Legal briefs

Penn Appeals Court Revives Allentown Rights Law

A unanimous three-judge appeals court ruled on August 11 that the city of Allentown, Pennsylvania, had not exceeded its legislative authority by passing a law forbidding sexual orientation and gender identity discrimination by businesses and landlords, reversing a ruling by the Lehigh County Common Pleas court.

The Pennsylvania Commonwealth Court, an intermediate appellate court, ruled that the state’s home rule statute did not stand as a barrier to passage of the rights ordinance.

A home rule city since 1996, Allentown amended its Human Relations Ordinance in 2002 to add “sexual orientation” and “gender identity” to the list of prohibited grounds for discrimination. Several businesspeople in the city joined together to file a legal challenge to the expanded rights law, arguing that under the home rule statute the city was barred from imposing any “new obligations” on businesses not already required by state law. Pennsylvania’s state law does not ban discrimination against gay and transgendered people, but the plaintiffs argued that by having a civil rights statute for other purposes, the state had claimed prerogative on discrimination matters. The trial court rejected this argument, noting that the state civil rights law specifically provided it would not supercede local ordinances. However that court agreed that Allentown could not impose new requirements on businesses.

Writing for the court, Judge Cohn Jubelirer pointed to a Pennsylvania Supreme Court ruling subsequent to the Lehigh trial court decision that upheld in part Philadelphia’s domestic partnership ordinance and underscored the “police powers” of municipalities to battle discrimination. The Supreme Court found that Philadelphia could also impose more stringent health standards on restaurants than state law required.

The appellate court ruled that though the home rule law bars cities from imposing new affirmative obligations on businesses, they can require businesses to refrain from certain conduct such as discrimination.

The opponents of the law can appeal this ruling to the Pennsylvania Supreme Court.

Spitting Is Assault for Poz Hemophiliac

The Fifth District Court of Appeals of Ohio on August 8 affirmed a six-year prison term for Tommy Dale Price, convicted of attempted felonious assault and assault for spitting at and biting a police officer who showed up at his house after he made a series of harassing and “nonsensical” calls to the local police department. Price, a hemophiliac, is infected with both HIV and hepatitis C.

When police arrived at Price’s home in April 2003, he became agitated, swore at the two officers, and then spit at and bit Sergeant James Greenawalt. Although Greenawalt has consistently tested negative since the incident, Price was prosecuted on the theory that his saliva is a deadly weapon. Two doctors who had treated Price in the past testified at the trial, opining that a hemophiliac with HIV would have infected blood cells in his saliva so it was possible HIV could be transmitted through spitting or biting. The evidence also showed that Price had transmitted hepatitis to another police officer in the past.

The jury convicted Price, and the court of appeals rejected his argument that there was insufficient evidence to support the conviction. He “knew his saliva was a deadly weapon capable of inflicting physical harm to another,” according to the court’s opinion.

“The attack in this case is similar to an individual holding another individual under water to injure him or her and fortunately the victim does not suffer any ill effects,” wrote Judge Sheila G. Farmer. “The attempt was made and despite the fact that it was unsuccessful, a criminal act occurred.”

No Retraction Required by

Red Cross

On August 10, the U.S. District Court in West Virginia dealt with a rather unusual claim, seeking to impose liability on the Red Cross for refusing to remove somebody from its blood donor deferral list. Jennifer K. Delp, a minor, donated blood at a Red Cross drive and was notified to see her doctor because “abnormalities” made her blood unusable for transfusion. The abnormality turned out to be an HIV-positive screening test result. Delp’s father took her to the doctor for further testing, and repeated tests confirmed that she was not HIV-positive. Delp then contacted the Red Cross, offered to let them test her again, and asked that her name be taken off the deferral list. The Red Cross refused, claiming that consistent with federal government regulations, anybody who tests positive goes on the deferral list and stays there.

Delp claimed that the Red Cross was negligent in conducting her blood test, causing her emotional distress, and sued in federal court since that is what Red Cross’ charter by the U.S. government provides, even though state law guided the deliberations. West Virginia law is rather stingy when it comes to emotional distress claims, requiring that incapacitation be demonstrated to prove negligent infliction and that conduct be truly outrageous to show intentional infliction. Faber found that neither of these standards had been met.

As to Delp’s demand that the court order the Red Cross to remove her from the deferral list, Faber declined even to rule on it writing there was no legal theory under which the Red Cross could be found at fault.

Wife Not Protected for Negligence by Husband’s Boss

The Maryland Court of Court of Appeals ruled on August 11 that Pharmacia & Upjohn Company had no liability for the infection of the wife of an employee who contracted HIV from working with live viral lines but was negligently misdiagnosed as not being infected.

“John Doe” worked for the company between 1974 and 1991 at a plant in Maryland manufacturing live viral lines of HIV-1 and HIV-2 for use in diagnostic test kits. The company gave their lab employees periodic HIV tests and in 1989, Doe tested positive using the standard ELISA test that can detect both HIV-1 and HIV-2. A Western blot confirmatory test that screens only for HIV-1, however, came up negative, and Doe was told he was not infected. In fact, he tested negative on all subsequent ELISA tests until the plant closed in 1991.

Thinking he was not infected Doe continued having unprotected sex with his wife “Jane.” In 2000, however, John suffered symptoms that led to hospitalization, new testing, and the finding that he was positive for HIV-2. Jane then got tested and turned out to be positive for HIV-2 as well. Her only risk factor was sex with John. 

Jane sued John’s former employer for negligence, alleging that if it had properly notified John that he was HIV-2 positive, they would have used barrier contraception and she would not have been infected. The case was brought in federal court because the company is incorporated in a different state, but the employer’s liability would depend on Maryland law.

The federal judge granted Pharmacia & Upjohn’s motion to dismiss the case, finding no basis in Maryland law for holding that the employer had any duty of care to an employee’s wife in this situation. Jane Doe appealed, and the federal Court of Appeals for the 4th Circuit referred the question to Maryland’s Court of Appeals.

Writing for the Court of Appeals, Judge Irma S. Raker agreed with the federal trial judge. Though the company had clearly breached its duty of care to John Doe, the court found that no such duty ran to his wife, even though it was foreseeable that a failure to accurately diagnose his HIV infection could result in transmission to her. Maryland courts have generally been reluctant to expand liability for personal injury beyond immediate parties.

“In this context, an employer could owe a duty to a third party only in extraordinary circumstances,” Raker wrote, finding that there were no special public policy reasons to extend liability here, even based on Pharmacia’s dangerous activity of manufacturing a deadly virus.

No HIV Confidentiality Right as of ‘97

Chief Judge John W. Bissell of the U.S. District Court in New Jersey on August 11 ruled against an HIV breach of confidentiality claim that had been brought by Melvin and Tianee Williams, an HIV-positive couple, against the Plainfield Police Department and one of its employees, Steven Francisco. The couple claimed that when they were arrested n 1997 and disclosed their HIV status, Francisco and the department failed to keep this information confidential, violating their privacy rights.

The defendants argued that they enjoyed governmental immunity from these claims.

The immunity claim turns on whether it was clearly established that a particular course of conduct would violate a person’s constitutional rights. The question for the court was whether a consensus that HIV status should be kept confidential was well enough established in 1997 to justify imposing liability.

Bissell noted that a 2001 appellate ruling in Philadelphia, which has jurisdiction over New Jersey federal courts, rejected a similar privacy claim from an HIV-positive Pennsylvania prison inmate based on a 1995 incident. Bissell stated that he scoured the law-books for the period between 1995 and 1997 and found that “the right was also not clearly established at the time of the Plaintiffs’ arrest in December of 1997.”

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