Opposition Brief — New York State Department of Health v. Andrulonis

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Supreme Court, U.S.

FILED

YY JUL 5 188

No. 90-1864 :

OFFICE OF THe CLEKK

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In The

Supreme Court of the United States

October Term, 1991

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NEW YORK STATE DEPARTMENT OF HEALTH,

Petitioner,

-against-

JOANNA ANDRULONIS, ET AL.,

Respondent.

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Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

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BRIEF OF JOANNA ANDRULONIS, INDIVIDUALLY

AND AS CONSERVATOR OF THE PROPERTY OF

JEROME ANDRULONIS, AS RESPONDENT IN

OPPOSITION TO THE PETITION

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ROEMER AND FEATHERSTONHAUGH,

i, tel

Attorneys for Respondent

Office and P.O. Address:

Capital Center, 99 Pine Street

Albany, New York 12207

Tel. No. (518) 436-7663

James D. FEATHERSTONHAUGH, Esq.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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ii

TABLE OF AUTHORITIES

CASES:

Andrulonis v. United States, 924 F.2d 1210 (2d Cir.

Berkovitz v. United Staies, 486 U.S. 531 (1988)

POTEET CRCTUN CURR Ree eee 10, 11,

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956,

a MB | errs ote ae

Dickerson v. United States, 875 F.2d 1577 (11th Cir.

| renee ere yrs Ans ee

In re Joint E. & So. District Asbestos Litigation, 891

Fad 31, OG Tis ee ane

United States v. Gaubert, 111 S.Ct. 1267 (1991) .9,

United States v. S.A. Empressa DeViaco Aerea Rio

Grandese (Varig Airlines), 467 U.S. 797 (1984)

Pere rr rer Tre ere Te eC re 10,

United States Fidelity & Guar. Co. v. United States,

837 F.2d 116 (3d Cir.) cert denied, 487 U.S. 1235,

108 S.Ct. 2902, 101 L.Ed.2d 935 (1968) ........

Page

passim

12, 13

10, 11

11, 13

OPINIONS BELOW

The opinion of the court of appeals (App. A1-A45) is

reported at 924 F.2d 1210. The opinion of the district court

(App. A46-A389) is reported at 724 F.Supp. 1421. A

related opinion of the district court (App. A390-A398) is

reported at 593 F.Supp. 1336.

ae

JURISDICTION

The judgment of the court of appeals (App. A401-

A402) was entered on March 12, 1991. The petition for a

writ of certiorari was filed on June 3, 1991, and received

by respondent on June 4, 1991. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

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STATEMENT OF THE CASE!

In 1967, George Baer was an employee of the United

States Government with a worldwide reputation in rabies

research, who had already been working on wildlife

rabies immunization for more than five years, and who

reported placing a wolf at the mouth of a cave in New

Mexico to confirm that rabies could be transmitted via

the aerosol/airborne route of infection (J.App.1243);

[Exh.137].

Mr. Andrulonis was a Bacteriologist, occupying that

New York State Civil Service position from 1968 until the

events at issue herein occurred (J.App.1717). Griffin Lab-

oratory, where plaintiff worked, was:

“the farm” of the Divisions of Labs and

Research . . . it was the laboratory that dealt

primarily with the raising of laboratory animals

as well as farm animals which were used for

serum production to be sent down to what we

call the main laboratory on New Scotland Ave-

nue at that time, before the laboratory was built

in the Tower and part of the Griffin Laboratory

was the rabies diagnostic section which was set

out there years ago as the place.

(J.App.91, 92). The Griffin Laboratory was, again accord-

ing to Dr. Debbie, Plaintiff’s supervisor, “strictly a diag-

nostic unit” (J.App.92) and, in fact, the laboratory was

often referred to as a horse barn.

' References to “App, A __” refer to pages of the anpen-

dix to the petition submitted by Petitioner New York State

Department of Health. References to “Tr. __” refer to pages of

the trial transcript. References to “Exh. __” refer to trial

exhibits. References to “J.App. __” refer to pages of the joint

appendix in the Court of Appeals.

Approximately two years after Mr. Andrulonis began

working at Griffin Laboratory, Dr. Baer visited that facil-

ity “to discuss with Dr. Abelseth and [Dr. Debbie] the fact

that he had been able to take liquid vaccine and place it

on the tongue of a Grey Fox and have that Grey Fox

produce antibodies against rabies . . . ” (j.App.97). Dr.

Baer, in 1970, was Chief of the Viral Zoonosis Branch and

Rabies Laboratory at the Center for Disease Control

(“CDC”) in Atlanta and Lawrenceville, Georgia

(J).App.1109). Dr. Baer had been at the CDC since approx-

imately 1962 and was the major proponent of an effort to

orally immunize wildlife against rabies since the early

1960’s. In fact, Dr. Baer was somewhat renowned for “the

famous attempts with what was called the coyote-getter

to shoot a syringe into the mouth of an animal to vacci-

nate him for rabies” (J.App.98).

Dr. Baer was the preeminent expert, the world’s

authority on rabies (J.App.509-11; 1110; 1225-26; 1250-51;

2212; 2329; 2331). Baer was the editor and author of a

substantial portion of the two-volume treatise on the

subject of rabies (Exh.112; 4735-5590).

Dr. Baer had come to the Griffin Laboratory since the

New York State Health Department had access to more

foxes than did Dr. Baer at the CDC. He also turned to

New York State because at his agency, the (CDC), the oral

vaccination activity was viewed with little interest

(J.App.2213) and more than a little concern (J.App.2241).

Baer wanted the State employees to orally administer

ERA rabies virus to foxes and see how many would, in

fact, produce antibodies (J.App.99, 100). At that point, Dr.

Abelseth and Dr. Debbie decided they “were going to do it

in conjunction with Dr. Baer, inasmuch as he had the

vaccine and we had the foxes.” (.App.100) (emphasis

added).

ERA rabies virus was a specific “attenuated” strain

which had been demonstrated to be safe for use in certain

species of animals, not including man (J.App.1253-54).

“Attenuation” is a term which was referred to often

before and during the trial with some confusion. It was a

term often alluded to by the Government with respect to

the ERA virus brought by Dr. Baer to Griffin Laboratory

with the implication that it had been made less patho-

genic. It is important to note, however, that any decrease

in pathogenicity is limited by species, and that when a

strain of rabies becomes less pathogenic for one species, it

could simultaneously become more pathogenic for

another (J.App.1257).

As noted above, Dr. Debbie and his subordinates at

Griffin Laboratory, including plaintiff, had been solely

involved in rabies diagnostic work prior to that time

(J.App.92). Subsequent to Dr. Baer’s visit, however, Baer

(under the guise of the CDC) and the State of New York

(through Debbie) conducted a joint effort to further the

wildlife immunization work (J.App.142). The oral immu-

nization work advanced until 1974 when Dr. Debbie

received a patent (Exh.13) from Dr. Baer which related to

the coating of tablets (“pareils”) by which Debbie and

Baer envisioned immunizing wildlife through the enteric

(intestinal) route (J.App.142).

As a result of Dr. Baer’s provision of the patent

(Exh.13), and his discussion of the related process, Dr.

Debbie thereafter contacted an entity known as the Wis-

consin Alumni Research Foundation (“WARF”), which

was the licensing agent for that process by which the

pareils could be coated with various substances

(J.App.144). A machine known as a Uni-Glatt, manufac-

tured and distributed by the Glatt defendants, was rented

during July and November/December 1976 (J.App.200).

After those uses it was clear to Baer and Debbie that the

ERA-BHK,, being sprayed on the pareils was losing its

titer due to the machine heat generated during the pro-

cess (J.App.477). (“Titer” is a measurement of the number

of particles or the quantity of virus concentrated in any

particular preparation) (J.App.977). Baer and Debbie dis-

cussed the need to start with a higher titered ERA-BHK,,

virus so that a useful and effective product should remain

after coating. Dr. Debbie and his subordinates did not

have the knowledge or expertise to prepare such a subs-

tance (J.App.191-92).

Baer consequently prepared an ERA-BHK,, virus

which had a titer of 108° by “passaging” the material in

baby hamster kidney (BHK) ceils (Exh.151); (J.App.192).

(“Passaging” is the procedure by which a rabies virus is

grown on a tissue culture in order to multiply the virus,

and it was well known by Dr. Baer that the process

caused mutations in the original virus) (J.App.1254-57;

1793-94; 2447-52; 2503).

Dr. Baer motivated the coating project at the State

laboratory with the provision of the patent, which led to

the rental of the Uni-Glatt with funds Baer circuitously

provided outside the permitted provisions at the CDC

(J.App.198-200; 488-89; 536-37; 590-91; 630; 1201; 2491;

2555-56; 7141-60). Baer personally brought the passaged

virus to the Griffin Laboratory on March 29, 1977. Dr.

Baer transported the virus on a commercial flight, in

violation of CDC regulations. (The Government failed to

produce any evidence that Dr. Baer recorded his provi-

sion of the rabies virus; consequently Dr. Baer’s superiors

had no knowledge of his provision of the virus)

(J.App.2193). Baer gave the virus to Dr. Debbie for use in

the Uni-Glatt, which Dr. Baer knew was not airtight

(J.App.482). Dr. Baer merely recited the titer of the virus

and gave no other information regarding his virus to Dr.

Debbie or to piaintiff, who was “around the machine the

most” (J.App.190). Dr. Debbie and plaintiff used that

virus to coat pareils which were visibly popping out of

the machine during the process while Dr. Baer personally

observed the procedures (J.App.482).

As a result of the negligent failure of Dr. Baer to warn

plaintiff of the massive amounts of mutated viral rabies

particles to which he was exposed during the experiment

on March 29, 1977, plaintiff was infected with rabies

(J.App.2528). Although plaintiff had been pre-immunized

with the Lilly rabies vaccine, the aerosolized virus pro-

vided by Dr. Baer circumvented any protection afforded

by the Lilly vaccine since the route of infection was the

plaintiff’s olfactory nerve endings (J.App.1393-97).

Although plaintiff is only one of three people known

to have survived the torment of the disease itself, he was

left severely and permanently brain damaged. At the time

of trial, and continuing today, plaintiff has the mental

capacity of a child somewhere between the ages of 2-4

years old. He is incapable of carrying on a normal conver-

sation and after 15 vears of therapy he has increased his

attention span to only 30 minutes. He is unable to take

care of his own basic needs such as feeding and washing

himself. His memory of his family and his life before his

illness is permanently lost and he has suffered profound

personality and behavioral changes. His demeanor is

usually detached and uncommunicative, but his moods

can change dramatically and he becomes restless, agi-

tated and even violent. On many occasions he has kicked,

punched and pushed his own wife and children. He will

require constant supervision for the rest of his life. (See

generally, J.App.2636-2642).

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ARGUMENT

Petitioners seek a writ of certiorari based on their

view that this Court’s decision in United States v. Gaubert,

111 S.Ct. 1267 (1991) somehow undermines the analysis

of the Court of Appeals herein. A review of the reasoning

of the Court of Appeals, however, demonstrates that this

view represents the triumph of hope over analysis.

The decision in Gaubert was entered upon a motion to

dismiss and consequently lacked the explicit findings of

fact and the thoroughly developed record available to the

Court in the instant case. In addition, the decisions of the

federal employees in Gaubert were part of a larger regula-

tory scheme and, as such, were exactly the type of deci-

sions Congress intended to insulate from challenge by the

enactment of the discretionary function exception. In

Andrulonis, there was no formal program as evidenced by

the testimony of the government’s own witness, Dr. Wal-

ter Dowdle, who stated, “CDC has never really had a

program, as such. It’s been a research interest and it’s been

a fairly low-level research interest ... ” (J.App.2213

[emphasis added]); (J.App.2240). There is no record evi-

dence of any social, political, or economic policy consid-

erations made in pursuit of establishing any “program for

enteric research” by Health and Human Services, by

CDC, by Dr. Baer or anyone in the government's employ,

either generally, concerning the provision of the manipu-

lated rabies virus to the state, or specifically, concerning

the failure to warn of the hazards of the procedure he

witnessed in light of the equipment used and/or the

choice not to halt the procedure. It is entirely implausible

that one could weigh public policy when failing to warn

plaintiff that his exposure to the airborne virus carried

10

with it a terrible risk. In other words, there is no basis in

the record for alleging that Baer’s decision was “suscept-

ible of policy analysis.”

The analysis of the Court of Appeals, in applying the

facts of Andrulonis, not only fails to depart from the

Gaubert analysis, in any significant way, but actually pre-

sages the Gaubert analysis.

Justice White’s decision in Gaubert states:

The exception covers only acts that are discre-

tionary in nature, acts that “involv(e) an element

of judgment or choice,” Berkovitz, supra, at 536,

108 S.Ct., at 1958; see also Dalehite v. United

States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed.

1427 (1953); and “it is the nature of the conduct,

rather than the status of the actor,” that governs

whether the exception applies. Varig Airlines,

supra, at 813, 104S.Ct., at 2764. The requirement

of judgment or choice is not satisfied if a “fed-

eral statute, regulation, or policy specifically

prescribes a course of action for an employee to

follow,” because “the employee has no rightful

option but to adhere to the directive.” Berkovitz,

486 U.S., at 536, 108 S.Ct., at 1958.

Furthermore, even “assuming the challenged

conduct involves an element of judgment,” it

remains to be decided “whether that judgment

is of the kind that the discretionary function

exception was designed to shield.” Ibid. See

Varig Airlines, 467 U.S., at 813, 104 S.Ct., at 2764.

Gaubert, supra, at 1273.

In commencing its analysis of the instant case the

Court of Appeals states:

To determine whether conduct falls within the

exception, we must focus on “the nature of the

11

conduct, rather than the status of the actor,”

Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764,

and use a two step process to examine the chal-

lenged conduct. See Berkovitz v. United States,

486 U.S. 531, 536, 108 S.Ct. 1954, 1958-1959, 100

L.Ed.2d 531 (1988); In re Joint E. & So. District

Asbestos Litigation, 891 F.2d 31, 36 (2d Cir. 1989).

First, we must consider whether the conduct

was a matter of choice for the acting employee,

and if so we must then determine whether the

employee’s actions involved public policy con-

siderations. Asbestos Litigation, 891 F.2d at 36.

Androlonis v. U.S., 924 F.2d 1210 (2d Cir. 1991) at 1218.

In Gaubert, the Fifth Circuit incorrectly interpreted

Berkovitz’s reference to Indian Towing as “perpetuating a

nonexistent dichotomy between discretionary functions

and operational activities” U.S. v. Gaubert, 111 S.Ct. 1267

(1991) at 1275. In the instant case the Second Circuit

Court of Appeals made no such error but correctly

analyzed Indian Towing in light of Varig and concluded

“in short, the key inquiry is whether the decisions, be

they initial decisions or implementation decisions, were

necessarily susceptible to policy analysis. Asbestos Litiga-

tion, 891 F.2d at 37; United States Fidelity and Guar. Co. v.

United States, 837 F.2d 116, 121 (3d Cir.), cert. denied, 487

U.S. 1235, 108 S.Ct. 2902, 101 L.Ed.2d 935 (1988).”

Andrulonis v. U.S., 924 F.2d 1210 (2d Cir. 1991) at 1219.

The Court of Appeals went on to state,

the situation simply did not lend itself to policy

balancing, not (sic) is there any indication that

Dr. Baer considered the policy implications or

the pros and cons of allowing the experiment to

proceed. Once he became aware of the risks, Dr.

Baer was obligated to give warning. His is pre-

cisely the type of negligent omission to which

12

Congress waived the government sovereign

immunity in order to provide redress to citizens

for the torts of government actors.

Andrulonis v. U.S., 924 F.2d 1210 (2d Cir. 1991) at 1219.

Finally, the Court of Appeals concluded its analysis

by stating that

the District Court, however, was able to pene-

trate the complex facts of this case and deter-

mine that Jerome Andrulonis’ illness resulted, at

least in part, from Dr. Baer’s failure to warn of

the potentially disastrous consequences of the

March 29th experiment he was observing. This

was a nondiscretionary negligent omission that

did not implicate any balancing of policy fac-

tors.

Indeed, the government’s own witness, Dr. Walter

Dowdle, testified that, according to CDC practice and

policy, Dr. Baer should have intervened and stopped the

experiment. (J|.App.2219). This conclusion was concurred

in by CDC’s own safety officer, and the government

offered no proof at trial that Dr. Baer had any discretion

to act otherwise. In fact, it was respectfully pointed out to

the Court below that not only were the actions of Dr. Baer

not “susceptible to policy analysis,” it was unnecessary

for the court to even address the second part of the

Berkovitz test, since the uncontroverted testimony of the

government’s own witnesses and the government

exhibits evidenced that CDC’s own policies “specifically

prescribed the course of action for (Dr. Baer) to follow” in

that Baer “had no discretion to deviate from (a) mandated

procedure” Berkovitz at 546; Dickerson v. United States, 875

F.2d 1577, 1581 (11th Cir. 1989).

13

Petitioner’s further efforts to argue that this Court

should grant certiorari based on the conflicts in earlier

rulings in the circuits are equally unavailing. The reason-

ing, in conclusions reached in the cases cited by peti-

tioners from the Third, Sixth, Ninth and Tenth Circuits, is

remarkably consistent. The standard analysis of a discre-

tionary function exception argument begins with Dalehite

and then extends to Varig and Berkovitz as applied to

particular facts of the case in issue.

Petitioner’s concern that “a number of other courts

have emphatically rejected the Second Circuit’s approach

of conditioning discretionary function immunity on proof

by the government that its employee, vested with discre-

tion, actually engaged in a conscious, deliberate “balanc-

ing” of risks,” (Petitioner’s brief page 23), is based on a

misapprehension of the Second Circuit’s decision. The

Circuit Court based its decision on the fact that the situa-

tion, “simply did not lend itself to policy balancing,”

(Andrulonis v. U.S., 924 F.2d 1210 (2d Cir. 1991) at 1219);

the Court’s comments concerning Dr. Baer’s failure to

consider any policy implications are designed merely to

underline the conclusion that the situation was not suscep-

tible to such considerations.

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CONCLUSION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED.

Dated: July 1, 1991

Respectfully submitted,

ROEMER AND FEATHERSTONHAUGH, P.C.

Attorneys for Plaintiff/Respondents

James D. FEATHERSTONHAUGH, Esq.

of Counsel

Office and P.O. Address:

Capital Center, 99 Pine Street

Albany, NY 12207

Tel. No. (518) 436-7663