Florida court hears arguments in suit over death of photo editor by anthrax

Tuesday, May 6, 2008

TALLAHASSEE, Fla. -- The federal government and a private laboratory have no duty under state law to protect the public from lethal materials, their lawyers told the Florida Supreme Court on Monday in a lawsuit over the anthrax death of a supermarket tabloid photo editor.

Oral arguments on the issue came at the request of a federal appeals court trying to decide whether the lawsuit should go to trial.

Robert Stevens died Oct. 5, 2001, after being exposed to anthrax. It was in an envelope mailed to the offices of American Media Inc., which publishes the National Enquirer, Sun and Globe newspapers. His wife, Maureen Stevens, sued the government and Battelle Memorial Institute, a research company in Columbus, Ohio, alleging they were a source of the anthrax strain that killed her husband.

Investigators have been unable to determine who sent the anthrax or how it was obtained.

Justice Department attorney Jeffrey Bucholtz and Battelle lawyer Tami Lyn Azorsky argued there's no way their clients could foresee the material would be used as a terror weapon because it had never happened before. The facilities use anthrax to develop counter measures and drugs to protect against or treat it, the lawyers said.

Since Stevens' death, four other people have died -- two workers in a Washington, D.C., postal facility that received mail containing the bacteria and two women in Connecticut and New York City whose source of exposure hasn't been determined.

Stevens' lawyer, Phillip Burlington, argued such high-risk materials are an exception to the special relationship rule and that its potential misuse should have been obvious.

"When you are dealing with biological warfare materials it is not unreasonable in this day and age to expect the government to reasonably anticipate that, or a private lab," Burlington said.

The lawsuit claims the strain of anthrax that killed Stevens was traced to the Army's Research Institute for Infectious Diseases at Fort Detrick, Md.

If the case goes to trial, that's an issue the jury will be asked to determine. Genetic analysis by researchers at Northern Arizona University and the Institute of Genomic Research in Maryland indicate the strain probably originated at Fort Detrick.

The suit also claims the government and Battelle are negligent because they failed to keep it secured.

The Supreme Court did not indicate when it would rule.

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