Replies

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]