The Attorney Who Boarded Planes After a Tuberculosis Diagnosis: Why the Other Passengers Are Likely to Be Able to Recover Damages for Fear of Infection

Wednesday, Jun. 13, 2007

By now, most people are familiar with the story of Andrew Speaker, the Atlanta lawyer who flew to Europe after being diagnosed with tuberculosis and then smuggled himself back into the United States after being told in Italy not to fly home. In fact, the story has now evolved to the point where there are "stories about the story," such as a June 7 New York Times article explaining how Speaker and his father (also a lawyer) used their "courtroom skills" to win public sympathy by going on the Larry King show and telling "their side of the story."

In this column, I want to take a step back and ask a few simple questions about Speaker's behavior. Specifically, I want to use tort law as a lens to view the choices he made, and to reflect on his claim that he is a victim of the government's incompetence.

In the end, I will conclude that Speaker is not a victim, and that, to the extent that he is using his skills as a lawyer to defend himself in the court of public opinion, he is using skills of which no lawyer should be proud.

The Facts of Speaker's Case

To begin, a brief chronology of Speaker's case is necessary:

In January 2007, Speaker was diagnosed with tuberculosis. He was treated in Atlanta.

By May 10, Speaker's doctor, as well as Fulton County, Georgia health officials, had come to the conclusion that although his strain of TB was latent (meaning it was not contagious), it was highly resistant to treatment. There is some dispute as to whether Speaker was told that he was permitted to travel at this meeting. However, it seems clear from a tape recording that was made at that meeting by Speaker's father that he was told he was not contagious.

On May 12, Speaker and his fiancée flew to Europe for their wedding and honeymoon -- having changed tickets that would previously have had them depart on May 14.

After Speaker had left the country, the Centers for Disease Control, in consultation with the physicians who had met with Speaker on May 10, concluded that he had a highly virulent, contagious form of tuberculosis known as XDR TB.

On May 21, a family member contacted Speaker, who was in Italy, and said that he should contact the CDC. When he did, the CDC informed Speaker that Italian officials were going to come in the morning and take him to a hospital, because his XDR TB could potentially kill him. He was also told that he would be placed on a "no fly" list" and should not fly.

Disregarding these instructions, Speaker purchased airline tickets to Prague, flew from Prague to Montreal, drove across the Canadian/U.S. border, and eventually arrived in New York City, where he was admitted to a hospital.

The Tort For Which Speaker Might Be Liable, and the Potential Plaintiffs

Before I discuss Speaker's possible justifications for his actions, I want to review the possible torts for which he could be liable -- assuming that his own account of events, as described above, is accurate. The list is short and very clear: Assuming that Speaker's account of what happened is true, he could be liable for the tort of negligence, with the potential plaintiffs being any of the passengers on the flight he took from Prague to Montreal who suffered an injury as a result of being exposed to XDR TB.

Assuming that Speaker is telling the truth, it is hard to see how he could be liable for causing an injury during his flight from the United States to Europe. At that point, he was told that he was not contagious. It is reasonable for a layperson to accept the advice of medical experts in such matters. Furthermore, the medical literature suggests that it is, in fact, very difficult for a person with XDR TB who is not suffering from symptoms -- such as coughing -- to transmit the disease on a short flight. So it would not be unreasonable for Speaker to have flown between Rome and Prague even after the CDC warning.

But once Speaker was warned in Italy that he could expose others in an airplane to the risk of transmitting a disease, he had a clear duty not to fly on a transatlantic commercial flight. This should be obvious to anyone -- especially a lawyer who, like Speaker, practices personal injury law.

However, two interesting questions regarding Speaker's potential liability remain, and I will discuss each in turn.

One Key Question: Can Passengers Sue Speaker Even If They Didn't Contract TB?

The first question is whether, if sued in tort, Speaker would be liable only to those passengers who contracted TB, or also to those who were exposed to TB and experienced fear while waiting for test results to confirm that they were not indeed infected.

The answer is complicated by the fact that it is not clear which jurisdiction's law would apply -- or even in which court Speaker should be sued. I will assume, for simplicity's sake, that Speaker could be sued in Georgia, where he lives. (It's possible that he might also be able to be sued in the Czech Republic, the jurisdiction which was necessarily associated with the commission of the tort just before it occurred, or in Canada, where some of the potential plaintiffs may reside.)

Let's suppose that Speaker were to be sued in Georgia, and that Georgia would use "interest analysis" -- the conflict-of-law principle which determines which state's law applies by looking to which state has a stronger interest in the dispute's resolution -- to determine whose law applied. On those assumptions, it is likely that Georgia law would be applied.

Under Georgia law, Speaker could certainly be held liable for damages suffered by any other passenger unlucky enough to have contracted TB. Moreover, Speaker could face large damages even despite the fact that most TB is latent -- meaning that it neither harms the infected party nor is communicable. That is because latent TB can convert to active TB at any time, meaning that he would be liable for the emotional distress associated with that lifetime of fear.

But what about the passengers near Speaker who did not contract TB from him? They too were hurt, because they had to wait for the results of a TB test to learn their fate, and they doubtless suffered fear in the meantime. Can they recover damages based on their fear?

The answer is yes. Georgia, like almost every state in America, allows for recovery in cases of actual exposure to a highly contagious disease, even when the exposure does not result in illness. These cases have typically arisen in the context of plaintiffs' having been exposed to something or someone infected with HIV. They have held that the plaintiff can recover for the emotional distress he or she experienced before he or she tested negative. This principle was affirmed in the 2004 Georgia appellate case of Wilson v. J & L Melton.

Another Key Question: Could Speaker Be Sued for An Intentional Tort, So that Plaintiffs Would Receive Punitive Damages?

That leads to our second question: Can the potential plaintiffs sue Speaker for punitive damages?

To begin, choice of law will matter a great deal, since punitive damages, as they are known in the United States, are not permitted in Europe. But again, let's assume that Georgia tort law applies. If so, could Speaker be sued for an intentional tort, and therefore punitive damages?

One possibility is the tort of "battery" -- defined as an unconsented touching. Colloquially, we may think of "battery" as something one might see in a violent fistfight, but the legal definition is much narrower. Thus, a passenger infected with TB could establish battery if she could prove that Speaker knew or was "substantially certain" that his TB virus would make contact with her body.

However, this might be very hard to prove -- for several reasons. First, it is still in dispute how easily communicable Speaker's disease actually was. Second, and more importantly, the legal standard looks to Speaker's actual state of mind, and the evidence indicates that if it was indeed communicable, it seems unlikely he knew or was substantially certain of that fact. After all, he exposed his newly-wedded wife to this risk after he was warned by the CDC. Importantly, the question here isn't whether he should have known that the disease was communicable; it's whether he actually knew that fact, and the evidence suggests he didn't. Thus, while he may have been negligent, it is hard to say that he was an intentional tortfeasor.

If a claim for battery won't work, what about a claim for the tort of intentional infliction of emotional distress (IIED)? Despite the word "intentional" in the name of the tort, the law is that to succeed in proving such a claim, the plaintiff does not have to prove that the defendant intended to cause severe emotional distress, just that he acted recklessly. And many have suggested that Speaker was, indeed, reckless as to his fellow passengers' safety and health.

Yet proving recklessness is not the end of the matter, for an IIED claim. To prevail, passengers would have to prove that Speaker's conduct was outrageous, not merely antisocial. That might not be too difficult; many have been outraged by Speaker's conduct.

Nevertheless, one final requirement may make an IIED claim impossible to win. The plaintiffs may have to prove that they experienced extreme emotional distress simultaneously with the outrageous conduct -- not weeks later, after reading about Speaker in the newspaper. Yet unless Speaker's fellow passengers overheard or saw something that made them highly suspicious, that seems unlikely.

Speaker's Defenses and Justifications: Slim to None

Finally, I want to briefly discuss Speaker's defenses and justifications. In a negligence case, his defenses seem weak -- indeed, probably nonexistent. He can't argue that the plaintiffs were contributorily negligent or assumed the risk of infection by flying; they apparently had no idea that a TB-infected passenger could possibly be on the plane with them. And he cannot invoke any common law or statutory immunity.

The only possible defense Speaker might invoke is "necessity." Strictly speaking, this is a defense to a suit raising a claim of battery. Nonetheless, it is clearly the defense that Speaker has raised in his media campaign. His argument seems to be that, since the American government put him in an impossible position, he was privileged to expose innocent people to injury.

In numerous newspaper stories Speaker has complained that the CDC gave him "no choice" when they contacted him in Rome. He was told that he either had to go to an Italian hospital for treatment, or spend $140,000 for a private flight back to America.

But, of course, Speaker had a perfectly reasonable choice on the day that he was informed that he had XDR TB, a very virulent disease. He could have checked himself into a hospital that day. The fact that the hospital would have had to have been one in Rome strikes me as completely irrelevant. Even if Speaker had some rational basis to be suspicious of the Italian medical system -- which I don't think he did -- what right did he have to place his own interests above those of hundreds of other innocent people?

Whether or not the CDC should ideally have offered Speaker a free flight to a U.S. hospital, the fact remains that what he did, given the choice he had, put innocent people in danger purely so that he could avail himself of a medical system he viewed as superior. He traded the risk of serious disease for them, for a marginal benefit to himself. And that is exactly the kind of trade-off our tort law is meant to penalize. More commonly, the benefit is the price a company charges for cigarettes or asbestos, but the principle is the same: A benefit to oneself cannot justify inflicting serious harm upon others.

Speaker's public relations strategy has been to imply that the CDC or the Fulton County Health Department made a mistake before May 10, and that they in fact should have known that he had XDR TB and should have given him this accurate information, in which case he never would have flown to Europe in the first place. This is a typical "lawyerly" maneuver. Speaker is arguing, in effect, that the doctors' mistake -- if indeed they made one -- excuses his negligence. But that, of course, is just plain silly, and Speaker should know that. It is like a tobacco company's arguing that the government's error in not forcing cigarettes entirely off the market, obviates its own guilt for avidly selling, and misleadingly marketing, a product that it knew to be deadly.

If Speaker is sued, he can always try to implead the doctors -- that is, bring them into the case as cross-defendants. If he fails, he can always try to sue them for contribution -- that is, liability for part of the damages he is ordered to pay. None of this, however, affects the rights of the innocent passengers to seek redress from Speaker for his careless or reckless conduct.

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A quick note to regular readers of this column: As I predicted last month, on Monday the Supreme Court unanimously rejected the tobacco industry's outrageous attempt to characterize itself as a "government agent" in order to have all "lights" cigarette litigation transferred from state court to federal court. The case is Watson v. Philip Morris, Inc. et. al.

Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

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