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PostPosted: Wed Jul 18, 2001 3:14 pm 
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Location: Framingham, MA USA
In Martial Arts (the contact element of same)we are always concerned with the subject of transmission of body fluids and may be a bit curious about what standards the law sets, and what we can do to abide and protect ourselves. We had no standard in Massachusetts relative to a reported case until this one. This is called a case of first impression.

The case is "Cole, et al. v D.J.Quirk, Inc.", and was reported in Massachusetts Lawyers Weekly in the July 2, 2001 edition.

A man sued a used car dealer based upon his theory that he should be compensated for his fear of getting AIDS.

Many of you recall our discussions in these forum topics that the courts apply “reasonable” standards sometimes referred to as the “reasonable man theory”, but regardless of nomenclature, and in the most simplistic definition it means “common sense”. The courts cases citing this standard are legion and the courts truly believe that we as jurors, most of whom are lay persons, as a body and individually are capable of making rational decision, and incorporate in their decisions, what is reasonable based upon the facts coupled with an explanation of the relevant law instructed by the judge.

Having that in mind, the facts summarized are as follows:

A man purchased a used car from a dealer who was supposed to thoroughly clean the interior of the car as part of the deal.

When he drove the car home he noticed that the interior was not properly cleaned and proceeded to clean it.

He put his hand in the pocket attached to the rear of the driver’s seat and cut his finger on an implement which he later found out to be a pair of surgical tweezers. The former owner of the car was a medical doctor. The man cleaned the wound while his wife, a registered nurse, called their doctor. The doctor warned of the possibility of contracting AIDS/HIV or Hepatitis B and gave him an inoculation.

Plaintiff’s theory: The man claimed that Massachusetts should follow the “reasonable fear” standard in which he would be allowed to show he had a reasonable fear of contracting AIDS based on a “specific incident of potential exposure” even though he had not tested positive for the HIV virus.

After losing in the Trial Court, the man appealed to the Appellate Division.

The judge writing the opinion for the court ruled that Massachusetts follows the “actual exposure" standard which requires plaintiffs to show that the source was in fact HIV positive and that the virus was potentially transferred by a “scientifically accepted method of transmission”.

The decision went on “The objective standard of causation guards against claims for HIV/AIDS phobia that are ‘trivial, evanescent, temporary, feigned or imagined’ while the subjective standard does not”

I know that a lot of the readers of this forum are greatly concerned with the preemption of the right of jurors to decide because of action by the courts.

Well in this case, the Trial Court judge directed a verdict in favor of the defendants, and this was appealed. Plaintiff’s attorney felt that there were issues raised in the pleadings beyond apprehension or fear and there had also been counts for breach of contract. Counsel stated that the case might be appealed.

The court in this case adopted the “majority rule”, there being no reported cases in Massachusetts.

The man claimed that he suffered from diarrhea, nausea and vomiting from his fears.

His wife filed a claim for loss of consortium, which claim was based mainly on the fact that the couple did not have sexual intercourse for over a year and thereafter only with a condom.

The court ruled that her claim went down with the ruling that there was no cause of action by her husband.

The bottom line is that the court did not ruled that the “reasonable fear” theory was dead; only that the above objective standard must be met by a plaintiff.

Can you as MA’s relate this case to what you may be thinking and on a recent popular forum topic on blood transmission.

Can you think how this may apply to MA activities?

Is this “standard” (the 'objective standard')adopted by the court in a case of first impression in Massachusetts, valuable as a guide to MA’s who officiate, promote or participate in such activities as sparring, NHB competition and the like, in so far as it relates to a warning of the second test in the standard, which is “scientifically accepted method of transmission”.?


IMHO, I believe that we remember this case and provide at least a mental defense on what to do now that we know that the court has imposed a standard, which if followed, may protect against trivial claims.

My belief is that there is relevant knowledge provided by this case and steps to be taken to provide medical and protective equipment to minimize fear based suits based upon unfounded fear, which could arise out of Martial Arts activities.

Alan K


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"The Goddess of Justice is Blind"


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PostPosted: Wed Jul 18, 2001 4:56 pm 
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Joined: Wed May 09, 2001 6:01 am
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Location: Chicago, IL USA
While I am not a lawyer, even though there is a famous cousin who was while he was alive, I have a copule of thoughts on this one.

The "standard method of transmission" issue would have stood up had the plaintiff sued for possible exposure to tetanus in all probability. Right? Unsterilized metal impliment causing cut trauma and bleeding - common and proven method of transmission as I understand the disease - but I'm no doctor, either.

Frankly, the case for the AIDS transmission would seem to fall down on the basis of the virus's viability outside a host. The HIV virus, from what I have read, is a rather fragile beastie and does not do well when exposed to open air or a temperature variation taking it below something like 80F (I may be a bit off on that one, my browser isn't wanting to link to the CCD for some reason this morning).

Frankly, the dealership should have, as a matter of goodwill (after the case was settled) covered the guy's doctor visit and injection for hepatitis B.

Just out of curiosity, it would be interesting to know whether this incident could have transmitted this disease through "scientifically proven means." If so, it sounds like his lawyer missed a bet. If not, ...

Respectfully,

Lee Darrow, C.Ht.
(Yes, Clarence IS a relative - 1st cousin 5x removed - don't aske me the charges, though, the court put a gag order on that! lol)


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PostPosted: Wed Jul 18, 2001 8:55 pm 
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Location: Framingham, MA USA
Thanks for the post, Lee

I have thought of Clarence everytime I have seen your name on the forums.

He goes down in history as one of the most well known lawyers in history and his ability as a trial lawyer was a phenomanon.

I am not sure about the tetanus claim but his doctor would have given him an injection if there was any doubt about how long it had been since his last shot.

About four years ago I had been treated in the ER for an accidental thumb in the eye while doing kyu kumite (a Uechi Ryu two person drill for those who don't do Uechi-Ryu). After treating the eye the doctor asked me when I had my last tetanus shot and since I could remember, gave me one.

There were other issues such as breach of warranty that the court could not rule on since they were considered de minimus (too minor to deal with) and this aspect can be appealed.

When the court adopted the majority rule it had to go along with the "objective standard", the first part of which requires the fear or concern to be predicated upon a causal relationship for the fear or apprehension. One justice in the case speculated that if the man had tested positive and the instrument tested positive, there would be step one in the two part test.
I may have forgotten to say in my original post that the instrument tested negative. The second part of the test or standard is a “scientifically accepted method of transmission”.

If the instrument tested positive that would be an integral part of the test. If a needle has caused many a case of HIV, then certainly surgical tweezers could also.

Your other questions about the medical aspects might be answered by some of the mavens of medicine in these forums.

It would be common practice to appeal this case on unresolved issues, but I doubt that the adoption of this "objective standard" would be over ruled.


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PostPosted: Wed Jul 18, 2001 11:19 pm 
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Location: Chicago, IL USA
Thanks for the reply, Alan. It was very informative.

My real point in bringing up the issues I did was to see just what other avenues might have been open to the Plaintiff in this matter and how, by going down those roads instead of the ones he did, things might have turned out differently.

I appreciate the clarification.

For the medically inclined - can a tool, such as a pair of tweezers, carry active AIDS virus ofter sitting in an empty car for over 24 hours? Can even the dead strain be detected by medical testing?

My recollection of the viability of the HIV virus in open air seems to be that it has a very short viability time frame. Sharing a needle WILL transmit the disease, getting nicked by a tweezer that's been sitting in the open air for 24+ hours is probably not real likely.

Of course, the hepatitis B issue is still open as well. IF the instrument had tested positive, even if the Plaintiff had not gotten infected, would there still be grounds? It would seem to me that the probability of infection would be existing in such a situation and such an injury would be a scientifically verifiable means of transmission. Forgive me if I'm not real clear on Mass law here, I'm a Chicago boy.

Respectfully,

Lee Darrow, C.Ht.


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PostPosted: Thu Jul 19, 2001 12:02 am 
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Location: Mount Dora, Florida
Great topic Al. As usual, your research and comments are quite relevant for those of us in the martial arts.

Hope you are still coming to camp.

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GEM


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