Last Updated

11 Jun 2003

Source: Washington Post, November 14, 2001.

Anthrax Attacks: Who's Liable?

Experts Say Making Case Against Employers Would Be Difficult

By Michael Greenspon and Neil Irwin, Washington Post Staff Writers

The threat of anthrax bacteria in the mail may appear to have eased, with no new infections reported in the past two weeks. But many companies are bolstering themselves against another possible hazard: exposure to legal action if their employees were to become ill from handling mail at work.

Many firms nationwide -- especially in the Washington and New York areas -- have reorganized their handling of incoming mail in the past month, after four people died and at least 13 more were infected with anthrax that apparently spread through the mail. Rubber gloves and masks for mailroom workers, special ventilation equipment, and restrictions on where mail can be opened have become routine, especially at larger companies.

While these companies almost uniformly describe employee safety as their main reason for the changes, some concede that they are also keeping in mind the uncharted legal territory of anthrax liability.

"I guess it's in the background," said John Water, executive director of the Washington-based law firm Covington & Burling, which has taken some mail-handling precautions, such as wiping down the mailroom twice a day with a bleach solution and having mail sorters wear a mask and gloves. "But no one has talked about it. It really has been 100 percent about safety."

The question of where liability lies in the anthrax attacks shows how Americans are still grappling with the unpredictable implications -- legal and otherwise -- of the Sept. 11 terrorist attacks and bioterrorism that followed shortly afterward. Legal experts said liability for anthrax infections acquired on the job is murky, at best.

"This is a very new area of law," said Fran Phillips, a partner with Gardere Wynne Sewell LLP in Dallas. "It really has not yet been defined except in the new federal laws on bioterrorism. We are in uncharted waters here."

When someone slips and falls in a grocery store, there are plenty of previous cases to study for guidance on who can sue whom for what. Not so with bioterrorism by mail. Phillips said she has had many clients consult her firm on how to protect themselves from anthrax-related liability.

For those infected with anthrax, the only straightforward target for damages is probably the person or group responsible for the bioterrorism attacks. But even if the guilty party is eventually caught, squeezing money from that person or group may not be easy, particularly if the ultimate source of the attacks is abroad.

That difficulty could leave victims seeking damages where the money is -- from their own employers and the government agencies that failed to prevent the spread of anthrax. Legal experts said that those entities' exposure to lawsuits is narrow and that plaintiffs would face an uphill battle. "There was a lot that wasn't known, and in the area of public health, there was no rule book," said Lawrence Gostin, a professor of law and public health at Georgetown and Johns Hopkins universities. "Therefore, it is within the range of professional judgment, which is discretionary."

A worker who was infected with anthrax while on the job could probably receive workers' compensation payments but not damages from a lawsuit, said Georgetown University Law Center professor Gregg Bloche.

Under workers' compensation rules in the District, Maryland and Virginia, workers would generally be entitled to payment of medical bills related to an anthrax infection from work for life, said John Ward, a partner at Ward & Klein.

"The employer is responsible for statutory damages without regard to fault," said Ward, meaning that it doesn't much matter whether an employer issued rubber gloves to mailroom workers.

Victims would face a harder time trying to collect damages from the Centers for Disease Control and Prevention, which has managed the government's response to the anthrax threat, or the U.S. Postal Service, through which infected letters were spread, lawyers said.

Government officials generally cannot be sued for making bad decisions, said Michael H. Gottesman, another Georgetown law professor, let alone for not having procedures in place for catching an unexpected threat such as anthrax.

"The case least likely to win is, 'The government should have adopted a program [to prevent anthrax attacks],' " Gottesman said.