The airline passengers who sat near Andrew Speaker may be angry that he was aboard with a dangerous strain of tuberculosis, but unless they get sick, they are unlikely to win any damages if they decide to sue him, legal experts say.
“I think it would be a difficult case to prevail in unless you can prove someone came down with it. Then it’s a whole different ballgame,” said Dr. Eric Steiner, who is also an attorney for the Denver firm of Gerash, Toray & Gerash.
Speaker, who is being treated at National Jewish Medical and Research Center in Denver, flew on several transatlantic flights while infected with a drug-resistant form of TB.
There is a history of lawsuits in Colorado and across the country filed by people claiming psychological distress and fear of death when exposed to disease, even though they never got sick, experts say. But in some of those cases, the disease and circumstances differed.
Steiner’s firm is deciding whether to file a lawsuit for a client who was exposed to surgical instruments that were contaminated with fatal Creutzfeldt- Jakob disease, similar to mad cow disease.
The client may not know for years if or when she will come down with the disease and has to live with that psychological burden, Steiner said. TB, however, can be detected with a simple test.
In the 1980s, Rock Hudson’s companion, Marc Christian, sued the late actor’s estate, claiming he was in enhanced fear that he had been infected with AIDS – even though he did not contract the disease.
A jury ruled in Christian’s favor and a judge later reduced damages to $5 million from $27.5 million, according to a 1989 New York Times story about the case.
In the case of contact with Speaker, “a person would have to prove that it was totally foreseeable (by him) that they would be infected with TB,” said Dayna Matthew, an professor of public-health law and evidence at the University of Colorado Law School. “It also depends on the knowledge he had about his contagiousness and what precautions he took.”
With Speaker, a 31-year-old personal-injury lawyer, the “deep pockets” that might provide an incentive to sue probably don’t exist, Steiner said.
“If it was Bill Gates, there is no doubt there is a lawyer who would take the lawsuit,” Steiner said. “But (Speaker) has limited assets. I think it is unlikely.”
There may also be complications for airline passengers who are foreigners in finding a venue to take their case if they do become infected.
“In most cases, they would have to bring a federal lawsuit in the federal jurisdiction where the man resides,” said Daniel Gerash, a lawyer at the same firm as Steiner. “The jurisdiction might be tricky.”
John Sadwith of the Colorado Trial Lawyers Association said that unless someone gets sick, the only damages they may win are related to the cost of their TB test. “Unless someone contracts TB, it’s all moot,” Sadwith said.
Staff writer Felisa Cardona can be reached at 303-954-1219 or fcardona@denverpost.com.
