articles bear on the FBI’s development of microbial forensics for an Amerithrax prosecution in addition to these listed below? (and let me know if any of these should be deleted)
Bowen, G. J., J. R. Ehleringer, L. Chesson, E. Stange, and C. E. Cerling. 2007. “Stable isotope ratios of tap water in the contiguous USA,” Water Resour. Res. 43:W03419.
http://www.agu.org/pubs/crossref/2007/2006WR005186.shtml
Budowle B, Harmon R., “HIV legal precedent useful for microbial forensics,” Croat Med J. 46(4):514-21 (Aug 2005)
http://www.ncbi.nlm.nih.gov/sites/entrez?Db=pubmed&Cmd=ShowDetailView&TermToSearch=16100753&ordinalpos=3&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_RVDocSum
Budowle, B., M. D. Johnson, C. M. Fraser, T. J. Leighton, R. S. Murch, and R. Chakraborty. 2005. “Genetic analysis and attribution of microbial forensics evidence,” Crit. Rev. Microbiol. 31:233-254
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=retrieve&db=pubmed&list_uids=16417203&dopt=AbstractPlus
Budowle B, Murch R, Chakraborty R., “Microbial forensics: the next forensic challenge,” Int J Legal Med. 119(6):317-30 (Nov 2005)
http://www.ncbi.nlm.nih.gov/sites/entrez?Db=pubmed&Cmd=ShowDetailView&TermToSearch=15821943&ordinalpos=1&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_RVDocSum
Budowle, B., S. E. Schutzer, M. S. Ascher, R. M. Atlas, J. P. Burans, R. Chakraborty, J. J. Dunn, C. M. Fraser, D. R. Franz, T. J. Leighton, S. A. Morse, R. S.
Murch, J. Ravel, D. L. Rock, T. R. Slezak, S. P. Velsko, A. C. Walsh, and R. A. Walters. “Toward a system of microbial forensics: from sample collection to interpretation of evidence,” Appl. Environ. Microbiol. 71:2209-2213 (2005).
http://aem.asm.org/cgi/content/full/71/5/2209?ijkey=11f63da16d84d14221469a04d0917d00b4ae7e74&keytype2=tf_ipsecsha
Budowle, B., S. E. Schutzer, A. Einseln, L. C. Kelley, A. C. Walsh, J. A. L. Smith, B. L. Marrone, J. Robertson, and J. Campos. Building microbial forensics as a response to bioterrorism. Science 301:1852-1853 (2003).
http://www.sciencemag.org/cgi/content/summary/301/5641/1852?ijkey=6c5eda5d0b0d4dec11807281f555d5087c756235&keytype2=tf_ipsecsha
Cliff, J. B., K. H. Jarman, N. B. Valentine, S. L. Golledge, D. J. Gaspar, D. S. Wunschel, and K. L. Wahl, “Differentiation of spores of Bacillus subtilis grown in different media by elemental characterization using time-of-flight secondary ion mass spectrometry,” Appl. Environ. Microbiol. 71:6524-6530 (2005)
http://aem.asm.org/cgi/content/abstract/71/11/6524?ijkey=8feb323b80876abedc9727959678c8b67e431489&keytype2=tf_ipsecsha
Horita, J., and A. A. Vass, “Stable-isotope fingerprints of biological agents as forensic tools,” J. Forensic Sci. 48:122-126 (2003)
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=retrieve&db=pubmed&list_uids=12570211&dopt=AbstractPlus
Kreuzer-Martin, H. W., L. A. Chesson, M. J. Lott, J. V. Dorigan, and J. R. Ehleringer, “Stable isotope ratios as a tool in microbial forensics. 2. Isotopic variation among different growth media as a tool for sourcing origins of bacterial cells or spores,” J. Forensic Sci. 49:961-967 (2004)
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=retrieve&db=pubmed&list_uids=15461095&dopt=AbstractPlus
Kreuzer-Martin, H. W., L. A. Chesson, M. J. Lott, and J. R. Ehleringer, “Stable isotope ratios as a tool in microbial forensics. 3. Effect of culturing on agar-containing growth media,” J. Forensic Sci. 50:1372-1379 (2005).
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=retrieve&db=pubmed&list_uids=16382831&dopt=AbstractPlus
Kreuzer-Martin, H. W., M. J. Lott, J. Dorigan, and J. R. Ehleringer, “Microbe forensics: oxygen and hydrogen stable isotope ratios in Bacillus subtilis cells and spores,” Proc. Natl. Acad. Sci. USA 100:815-819 (2003)
http://www.pnas.org/cgi/content/abstract/100/3/815?ijkey=fab4cbbab441ba7dff87548c7f41866771a131bb&keytype2=tf_ipsecsha
Wahl, K. L., N. B. Valentine, S. C. Wunschel, D. S. Wunschel, K. H. Jarman, and C. E. Petersen. Microorganism analysis and identification by MALDI-TOF-MS. Abstr. Pap. Am. Chem. Soc. 226:U121 (2003)
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1932740
Wunschel, D. S., E. A. Hill, J. S. McLean, K. Jarman, Y. A. Gorby, N. Valentine, and K. Wahl. Effects of varied pH, growth rate and temperature using controlled fermentation and batch culture on matrix assisted laser desorption/ionization whole cell protein fingerprints. J. Microbiol. Methods 62:259-271 (2005)
http://www.ncbi.nlm.nih.gov/pubmed/15979749
Wunschel, S. C., K. H. Jarman, C. E. Petersen, N. B. Valentine, K. L. Wahl, D. Schauki, J. Jackman, C. P. Nelson, and E. White. Bacterial analysis by MALDI-TOF mass spectrometry: an inter-laboratory comparison. J. Am. Soc. Mass Spectrom. 16:456-462 (2005)
http://www.ncbi.nlm.nih.gov/pubmed/15792714
[Florida] Supreme Court hears arguments in anthrax death lawsuit, Associated Press, May 5, 2008
http://www.wflxfox29.com/Global/story.asp?S=8270505&nav=menu98_3
[Florida] Supreme Court hears arguments in anthrax death lawsuit, Associated Press, May 5, 2008
http://www.wflxfox29.com/Global/story.asp?S=8270505&nav=menu98_3
As certified by the United States Court of Appeals for the Eleventh Circuit, the question presented to the Florida State Supreme Court
Under Florida law, does a laboratory that manufactures, grows, tests
or handles ultra-hazardous materials owe a duty of reasonable care to
members of the general public to avoid an unauthorized interception
and dissemination of the materials, and, if not, is a duty created where
a reasonable response is not made where there is a history of such
dangerous materials going missing or being stolen?
p.s. Pook, please coordinate with me on what is being posted so we avoid posting duplicates. Thanks. Zack
If we're not going to discuss the science, why discuss anything at all? It's only by discussing the science that we're going to learn how totally STUPID the conspiracy theorists are. It's only by discussing the science that we're going to figure out what is possible and what is not, what is true and what is not.
That role is best served by qualified experts.
Maybe you haven't been paying attention, but the "qualified experts" don't agree with one another! The whole purpose of my web site and my postings is to reconcile disagreements between "qualified experts."
Besides, who is a "qualified expert?" Is is someone who believes as you believe? Is it someone who has said something that you can twist to fit your beliefs? That appears to be your definition in these discussions.
The TRUE "qualified experts" who really know unpublished details about the ATTACK ANTHRAX are not talking. The "experts" who ARE talking are really non-experts who are twisting facts to make them fit some belief or political agenda. Plus, there are a few, like those at the CDC in Cincinnati, who are probably top experts in their area of expertise but who seem to be totally out of touch with reality in other areas -- like the anthrax attacks of 2001.
Mindlessly following some "expert" who could be totally full of crap may be your way of analyzing data, but it's not mine.
As for who is a qualified expert on anthrax weaponization, that would be someone who has made either weaponized anthrax or anthrax simulant, and subjected that simulant to objective measurement, in such a way that his experiments can be repeated.
On more narrow topics, such as isotope ratios or genetic origin, different criteria would apply.
In terms of how best to apply your energies, I recommend you get electronic copies of the briefs in the Maureen Stevens case before the Florida Supreme Court and upload and/or link them. Oral argument today promises to raise interesting issues somewhat analogous to the decision in a New York State case holding the Port Authority responsible for the WTC 1993 bombing. You can access the docket here:
http://jweb.flcourts.org/pls/docket/ds_docket
Florida Supreme Court Case Docket
Case Number: SC07-1074 - Active
UNITED STATES OF AMERICA, ET AL. vs. MAUREEN STEVENS, ETC.
Lower Tribunal Case(s): 05-15088-GG
05/05/2008 11:20
by Hon. Thomas K. Kahn, Clerk - USCA PUBLIC DOCKET INFORMATION
06/12/2007
ORDER-HIGH PROFILE
Because of significant public and media interest in this matter, counsel for the parties are directed to hereafter file an original and eight copies of all pleadings filed with this Court. Per this Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all documents, including any attachments and appendices, in an electronic format as required by the provisions of that order.
And what if that "expert" has probably never actually made weaponized anthrax or anthrax simulants? The main author of the Aerosol Science article probably hasn't. He got the simulants from scientists at Dugway. What if that "expert" says he believes that the anthrax powders in the attack of 2001 were made the same way Dugway makes anthrax powders, and the experts at Dugway didn't contradict him? But, what if MANY other, better informed "experts" say otherwise? And what if there is an abundance of evidence which says otherwise?
Do you still feel we should mindlessly believe this "qualified expert" even on matters he evidently knows nothing about just because it's something a "qualified expert" believes?
I've talked with many "experts" on anthrax who do not keep up on the news about the anthrax attacks of 2001 and who are totally wrong in their beliefs because they haven't kept up-to-date. Should I mindlessly believe them, even when I KNOW they are wrong?
We've got a former postal employee on this forum who is absolutely certain the anthrax letters were all mailed in Florida at the same time, then somehow got separated into two different batches containing two different types of powders, and those two different batches somehow got postmarked on two different days, three weeks apart, in New Jersey.
Do you believe we should accept everything this "expert" says because he once worked for the U.S. Postal Service?
I accept what an "expert" says IF AND ONLY IF what he says is shown to be true by known facts and there is absolutely no reason to believe he is wrong.
It's unfortunate that those "experts" at the CDC in Cincinati didn't just stick to their area of expertise - sampling methods - and had to mention their beliefs about the anthrax attacks of 2001 in their article. What they wrote in their article about sampling methods could be very valuable. But they stepped on a "land mine" when they mentioned the anthrax attacks of 2001. And it exploded. And it could wipe out all the good work their article provides to people interested in sampling methods.
Maybe if enough scientists understand that they are entering a "mine field" any time they mention the anthrax attacks of 2001, they'll be more careful in what they say. And maybe they'll demand that more facts be made public about the anthrax powders that were in the anthrax letters so that the "mine field" can be eliminated.
You seem to have a real problem with people who do not do things they way you do them.
You endlessly tell me how to spend my time. You endlessly tell me what I should put on my web site. You endlessly tell me what is important and what is not. You endlessly get frustrated because I do not do things the way you do them.
You have different objectives than I do. You seek to find proof to fit your beliefs, and failing that, you seek to stop others from doing anything that challenges your beliefs. All I'm doing is trying to figure out what the facts about the anthrax attacks of 2001 really are.
The Maureen Stevens lawsuits are interesting, but there's no reason to believe that they'll produce any new information about the anthrax attacks of 2001. If they do, let's hope the media will quickly jump on it.
In spite of all the facts, many people still consider Dr. Hatfill to be a "suspect" in the anthrax attacks of 2001. It's probably because he was fingered by "experts" in the field of bioweapons. Therefore, his lawsuit has a LOT to do with the anthrax investigation. That's why I track it. It will show how reliable or UNreliable "experts" can be. And it MIGHT show the world whether or not Dr. Hatfill really was the anthrax killer.
Ed,
Here are the Maureen Stevens briefs in pdf available. Today’s oral argument is also available in real time today. Can you link either this link or also the briefs on your webpage and circulate this link to your anthrax list? Thanks.
http://www.floridasupremecourt.org/pub_info/summaries/briefs/07/07-1074/index.html
Assuming it was this morning, the oral argument is availalbe in archives also. Ed, a transcript of the most interesting question and answers would be useful.
I just put the link on my site. Thanks for providing it.
I've been seeing lots of people visiting my site for the past week or so who were looking for information about this case. So, if anything comes from it, it should be news.
I don't have the time to dig into every word, so I'll mostly just wait until someone brings up something worth mentioning or discussing or digging into. (Please don't tell me again how if I'm not doing things the way you do them, then I'm doing them wrong.)
As I've stated before, the anthrax attacks of 2001 aren't an obsession with me, as they are with some others I could name. To me they are just an interesting hobby, and a kind of "job" I spend time on from 9 to 5.
Here is the statement of the case by the USG in its opening brief — without the discussion of the law that follows.
INTRODUCTION
Plaintiff is the widow of Robert Stevens, the first victim in a series of criminal
attacks in the Fall of 2001, in which an unknown perpetrator sent anthrax through the mail. Plaintiff sued the United States (and also sued Battelle Memorial Institute, a private laboratory, in a subsequently consolidated case), alleging that the anthrax used by the perpetrator originally came from a United States Army Laboratory, and that the United States should be liable in negligence for the death of Mr. Stevens at the hands of the unknown attacker. The federal trial court in this case declined to dismiss plaintiff’s complaint, although the court acknowledged there was “no precedent in American jurisprudence” for plaintiff’s claim.
Although there have been no similar cases involving biological organisms used as a weapon, Florida courts have repeatedly rejected efforts to hold manufacturers, sellers, or owners of firearms liable for injuries caused by third-party criminals who use guns to attack strangers. Plaintiff’s theory would thus hold scientific researchers to a standard of potential liability that Florida law has declined to impose on those who own or sell guns. Such a major shift in Florida tort law would require abandoning the requirement of a “special relationship” in cases involving third-party criminal conduct, in favor of imposing an unprecedented duty to protect the general public from third parties. Florida courts, in accordance with the Restatement (Second)
of Torts, have consistently enforced the special relationship requirement and have consistently rejected the notion of a duty to all. This Court should reaffirm that consistent body of case law and should decline to take the radical step urged by plaintiff.
STATEMENT OF THE CASE
1. Certified Question
This case comes before the Supreme Court on a question of Florida law
certified by the United States Court of Appeals for the Eleventh Circuit. The federal appellate court stated the following certified question:
documents, in the Record Excerpts filed by the United States in the United States Court of Appeals for the Eleventh Circuit, which have been provided to this Court.
“Under Florida law, does a laboratory that manufactures, grows, tests or
handles ultra-hazardous materials owe a duty of reasonable care to
members of the general public to avoid an unauthorized interception and
dissemination of the materials, and, if not, is a duty created where a
reasonable response is not made where there is a history of such
dangerous materials going missing or being stolen?” Op. 17.2
The Eleventh Circuit also stated that it did “not intend to restrict the issues considered by the state court,” and noted that “discretion to examine this issue and other relevant issues lies with the state court.” Op. 17.
2. Nature of the Case
Plaintiff Maureen Stevens sued the United States in federal district court under
the Federal Tort Claims Act (FTCA), 28 U.S.C. ‘’ 1346(b), 2671 et seq., a federal statute that looks to state law to determine whether the sovereign immunity of the United States has been waived and the federal government can be held liable in tort. See 28 U.S.C. ‘ 2674 (United States may be liable “to the same extent as a private individual under like circumstances” under state law). Plaintiff’s late husband, Robert Stevens, was the first of several victims across the Nation who were killed or injured by inhalation anthrax in a series of criminal attacks in the Fall of 2001. The Federal Bureau of Investigation has launched a massive investigation into those attacks, and
the search for the perpetrator continues.
The complaint alleges that Mr. Stevens was exposed to anthrax bacteria derived from biological materials that were once held in a federal government laboratory, and that the government failed to take appropriate precautions at the laboratory, or in sending the bacteria to another research facility, to prevent the unidentified perpetrator of the anthrax attack from obtaining the bacteria. The complaint does not allege that there was any relationship between Mr. Stevens and the laboratory, nor is there any
allegation that the perpetrator had any relationship with the government.
The FTCA requires the federal courts to interpret Florida law, which imposes
liability for negligence only if a defendant owed a duty of care to prevent harm to the victim. This Court has adopted the rule set forth in section 315 of the Restatement (Second) of Torts (1965), that a defendant has no duty to protect another person from the criminal acts of a third party, unless the victim and defendant had a special relationship (such as a common carrier and its passengers, or a landowner and its invitees). See Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 918
(Fla. 1985).
The United States moved to dismiss the complaint on the ground that the
government owed no duty to Mr. Stevens under Florida law. The federal district court denied the motion to dismiss, but recognized that plaintiff’s theory of negligence liability is unprecedented, and accordingly certified the issue for interlocutory appeal.
The court’s decision offered two bases for rejecting ‘ 315 and the Florida cases that rely on the no-duty rule. First, the court limited the scope of the no-duty rule, distinguishing between acts and omissions. Second, following New York law, and applying that state’s policy-based allocation of risks, the court concluded that the United States owed a duty to the general public to prevent such criminal attacks as the one that killed Mr. Stevens.
Both the government and a private laboratory (Battelle Memorial Institute,
which has been named as defendant in a similar, consolidated suit filed by the same plaintiff) sought review of the trial court’s threshold legal ruling. On appeal, the Eleventh Circuit concluded that “Florida law does not appear to have addressed and decided these issues” and accordingly certified the state-law question (set forth above) to this Court. Op. 17.
3. Restatement (Second) of Torts
This case involves the interpretation of provisions of the Restatement (Second) of Torts, which are set out here for the Court’s convenience.
a. The United States principally relies on Restatement ‘ 315, which
provides:
“There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s
conduct, or (b) a special relation exists between the actor and the other which
gives to the other a right to protection.” Restatement (Second) of Torts,
‘ 315 (1965).
The Restatement’s commentary makes clear that “[t]he rule stated in [’ 315] is a special application of the general rule stated in ‘ 314.” Restatement ‘ 315, cmt. a.
Section 314 in turn provides:
“The fact that the actor realizes or should realize that action on his part is
necessary for another’s aid or protection does not of itself impose upon
him a duty to take such action.”
The exceptions to the no-duty rule in ‘ 315 are set out in ‘’ 314A, 316-320.
They provide exceptions for special relationships between the defendant and victim — such as the relationship between a common carrier and its passengers, an innkeeper and his guests, a landowner and her invitees, or an institution (such as a prison, hospital, or school) and those subject to the institution’s custody. See Restatement ‘’ 314A, 320. They also provide exceptions to the no-duty rule for special relationships between the defendant and a third-party tortfeasor — such as the relationship between a parent and a minor child, an employer and employee, or an
institution and someone in the custody of that institution — when the defendant is on notice of the risk and has the authority and the opportunity to exercise control over the tortfeasor. See Restatement ‘’ 316-319.
b. Plaintiff has cited other provisions of the Restatement, including ‘’ 302,
302A, and 302B. Section 302 provides:
“A negligent act or omission may be one which involves an unreasonable
risk of harm to another through either (a) the continuous operation of a force started or continued by the act or omission, or
(b) the foreseeable action of the other, a third person, an animal, or
a force of nature.” Restatement ‘ 302.
Restatement ‘’ 302A and 302B provide that “[a]n act or an omission may be
negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through” either the “negligent or reckless conduct of the other or a third person,” ‘ 302A, or “the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal,” ‘ 302B.
The commentary emphasizes the limited purpose of ‘ 302:
“This Section is concerned only with the negligent character of the
actor’s conduct, and not with his duty to avoid the unreasonable risk. . . .
If the actor is under no duty to the other to act, his failure to do so may
be negligent conduct within the rule stated in this Section, but it does not
subject him to liability, because of the absence of duty.” Restatement
‘ 302, cmt. a.
Both ‘’ 302A and 302B expressly incorporate that comment. See Restatement
‘ 302A, cmt a (”This Section is a special application of the rule stated in ‘ 302(b). Comment a to that Section is equally applicable here.”); Restatement ‘ 302B, cmt a
(same).
STATEMENT OF FACTS
This case remains at the pleading stage, so the federal courts have accepted the facts as pleaded in the complaint as true for purposes of the threshold motion to dismiss. If the case were to proceed, the government would dispute many of the allegations.
1. Robert Stevens died on October 5, 2001, a victim of an unknown
assailant who sent anthrax bacteria through the mail to Mr. Stevens’ workplace. The complaint does not speculate about the identity of the killer.
The complaint originally sought recovery on both strict liability and negligence theories, alleging that the government was liable in tort simply due to its undertaking to own, manage, and experiment with anthrax bacteria, which the complaint describes 8 throughout as “ultra-hazardous.” RE 1:2-5, 7; see also Op. 4 & n.1. Plaintiff eventually conceded that the FTCA does not waive the sovereign immunity of the United States for strict liability claims, and the trial court dismissed that count. See RE 47:2 n.1.
The remaining negligence count alleges that the government failed to take steps plaintiff believes were necessary to keep anthrax bacteria from falling into the hands of potential criminals. See RE 1:6-7. The complaint reiterates, both by incorporation and expression, the foundation of the strict liability count — the assertion that anthrax was an “ultra-hazardous material” — and further asserts that the government was required to exercise “the highest degree of care” in its “handling, storage, use, or possession” of that material. Id. at 1:5.
Without explanation, the complaint asserts that the United States “owed a duty of care and in fact, the highest degree of care,” in virtually every facet of the work (including hiring, security screening, and workplace security, as well as the handling of and experimenting with anthrax bacteria) performed at a U.S. Army research laboratory located in Fort Detrick, Maryland. See id. at 1:5-6. The complaint does not identify any class or category of individuals to whom the government owed this asserted duty of care, nor does the complaint identify any special relationship between Mr. Stevens and the Army laboratory, or any other component of the government, that could give rise to such a duty. Finally, the negligence count alleges a number of
failures or omissions by the government in its operation of the Army laboratory that allegedly made possible the criminal act that led to the death of Mr. Stevens. See id. at 1:6-7.
2. The United States moved to dismiss the complaint on the ground that
plaintiff failed to state a claim under Florida law because the government owed no duty to protect Mr. Stevens from an unidentified third-party killer, even if the complaint’s allegations (that the killer used anthrax derived from a government laboratory source) were true.
The federal district court denied the motion to dismiss the negligence count (as noted above, the court granted, and plaintiff did not oppose, the motion to dismiss plaintiff’s strict liability claim). The court recognized that this Court looks to the Restatement (Second) of Torts, and concluded that the Restatement, ‘’ 302, 302A, and 302B, can be read to impose a duty of care based on the district court’s reading of the complaint to allege that the government committed “affirmative acts (ownership
and handling of biohazards), which . . . give rise to a corresponding duty to protect all others exposed to any ‘unreasonable risk of harm’ arising out of that activity.” RE 47:10. The trial court asserted that Restatement ‘’ 302, 302A, and 302B generally “attach to acts of commission, which historically generate a broader umbrella of tort liability than acts of omission, which are the subject of ‘’ 315 and 314A,” on which the government principally rested its duty argument. RE 47:9. The court cited only one Florida case for this theory: Shurben v. Dollar Rent-A-Car, 676 So. 2d 467 (Fla.
3d DCA 1996). See RE 47:10; Op. 6-9.
The federal district court alternatively held that Restatement ‘ 315 could be
read to impose a duty of care to protect members of the general public against a criminal attack using biohazards such as the anthrax bacteria. The court acknowledged that Restatement ‘ 314 “recognizes a general rule of non-liability based on a failure to warn or guard against third-party misconduct (in the nonfeasance or acts of omission arena),” and that ‘ 315 sets out “certain exceptions or ‘special applications’ of the rule which operate to limit its application.” RE 47:12. The court conceded that “plaintiff in this case does not fit within any of the relationships specifically referenced by the Restatement at [’ 315(a)] or by existing Florida case law,” RE 47:15, but nevertheless concluded that the government was under a duty to
protect “the public at large which is realistically and foreseeably at risk in the event that a deadly organism or contagion is released,” id. at 47:17. The trial court cited no Florida case law in support of that holding, and relied solely on a decision from a federal court interpreting New York law. See id. at 47:15-18 (citing In re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y 2003)); Op. 9-11.
The trial court certified the order for interlocutory appeal to the Eleventh
Circuit. See RE 58:4-8. The court characterized the question at issue as:
“Under Florida law, does a laboratory that manufactures, grows, tests
and handles ultra-hazardous viruses and germs, having a history of
missing or unaccounted for samples, owe a duty of reasonable care to
members of the general public to avoid an unauthorized interception and
dissemination of the biohazards, either (1) under [’] 302B of the
Restatement of Torts (Second), without the presence of an underlying
‘ 315 ‘special relationship?’ or (2) under application of ‘ 315 of the
Restatement, on the premise that it stands in “special relationship” with
members of the general public foreseeably placed at risk of
contamination in the event of an unintentional or intentional release of
the biohazards?” RE 58:8.
The trial court acknowledged that such a theory “finds no precedent in American jurisprudence.” Id. at 58:6; see Op. 12-13.
The trial court also explained that the Federal Bureau of Investigation (FBI) is
in the midst of an extensive investigation into the anthrax attacks, in an effort to identify and charge the perpetrator or perpetrators. Plaintiff seeks to litigate the very questions the FBI is currently investigating, and the court expressed concern that litigation of plaintiffs’ claim could result in “possible impairment or compromise” of both the ongoing investigation and the “sensitive national security interests” that are also present in this case, which involves allegations concerning the use of a biological agent as a weapon. Id. at 58:7.
3. Following briefing and argument, the Eleventh Circuit certified the
question of state law to this Court. The federal appellate court reviewed the
complaint’s factual allegations and the procedural history of the litigation. See Op. 3-13. The court described the “central issue” as “what duties exist under Florida law to protect members of the general public where an organization creates a significant risk by using anthrax or another ultra-hazardous material.” Op. 16. The federal court acknowledged that “Florida case law . . . fails to fit neatly into the complex factual pattern at hand.” Id. The court offered two hypothetical questions that it apparently viewed as unprecedented — asking whether a gun store owner, accused of negligence for leaving a “door unlocked at night, knowing that guns had been stolen in the past,” should be “free from liability if an unknown third party was killed by a criminal using one of the stolen guns,” and whether a construction company should be liable “if an unknown third party used [dynamite stolen from the company] to blow up a building.” Op. 16. In the absence of controlling state-court precedent, the federal appellate court certified the state-law question (set forth above) to this Court.
SUMMARY OF ARGUMENT
Plaintiff’s theory of liability, if accepted, would vastly expand the scope of
Florida negligence law, subjecting a research laboratory (whether private or
governmental) to potential liability if any substance from the facility is later used as a weapon in a criminal attack. The courts of this state have repeatedly rejected similar claims concerning vehicles and firearms. Plaintiff’s claim in this case should likewise be rejected.
Like nearly every other state, Florida law requires a showing that a defendant in a negligence action owed a duty of care to protect the victim. And, following the “special relationship” rule of the Restatement (Second) of Torts, this Court and others in Florida have recognized that there is no duty to protect a stranger from a criminal attack by another stranger. That fundamental principle controls this case, and the Court should reaffirm the many decisions that conclude there is no duty in such a
circumstance.
Plaintiff concedes that there is no special relationship here, either between the United States and Mr. Stevens, or between the government and the killer. There is thus no basis for applying any of the established exceptions to the no-duty rule. Instead of trying to come within those exceptions, plaintiff tries to escape the effect of the no-duty rule by limiting its scope. But none of plaintiff’s arguments withstands scrutiny.
In the context of third-party criminal conduct addressed by Restatement ‘’ 314-320, mere foreseeability is not enough to establish a duty of care supporting a negligence claim. Foreseeability may determine the extent of a duty where third-party criminal conduct is not involved, but only a special relationship with either the victim or the criminal can give rise to a duty to prevent third-party criminal conduct. In effect, under ‘ 315’s no-duty rule, third-party criminal conduct harming a stranger is unforeseeable as a matter of law, because the existence of a duty turns on the nature of
the relationship between the defendant and the victim or the criminal, rather than the factual foreseeability of the criminal conduct.
Neither the Restatement nor the jurisprudence of the Florida courts supports
plaintiff’s suggestion that the no-duty rule is limited to allegations of actions, rather than omissions. The distinction is legally untenable in cases like this one, as demonstrated by plaintiff’s complaint, which by its terms alleges omissions (failures to act), although the federal district court apparently read it otherwise. As this case demonstrates, plaintiff’s argument would allow easy evasion of the no-duty rule.
Nor can the no-duty rule’s exception for a special relationship be squared with liability based on an undifferentiated duty to the general public. The government laboratory had no relationship with Mr. Stevens. Imposing a duty here thus would not be a modest expansion of the relationships deemed “special,” but rather a fundamental abrogation of the requirement of a special relationship in favor of an unabashed regime of duties owed by all to all. But this Court has rejected such a massive expansion of negligence actions.
The only authority that supports plaintiff’s argument comes from case law that developed the jurisprudence of strict liability. But this case raises solely a negligence claim, and this Court should reject plaintiff’s efforts to blur the line between the two causes of action, especially as plaintiff has acknowledged that Congress has not permitted strict liability claims to be brought against the United States.
[legal argument omitted]
You could be right, but it's my understanding that this is all about legal issues. So, the argument will be all about legal issues -- like whether or not Florida law applies to such a matter.
That's not something that excites me.
I think you just proved my point: This is about the law, not about the anthrax attacks of 2001. MAYBE something interesting will come from it, but I'm not expecting much.
“And what if that “expert” has probably never actually made weaponized anthrax or anthrax simulants? The main author of the Aerosol Science article probably hasn’t. He got the simulants from scientists at Dugway.”
Whilst I’m not going to waste time correcting the numerous science mistakes you have made in the last few dozen posts I will point out that the new paper is a joint Dugway/CDC study.
The lead author from Dugway, Lloyd Larsen, has been Dugway’s top simulant specialist for years. He’s been making silica coated simulants for years - and he made silica coated Bacillus Anthracis especially for this joint study. As the authors clearly stated - this was to simulate the spores used in the 2001 attacks.
Here are excerpts from Battelle’s initial brief, with the extensive legal argument omitted.
BRIEF OF APPELLANT/DEFENDANT BATTELLE MEMORIAL INSTITUTE
STATEMENT OF THE CASE
Based on the allegations set forth in the Complaint, the Stevens family’s
claims fail as a matter of law because Battelle Memorial Institute (“Battelle”) owed no legal duty to the decedent, Robert Stevens. Specifically, under Florida law Battelle had no duty to prevent the criminal acts of third parties. The Complaint against Battelle alleges that Mr. Stevens died after inhaling anthrax mailed in a letter to the offices of American Media, Inc. in Florida. Under Florida law, in the case of third party misconduct, a defendant does not owe a duty to the victim of that misconduct unless the defendant has a special relationship with either the victim or the perpetrator or control at the time of the injury of the location of injury or the alleged injury causing instrumentality. The Complaint against Battelle does not allege a special relationship or the requisite control.
A. Statement of Facts: the Stevens Family’s Claims
The Stevens family’s claims against Battelle arise out of one of a series of
terrorist attacks involving mail contaminated with the biological agent Bacillus
anthracis, also called anthrax. 80253 Dkt. #31:1. In the fall of 2001, an unknown criminal or group of criminals intentionally mailed letters containing some form of anthrax to individuals in Florida, New York, and Washington, D.C. Id. One of those letters was mailed to American Media, Inc. in Boca Raton, Florida, where Mr. Stevens worked. 80253 Dkt. #31:2. Mr. Stevens became ill and died after inhaling anthrax. Id. The Stevens family brought suit against the United States, alleging, among other claims, that the anthrax that killed Mr. Stevens was stolen from a government medical research facility in Fort Detrick, Maryland due to the United States’s negligence in handling the anthrax. 81110 Dkt. #1. The Stevens family further alleged that there was a history of missing samples of anthrax from the same facility in Fort Detrick. 81110 Dkt. #1 ¶ 9.
Alternatively, the Stevens family brought a separate suit against Battelle, a
private research facility, broadly alleging negligence in the handling of anthrax. The Stevens family did not allege that there was a history of missing samples of anthrax against Battelle. The Complaint against Battelle contains only broad and general allegations that Battelle and others negligently hired and supervised employees and failed to protect anthrax in their possession and then states the conclusion that anthrax was “obtained and sent” as a “direct, proximate and foreseeable result of the negligence of the Defendants.” Complaint ¶ 13. The Stevens family pled no underlying facts in the complaint against Battelle that plausibly suggest either the broad allegations of negligence or any basis to determine that Battelle owed a duty to Mr. Stevens.
B. District Court Proceedings
1. Battelle’s Motion for Judgment on the Pleadings
The conclusory allegations of negligence in the Complaint against Battelle
appear to be based on the sole fact that Battelle held in its research facility in Ohio live anthrax bacteria. Battelle filed its Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) based on well-settled Florida law:
1 a defendant has no duty to protect another person from criminal acts of third parties, absent a special relationship that provides the defendant with control of the victim or the perpetrator or control at the time of the injury of the location of the injury or the alleged injury-causing instrumentality. The Complaint alleges no “special relationship” between Battelle and Mr. Stevens to support the existence of a legal duty, no control over the individual or individuals who mailed the anthrax, and no control at the time of the injury over the American Media offices or the alleged injury-causing anthrax.
The government moved to dismiss the Complaint against it under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The government argued that it could not be liable for any third party criminal activity allegedly occasioned by negligent security practices because it owed no duty of protection to Mr. Stevens and did not have a duty or ability to control the unidentified third party responsible.
2. The District Court’s Order
On April 15, 2005, the District Court entered a single order denying both
motions. 80253 Dkt. #38; 81110 Dkt. #47. The District Court denied both
motions based on its analysis of the threshold duty question – whether either
defendant owed a duty to Mr. Stevens or had a duty of control over the third
party’s interception of the anthrax. Specifically, the District Court reasoned that the Stevens family’s allegations establish a legal duty under Restatement (Second) of Torts §§ 302, 302A and 302B (1965), even in the absence of a “special relationship” under § 315, or, alternatively, that under the New York decision In re September 11 Litig., 280 F. Supp. 2d 279 (S.D.N.Y. 2003), a duty of care can be found under the “special relationship” test set forth in Restatement (Second) of Torts § 315 (1965). 80253 Dkt. #38:8, 18; 81110 Dkt. #47:8, 18.
3. Certification for Interlocutory Appeal
Upon the District Court’s denial, the United States filed a Motion for
Reconsideration. 81110 Dkt. #53. On July 5, 2005, the District Court denied the Motion for Reconsideration, but certified its April 15th Order for interlocutory appeal. 80253 Dkt. #41; 81110 Dkt. #58. The Eleventh Circuit Court of Appeals accepted jurisdiction and the United States and Battelle pursued the discretionary appeal.
4. Certification to the Florida Supreme Court
In the Court of Appeals, the United States and Battelle argued that the
District Court had impermissibly expanded theories of tort liability to extend a duty to the “public at large” to prevent criminal misconduct of others, even when that party has no relationship to the perpetrator or the victim and no connection to the site of the injury or control over the injury-causing instrumentality at the time the criminal act occurred. The Appellants argued that this issue was well established by intermediate level courts in the First, Third, Fourth, and Fifth Districts.
The Eleventh Circuit Court of Appeals determined that Florida law has not
previously addressed the “factual pattern at hand” and on June 11, 2007, certified the following question to the Florida Supreme Court.
Under Florida law, does a laboratory that manufactures,
grows, tests or handles ultra-hazardous materials owe a
duty of reasonable care to members of the general public
to avoid an unauthorized interception and dissemination
of the materials, and, if not, is a duty created where a
reasonable response is not made where there is a history
of such dangerous materials going missing or being
stolen? Opinion, No. 05-15088 at 17.
Both the District Court and the Eleventh Circuit appeared to be searching for
a special rule of law because this case arose out of the anthrax through the mail attacks in 2001. Battelle throughout has taken the position that a special rule of law does not exist and should not be created by the courts. Florida law requires a plaintiff to allege, as a threshold legal requirement, a duty owed by the defendant.
Florida law has long held that there is no duty to prevent third-party misconduct absent allegation of some very specific exceptions, specifically allegations that the defendant has a special relationship with either the victim or the perpetrator or allegations that the defendant had control at the time of the injury over the location of the injury or the alleged injury causing instrumentality. Battelle in each court has argued that the Stevens family has failed to establish the threshold legal requirement of duty because they make no such allegations against Battelle.
SUMMARY OF ARGUMENT
This case does not present unique questions never addressed by this Court.
Rather, this case provides this Court an opportunity to further explain longstanding Florida principles and rules to ensure that they are consistently applied to future tort liability cases. Although this case involves horrific criminal or terrorist conduct, this Court should not let those horrible facts, in the wake of September 11, alter existing Florida law and policy, in order to ensure that someone pays for the Stevens family’s loss.
Current Florida case law, set out by this Court and applied consistently by
the intermediate appellate courts, requires a threshold determination of whether a defendant owes a plaintiff a legal duty, such that a negligence case may proceed to trial on issues of negligence and proximate causation. This Court has explained that courts must determine whether a defendant’s conduct has created a “foreseeable zone of risk” that gives the defendant a duty of care to either lessen the risk or protect the plaintiff.
Florida courts have established boundaries to this foreseeable zone of risk
analysis to ensure that a defendant will only be haled to court when the defendant has actual, constructive knowledge of the specific danger and the injury-causing conduct is actually within the defendant’s control. One such boundary is the Florida rule that an entity does not owe a duty to protect against third party misconduct. Florida law has established limited exceptions to this rule that appropriately balance the rights of the victim to protection against the right of a defendant to avoid suit when that defendant did not have a real opportunity to prevent the injury causing event. Specifically, a defendant may owe a duty to a victim of third-party misconduct if that defendant had a special relationship with either the victim or the perpetrator, or that defendant, at the time of the injury, had control of the injury location or the alleged injury-causing instrumentality. Any rule of law that rejects these boundaries simply because a defendant possesses a substance that can be misused by third parties to cause harm is not appropriate. This Court should ensure that in attempting to allow compensation for
an innocent victim injured in a criminal or terrorist attack, it does not create
unbounded duties for defendants with little or no connection to the injury causing event. This Court should not establish a rule that will cause companies who conduct socially valuable work with substances that can be criminally misused to become “insurers” to the general public.
The Stevens family’s Complaint against Battelle contains only broad,
conclusory statements that Battelle negligently hired and supervised its employees working with anthrax. It contains only labels and conclusions as allegations of duty and proximate cause. The Complaint does not allege any underlying facts to support these allegations. It does not allege that Battelle had a history of missing or lost samples. Moreover, the Complaint alleges no facts against Battelle which would have put Battelle on heightened notice that a criminal actor would deliberately intercept such materials and use them to cause harm to an unrelated victim in a distant location. Absent these allegations, the Complaint against Battelle does not state facts giving rise to a legal duty. In sum, this Court must ensure consistent rules that can be applied in future tort liability cases. Many substances exist in our society that can be misused to cause harm, but that also provide value to society. In balancing those interests, this Court should not extend the reach of tort liability to an entity that has no control over the injury-causing event or person. To do so would not protect against the
criminal activity. Allocating a general and unbounded duty to laboratories solely because they use instrumentalities or substances that can be used as weapons does nothing to promise or secure protection from terrorist conduct such as mailing anthrax and would instead deter laboratories such as Battelle from working with anthrax to create vaccines for the social benefit of the public.
[extensive legal argument omitted]
CONCLUSION
This Court should ensure that the rules for establishing tort liability,
specifically in cases involving third party misconduct, are consistent. Allocating the duty to a laboratory to protect the public from all uses or misuses of a substance that laboratory, as well as others, possesses, does nothing to promise or secure protection from terrorist conduct such as mailing anthrax. Instead, forcing Battelle to defend this tort case arising out of the criminal acts of third parties they could not control would inhibit Battelle and companies like it from developing technological advancements for the good of society for fear of unreasonable legal
exposure from intentional criminal acts.
“As I’ve stated before, the anthrax attacks of 2001 aren’t an obsession with me,”
http://www.ph.ucla.edu/epi/bioter/sleuthwithoutbadge.html
Retiree Ed Lake has become obsessed with the anthrax case....
Here are excerpts from the brief filed on behalf of Maureen Stevens.
Question: putting aside legal precedent and analysis, what rule of law does public policy favor?
STATEMENT OF THE FACTS
***
Plaintiff’s Complaint alleges that Defendants’ conduct in creating and
maintaining the certain strain of Anthrax bacterium which killed Robert Stevens foreseeably created a zone of risk. The Complaint alleges (&&7-9):
7. That on or before October 5, 2001, the Defendant, THE
UNITED STATES OF AMERICA, owned, managed, grew,
experimented with, and/or was in control of a certain strain of Anthrax
bacterium at its Fort Detrick, Maryland facility and other facilities.
8. That the Defendant, THE UNITED STATES OF AMERICA,
knew that the activities it carried on with the Anthrax bacillus were
ultra-hazardous activities in that the mere handling of microscopic
quantities of this bacillus involved a potentially high degree of risk of
harm and that that potential harm was likely to be great, namely, the
cause of human death.
9. That despite the above knowledge, the Defendant, THE
UNITED STATES OF AMERICA, failed to adequately secure
samples of this highly toxic lethal bacillus and, as early as 1992,
samples of this formidable, dangerous, and highly lethal organism
were known to be missing from the lab at Fort Detrick, Maryland
occupied by the United States Army Medical Research Institute for
Infectious Diseases (USAMRIID), along with samples of the hanta
virus and the ebola virus, pursuant to a memo which is attached hereto ***
Based on those allegations, Stevens claimed that the United States owed a
duty of care, in fact, the highest degree of care, in the manufacturing, handling, transporting, utilizing, processing, analyzing, distributing, warehousing, storing, testing or experimenting with Anthrax (Complaint &17).
The District Court denied the Motion to Dismiss and Motion for Judgment
on the Pleadings filed by the United States and Battelle. In the order, Judge Hurley relied on McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992) and In Re September 11 Litigation, 280 F.Supp. 2d 279 (S.D. N.Y. 2003), among other authorities, to conclude that it was reasonable to expect the United States to maintain security measures for those who are foreseeably at risk in the event that a deadly pathogen is released. The entire order is included in the Appendix.
SUMMARY OF ARGUMENT
The question certified by the Eleventh Circuit Court of Appeals should be
answered in the affirmative. The issue presented in this case does not involve the duty to protect Robert Stevens from a criminal attack. Instead, the issue in this case is whether the United States and Battelle had a duty to maintain control over the dangerous bacteria being manufactured, stored and transported by them. Under this Court’s analysis in McCain, the duty imposed upon the United States and Battelle was commensurate with the zone of risk created by them. By manufacturing and storing Anthrax, the Petitioners created a risk that the Anthrax would be released into the public. After they were made aware that some pathogens were missing, the Petitioners were put on notice that whatever security measures they had in place were insufficient. They therefore had a corresponding duty to take the reasonable steps necessary to prevent the release of the pathogens
being stored at the facility.
The analysis employed by the Petitioners is flawed because it begins with
the assumption that third parties had Anthrax and then considers whether the Petitioners had a duty to prevent criminal conduct utilizing the bacteria to kill Robert Stevens. The breach of duty alleged in the Complaint was not, however, that the Petitioners failed to protect Robert Stevens from a criminal attack. The Complaint alleged that the Petitioners failed to maintain control over the Anthrax they were storing. The Petitioners have ignored the fact that it was their Anthrax which killed Robert Stevens.
CERTIFIED QUESTION
UNDER FLORIDA LAW, DOES A LABORATORY
THAT MANUFACTURES, GROWS, TESTS OR
HANDLES ULTRA-HAZARDOUS MATERIALS
OWE A DUTY OF REASONABLE CARE TO
MEMBERS OF THE GENERAL PUBLIC TO AVOID
AN UNAUTHORIZED INTERCEPTION AND
DISSEMINATION OF THE MATERIALS, AND, IF
NOT, IS A DUTY CREATED WHERE A
REASONABLE RESPONSE IS NOT MADE WHERE
THERE IS A HISTORY OF SUCH DANGEROUS
MATERIALS GOING MISSING OR BEING STOLEN?
***
[legal discussion omitted]
Analysis of Petitioners’ Argument
The Petitioners have reached the conclusion that they owed no duty to
Robert Stevens because they have looked only at the fact that Robert Stevens
received the Anthrax in the mail through criminal conduct. The Petitioners then utilize the Restatement sections related to the duty to protect another from criminal conduct to reach an erroneous conclusion that they owed no duty. From this perspective, the Defendants completely ignore the issue of how the criminals obtained the Anthrax used to kill Robert Stevens and the role they played in it.
They have started their analysis from the middle of the story and asked the
question, “Now that the criminals have Anthrax, did the Defendants have a duty to protect Robert Stevens from the Anthrax?” Sections 314 and 315 have nothing to do with the duty analysis in this case, however, because the negligence alleged is not one of nonfeasance. The negligence alleged in this case is one of misfeasance. The question presented to this Court is not concerned with whether there was a duty to prevent third parties from using the Anthrax, but whether there was a duty to prevent third parties from being able to obtain access to Petitioner’s Anthrax in the first place.
[legal discussion omitted]
In addition to the audio, there is a video of the argument. The transcript will be uploaded and available here. Please link it along with the video.
http://www.wfsu.org/gavel2gavel/archives/08-05.html
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