United States of America v. Maureen Stevens

SC07-1074

>> ALL RISE.
HEAR YE HEAR YE, SUPREME COURT
OF FLORIDA IS NOW IN SESSION.
ALL THOSE HAVING BUSINESS BEFORE
THIS COURT, DRAW NIGH, GIVE
ATTENTION AND YE SHALL BE HEARD.
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA, AND THIS
HONORABLE COURT.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, FLORIDA
SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING.
WELCOME TO THE FLORIDA SUPREME
COURT.
ORAL ARGUMENT CALENDAR FOR
MONDAY, MAY 5th.
FIRST CASE IS UNITED STATES OF
AMERICA VERSUS STEVENS.
READY TO PROCEED?
>> GOOD MORNING, YOUR HONOR,
MATE PLEASE THE COURT --
>> MOVE THE MICROPHONE UP AND
MAKE IT EASIER FOR YOU, THERE
YOU GO.

>> THANK YOU, THAT'S BETTER.
GOOD MORNING, YOUR HONOR.
FROM THE U.S. DEPARTMENT OF
JUSTICE, FOR THE UNITED STATES.
I'LL BE PUTTING -- SPLITTING MY
TIME WITH CO-COUNSEL.
AND THIS CASE PRESENTS THE BASIC
QUESTION OF WHETHER THIS COURT
SHOULD RETAIN IN ANY FORM TO ANY
EXTENT THE TRADITIONAL COMMON
LAW REQUIREMENT EMBODIED IN THE
RESTATEMENT AND REAFFIRMED IN
THE COURT CASES AND A LEGION OF
CASES FROM THE LOWER COURT THAT
IN THE CONTEXT OF THIRD-PARTY
CRIMINAL ATTACKS THERE IS NO
DUTY ABSENT A RELATIONSHIP OF
SOME KIND.
>> WHY SHOULDN'T BE THERE AN
EXCEPTION WHEN THERE IS A
SUBSTANCE THAT IS SO DANGEROUS
IT VIRTUALLY GUARANTEED SHOULD
IT BE RELEASE -- VIRTUALLY
GUARANTEED SHOULD IT BE RELEASED
OUTSIDE OF THE SAFEGUARDS THAT
ARE THERE IT IS GOING TO HURT

PEOPLE?
AND IT IS GOING TO INJURE PEOPLE
AND IN OTHER WORDS, IF THE
GOVERNMENT OR PRIVATE
INDIVIDUALS ARE GOING TO DEAL
WITH A SUBSTANCE LIKE THIS, THEN
WHY SHOULDN'T MEMBERS OF THE
INNOCENT PUBLIC, THAT ARE ALMOST
GUARANTEED IF THERE HAS BEEN A
BREACH OF SECURITY, TO BE HARMED
BY THIS, UNDER ANY THEORY,
WHETHER YOU ARE TALKING ABOUT A
TRADITIONAL FOR THE THEORY, OR
TALKING ABOUT A HERE TO THEY
JUST SAYS WHY SHOULD THE
INNOCENT PERSON THAT IS -- THAT
IS KILLED OR WHATEVER HAPPENS
HERE, SUFFER THE COMPLETE BURDEN
OF THAT, WHEN YOU HAVE A
SUBSTANCE -- WHEN YOU HAVE A
SUBSTANCE THAT IS AS DANGEROUS
AS THIS SUBSTANCE IS.
>> I DON'T THINK IT IS POSSIBLE
TO FASHION A RULE THAT WOULD
APPLY ONLY TO A SUBSTANCE LIKE
ANTHRAX --

>> WHY NOT?
>> BECAUSE ANTHRAX IS NOT THE
ONLY SUBSTANCE THAT IS DANGEROUS
ANTHRAX LIKE A LOT OF OTHER
SUBSTANCES HAS SOCIALLY
BENEFICIAL USES AND ANTHRAX IS
STUDIED BY THE FEDERAL
GOVERNMENT AND DEPARTMENT OF
AGRICULTURE FOR AGRICULTURAL
INDUSTRY STUDIED FOR THE
IMPORTANT USE OF DEVELOPING
COUNTER MEASURES TO PROTECT OUR
CITIZENS.
AND IN THE EVENT TERRORISTS OR
ENEMIES MIGHT OBTAIN ANTHRAX.
LOTS OF SUBSTANCES ARE DANGEROUS
AND ANTHRAX ACTUALLY IS MUCH
LESS DANGEROUS THAN A LOT OF
SUBSTANCES STUDIED ALL OVER THE
PLACE AND THE INFLUENZA --
>> WHAT CONSTRUCTIVE POSITIVE
USES WERE BEING MADE OF THE
SUBSTANCE IN THIS INSTANCE.
>> YOUR HONOR, THE RECORD
DOESN'T DISCLOSE EXACTLY WHAT
THE USES THAT THE FOUR TEACHERS

FACILITIES THE PLAINTIFF SAYS
THE ANTHRAX CAME FROM WERE USING
BUT I THINK ONE THING IS CLEAR
IS THAT THE UNITED STATES DOES
NOT HAVE, HAS NOT FOR DECADES
HAD ANY KIND OF BIOLOGICAL
WEAPONS PROGRAM, THE ONLY USES
WERE DEFENSIVE RESEARCH USES FOR
MEDICAL PURPOSES FOR THE
PROTECTION OF OUR CITIZENS AND
FEDERAL LAW STATUTES CITED IN
THE 1969 STATUTE, SPECIFICALLY
CONTEMPLATES THAT LOTS OF
ENTITIES ACROSS THE COUNTRY
SHOULD HAVE ACCESS TO ANTHRAX
AND A LOT OF OTHER ALSO
DANGEROUS SUBSTANCES IN ORDER TO
PERFORM BASIC SCIENTIFIC
RESEARCH AND TO PERFORM RESEARCH
SPECIFICALLY TO DEVELOP COUNTER
MEASURES --
>> WHY SHOULD THE INNOCENT PARTY
BE THE ONLY ONE TO CARRY THE
BURDEN?
>> THE ONLY REASON EXCUSE E ME,
YOUR HONOR, THE ONLY REASON

THERE IS A VICTIM IN THIS CASE,
IN THE FALL OF '01 IS BECAUSE OF
A THIRD-PARTY CRIMINAL AND IS
NOT THE CASE WORKING WITH
ANTHRAX IS ITSELF SO INHERENTLY
OBVIOUSLY DANGEROUS THAT PEOPLE
ARE GOING TO DIE.
FIVE PEOPLE WERE KILLED,
TRAGICALLY IN THE FALL OF 2001.
FOR ANTHRAX AND IN THE TIME WE
ARE STANDING HERE THIS MORNING,
FIVE PEOPLE WILL BE KILLED BY
GUNS IN THE COUNTRY.
YET ACCORDING TO THE STATE --
>> YES, HASN'T FLORIDA AND THE
COMMON LAW RECOGNIZED THE
DISTINCTION WITH REGARD TO ULTRA
HAZARDOUS MATERIALS AND ARE
THOSE TO BE DEALT WITH
DIFFERENTLY BECAUSE A GUN IN
FLORIDA IS NOT ULTRA HAZARDOUS
AND IS CONSIDERED TO BE
INHERENTLY DANGEROUS BUT A
DIFFERENT CATEGORY.
DOES THAT NOT COME INTO OUR
DISCUSSION SOMEWHERE THE STORIES

OF ULTRA HAZARDOUS MATERIALS?
FLORIDA HAS STATUTES, I MEAN,,
NUMEROUS, DOES THAT --
>> THE COMPLAINT ALLEGES ANTHRAX
IS ULTRA HAZARDOUS AND WE DON'T
DISPUTE THAT IT IS HAZARDOUS BUT
ULTRA HAZARDOUS IS A TERM OF ART
IN FOR THE LAW USUALLY REFERRING
TO A STRICT LIABILITY CLAIM AND
THERE IS NO STRICT LIABILITY
CLAIM IN THIS CASE AND AGAIN BE
ONE AGAINST THE U.S. BECAUSE
THERE IS NO WAY WE'RE A
COMMUNITY.
>> CAN YOU ADDRESS SECTION 521
OF THE RESTATEMENT OF TORTS,
UNDERSTANDING THERE IS AN
EXCLUSION FROM STRICT LIABILITY,
THAT -- WE STILL ARE DEALING
THEN WITH A HIGHLY DANGEROUS
SUBSTANCE.
AND THAT IS THE COMMENT THAT IS
CITED IN THE APPELLEE'S BRIEF
AND TALKS ABOUT THE PUBLIC
OFFICIAL WILL NOT BE LIABLE
UNLESS HE IS NEGLIGENT IN THE

CUSTODY OF THE EXPLOSIVES AND I
UNDERSTAND YOU CAN'T BE LIABLE,
STRICTLY, BUT, TO ME, IT'S
BECAUSE IT IS SO HIGHLY
DANGEROUS WHY WOULDN'T IT UNDER
McCAIN --
THERE HAS TO BE A DUTY OF
REASONABLE CARE AND MAYBE THE
GOVERNMENT EXERCISES --
EXERCISED REASONABLE CARE, WE
DON'T KNOW.
WE ARE ASKED -- IS THAT CORRECT,
RIGHT?
WE ARE SEEING COULD THERE BE A
DUTY, A QUESTION OF WHETHER THE
GOVERNMENT WAS CAREFUL OR
CARELESS IS NOT FOR US TO
DECIDE.
>> THE QUESTION BEFORE THE COURT
IS ONLY THE LEGAL QUESTION,
THRESHOLD QUESTION OF A
NEGLIGENCE CLAIM, ISN'T THERE A
DUTY --
>> YOU CAN'T BE LIABLE -- BUT
THE EXCEPTION SAYS THEY CAN BE
LIABLE IN NEGLIGENCE FOR NOT

EXERCISING REASONABLE CARE,
COMMENSURATE WITH THE RISK IN
THE STORAGE AND CUSTODY OF AN
ULTRA DANGEROUS SUBSTANCE.
JUSTICE PARIENTE, DANGER OF
CONDUCT RELATES TO THE STANDARD
OF CARE, THINGS -- OTHER THINGS
BEING EQUAL, GREATER PRECAUTIONS
ARE NECESSARY ARE REASONABLE,
NEGLIGENCE REQUIRES
REASONABLENESS, NOT STRICT
LIABILITY AND GREATER --
REPERCUSSIONS, EVERYTHING BEING
EQUAL THE MORE DANGEROUS CONDUCT
IS AND THE HAZARDOUS NATURE IS
RELEVANT TO A NEGLIGENCE CLAIM
BUT UNDER McCAIN, THAT YOU
REFERENCED IT APPLIES IN THE
NORMAL CONTEXT OF WHETHER A DUTY
EXISTS ON A DEFENDANT.
BUT McCAIN DOESN'T APPLY, NEVER
HAS BEEN APPLIED BY THIS COURT
OR LOWER COURTS OF THE STATE TO
THE SPECIFIC CONTEXT OF A
THIRD-PARTY CRIMINAL ATTACK,
BEFORE McCAIN THE COURT

DISTINGUISHED IT IN CRANDON PARK
AND EVERTON --
>> IS THE ISSUE HERE WHETHER WE
ARE GOING TO RECOGNIZE A
SUPERSEDING INTERVENING CAUSE.
>> IT'S NOT AN INTERVENING CAUSE
ISSUE, YOUR HONOR IT IS A
QUESTION OF DUTY AND IN THIS
COURT, IN CASES LIKE
SOUTHEASTERN AGAINST GROSS AND
VAN THE COURT HELD THERE WAS NO
DUTY IN THE CONTEXT OF A
THIRD-PARTY CRIMINAL -- FOUND
THE DUTY BOUGHT ONLY BECAUSE OF
A SPECIAL RELATIONSHIP AND THE
COURT SAID THE SPECIAL
RELATIONSHIP HAS DUTIES BETWEEN
PARTIES THAT WOULDN'T EXIST BUT
FOR THE RELATIONSHIP AND McCAIN
--
>> LET ME ASK YOU ON THE
QUESTION OF DUTY, AT THE TIME OF
THIS ATTACKS WHAT WAS THE
HISTORY OF ANTHRAX ATTACKS IN
THE COUNTRY?
>> THERE HAD NEVER BEEN, BEFORE

THE FALL OF 2001.
A TERRORIST ATTACK LIKE THIS
USING ANTHRAX AS A WEAPON
THROUGH THE MAIL.
IT NEVER HAPPENED IN THE
HISTORY.
ANTHRAX HAD CAUSED ILLNESS AND
DEATH THROUGHOUT HUMAN HISTORY
BECAUSE IT IS A NATURALLY
OCCURRING BACTERIUM AND PEOPLE
WHO WORK IN BARNS AND CERTAIN
KINDS OF ANIMALS HAVE BEEN IN
CONTACT FOR MILLENNIA AND FIVE
PEOPLE DIED TOTAL IN HISTORY,
TRAGICALLY BUT ONLY FIVE DIED AS
A WEAPON IN THIS KIND OF ATTACK
AND IF THE COURT IS GOING TO
TAKE THE HAZARD -- EXTENDS OF
THE HAZARD INTO ACCOUNT IN
FASHIONING THE RULES IMPOSING A
DUTY WHERE THERE OTHERWISE
WOULDN'T BE IN A CRIMINAL
CONDUCT CAN TEXT THE COURT --
CAN'T DO THAT AND APPLY IT ONLY
TO ANTHRAX, DOWN THE STREET IN
FLORIDA STATE THE MAGNETIC LAB

THEIR RESEARCHING INFLUENZA, ALL
AROUND THE COUNTRY LABS ARE
RESEARCHING THINGS THAT ARE AS
OR MORE HAZARDOUS THAN ANTHRAX.
YOU CAN'T FASHION A RULE THAT
APPLIES ONLY TO ANTHRAX AND
ANTHRAX IS UNFORTUNATELY NOT THE
ONLY HAZARDOUS --
>> BUT THE LAB AT FSU WAS NOT
CAREFUL, IN THE WAY THEY STORED
A VIRUS AND IT INADVERTENTLY GOT
OUT OR WAS TAKEN OUT, ARE YOU
SAYING THE LAB WOULD BE IMMUNE
FROM EXISTENCE OF A DUTY AND
MAYBE WE ARE DEALING WITH
SUPERSEDING CAUSE.
MAYBE WE ARE DEALING AS JUSTICE
CANTERA IS SAYING, IT WASN'T
FORESEEABLE IN THE WAY IT
HAPPENED AND WE GET THE
QUESTIONS FROM THE 11th CIRCUIT
AND THEY ASKED A VERY NARROW
QUESTION AND I DON'T UNDERSTAND
YOU SAYING THAT BECAUSE THERE
MIGHT BE MORE ULTRA HAZARDOUS
THINGS GOING ON, WE'D SAY, NO

NONE WILL EVER BE LIABLE.
>> I'M CERTAINLY NOT SUGGESTING
THERE SHOULD NEVER BE ANY
LIABILITY AND WHETHER THERE
WOULD BE LIABILITY IN THE CASE
OF RELEASE OF SOMETHING LIKE
INFLUENZA OR ANTHRAX OR ANY
OTHER SUBSTANCE, IF IT IS
INADVERTENT AND THERE IS NO
THIRD-PARTY CRIMINAL ATTACK,
McCAIN GOVERNS AND DUTIES HINGE
ONLY ON THE FORESEEABLE ZONE OF
RISK.
>> BUT THERE HAD BEEN PREVIOUS
ANTHRAX PROBLEMS -- WOULD YOUR
ANXIOUS BE -- WOULD THIS LAB
THEN HAVE TO DO SOMETHING EXTRA
AS A PRECAUTION TO THE PUBLIC,
BECAUSE THIS KIND OF INCIDENT
HAD IN FACT HAPPENED BEFORE.
>> YOUR HONOR I THINK IT IS
IMPORTANT TO DISTINGUISH THE
ELEMENTS OF A NEGLIGENCE CLAIM
AND FIRST IS DUTY AND QUESTION
OF LAW AND IF THERE IS A DUTY,
THE NEXT QUESTION IS WAS THE

CONDUCT REASONABLE OR NEGLIGENT
AND THE EXISTENCE OF A HISTORY
GOES TO FORESEE ABILITY OF
CERTAIN CONDUCT AND THERE HAS
BEEN A BLACK LETTER RULE IN THIS
COUNTRY AND IN THIS STATE, THAT
THIRD-PARTY CRIMINAL CONDUCT,
CRIMINAL ATTACKS, WHETHER
FORESEEABLE OR NOT IS A FACTUAL
MATTER, AND IF THERE IS A DUTY,
THEN OF COURSE THE EXTENT OF THE
HISTORY OF A CERTAIN KIND OF
CONDUCT GOES TO FORESEE ABILITY
AND THE STANDARD OF CARE IF IT
IS REASONABLE.
>> TAKING THAT, YOU COULD HAVE
EITHER THE SPECIAL RELATIONSHIP
OR THE FACT THESE KINDS OF
INCIDENTS HAVE HAPPENED THERE
BEFORE AND EITHER/OR, DOESN'T
HAVE TO BE BOTH.
>> THAT IS NOT HOW THE COURT
ANALYZED THE ISSUE, THE COURT
DEALT WITH A CASE, A CONVICTED
MURDERER ESCAPED AND MURDERED
AGAIN AND IT WAS FORESEEABLE

PRISONERS WOULD TRY TO ESCAPE
AND THEY DO ALL THE TIME,
UNFORTUNATELY AND IT WAS
CERTAINLY FORESEEABLE IF A
CONVICTED MURDERER ESCAPED HE
MURDERS AGAIN AND HAPPENS ALL
THE TIME, UNFORTUNATELY.
>> WHAT ABOUT THE ITEM NUMBER
ONE IN THE MANUAL FOR ENSURING
THE INTEGRITY AND PROTECTION OF
THE ANTHRAX IN THIS -- IN THIS
PARTICULAR LAB OR WHATEVER, SAID
IT IS WIDELY KNOWN THAT
TERRORISTS AND OTHER CRIMINALS
WELL USE THIS SUBSTANCE THIS IT
-- IF IT IS OUT OF THE LAB AND
FALLS INTO THE WRONG HANDS AND
SO THIS HAS TO HAVE ABSOLUTE TOP
SECURITY AS A RESULT OF THAT
BEING WELL-KNOWN.
AND THEN IT GOES ONTO LIST THE
OTHER CONCERNS.
LET'S ASSUME THE NUMBER ONE
THING, THE MANUAL, WOULD THAT
CHANGE THE CIRCUMSTANCES, THAT
IS A HYPOTHETICAL, OKAY?

-- WOULD THAT CHANGE THE
CIRCUMSTANCES OF THIS CASE.
>> I APPRECIATE THAT -- THE
HYPOTHETICAL, I DON'T THINK IT
WOULD CHANGE THE LEGAL ANALYSIS
ANY MORE THAN HOW FORESEEABLE IT
MIGHT BE A PRISONER WOULD TRY TO
ESCAPE AND IF THE PRISONER WAS A
CONVICTED MURDERER MIGHT HURT
SOMEONE ELSE ANY MORE THAN IT IS
RELEVANT TO THE LEGAL QUESTION
OF WHETHER THERE IS A DUTY IN
ADVANCE.
>> WE DIDN'T CREATE THE
CRIMINAL.
I GUESS YOU ARE THE ONE CREATING
THE DANGEROUS SUBSTANCE.
AND IT SEEMS TO ME THAT THAT
MAKES IT -- AND YOU ARE SAYING
THAT IT HAS SOME BENIGN USES BUT
I'M ASSUMING THAT YOU MEAN THAT
THERE WERE -- THEY WERE LOOKING
AT A, IN THE EVENTS OF A
TERRORIST ATTACK HOW WOULD YOU
PREVENT DEATH AS PEOPLE WERE
EXPOSED TO IT.

IS THAT CORRECT.
>> THAT IS ONE OF USES, THE
FEDERAL LAW RECOGNIZES IS
APPROPRIATE AND NECESSARY, OF
SUBSTANCES LIKE ANTHRAX, THAT'S
RIGHT.
>> THIS IS VERY DIFFERENT THAN
THE FERTILIZER CASE FOR THE
OKLAHOMA CITY BOMBING, WHERE
FERTILIZER IS SOLD FOR BENIGN
PURPOSES TO FERTILIZE FARMS AND
ALL OF THAT.
HERE, AND AGAIN, WE ARE DEALING
WITH A VERY NARROW QUESTION.
WHICH IS, WHETHER, IF A -- IF
THEY PASS MATERIALS DO THEY OWE
A DUTY OF REASONABLE CARE TO
MEMBERS OF THE PUBLIC TO AVOID
AN UNAUTHORIZED INTERCEPTION AND
ALL SEEMS LIKE A BASIC THING,
EVERY MEMBER OF THIS PUBLIC
WOULD SAY, WE SURE HOPE THEY ARE
TAKING STEPS TO EXERCISE
REASONABLE CARE TO AVOID IT.
AND CERTAINLY YOU ARE NOT SAYING
THE GOVERNMENT -- WHAT --

WOULDN'T EXERCISE THAT
REASONABLE CARE.
>> OF COURSE NOT, YOUR HONOR, I
POINTED -- MY POINT IS SIMPLY
TRADITIONAL FOR THE -- THIS
COURT AND OTHER COURTS OF THE
STATE HAVE APPLIED IT
DISTINGUISHED BETWEEN THE DUTY
OF CARE OWED IN THE CONTEXT OF A
RELATIONSHIP, WHERE THERE IS YOU
A THIRD-PARTY CRIMINAL ATTACK,
WHERE THE BASIS FOR THE DUTY
UNDER BLACK LETTER COURT
PRINCIPLES, WELL ESTABLISHED IN
THE STATE IS THIS RELATIONSHIP
--
>> BUT, I WANT TO ASK YOU ONE
QUESTION, I'D LIKE TO TO GO BACK
TO JUSTICE WELLS' QUESTION AND
YOU BRUSHED THAT RIGHT OFF.
AND I WOULD LIKE TO GIVE YOU
ANOTHER CHANCE TO RESPOND TO
THAT ONE, BECAUSE, IN FLORIDA
FOR THE LAW, HAS SEPARATED DUTY
FROM THE INTERVENING ACT THAT IS
EXACTLY WHAT HE IS ASKING ABOUT

AND THOSE ARE TWO DIFFERENT
THINGS, AND SO, LET ME GIVE YOU
ANOTHER SHOT TO TRY AND EXPLAIN
IT AWAY, BECAUSE I'M HAVING
TROUBLE WITH YOUR EXPLANATION,
TO JUSTICE WELLS IN THIS
CONDITIONALLY.
-- QUESTION.
WE HAVE A CRIMINAL ACT.
WE UNDERSTAND THAT.
SO, IT IS MY UNDERSTANDING SINCE
I WENT TO LAW SCHOOL AND THAT IS
A LONG TIME AGO AND HAS BEEN
CONSISTENT, THAT THE REAL ISSUE
IS, IS WHETHER IT'S FORESEEABLE.
THAT THAT CRIMINAL ACT, IS IT A
INTERVENE, SUPERVENING CAUSE?
AND WE HAVE DEALT WITH THAT FOR
YEARS.
>> YOUR HONOR I APPRECIATE THE
OPPORTUNITY TO ANSWER THE
QUESTION, THAT IS NOT THE
ANALYSIS THIS COURT ENGAGED IN
--
>> I'M ASKING -- SOUTHEASTERN
THERE WAS A STUDENT THERE AS I

RECALL THE CASE AND PUT HIM INTO
A DANGEROUS NEIGHBORHOOD.
THAT IS WHAT HAPPENED HERE AND
HERE I WANTED TO YOU RESPOND TO
THE CRIMINAL INTERVENING --
INTERVENING, CRIMINAL
SUPERSEDING EVENT AND WHY AN
ORGANIZATION, MAYBE A GOVERNMENT
IS DIFFERENT A IS A SOVEREIGN
IMMUNITY ISSUE BUT ALL THINGS
BEING EQUAL WHY WE AREN'T
LOOKING AT JUSTICE WELLS'
QUESTION.
>> YOUR HONOR, WE BELIEVE THAT
THE CRIMINAL ATTACK IN THE FALL
OF 2001 WAS SUPERSEDING
INTERVENING CAUSE AND I DON'T
WANT TO SUGGEST WE DISAGREE WITH
THAT NOTION BUT THAT ISN'T THE
ARGUMENT WE ARE MAKING TODAY.
THE ARGUMENT WE ARE MAKING TODAY
GOES TO A DIFFERENT ELEMENT OF
THE NEGLIGENCE CLAIM AND THE
DUTY ELEMENT WHICH IS A SEPARATE
ELEMENT THE COURT TREATED ALWAYS
AS BEING A SEPARATE ELEMENT FROM

THE ELEMENT OF PROXIMATE
CAUSATION AND SO THE FACT THAT
THE ISSUE COULD BE RELEVANT TO
BOTH ELEMENTS DOESN'T MEAN THAT
IT ISN'T RELEVANT TO THE DUTY
ELEMENT --
>> AND AGAIN MY CONCERN IS YOU
ARE DEFINING THE DUTY BY THE
CRIMINAL ELEMENT AND FLORIDA
DOESN'T ALWAYS DO THAT, IT SEEMS
TO ME.
>> THAT IS WHAT THE COURT HAS
DONE IN NOVA SOUTHEASTERN AND
THE REASON I MENTION THE CASE IS
THAT CASE THE DEFENDANT COULD
HAVE ARGUED I SUPPOSE THE
CRIMINAL ATTACK ON MS. GROSS WAS
AN INTERVENING CAUSE BUT THAT IS
NOTE WAY IT WAS FRAMED BY THIS
COURT, THE ARGUMENT WAS, THE
FACT THIS WAS A THIRD-PARTY
CRIMINAL ATTACK THE ONLY BASIS
FOR A DUTY IS THE SPECIAL
RELATIONSHIP AND THE COURT'S
OPINION SAYS THE SPECIAL
RELATIONSHIP IMPOSES A DUTY

BETWEEN PARTIES THAT WOULDN'T
OTHERWISE EXIST AND WASN'T ABOUT
PROBLEMS MANAGEMENT CAUSE, WHICH
WOULD BE A DUTY LATER IN THE
CASE AND THE ISSUES OF DUTY AND
PROBLEMS MALT CAUSATION ARE
SEPARATE AND THE ISSUE WE ARE
HERE BEFORE YOUR HONORS TODAY ON
IS WHETHER THERE IS A DUTY IN
THE FIRST PLACE AND I HAVE TAKEN
--
>> I APPRECIATE YOU HAVE GONE
AHEAD OF TOMB -- GONE OVER TIME
TO PRESENT YOUR CASE.
>> I APPRECIATE YOUR HONOR'S
INDULGENCE, THANK YOU.
>> GOOD MORNING, YOUR HONOR,
TAMI AZORSKY REPRESENTING
BATTELLE.  THERE IS A DIFFERENCE
BETWEEN SUPERSEDING CAUSE AND --
>> BEFORE YOU GET INTO THAT I
REALIZE WE DON'T HAVE A LOT OF
FACT HERE BUT IT SEEMS TO ME
YOUR LAB IS IN A VERY DIFFERENT
SITUATION THAN THE GOVERNMENT'S
LAB.

THERE IS NO -- NOTHING ALLEGED
ABOUT THERE BEING A HISTORY OF
THE DANGEROUS MATERIALS HAVING
GONE MISSING, OR STOLEN.
IS IT AN EITHER/OR THEY ARE
ALLEGING EITHER THE ANTHRAX CAME
FROM YOUR LAB OR THE
GOVERNMENT'S LAB AND ARE YOU IN
THE SAME -- I MEAN, THE QUESTION
IS BEING ASKED EQUALLY ABOUT
BARTEL AS THE GOVERNMENT BUT --
BATTELLE AS IT IS THE GOVERNMENT
BUT IF THERE IS ANYTHING IN THE
GOVERNMENT -- BUT ENLIGHTEN US
ON WHERE BATTELLE IS.
>> ANTHRAX IS A NATURALLY
OCCURRING BACTERIA AND WE ARE
DEALING WITH AN ISSUE OF WHAT IS
IN THE COMPLAINT AND WHAT ISN'T
BECAUSE WE RAISED THE ISSUE AS A
MOTION FOR JUDGMENT ON THE
PLEADINGS BUT THERE ARE COMMON
FACTS KNOWN, WHICH IS ANTHRAX IS
A NATURALLY OCCURRING BACTERIA.
THE PLAINTIFF EVEN HAS MADE
STATEMENTS IN PLEADINGS AND

BRIEFS THAT THERE WERE AT LEAST
12 DIFFERENT LABORATORIES THAT
HAD IT.
FROM 1900 TO 1976 THERE WERE 18
DEATHS FROM ANTHRAX, ALMOST ALL
OF THEM WERE IN TANNERY WORKERS
OR GOAT-HAIR WORKERS OR WOOL
WORKERS.
>> I'M MORE INTERESTED WHAT WAS
YOUR LAB DOING WITH THE ANTHRAX.
>> OUR LAB USES ANTHRAX FOR,
AMONG OTHER THINGS, VACCINE
EFFICACY TESTING AND DO ANIMAL
CHALLENGES TO DEVELOP VACCINES
TO PREVENT PEOPLE EXPOSED FROM
ANTHRAX TO GETTING SICK AN
ANTIDOTES TO HELP PEOPLE IF THEY
ARE EXPOSED TO ANTHRAX AND IT IS
NOT ONLY ANTHRAX, IF IT IS USED
AS A TERRORIST WEAPON BUT THOSE
PEOPLE WHO WORK IN INDUSTRIES
WHERE THEY MAY BE EXPOSED TO A
SUBSTANCE, SO, THERE IS A
SOCIALLY BENEFICIAL USE AND
SOMETHING THAT SHOULDN'T BE
CHILLED IN TERMS OF LABORATORIES

DOING THAT.
YES, THEY SHOULD BE CAREFUL IN
HANDLING THE MATERIALS, AND
THOSE MATERIALS ARE ONLY HANDLED
HANDLED IN LABS THAT ARE CALLED
BIOLOGICAL LEVEL-3 LABS.
OR HIGHER.
SO, THERE ARE CONSTRAINTS AND
THINGS THAT THE ENTITIES HAVE TO
DO.
>> SO YOU WOULD AGREE YOUR LAB
WOULD THEN HAVE A DUTY TO
EXERCISE REASONABLE CARE AND ONE
OF THE THINGS, CERTAINLY, SINCE
YOU ARE HIGHLY DANGEROUS, TO
AVOID UNAUTHORIZED DISSEMINATION
OF SUCH A HIGHLY DANGEROUS
SUBSTANCE.
I MEAN, YOU MAY HAVE -- AND THE
THING, WHILE WE'RE HERE IN THIS
LITTLE -- ANSWER ME ONE
QUESTION.
MAYBE YOU WERE VERY CAREFUL.
MAYBE THERE IS NO LEGAL CAUSE,
BECAUSE I DON'T -- YOU KNOW, HOW
THEY ESTABLISH, IF YOUR ANTHRAX

KILLED..., YOU KNOW, MAYBE,
MAYBE, MAYBE.
BUT HOW DO YOU GET AROUND SAYING
THAT YOU HAVE NO DUTY OF
REASONABLE CARE?
>> THE DUTY ISSUE ARISES BECAUSE
DUTY IS THE CONCEPT, THRESHOLD
LEGAL INQUIRY OF WHO CAN BE HELD
IN THE COURT AND I'VE GONE
THROUGH THAT ANTHRAX IS
AVAILABLE IN OTHER PLACES.
AND SO, THE QUESTION IS, IF THEY
ARE BEING -- IF THEY ARE A
VICTIM OF A CRIME COMMITTED WITH
ANTHRAX, CAN YOU BRING A
DEFENDANT INTO COURT THAT IS
DISTANTLY LOCATED WHERE THERE IS
NO ALLEGATION OF LOST OR MISSING
SAMPLES, NO ALLEGATION OF A
HISTORY OF PROBLEMS AT THE
FACILITY, THERE IS NO ALLEGATION
THAT IT IS THAT FACILITY'S
ANTHRAX, ALL THERE IS IN THE
COMPLAINT ARE GENERALIZED
STATEMENTS --
>> THAT IS NOT WHAT WE'RE HERE

ABOUT.
>> GO AHEAD.
>> IT SEEMS TO ME THAT WE ARE
KIND OF FORCING THIS INTO A
STRUCTURE WHICH I FOR ONE AM
UNCOMFORTABLE WITH.
AND THIS IS, IN SEPARATING THE
CONCEPT OF WHETHER THE LAB, THE
GOVERNMENT OWES REASONABLE CARE
AS OPPOSED TO WHO THEY OWE IT
TO.
WHO -- I MEAN, WHAT GIVES RISE
TO ACTIONABLE NEGLIGENCE?
WHICH IS THE -- WHAT HAS BEEN
STRUGGLED WITH IN SOVEREIGN
IMMUNITY CASES, EVERTON VERSUS
WILLARD AND THE KAISER CASE, AND
HENDERSON VERSUS BOWTON, ALL OF
THESE CASE START OFF WITH A
PREMISE THAT THERE IS A DUTY IN
TERMS OF EXERCISING REASONABLE
CARE BUT DON'T NECESSARILY END
UP WITH THERE BEING ACTIONABLE
NEGLIGENCE BY REASON OF THE FACT
THAT THERE IS NO RELATIONSHIP
BETWEEN THE DEFENDANT AND THE

PERSON WHO IS INJURED.
HOW DOES THAT FIT HERE.
>> WELL, I THINK THE WAY IT FITS
IS THAT Mc-- IN McCAIN THE COURT
SAID THERE IS A FORESEE ABILITY
THAT ARISES BECAUSE OF PURPOSES
OF DUTY AND FOR SEE ABILITY THAT
IS ANALYZED FOR PURPOSES OF
PROXIMATE CAUSE.
AND HERE WE ARE FOCUSED ON THE
FORMER.
AND THE QUESTION IS, CAN AN
ENTITY OWE A DUTY TO THE ENTIRE
WORLD?
IN McCAIN, IT WAS NOT THAT
DIFFERENT ANALYSIS BECAUSE THE
POWER COMPANY PUT EQUIPMENT
SOMEWHERE, THEY PUT SIGNS THAT
SAID IT WAS SAFE, SOMEONE CAME
INTO THAT LOCATION.
THERE ARE OTHER CASES, THE
FERRARE CASE --
>> BUT ISN'T THIS A CASE IN
WHICH THE ANALYSIS IS BETTER
SUITED TO TRYING TO DETERMINE
WHETHER THIS IS AN ACTIONABLE

TYPE OF NEGLIGENCE BY SOMEONE
THAT IS IN FLORIDA, WHEN IT IS
BEING STORED, IN MARYLAND,
WHETHER THIS IS A NEGLIGENCE IN
THE AIR SO TO SPEAK, AS PROSSER
WOULD HAVE TALKED ABOUT.
>> WELL, THE ISSUE IS -- THE
NEGLIGENCE INN IS A GOOD WAY TO
THINK OF IT.
THE ISSUE.
>> EVEN IF THE -- BATTELLE WERE
NEGLIGENT IN SUPERVISING AND
HIRING ITS EMPLOYEES BUT THE
ANTHRAX USED IN THE ANTHRAX
THROUGH THE MAIL ATTACKS CAME
FROM SOME OTHER LOCATION FROM
SOME OTHER FACILITY BUT THAT IS
THE PROBLEM --
>> THAT THIS IS PROBLEM.
AS I SAID WE ARE NOT LIMITED IN
WHAT WE ANSWER, FIRST OF ALL,
YOU SAID IT CAME FROM JUDGMENT
ON THE PLEADINGS.
IT SOUNDS TO ME LIKE YOU HAVE A
VERY GOOD CASE THAT -- OF NO
LEGAL CAUSE OF THE LACK OF

PROXIMATE CAUSATION OR SOME OF
THESE OTHER ISSUES THAT YOU ARE
BRINGING UP ABOUT THE HISTORY OF
HOW ANTHRAX IS USED.
MAYBE THIS IS SUMMARY JUDGMENT
MATERIAL BUT IT CAME UP ON
JUDGMENT ON THE PLEADINGS, AND,
YOU KNOW, AS I LOVE THAT 11th
CIRCUIT BUT THEY KEEP ON GIVING
US THESE VERY, YOU KNOW, NARROW
QUESTION AND WITHOUT REGARD TO
ALL OF THESE OTHER THINGS THAT
JUSTICE WELLS IS RAISING AND
SOME VERY GOOD FACTS THAT YOU
ARE RAISING.
SO WE WRITE AN OPINION, MAYBE,
BUT, YOU'VE GOT TO LOOK AT ALL
OF THESE OTHER THINGS.
>> THIS COURT HAS SAID THAT DUTY
IS A THRESHOLD LEGAL ISSUE AND
IN DEFINING THAT WHAT THE RULE
OF FORESEE ABILITY IS, DEFINES
THAT THRESHOLD -- LEGAL ISSUE
THERE HAS TO BE UNDERSTANDABLE
RULES THAT ARE OUT THERE.
THE SPECIAL RELATIONSHIP RULE IS

ONE SUCH RULE.
IT SAYS THAT IN THE CASE OF
THIRD-PARTY MIS CONDUCT,
THIRD-PARTY CRIMINAL CONDUCT,
YOU HAVE TO HAVE A SPECIAL
RELATIONSHIP.
THAT IS UNDERSTANDABLE, IT TELLS
DEFENDANTS TO WHOM THEY OWE A
DUTY.
AND IN WHAT CIRCUMSTANCES THEY
OWE A DUTY.
THERE ARE -- ANOTHER SITUATION
IN WHICH FORESEE ABILITY
REQUIRED FOR ESTABLISHING A DUTY
MAY BE REQUIRED, IF THERE IS
ACTUAL KNOWLEDGE.
OF THE CRIMINAL CODE.
>> LET ME ASK YOU, IF THE -- THE
PERSON DISSEMINATED THIS
ANTHRAX, ACTUALLY WORKED FOR
YOUR LAB, THEN WOULD WE HAVE A
DIFFERENT -- WOULD THAT
ESTABLISH THAT THE SPECIAL
RELATIONSHIP SO THAT YOU WOULD
HAVE A DUTY AND POSSIBLY BE --
>> EMPLOYER/EMPLOYEE IS COVERED

BY THE SPECIAL RELATIONSHIP,
YES.
>> HOW ABOUT SOMEBODY WALKING
DOWN THE SIDEWALK?
FROM THE FACILITY AND ESCAPES
FROM THE FACILITY?
>> THAT IS ANOTHER GOOD EXAMPLE,
FORESEE ABILITY IS DEFINED BY
GEOGRAPHIC SCOPE AND TIME AND IF
WE WERE DEALING WITH THE CASE
WHERE SOMEONE HAD WALKED OUT OF
THE FACILITY WITH ANTHRAX ON
THEIR SHOES, AND SOMEONE HAD
FALLEN ON IT ON THE SIDEWALK THE
FORESEE ABILITY ANALYSIS FOR
PURPOSE OF DUTY WOULD BE
DIFFERENT, BUT WHAT THE WE ARE
DEALING WITH HERE IS A FACILITY
THAT HAD ANTHRAX THAT IS NOT
CLOSE BY, NO ALLEGATIONS THAT IT
IS THEIR ANTHRAX, NO ALLEGATIONS
OF HISTORICAL LOSSES.
>> IS THAT THE PLEADING DEFECT
YOU ARE CLAIM HERE AND THAT IS
THAT IT IS ESSENTIAL THAT THEY
ALLEGE THAT IT WAS YOUR ANTHRAX

THAT WAS SENT BY THE CRIMINAL
AGENCY IN THIS CASE AND THAT
THAT THIS IS DEFECT YOU ARE
FOCUSING ON.
>> THAT MIGHT BE ONE SUCH
ALLEGATION OR ACTUAL --
>> I'M ASKING THAT, IN CONTEXT
OF THIS VERY BROAD QUESTION, YOU
KNOW, THAT IF IN -- HAS BEEN
CERTIFIED TO US, BECAUSE THE --
REALLY, WHAT HAS BEEN CERTIFIED
WAS -- A MUCH, MUCH BROADER
QUESTION THAN JUST THE
RESOLUTION OF THIS INDIVIDUAL
CASE.
AND ITS INDIVIDUAL CIRCUMSTANCES
INCLUDING THIS FACTOR OF WHETHER
OR NOT, YOU KNOW, IT IS THE
PARTICULAR.
AND SO I'M -- HOW DO YOU
PERCEIVE WHAT THE CIRCUIT COURT
FEELS IS ASKING US TO DO?
>> WELL, I GUESS I THINK THAT
WHAT THE CIRCUIT COURT IS ASKING
YOU TO DO IS TO LINE-DROP, TO
SAY WE HAVE ALREADY SAID THAT

FORESEEABILITY -- FORESEEABILITY
DEFINING DUTY FOR THE -- AND
COURT IN FLORIDA HAVE SET THE
RELATIONSHIP TEST AS ONE TEST
THAT SAYS, IF YOU HAVE A SESSION
RELATIONSHIP, THEN THIS RISK IS
FORESEEABLE.
>> YOU ARE NARROWING THOUGH IN
THIS PARTICULAR INSTANCE ONE OF
THE OTHER WAYS THAT THIS
FORESEEABILITY IS APPROACHED IS
BY SORT OF A RISK ANALYSIS, AND
THAT IS THAT THE HIGHER THE
RISK, YOU KNOW, THE GREATER THE
DUTY.
THAT IS OUT THERE.
AT LEAST WHAT IS BEING ATTEMPTED
HERE, THEY ARE ATTEMPTING TO
SAY, LOOK, THIS IS AS HIGH RISK
AS YOU CAN GET -- AS YOU CAN GET
AND THEREFORE THE DUTY SHOULD
COME ALMOST CLOSE TO BEING
ABSOLUTE.
AT LEAST THAT IS HOW I PERCEIVE
AS WHAT IS STARTING OFF HERE AND
WHAT ABOUT THAT, AS YOU SAW FROM

MY INITIAL QUESTIONS ABOUT THE
FACT, YOU KNOW, IF YOU ARE GOING
TO DEAL WITH THIS AND -- YOU ALL
I'M SURE -- EVERYBODY AGREES
THAT THE PERSON THAT DIED HERE
WAS A TOTALLY IN INTENT PARTY.
-- INNOCENT PARTY, TOTAL
INNOCENT PARTY AND SO WE HAVE A
-- AN EXTREMELY DANGEROUS
SUBSTANCE WHERE THE ALLEGATION
IS THIS IS THE HIGHEST POSSIBLE
RISK AND, THEREFORE, SURELY
THERE MUST BE A DUTY IN TERMS OF
THOSE THAT ARE HANDLING THE
SUBSTANCE, THERE BY CREATING THE
RISK.
SO, TELL ME HOW IN A GENERAL WAY
YOU RESPOND TO THAT.
THEY ARE JUST SEEKING US TO SAY,
WELL, JUST TAKE McCAIN FOR
EXAMPLE.
AND SAY THIS IS SUCH A HIGHER
RISK, THAT WE OUGHT TO -- IMPOSE
ALMOST AN ABSOLUTE DUTY.
IF IT GETS OUT.
>> IF IT WERE A LEAK FROM THE

FACILITY, IF IT WERE SOMEONE WHO
WERE IN THE CLOSE VICINITY TO
THE FACILITY, THEN THAT DUTY TO
PROTECT THOSE IN THAT VICINITY
--ED.
>> WHY NOT, WHY NOT SOMEBODY
THAT LET'S SAY THAT I'M SURE
FROM TIME-TO-TIME THE SUBSTANCE
HAS TO BE MOVED FROM
PLACE-TO-PLACE.
YOU KNOW AND SO -- LET'S SAY
THAT THERE WAS A HIJACKING, YOU
KNOW, OF A SUBSTANCE AND THEN
THE CRIMINALS THAT DID THE
HIJACKING, OKAY, SEIZE THE
MATERIAL AND THEN SOME INNOCENT
CITIZEN INTERVENED TO TRY TO
PREVENT THE HIJACKING AND THEY
GOT THIS THROWN IN THEIR FACE.
AND, YOU KNOW, WE'VE GOT
CRIMINAL AGENCY CLEARLY, THE
CRIMINAL HIJACKING BUT THE
DEMONSTRATION WAS THAT CRIMINAL
HIJACKING SHOULD HAVE BEEN
ANTICIPATED.
AND THE SECURITY WASN'T, YOU

KNOW, TIGHT ENOUGH.
IS THAT AN ANALOGY TO A
SITUATION LIKE THIS.
>> THAT WOULD ACTUALLY BE A MUCH
MORE COMPLICATED SCENARIO
BECAUSE THERE ARE REGULATIONS
THAT APPLY TO EXACTLY HOW
ANTHRAX CAN BE TRANSPORTED.
AND WHAT SHOULD BE DONE WHEN IT
TRAINS SENATOR THERE -- THERE
MAY BE STANDARDS THERE IN A --
ARTIFICIAL IN A WAY, CREATED BUY
GOVERNMENT.
RIGHT.
>> ONE THING I WOULD LIKE THE
COURT TO THINK ABOUT, IN
ANSWERING THESE QUESTIONS, IS
THAT WE TALKED ABOUT IT IN THE
CONTEXT OF ANTHRAX AND WHETHER,
BECAUSE ANTHRAX IS SO DANGEROUS
THERE IS A HEIGHTENED DUTY BUT
IT WOULDN'T APPLY JUST TO
ANTHRAX AND TAKE JUST ONE
EXAMPLE.
OKAY?
TAKE NUCLEAR FACILITIES.

NUCLEAR FACILITIES HAVE NUCLEAR
MATERIAL THAT CAN CAUSE HARM AND
THERE IS OBVIOUSLY A DUTY TO
PREVENT A RELEASE OR AN
EXPLOSION.
BUT, ASSUME FOR A MOMENT THAT
SOME PERSON GUESSES A HOLD OF
NUCLEAR MATERIALS AND PUTS IT IN
AN ENEMY'S SANDWICH, OKAY?
THAT PERSON WHO ATE THE SANDWICH
IS COMPLETELY INNOCENT.
THEY DIDN'T DO ANYTHING, DOES
EVERY OPERATOR OF EVERY NUCLEAR
FACILITY IN THE COUNTRY OWE A
DUTY TO THAT PERSON TO PREVENT
THAT FROM HAPPENING.
>> I WOULD THINK THAT THE ANSWER
WOULD BE THAT I WOULD HOPE, IF
WE LOOKED AT THE SITUATION,
SOMEONE THAT WAS RUNNING A
NUCLEAR FACILITY, TOOK EVERY
STEP POSSIBLE TO SAY, NO, THIS
TYPE -- IN THIS DAY AND AGE, THE
RISK OF TERRORISM IS SO HIGH
THAT THEY HAVE THE DUTY TO -- TO
TAKE EVERY STEP TO PREVENT ITS

INTERCEPTION.
AND MAYBE EVERY STEP WAS TAKEN
BUT I DON'T KNOW HOW WE'D SAY NO
WE WOULDN'T JUST BECAUSE, YOU
KNOW, IT COULD HARM -- I MEAN,
HARM IS -- IN A WAY THAT YOU
DON'T INTEND IS THE -- IT IS THE
NATURE OF THE SUBSTANCE IT IS
GOING TO BE USED FOR CRIMINAL
ACTIVITY.
AND THAT IS THE --
>> THAT'S THE PROBLEM.
WHY DUTY HAS TO BE DEFINED BY
EITHER SPECIAL RELATIONSHIP ARE
ACTUAL KNOWLEDGE OF MISCONDUCT.
BECAUSE OTHERWISE, IN THAT
SITUATION, EVERY, SINGLE
OPERATOR IN THE COUNTRY COULD BE
HAULED INTO COURT AND BE
REQUIRED TO EXPLAIN AND JUSTIFY
EVERY HIRING PROCEDURE, EVERY
MAINTENANCE PROCEDURE, AND THAT
IS WHAT THE LEGAL THRESHOLD
CONCEPT OF DUTY IS INTENDED TO
PREVENT.
IT IS INTENDED TO PREVENT AN

ENTITY FROM BEING HAILED INTO
COURT WITHOUT SOME RULE OR
INDICATION THAT THAT SPECIFIC
ENTITY COULD HAVE PREVENTED WHAT
HAPPENED.
>> LET ME ASK YOU A QUESTION.
WE ALL KNOW THAT THE INDUSTRY IS
TREMENDOUSLY REGULATED AND SO
THERE ARE DUTIES THAT ARE WELL
ESTABLISHED.
ARE THERE SIMILAR REGULATIONS
FOR ANTHRAX?
WE KNOW AS FAR AS FOR MAILING OR
FOR DISTRIBUTING.
>> AS TO THE SPECIFIC SUBSTANCE,
IT'S NOT DIRECTED TOWARD
ANTHRAX.
THERE ARE LABORATORIES, KNOWN AS
BIOLOGICAL LEVEL 3 LABORATORIES,
BIOLOGICAL LEVEL 4 LABORATORIES,
AND THERE ARE REQUIREMENTS FOR
THOSE LABORATORIES AND
REQUIREMENTS FOR WHAT THEY CAN
AND CANNOT POSSESS IN THOSE
LABORATORIES, AND, YOU KNOW, I'M
NOT -- TO -- TO GO THROUGH THE

REGULATIONS --
>> ALLEGED TO HAVE BEEN BREACHED
IN THIS CASE.
>> NO, THEY ARE SENATE HOW DO
YOU KNOW THAT, IT SAYS THERE IS
NEGLIGENCE IN THE STORAGE
SPECIFICALLY ALLEGED IN THERE.
>> OKAY, LET ME RESTATE WHAT I
SAID.
YOUR HONOR, IT IS -- THE PROBLEM
I HAVE WITH THE ALLEGATIONS OF
NEGLIGENCE IN THE CASE AGAINST
BATTELLE IS THERE ARE NOT ANY
FACTS THAT SUPPORT THOSE
GENERALIZED STATEMENTS --
>> THEN THAT WILL COME -- THERE
MAY NOT BE FACTS TO SUPPORT IT
BACK TO WHAT JUSTICE PARIENTE
SAID YOU MAY WIN THE CASE, WE
ARE -- WE'RE TALKING ABOUT, DOES
THE OWNER AND OPERATOR OR
POSSESSES SOURCE OF WHATEVER YOU
WANT TO CALL IT, SOMETHING THAT
IS PRETTY BAD HAVE A DUTY OF
REASONABLE CARE IN ITS STORAGE
AND TRANSPORTATION, AND THE WAY

THAT IT IS LOCKED UP, WHO HAS
ACCESS TO IT.
THOSE KINDS OF THINGS.
THIS IS NOT A STATUTORY ACTION,
SO WHATEVER STATUTE SAYS HAS
NOTHING DO WITH IT.
IT IS IN RELATION TO THE GENERAL
NEGLIGENCE, SO, I HAVE A HARD
TIME UNDERSTANDING YOUR RESPONSE
TO THAT QUESTION, NOT ALLEGED --
I LOOKED LAST NIGHT AT THE
COMPLAINT SPECIFICALLY TO SEE
WHAT WAS THERE, BECAUSE I HAD
CONCERNS AND IT DOES SAY THAT,
DOES IT NOT.
>> IT ALLEGES THOSE NEGLIGENT
HIRING, NEGLIGENT SUPERVISION,
THAT -- AND I MADE MY POINT ON
THAT.
AND --
>> THE WELL, THOUGH, IS --
>> ISN'T THE ISSUE, THOUGH, THE
FEDERAL GOVERNMENT WHO IS
OVERSEEING I WOULD ASSUME WHO IS
EXPERIMENTING WITH ANTHRAX AND
FOR WHAT PURPOSES HAS THE

ABILITY, AS THEY HAVE DONE IN
MANY SITUATIONS, TO REALLY
PREEMPT THIS AREA AND SAY, YOU
KNOW, THERE SHALL BE NO
LAWSUITS, THERE, YOU KNOW, YOU
WILL IMMUNIZE YOU ALSO AS LONG
AS YOU POLICY THESE STEPS, IT
SEEMS -- YOU ARE ASKING -- BUT
THOSE ARE GREATER POLICY ISSUES
THAN THIS COURT IS GOING TO
ANSWER BY THE VERY NARROW
QUESTION THAT HAS BEEN CERTIFIED
TO US, SO I HAVE A HARD TIME
WHEN YOU TALK ABOUT THE NUCLEAR
FACILITIES AND WHETHER THEY
SHOULD BE LIABLE TO THE PUBLIC,
I MEAN, LET'S SEE -- LET'S SEE
THE CASE AND AS WE SEE WHAT IS
GOING ON WITH THIS.
BUT, HERE, I THINK YOUR
STRONGEST ARGUMENT IS THAT YOU
MAY HAVE AGAIN A GOOD SUMMARY
JUDGMENT BECAUSE YOU CAN'T BE
HELD LIABLE BECAUSE YOU -- CAN
BE HELD LIABLE BECAUSE YOU
MANUFACTURE A DANGEROUS

SUBSTANCE AND SO NEGLIGENCE --
AND THERE HAS TO BE A CAUSATION
AND YOUR SUBSTANCE HAS A --
CAUSED THE ULTIMATE DEATH BUT
YOU AGREE WE ARE NOT HERE TO
ANSWER THOSE QUESTIONS.
>> WE ARE NOT ANSWERING THOSE
QUESTIONS.
THE QUESTIONS WERE ANSWERING
TODAY IS WHICH ENTITIES CAN BE
BROUGHT INTO COURT AT -- FROM
THE OUTSET.
WHICH ENTITIES CAN BE FORCED TO
DEFEND THEIR CONDUCT TO THAT
EXTENT SO THEY CAN GET THE
SUMMARY JUDGMENT.
SHOULDN'T THERE BE -- AND THERE
ARE RULES, FLORIDA HAS
ESTABLISHED RULES, ESTABLISHED
THE SPECIAL RELATIONSHIP RULE,
WE KNOW THERE ARE SPECIAL
RELATIONSHIPS AND YOU CAN BE
HAILED INTO COURT CASES LIKE
HUGH IT AND SHERMAN ESTABLISH
THE ACTUAL KNOWLEDGE RULE, IF
YOU HAVE ACTUAL KNOWLEDGE THE

MISCONDUCT IS GOING ON, YOU HAVE
A DUTY TO DO SOMETHING ABOUT IT.
BUT, BEYOND THAT, MY SUGGESTION
IS, THIS COURT SHOULDN'T GO, IF
THERE IS SOMETHING ELSE THAT
SHOULD BE DONE, PERHAPS A
DIRECTIONS OR OPINION TO SUGGEST
THE LEGISLATURE DO SOMETHING,
BUT THERE ARE RULES THAT ALREADY
EXIST BEING THE SPECIAL
RELATIONSHIP RULES, THE ACTUAL
KNOWLEDGE RULES, AND TO GO
BEYOND THAT I THINK OPENS UP,
YOU KNOW, A WHOLE HOST OF NEW
KINDS OF CASES THAT PEOPLE WILL
BE COMING INTO THE COURT SYSTEM
BRINGING SAYING THAT SOMEONE WHO
POSSESSED SOMETHING THAT CAN BE
MISUSED WILL BE BROUGHT INTO
COURT AND THERE WILL BE ALL KIND
OF ATTENUATING LAWSUITS WITH
ATTENUATING ALLEGATIONS.
>> THANK YOU WITH THAT YOU HAVE
GONE OVER 10 MINUTES BEYOND YOUR
TIME BUT WE WANTED TO HEAR WHAT
YOU HAVE TO SAY ON THE CASE.

RESPONSE?
>> MAY IT PLEASE THE COURT, I'M
HERE ON BEHALF OF MAUREEN
STEVENS AND WITH ME ARE TRIAL
COUNSEL RICHARD SCHUELLER AND
JASON WISER, ONE THING I NEED TO
CLARIFY E ABOUT THE ALLEGATIONS,
THE SUGGESTION OF ANTHRAX
GENERICALLY BEING THE CAUSE AND
THAT WE JUST -- THE LABORATORY
SUCH AS BATTELLE IS NOT CORRECT
WITH THE ALLEGATIONS OF THE
COMPLAINT.
WHAT WE ALLEGE IN THE COMPLAINT
AGAINST THE GOVERNMENT IS THAT
THIS PARTICULAR STRAIN OF
ANTHRAX IS THE ONE WE ARE
FOCUSING ON.
THIS PARTICULAR STRAIN OF
ANTHRAX IS ONE THAT HAS BEEN
GENETICALLY TRACED BACK TO FORT
DETRICK.
NOT ONE THAT OCCURRED IN NATURE.
>> BUT YOU ARE NOT ALLEGING HERE
-- OR MAINTAINING THAT BECAUSE
THIS IS ANTHRAX OF WHATEVER

STRAIN, THAT THERE IS ABSOLUTE
LIABILITY.
>> NO, WE ARE NOT.
>> YOU ARE NOT ARGUING THAT THIS
IS STRICT LIABILITY.
>> NO, WE'RE NOT.
>> AND AS A MATTER OF FACT THE
GOVERNMENT IS CORRECT UNDER THE
TERRITORIAL CLAIMS ACT, ACTION
HAS TO BE BASED ON NEGLIGENCE,
NOT ON STRICT LIABILITY.
>> CORRECT.
CORRECT.
>> SO THE ISSUE IN -- THAT WE'RE
HERE ON IS WHETHER THERE IS A
DUTY TO THE GENERAL PUBLIC,
WHETHER WE SEPARATE BY REASON OF
THE FACT THAT THIS IS A ULTRA
HAZARDOUS ACTIVITY OR ULTRA
HAZARDOUS SUBSTANCE, WHETHER
THERE CAN BE A BASIS FOR
ACTIONABLE NEGLIGENCE, TO THE
GENERAL PUBLIC, AS OPPOSED TO
SOMEONE THAT WAS IN SOME TYPE OF
SPECIAL RELATIONSHIP WITH THE --
THIS LAB AND VIS-A-VIS THE

GOVERNMENT, CORRECT.
>> CORRECT AND THEY RELY ON THE
SPECIAL RELATIONSHIP RULE AND
HAVE CONTINUOUSLY IGNORED
EXCEPTIONS THAT ARE RECOGNIZED
IN THE RESTATEMENT AND IN CASES
IN FLORIDA.
THEY RELY ON SECTION 315 OF THE
RESTATEMENT, WHICH HAS AN
EXPRESS EXCEPTION FOR WHEN THE
DEFENDANT HAS ACTUAL OR
CONSTRUCTIVE CONTROL OF THE
INSTRUMENTALITY.
THE ANTHRAX IN THIS CASE WOULD
-- WAS CLEARLY IN THE ACTUAL
CONTROL OF THE GOVERNMENT.
>> BUT UNDER THAT RESTATEMENT
SECTION, IS IT THAT YOU ARE
GOING TO -- IF YOU HAVE
SOMETHING THAT IS A DANGEROUS
SUBSTANCE AND IT GETS OUT, THAT
YOU ARE LIABLE TO ANYBODY, I
MEAN, THAT IT DOESN'T HAVE TO BE
SOMEONE THAT WAS WITHIN THE
CONTEMPLATION THAT IT WOULD COME
IN CONTACT WITH, BUT YOU ARE

LIABLE TO -- THAT THIS WAS, IT
WAS BEING HELD IN MARYLAND, IT
GOT SOMEHOW TO FLORIDA, AND SO
JUST YOU ARE LIABLE TO ANYBODY.
>> YOU HAVE A DUTY, THE RISKS TO
BE PERCEIVED, DEFINES THE DUTY
TO BE OBEYED -- DEFINES THE DUTY
TO BE OBEYED.
THE RISK OF A MICROSCOPIC
PATHOGEN OF THIS NATURE, WHICH
NOT ONLY IS EASILY TRANSPORTED
BECAUSE OF ITS SIZE BUT
REGENERATES AND CAUSES PROBLEMS,
I WAS THINKING --
CAUSES EPIDEMICS AND EVERYTHING
ELSE, IS SOMETHING THE
GOVERNMENT HAD KNOWLEDGE, IN
FACT SUPERIOR -- SUPERIOR
KNOWLEDGE OF -- OVER ANYBODY AND
HAD TO KNOW --.
>> IT SEEMS TO ME YOU HAVE A
HARD TIME DIFFERENTIATING THAT
THEORY FROM THE STRICT
LIABILITY.
>> WELL, BECAUSE IF YOU LOOK IN
THE RESTATEMENT 521 WHICH DEALS

WITH HAZARDOUS ACTIVITIES IT
SAYS WHILE NORMALLY ULTRA
HAZARDOUS ACTIVITIES GENERATE
STRICT LIABILITY WHICH IS 5 19,
521 SPECIFICALLY SAYS IF THE
WORK IS DONE IN FURTHERANCE OF A
PUBLIC DUTY IT IS GOVERNED BY
NEGLIGENCE AND SO THAT IS WHY WE
HAVE A SITUATION WHERE EVEN
THOUGH WE ARE TALKING IN TERMS
OF ALL -- ALL OF US WOULD
NORMALLY ASSOCIATE WITH STRICT
LIABILITY, WITH RESPECT TO THE
GOVERNMENT THAT IS NOT THE CASE.
>> DO YOU AGREE OR DISAGREE WE
NEED TO TAKE THE ALLEGATIONS,
AND REVIEW THE CASES IN A
CONTEXT OF CASES THAT IMPOSE
LIABILITY FOR THIRD PARTY
CRIMINAL CONDUCT.
>> NO.
>> ISN'T THAT WHAT IS HERE,
THIRD-PARTY CRIMINAL CONDUCT.
>> THAT IS A QUESTION OF
CAUSATION BECAUSE YOU ARE
TALKING ABOUT -- TALKING ABOUT

THE FORESEEABILITY OF HOW THE
INJURY OCCURRED AND THE
THIRD-PARTY TOOK IT UPON
THEMSELVES.
>> I'M TALK ABOUT THE CASES
IMPOSING A DUTY ON THE OWNER OF
A SHOPPING CENTER TO PROVIDE
SECURITY FOR THE PARKING LOT
WHERE THERE IS A HISTORY OF
CRIMINAL ACTIVITY AND ROBBERY IN
THAT PARKING LOT.
AND THE CASES FIND THAT BECAUSE
OF THAT HISTORY OF CRIMINAL
ACTIVITY, THE OWNER HAD A DUTY
TO PROTECTED PATRONS FROM THAT
CRIMINAL CONDUCT.
AND THEREFORE, IN ANALOGIZING IT
TO THAT SITUATION DON'T WE HAVE
TO HAVE AT LEAST ONE PRIOR
ANTHRAX ATTACK BEFORE WE IMPOSE
A DUTY TO PROTECT AGAINST
ANTHRAX ATTACKS.
>> NO, BECAUSE DIFFERENT -- THE
DIFFERENCE IS THE LANDLORD IN
THAT CASE DID NOT CREATE THE
RISK.

HERE, THE RISK IS CREATED BY THE
NATURE OF THE SUBSTANCE, NOT
ONLY THE FACT THAT IT IS DEADLY,
BUT BECAUSE THE STORAGE HANDLING
AND TRANSPORT OF IT REQUIRES
SUCH SOPHISTICATION AND
PROTECTION TO ENSURE THAT IT IS
NOT A--
>> THIS ISN'T A CASE OF WHERE
YOU ALLEGE THAT BECAUSE OF THE
NEGLECTED TRANSPORTATION THAT
ANTHRAX SPILLED ON THE HIGHWAY
AND SOMEBODY WAS KILLED BY
INHALING IT.
YOU ARE SAYING THAT SOMEBODY
AFFIRMATIVELY TOOK THE ANTHRAX
AND AFFIRMATIVELY SENT IT WITH
EVIL INTENT TO SOMEBODY TO HARM
THAT PERSON AND SEEMS TO ME, A
DIFFERENT KIND OF SITUATION THAN
SAYING YOU NEGLIGENTLY STORED IT
AND THEREFORE IT SPILLED AND
SOMEBODY GOT INJURED.
>> WE HAVE NOT ALLEGED
SPECIFICALLY THE CRIMINAL NATURE
OF THE CONDUCT.

WHAT WE HAVE ALLEGED IS, IS THAT
THE SUBSTANCE WAS ONLY AT -- FOR
DIETRICH AND ALSO SENT TO THE
PRIVATE LAB AND SOMEHOW IT CAME
OUT OF THEIR CUSTODY DESPITE
THEIR AWARENESS OF THE DANGER
AND WE'D ALSO -- HAVE ATTACH TO
THE COMPLAINT AS EXHIBIT F A
MEMORANDUM AT FORT DETRICK THAT
IDENTIFIES AN INCREDIBLE LIST OF
THESE PATHOGENS THAT ARE
MISSING, THEY ARE CONCERNED
ABOUT THEM, IT INCLUDES THE
EBOLA VIRUS AND INCLUDES --
>> LET ME JUST GO BACK TO
SOMETHING TROUBLING ME, I A--
ASSUME YOU GET SOME OF US TO BUY
THE FACT THAT THERE HAS TO BE A
DUTY ON THE PART OF LABS TO
PREVENT THEIR UNAUTHORIZED
DISSEMINATION AND IF THEY TOOK,
SAY LEFT THE DOORS OPEN DAY AND
NIGHT, A MOST EXTREME EXAMPLE,
OBVIOUSLY THAT -- YOU WOULDN'T
WANT THAT TO HAPPEN, BUT HOW ARE
YOU, YOU KNOW, LET'S SAY THAT

YOU ESTABLISH SOMETHING THAT
THEY PREACHED THE -- I MEAN,
THERE WERE -- THEY WERE
NEGLIGENT IN THE WAY THEY KEPT
THE SUBSTANCES, HOW ARE YOU
GOING TO ESTABLISH THAT THE
ANTHRAX WAS IN FACT STOLEN FROM
ONE LAB OR THE OTHER AND IS THE
ANTHRAX THAT THEN CAUSED THE
HARM TO THE GENTLEMAN IN BOCA
RATON, WHERE WILL THAT COME
FROM?
YOU CAN'T JUST HAVE A DUTY.
THERE HAS GOT TO BE A LEGAL
CAUSATION.
>> WELL, WE -- AS I INDICATED
THIS IS A PARTICULAR STRAIN THAT
WAS CREATED SOLELY FOR DETRICK
AND ONLY WENT TO A FEW OTHER
LOCATIONS.
THE -- WE HAVE NOT BEEN ABLE TO
ENGAGE IN ANY DISCOVERY OF --
>> BUT YOU AGREE IT COULD BE A
PROBLEM FOR YOU.
YOU CAN'T -- MS. AZORSKY
YESTERDAY, YOU CAN'T HOLD THEM

LIABLE BECAUSE THEY HAPPEN TO BE
WORK WITH ANTHRAX, YOU HAVE TO
ESTABLISH SOMETHING THEY DID
CAUSED THAT ANTHRAX TO BE STOLEN
FROM THEIR LABS.
CORRECT.
>> WHETHER IT WAS STOLEN OR GOT
OUT NEGLIGENTLY AND THEN YOU --
>> YOU'VE GOT SHOW ONE OR THE
OTHER HAPPENED IF THEY SAY NO.
WE HAVE NO -- WE HAVE ALL OF OUR
RECORDS AND THERE IS EXACTLY THE
SAME AMOUNT OF ANTHRAX EACH DAY,
WE CHECKED AND WE HAVE THE SAME
-- AT THAT POINT, YOU KNOW,
THERE IS SUMMARY JUDGMENT
AGAINST YOU.
>> WE CERTAINLY HAVE A BURDEN OF
PROVING THE NEGLIGENCE.
>> AND LEGAL CAUSE.
>> EXCUSE ME?
>> AND LEGAL CAUSE.
THERE IS NO EVIDENCE THAT
ANYTHING THEY DID CAUSED THIS
ANTHRAX TO, YOU KNOW, BE
INTERCEPTED THAT IS THE END OF

THIS CASE.
>> BUT, I MEAN, FOR EXAMPLE,
EVEN WITHOUT HAVING BEEN ABLE TO
ENGAGE IN ANY DISCOVERY WE HAVE
THE MEMO WHICH IS EXHIBIT F TO
THE COMPLAINT WHICH SHOWS
MISSING ANTHRAX OF AT LEAST TWO
SAMPLES, THERE IS AMPLE OTHER
EVIDENCE OF WHICH, AGAIN,
DISCOVERY WILL BE ONGOING.
OF THE PROBLEMS AND SECURITY AND
-- AT FORT DETRICK AND THERE IS
ALSO AN ONGOING CRIMINAL
INVESTIGATION WHICH IS A MATTER
OF RECORD AND I'M NOT GOING
OUTSIDE THE RECORD, THE
GOVERNMENT WASN'T -- WAS ABLE TO
GET A SIX-MONTH STAY, AND THEY
ARE PURSUING THIS.
AND SO THE SOURCES OF
INFORMATION FOR HOW THIS
HAPPENED, IS NOT LIMITED TO OUR
ABILITY, WHICH IS GOING TO BE NO
QUESTION...
>> BUT, HOW --
>> JUSTICE WELLS' QUESTION --

>> SORRY.
.
>> COMING BACK TO WHERE WE HAVE
BEEN ON THESE QUESTIONS, HAVING
TO DO WITH LAW ENFORCEMENT AND
EVER TON CASE AND THE ANALYSIS
FOLLOWING THE KAISER CASE, AND
THEN INTO HENDERSON IN WHICH WE
HAVE SAID THE VICTIM OF CRIMINAL
OFFENSE WHICH MIGHT HAVE BEEN
PREVENTED DULUTH THROUGH
REASONABLE LAW ENFORCEMENT
ACTION DOES NOT ESTABLISH A
COMMON LAW DUTY TO THE
INDIVIDUAL CITIZEN AND RESULTING
FOR THE LIABILITY ABSENT THE
SPECIAL DUTY TO THE VICTIM.
>> THOSE OF OUR -- THOSE ARE
CASES WHERE THE DEFENDANT WHO
WAS BEING SUED DID NOT CREATE
THE RISK.
THE GOVERNMENT DID NOT CREATE
THE CRIMINAL.
THE GOVERNMENT AND IT IS CLEARLY
UNREASONABLE TO IMPOSE ON THE
GOVERNMENT A DUTY TO PROTECT

EVERY MEMBER OF THE PUBLIC FROM
ANY CRIMINAL ACT.
WE ARE TALKING ABOUT A ULTRA
HAZARD DOES -- HAZARDOUS
SUBSTANCE THEY CREATED AN
MONITORED.
>> YOU HAVE TO CONCEDE THEY WERE
NOT NEGLIGENT IN CREATING
ANTHRAX.
>> NO, BUT ONCE THEY CREATED IT
WITH THEIR KNOWLEDGE OF ITS --
THE EXTREMELY DANGEROUS NATURE
OF IT, THEIR KNOWLEDGE AS TO THE
DIFFICULTY --
>> SO WHAT WE ARE GETTING TO IS
WHETHER THEY WERE NEGLIGENT IN
RESPECT TO THE CRIMINAL OFFENSE,
CORRECT?
>> NO --
>> THEY WERE NEGLIGENT IN NOT
PROVIDING SECURITY WHICH WOULD
PREVENT SOMEONE FROM STEALING
NIGHT WE DON'T EVEN KNOW IF IT
WAS STOLEN FROM THE FACILITY.
>> GETTING OUT OF THE FACILITY.
>> YES, WHETHER THEY -- WHETHER

IT WAS TAKEN OUT FOR INADVERTENT
OR MAYBE FOR SOMEONE WHO THOUGHT
THEY WERE GOING TO DO THEIR --
WE DO NOT KNOW WHAT HAPPENED
WITH RESPECT TO HOW IT GOT OUT
OF THEIR CUSTODY.
>> I'M HAVING A LOT OF
DIFFICULTY WITH THE -- WHAT I
PERCEIVE TO BE SORT OF A MOVING
TARGET CONCEPT OF -- OF
NEGLIGENCE HERE.
IT SEEMS THAT THERE CLEARLY IS A
REALIZATION THAT THERE IS AN
OBLIGATION UNDER THE FEDERAL
ACT, FOR THE CLAIMS ACT, TO
ESTABLISH NEGLIGENCE.
AND SO, THIS IS WHY THE CIRCUIT
COURT IS COMING BACK TO US AND
SAYING IN THIS PARTICULAR
CIRCUMSTANCE WHAT IS THE
NEGLIGENT STANDARD THAT IS OUT
THERE BUT YOU SEEM TO BE MOVING
BACK AND FORTH OR AROUND FROM
THE CONCEPTS OF NEGLIGENCE, FOR
INSTANCE, THAT WE WOULD
ASSOCIATE WITH IF THE LAB HAD

BEEN NEGLECTFUL IN THE WAY THEY
STORED THIS MATERIAL.
OR IF THEY HAD BEEN NEGLECTFUL
IN THE WAY THAT THEY TRANSPORTED
THE MATERIAL.
AND YET, WHAT WE'RE ENDING UP
WITH HERE, IS THE CONCEPT OF
NEGLIGENCE IN TERMS OF
ANTICIPATING THAT THE SUBSTANCE
WOULD END UP IN THE HANDS OF A
CRIMINAL ACTOR WHO THEN WOULD
ACT AGAINST A MEMBER OF THE
PUBLIC AT LARGE SUCH AS THE
VICTIM HERE.
SO I'M -- HOW ABOUT FOCUSING ON
-- ARE YOU TALKING ABOUT ONE
BROAD CONCEPT OF NEGLIGENCE?
OR ARE YOU TALKING ABOUT THE
MANY ASPECTS OF IT?
WHAT IS THE CORE FEATURE -- AND
YOU CAN SORT OF GIVE US A
FORMULA, IF YOU WILL, WHAT WOULD
YOU LIKE US TO TELL THE CIRCUIT
COURT OF APPEALS THAT THE
FORMULA IS, THAT THE STANDARD IN
FLORIDA UNDER THESE

CIRCUMSTANCES IS, THUS AND SO?
ARTICULATE THAT FOR US HERE, SO
THAT WE STOP FOR A MINUTE AND
TRY TO APPLY, THEN, TO THE
EXTENT POSSIBLE THE ALLEGATIONS
THAT YOU HAVE SET OUT TO THAT
FORMULA.
SO WHAT IS THE FORMULA.
>> WHAT IS -- WHAT WOULD YOU
LIKE US TO TELL THE CIRCUIT
COURT OF APPEALS THAT THE
NEGLIGENCE CONCEPT TO BE APPLIED
IN THIS CASE IS THUS AND SO IF.
>> THE NEGLIGENCE CONCEPT TO BE
APPLIED TO THIS CASE IS ZONE OF
RISK WHICH WE HAVE CONSISTENTLY
ASSERTED THROUGHOUT THIS CASE.
PART OF THAT AND EVEN IN THE
RESTATEMENT 302, IT TALKS ABOUT
PART OF THAT IS DEPENDING UPON
THE NATURE OF THE RISK YOU
CREATE, FORESEE ABILITY OF --
FORESEEABILITY OF MISCONDUCT,
INTENTIONAL OR OTHERWISE BY
THIRD PARTIES AND THAT YOU CAN
BE IN A SITUATION WHERE YOU HAVE

TO REASONABLY ANTICIPATE THAT.
WHEN ARE DEALING WITH BIOLOGICAL
WARFARE, MATERIEL IT'S NOT
UNREASONABLE IN THIS DAY AND AGE
TO EXPECT THE GOVERNMENT TO
REASONABLY ANTICIPATE THAT OR A
PRIVATE LAB AND THE WAY --
>> BUT, BEFORE --
>> THE ANTICIPATION OF THAT
COMES SOLELY FROM THE NATURE OF
THE SUBSTANCE.
AS OPPOSED, FOR INSTANCE, IN
JUSTICE CANTERO’S EXAMPLE THAT
HE GAVE -- CANTERO’S EXAMPLE
THAT HE GAVE TO YOU, THE
SHOPPING CENTER OWNER AND --
>> KNOWING OR NOT KNOWING ABOUT
CRIMINAL ACTIVITIES IN THE
PARKING LOT.
BUT IT COMES SOLELY FROM THE
NATURE OF THE SUBSTANCE, IS THAT
--
>> FROM THE NAME OF THE
SUBSTANCE AND THE PROBLEMS
INHERENT IN THE STORAGE,
TRANSPORT, ALL OF THOSE THINGS

--
>> IT ALL THEN COMES FROM THE
NATURE OF THE SUBSTANCE?
>> YES.
AND IT'S NOT A MOVING TARGET.
IT IS JUST, BECAUSE WE DON'T
KNOW EVERYTHING THAT HAPPENED TO
THIS SUBSTANCE, OTHER THAN WE
KNOW IT WAS STORED.
WE KNOW IT WAS TRANSPORTED.
WE KNOW THEY HAD PROBLEMS AND
THE --
>> YOU HAVE TO KNOW SOMETHING,
DO YOU NOT, BEFORE YOU CAN BRING
A LAWSUIT.
>> YES.
AND WE HAVE ATTACHED TO OUR
COMPLAINT, EVIDENCE THAT THE
GOVERNMENT WAS ON NOTICE IN 1992
AND THERE IS LATEST OF ABOUT 20
DIFFERENT EBOLA ANTHRAX, A LIST
OF THESE THINGS.
>> TELL US -- TELL US WHERE,
AGAIN, AND PERHAPS, IT IS IN ONE
OF THE RESTATEMENT CONCEPTS, OR
WHATEVER, WHAT IS THE BEST

ARTICULATION THAT IN DEALING
WITH THE SUBSTANCE LIKE THIS,
THAT THERE IS A DUTY TO
ANTICIPATE THE CRIMINAL
INTERVENTION OR ACTIVITIES OF
THE THIRD PARTY AND ARTICULATE
THAT FOR ME AS CLEARLY AS YOU
CAN.
>> IT IS IN SECTION 302, WHICH
DEFINES ESSENTIALLY THE STANDARD
OF -- CONTAINED ON ZONE OF RISK
AND IF YOU LOOK AT 302-A IT
SPECIFICALLY ADDRESSES RISK OF
NEGLIGENCE OR RECKLESSNESS OF
OTHERS THAT ACTS IN CONJUNCTION
WITH THE AFFIRMATIVE ACTS OF THE
DEFENDANT THAT CREATED THE
INITIAL RISK.
>> THE DIFFICULTY I'M HAVING
WITH THIS CONCEPT HERE OF YOU
SAYING THAT ESSENTIALLY ALL THAT
IS IS A RYE STATEMENT OF McCAIN
--
RESTATEMENT OF McCAIN IS IT
SEEMS TO ME IN EXAMINING THIS
LITANY OF CASE THAT'S WE HAVE

HELD THAT THERE IS A DUTY, UNDER
THE McCAIN ANALYSIS, THAT
VIRTUALLY EVERY ONE OF THEM
INVOLVES SOME DIRECT CONNECTION
THEN EITHER WITH THE ANTICIPATED
VICTIM OR THE DEFENDANT, YOU
KNOW, HAVING SPECIAL KNOWLEDGE
HERE OF THE RISK THAT WOULD
INCORPORATE OR INCLUDE A
DEFENDANT.
THAT IS THERE -- THAT BECAUSE
THE RISK IS SO HIGH, THAT YOU
ANTICIPATE.
EVEN WITH THE CRIMINAL ACTIVITY,
YOU KNOW, OF SOMEBODY, LIKE THE
KMART CASE.
YOU KNOW, WHERE THERE IS' PERSON
THAT COMES IN AND I FORGET
WHETHER THEY WERE INTOXICATED OR
DOING WHATEVER, BUT.
>> INTOXICATED.
>> BUT THERE, YOU KNOW, WE ARE
PRESENTED WITH CIRCUMSTANCES
THAT WOULD ALERT AT LEAST WE
SAID SO, THAT WOULD ALERT A
REASONABLE STORE OWNER THAT

DEALS IN FIREARMS.
TO THAT RISK.
NOW, I'M HAVING DIFFICULTY --
WHERE IT SEEMS-LIKE LIKE THERE
IS A BIG GAP, IN THIS CASE,
WHERE HAVE YOU ALLEGED THAT THAT
GAP HAS BEEN FILLED HERE?
>> WE ARE -- WHAT I AM SAYING IS
THAT 302 ITSELF IS THE
RESTATEMENT THAT FOLLOWS McCAIN.
302-A ON -B DEAL WITH THE
SITUATIONS OF WHEN THE CONDUCT
OF THE THIRD-PARTY IN THE RANGE
OF CONDUCT FROM NEGLIGENCE TO
CRIMINAL -- NEGLIGENT TO
CRIMINAL, THAT CAN TIE IN TO THE
ACT OF THE DEFENDANT THAT
CREATED THE INITIAL RISK.
AND BECOMES PART OF THE ZONE OF
RISK FOR WHICH A DUTY CAN BE
IMPOSED.
>> BEFORE OCTOBER OF 2001, OVER
HERE, HAD ANYONE DIED FROM A --
ANTHRAX FROM HAVING RECEIVED IT
IN THE MAIL?
>> WE ARE NOT AWARE OF THAT EVER

HAPPENING.
>> OKAY, HOW IS THIS SOMETHING
THAT COULD BE ANTICIPATED EVEN
FROM THE NEGLIGENT STORAGE OVER
ANTHRAX.
>> BECAUSE THE VARIOUS VIRUSES
THAT WERE MISSING FROM THE LAB
IN 1992 HAD NO OTHER FUNCTION
OTHER THAN TO KILL PEOPLE.
THAT IS WHY THEY WERE DEVELOPED.
THAT IS WHY THE GOVERNMENT --
>> BUT NONE OF THESE VIRUSES,
EBOLA OR OTHER ONES YOU
REFERRED TO,
HAVE THEY EVER BEEN SENT OVER
THE MAIL TO ATTACK SOMEBODY AND
HARM THEM?
>> WE DO NOT KNOW.
I AM NOT AWARE OF ANY --
>> SO EVEN AFTER ANY OF THESE
VIRUSES THAT WERE IN THE
POSSESSION OF THE UNITED STATES,
HOW COULD THEY ANTICIPATE THAT
THE NEGLIGENT STORAGE OF THESE
VIRUSES COULD RESULT IN SOMEBODY
EITHER NEGLIGENTLY OR
DELIBERATELY SENDING IT OVER THE
MAIL TO SOMEBODY TO ATTEMPT TO
HARM THEM?
>> YOUR HONOR, THAT DEALS WITH
FORESEEABILITY IN THE CONTEXT OF
CAUSATION.
>> ISN'T THERE FORESEE --
>> YES, THERE IS, RISK WHICH
IS --
>> BUT YOUR ZONE OF RISK IS THE
ENTIRE WORLD.
>> IT'S THE ENTIRE WORLD THAT
COULD BE AFFECTED BY THIS
PARTICULAR PATH PATHOGEN, YES.
WE WOULD STILL HAVE TO PROVE
NEGLIGENCE.
BUT WHAT YOU'RE TALKING ABOUT IS
THE FORESEEABILITY OF THIS DEATH
OCCURRING IN A PARTICULAR
MANNER.
>> I'M TALKING ABOUT THE
FORESEEABILITY OF ANY DEATH
OCCURRING BY SENDING ANYTHING
OVER THE MAIL WHEN IT HASN'T
EVER HAPPENED.
>> BUT IT WOULDN'T MATTER IF
THEY PUT IT IN SOMEBODY'S
SANDWICH --
>> BUT THAT HASN'T HAPPENED
EITHER.
THE ONLY DEATHS WE KNOW ABOUT
CONCERNING ANTHRAX WERE RELATED
TO PEOPLE WORKING WITH THE
ANTHRAX OR AROUND THE ANTHRAX,
NOT ANYBODY WHO WAS TOTALLY
REMOVED FROM WHERE THE ANTHRAX
WAS AND RECEIVED IT SOMEHOW.
>> BUT THEN YOU WOULD BE
LIMITING EVERY ENTITY THAT DEALS
WITH ULTRA HAZARDOUS MATERIALS.
SOMEBODY HAS TO DIE FIRST.
>> WELL, MAYBE IN 2001 YOU WOULD
HAVE BEEN CORRECT.
MAYBE THERE HAD ALREADY BEEN ONE
INCIDENT, AND SOMEBODY,
EVERYBODY, ALL THE LABORATORIES
HAVE NOW BEEN ALERTED THAT
ANTHRAX COULD BE USED BY SENDING
IT OVER THE MAIL.
THAT WASN'T THE CASE IN OCTOBER
OF 2001.
>> WE WOULD NOT KNOW ACCIDENTS
THAT OCCURRED WITH ANTHRAX THAT
THE GOVERNMENT MAY KNOW OF IN
THEIR TESTING IN THE HISTORY OF
WARFARE, AND ALL OF THAT --
>> CAN I ASK, LET ME JUST ASK --
AND MAYBE THIS WOULD HELP
CLARIFY AT LEAST FOR ME WHY
THERE WOULDN'T HAVE TO BE A
DEATH BEFORE THERE WOULD BE A
DUTY.
AGAIN, UNLIKE FERTILIZER OR
SOMETHING ELSE, IF I'M
UNDERSTANDING WHAT YOU'VE
ALLEGED AND WHAT YOU WOULD
INTEND TO PROVE IS THAT THE
ANTHRAX, THE FEAR THAT THE
FEDERAL GOVERNMENT HAD IS THAT
AGENTS LIKE ANTHRAX WERE GOING
TO BE USED BY FOREIGN COUNTRIES
AS AGENTS OF BIOLOGICAL WARFARE,
AND THAT, I ASSUME, WAS NOT
INTENDED THAT THEY WERE GOING TO
USE IT ON THEIR OWN PEOPLE.
BUT THE IDEA OF IT WAS THAT THEY
WERE LOOKING AT IT BECAUSE OF
THE FEAR THAT TERRORISTS COULD
GET A HOLD OF THIS AND CAUSE
MASSIVE HARM TO OUR COUNTRY.
IS THAT CORRECT?
>> CORRECT, OR IT COULD RESULT
FROM NEGLIGENCE, OR --
>> WAS IT THE TERRORISTS OR
FOREIGN COUNTRIES?
THERE'S A DISTINCTION THERE.
IN 2001 WERE WE WORRIED ABOUT
TERRORISTS SENDING IT, OR WERE
WE WORRIED ABOUT FOREIGN POWERS
SENDING IT IN WARFARE?
>> THAT WOULD BE SOMETHING THE
FEDERAL GOVERNMENT WOULD HAVE IN
THEIR KNOWLEDGE.
WE'VE SEEN RADIOACTIVE MATERIALS
TO ASSASSINATE PEOPLE.
WE DON'T KNOW IF IT'S HAPPENED
BEFORE IN THE GOVERNMENT --
>> WELL, WHAT DO YOU KNOW ENOUGH
OF THAT YOU CAN ACTUALLY MAKE
ALLEGATIONS IN A COMPLAINT
THAT'LL WITHSTAND A MOTION TO
DISMISS?
>> OUR CLAIM IS --
>> YOU KNOW ENOUGH, AND I'M
HAVING TROUBLE WITH YOU GOING
BACK AND FORTH, IT SEEMS TO ME,
BETWEEN THE CONCEPTS OF
NEGLIGENCE, PERHAPS, AND JUST
THE NEGLIGENCE AND NEGLIGENTLY
PROVIDING SECURITY THAT
SOMETHING DOESN'T GET OUT.
AND THEN WITH THE BROADER
CONCEPT WHICH MAY BE WORKED IN
WITH EITHER NEGLIGENCE OR
PROXIMATE CAUSE OF HOW THAT
LEADS TO THE INJURY, YOU KNOW,
TO YOUR CLIENT.
ARE YOU SAYING IN THIS CASE ALL
THE ONLY EVIDENCE YOU HAVE IN
TERMS OF PROVING NEGLIGENCE OR
ESTABLISHING NEGLIGENCE IS JUST
THAT THEY SOMEHOW DIDN'T HAVE
SUFFICIENT STANDARDS --
>> NO.
>> TO PREVENT THIS THING?
>> NO, WE ARE NOT.
>> WHAT ARE THE ELEMENTS,
THEN -- [INAUDIBLE] WHAT IS A
JURY GOING TO BE TOLD?
>> YOU SEE, THE PROBLEM WE HAVE
HERE IS YOU ARE TRYING TO IMPOSE
UPON MY CLIENT A DUTY SHE CAN
NEVER OVERCOME.
WE DON'T KNOW THE GOVERNMENT'S
KNOWLEDGE OF THE RISKS, THE
SPECIFIC USES IN THE PAST OF
THIS, HOW THEY DEVELOPED IT, HOW
IT COULD BE PROTECTED.
>> YOU NEED TO KNOW ENOUGH --
>> WE KNOW ENOUGH TO SAY IT WAS
ULTRA HAZARDOUS, IT WAS DESIGNED
TO KILL PEOPLE.
THEY KNEW IT HAD GOTTEN OUT OF
THEIR LAB.
>> DOES THE SAME THING HAPPEN
IF, FOR INSTANCE, A MILITARY
DEPOT IS STORING CLAYMORE MINES
AND -- [INAUDIBLE] MINE, YOU
KNOW, COMES UP MISSING AND, YOU
KNOW, AND LATER 5,000 MILES AWAY
THE CLAYMORE MINE IS USED TO
KILL SOMEBODY?
>> THERE IS AN EXAMPLE IN
SECTION 521 OF THE RESTATEMENT
DEALING WITH THE GOVERNMENT'S
DUTY IN ULTRA HAZARDOUS
MAINTENANCE OF MUNITION DUMPS
WHICH, I BELIEVE, WILL ADDRESS
THAT.
BUT THE POINT IS THIS, DUTY IS
DEFINED BY THE NATURE OF THE
RISK CREATED, THE GENERAL
NATURE.
THE LANGUAGE IS WHETHER THE
CONDUCT FORESEEABLY CREATED A
BROADER ZONE OF RISK.
YOU'RE ASKING US TO PROVE
CAUSATION SAYING COULD THEY
ANTICIPATE THIS PARTICULAR
MANNER OF KILLING SOMEBODY WHEN
WE HAVE NOT BEEN ALLOWED ANY
DISCOVERY.
WE DON'T KNOW WHAT THE
GOVERNMENT KNEW, WE DON'T KNOW
WHAT THEY DEVELOPED, WE DON'T
KNOW IF IT HAS HAPPENED UNDER
SIMILAR SITUATIONS BEFORE.
MAYBE NOT THE MAIL, MAYBE
SIMPLY --
>> WELL, WHAT ABOUT THE LAB IN
THIS CASE?
WHY THIS PARTICULAR LAB, WHY NOT
ALL --
>> BECAUSE THIS PARTICULAR
STRAIN WAS SENT TO THIS
PARTICULAR LAB.
>> ALONE?
>> WELL, THERE WAS ONE OTHER
ONE, AND THEY ARE NOT A PARTY TO
THIS SUIT.
I CAN'T COMMENT, OBVIOUSLY, ON
THAT.

>> I GUESS MY CONCERN IS AT
LEAST ON THE ALLEGATION OF THE
COMPLAINT, YOU'VE MADE NO
ALLEGATION TYING THE GOVERNMENT
TO THIS LAB TO THIS INCIDENT
OTHER THAN IT MAY BE THE SAME
STRAIN.
>> IT'S THE SAME STRAIN THAT WAS
CREATED SOLELY AT FORT DIETRICH
AND SENT TO PARTICULAR LABS.
THIS WAS ONE OF THEM.
>> OVER A HOW MANY YEAR PERIOD?
>> WELL, I DON'T KNOW THAT WE
HAVE ALL OF THIS INFORMATION.
THIS IS NOT -- THIS IS NOT
INFORMATION WE CAN GET.
AND WHEN YOU TRY TO IMPOSE A
BURDEN ON US TO GIVE YOU DETAILS
OF FORESEEABILITY THAT RELATE TO
CAUSATION, THAT IS WHAT WE ARE
ABLE TO GET IN DISCOVERY.
WE CANNOT DO THAT --
>> SO WHAT YOU'RE SAYING IN
ORDER TO HAIL ANY OF THE 12 LABS
INTO COURT TO ANSWER TO YOUR
COMPLAINT, THIS IS ALL YOU HAVE
TO ALLEGE?
>> IF THEY HAD THIS PARTICULAR
STRAIN OF ANTHRAX AND WE KNOW
THAT THAT IS THE ONE THAT CAUSED
THE DAMAGE --
>> AND YOU GOT THAT KNOWLEDGE
FROM THE PUBLIC RECORDS OF THE
CRIMINAL INVESTIGATION OF THE --
>> WELL, WE HAVEN'T GOTTEN
ANYTHING FROM THE CRIMINAL
INVESTIGATION AS OF YET, BUT WE
HAVE GOTTEN IT FROM CERTAIN
SOURCES, AND I HONESTLY COULDN'T
TELL YOU BECAUSE [INAUDIBLE] BUT
WE DO HAVE SOME INFORMATION,
YES.
BUT IT IS UNFAIR TO IMPOSE ON US
A DUTY OF SPECIFICITY REGARDING
THE RISK WHEN THE PARTY WITH
SUPERIOR KNOWLEDGE, THE PARTY
THAT HAD EXCLUSIVE CONTROL, THE
PARTY THAT DEVELOPED ALL THIS IS
THE ONE THAT HAS HAD NO
OBLIGATION TO PROVIDE IT TO US
YET BECAUSE WE'VE HAD ABSOLUTELY
NO DISCOVERY.
THEY CLEARLY CREATED A BROADER
ZONE OF RISK THAT CAUSED A
GENERAL THREAT OF HARM, AND MY
DECEDENT FELL WITHIN THAT,
HONESTLY.
>> IF YOU'LL BRING YOUR ARGUMENT
TO A CONCLUSION.

>> I JUST WANT TO SAY ONE OTHER
THING, AND THAT IS THE CONCERN
ABOUT OPENING THE FLOODGATES OF
LITIGATION AND EXTENSIVE
LIABILITY WHICH EVERY DEFENDANT
RAISES, HAS TO BE CONSIDERED
IN -- TO MAKE THE GOVERNMENT
LIABLE TO THE SAME EXTENT AS A
PRIVATE ENTITY WAS A DECISION
MADE BY CONGRESS.
THIS COURT SHOULD NOT BE
CONCERNED WITH WHETHER A PRIVATE
INDIVIDUAL'S LIABILITY IMPOSED
ON THE GOVERNMENT CREATES
CONCERNS ABOUT THE SCOPE OF IT.
THAT IS FOR THE GOVERNMENT TO
DEAL WITH LEGISLATIVELY AS THEY
DID IN THE FEDERAL TORT CLAIMS
ACT, AND WE ARE SIMPLY TRYING TO
SEEK JUSTICE FOR OUR CLIENT IN
WHAT WE BELIEVE WE HAVE PROVED
IN EXISTENCE OF A DUTY.
>> YOU'VE EXHAUSTED YOUR TIME,
BUT I'M GOING TO GIVE YOU TWO
MINUTES IN REBUTTAL.
TWO MINUTES, PLEASE.
>> THANK YOU VERY MUCH, YOUR
HONOR --
>> JUST THAT LAST STATEMENT IN
THE CERTIFIED QUESTION, IT
DOESN'T LOOK LIKE WE ARE BEING
ASKED TO TREAT THIS AS A
SOVEREIGN IMMUNITY CASE, AND
WOULD YOU AGREE AS WE LOOK AT
THIS OTHER THAN THIS QUESTION OF
STRICT LIABILITY THAT WE SHOULD
LOOK AT THIS AS A NEGLIGENCE
CASE AND NOT MAKE SPECIAL RULES
BECAUSE IT'S THE GOVERNMENT?
THAT IS NOT BEFORE US?
>> THAT'S TRUE, YOUR HONOR.
THE QUESTION BEFORE THE COURT IS
WHETHER A PRIVATE PARTY UNDER
FLORIDA LAW WOULD HAVE A DUTY
UNDER THE CIRCUMSTANCES ALLEGED
HERE.
ACTUALLY, I'D LIKE TO ADDRESS
THE SCOPE OF THE CERTIFIED
QUESTION AND HOW THIS COURT
SHOULD TRY TO ANSWER IT.
THERE HAVE BEEN A NUMBER OF
QUESTIONS ABOUT MISSING FACTS IN
THE QUESTION OR BREADTH OR
NARROWNESS OF THE QUESTION, AND
I'D LIKE TO TRY TO SUGGEST HOW
THIS COURT COULD APPROACH THAT
GIVEN THE ISSUES WITH THE
CERTIFIED QUESTION ITSELF.
THERE ARE A FEW THINGS THAT THIS
COURT CAN SIMPLIFY IN ANSWERING
THIS QUESTION.
IN THIS CASE THERE IS NO
RELATIONSHIP OF ANY KIND ALLEGED
BETWEEN EITHER OF THE DEFENDANTS
AND EITHER THE UNKNOWN THIRD
PARTY, CRIMINAL ATTACKER, OR
MR. STEVENS.
SO ALL OF THE CASES FROM THE
LOWER COURTS OF THE CASE AND
FROM THIS COURT THAT ANALYZE
VARIOUS SCENARIOS TO DECIDE IF
THEY QUALIFY AS SPECIAL, NONE OF
THAT IS RELEVANT.
THERE'S NO RELATIONSHIP -- SO
THE COURT DOESN'T HAVE TO SAY
ANYTHING.
>> DO YOU SEE THAT
MR. BURLINGTON'S DISTINCTION IN
ALL THOSE OTHER CASES INVOLVING
CRIMINAL ACTIVITY, THE PERSON
DOESN'T CREATE THE
INSTRUMENTALITY SUCH AS HERE
WITH THE ANTHRAX, THAT IN OTHER
WORDS IF THERE'S CRIMINAL
ACTIVITY IN A PARKING LOT OR IN
AN AREA, THAT'S NOT CREATED BY
THE PERSON.
AND SO THE AIR WE'RE TALKING
ABOUT, SIMPLY THE FAILURE TO
PROVIDE SECURITY HERE IF YOU
MANUFACTURE ANYTHING, ANY
DANGEROUS SUBSTANCE, YOU'VE GOT
DUTIES TO MAKE SURE -- DON'T YOU
HAVE DUTIES, THEN, THAT ARE
DIFFERENT THAN JUST IF THEY
WERE, YOU KNOW, A LANDLORD?
>> I DON'T THINK THAT THAT HELPS
THE PLAINTIFF, YOUR HONOR,
BECAUSE THE SAME THING COULD BE
SAID OF GUNS, MOTOR VEHICLES,
AND THE CASES IN THIS STATE ARE
CLEAR THAT JUST BECAUSE
SOMETHING CAN BE USED AS A
WEAPON DOESN'T MEAN THAT A PARTY
HAS A DUTY TO PREVENT --
>> LET ME TRY IT THIS WAY, WE
HAVE NUCLEAR-POWERED,
NUCLEAR-FUELED POWER FACILITIES
IN THE STATE OF FLORIDA, SO YOU
WOULD ASK US TO HOLD THAT EVEN
THOUGH ONE OF THOSE OPERATORS
LEFT ALL THE DOORS OPEN, DID NOT
STORE PROPERLY, WHATEVER THE
STANDARDS ARE ACCORDING TO THAT
KIND OF MATERIAL, AND SOMEONE
WALKS IN AND REMOVES RADIOACTIVE
MATERIAL AND TAKES IT OUT INTO
THE COMMUNITY, THERE WAS NO DUTY
ON THE PART OF THE OPERATOR OF
THAT POWER PLANT TO REASONABLY
PROTECT WHATEVER THE STANDARDS
ARE, AND THAT'S FAIR TO THEM,
HAD NO DUTY WHATSOEVER TO
SOMEONE THAT'S INJURED BY THAT
RADIOACTIVE MATERIAL EVEN THOUGH
WE KNOW THAT IT'S DANGEROUS, AND
WE ASSUME FOR THE PURPOSES OF
THE COMPLAINT BECAUSE IT'S
ALLEGED THAT THERE'S IMPROPER
STORAGE, ACCESS, THOSE KINDS OF
THINGS.
AT THE TOP OF THE THIRD PAGE IS
WHERE THOSE ARE ALL CONTAINED ON
THE COMPLAINT, SO THERE'S NO
DUTY IN FLORIDA?
>> YOUR HONOR, I DON'T KNOW IF
THERE ARE STATUTES --
>> JUST COMMON LAW DUTY.
>> THE TRADITIONAL COMMON LAW
RULE IS THERE IS -- JUSTICE
WELLS' QUESTION OF WHO THE DUTY
IS OWED TO.
IN YOUR HYPOTHETICAL I DON'T
KNOW WHETHER THE PERSON WHO TOOK
THE MATERIAL OUT OF THE FACILITY
HAD SOME RELATIONSHIP --
>> DOES THAT MAKE A DIFFERENCE?
>> IT DOES UNDER THE TRADITIONAL
ANALYSIS --
>> IF HE TAKES IT?
>> I'M SORRY, YOUR HONOR?
>> IF THE FACILITY IS JUST
TOTALLY NEGLIGENT, IT MAKES A
DIFFERENT --
>> THE FACILITY HAS A
RELATIONSHIP WITH THE PEOPLE
THAT WORK FOR IT.
IT HAS THE ABILITY AND
RESPONSIBILITY TO CONTROL THEIR
CONDUCT.
BUT, AGAIN, THERE'S NO
RELATIONSHIP OF ANY KIND ALLEGED
BETWEEN EITHER OF THE DEFENDANTS
AND EITHER THE PERPETRATOR OR
THE VICTIM, SO THAT RAISES THE
QUESTION JUSTICE WELLS ASKED OF
WHO IS THE DUTY OWED TO?
THERE'S NO WAY AROUND THE
CONCLUSION, THE DUTY IS OWED TO
THE ENTIRE WORLD.
THERE'S NO PRECEDENT FOR HOLDING
A DUTY OWED TO THE ENTIRE WORLD
IN A CONTEXT OF THIRD-PARTY
CRIMINAL CONDUCT.
>> THANK YOU VERY MUCH.
>> YOUR HONOR, THERE ARE TWO
FACTUAL ISSUES I'D LIKE TO
CORRECT THE RECORD ON VERY
BRIEFLY.
THANK YOU VERY MUCH.
THE FIRST IS THE SUGGESTION THAT
THE MATERIALS AT FORT DIETRICH
WERE PART OF SOME KIND OF --
>> THAT'S BEYOND WHERE WE ARE.
>> I JUST WOULDN'T WANT YOUR
HONORS -- [INAUDIBLE]
>> WE'RE LOOKING AT FOUNDATIONAL
LAW, NOT ALL THE FACTS OF THE
CASE.
SO WE DON'T REALLY NEED TO GO
THERE.
WE WON'T GO INTO THOSE.
>> OKAY, THANK YOU.
THE SECOND FACT THAT THE
PLAINTIFF DOES THINK, IF I MAY
VERY BRIEFLY ADDRESS THIS MEMO
ATTACHED TO THE COMPLAINT FROM
1992 THAT SAYS FROM SOMEONE AT
FORT DIETRICH THAT SAYS THEY'RE
MISSING EM BLOCKS.
EM BLOCKS ARE ELECTRON
MICROSCOPE SLIDES --
>> HAS THIS ALL BEEN DEVELOPED
IN THE RECORD?
>> NO, BUT THE PLAINTIFF PUT
THAT MEMO IN THE RECORD.
>> THANK YOU VERY MUCH.
>> THAT'S WHAT EM BLOCKS ARE.
>> THANK YOU VERY MUCH.
WE'LL TAKE THIS CASE UNDER
ADVISEMENT, WE THANK BOTH
PARTIES FOR WELL-ARTICULATED
POSITIONS, AND WE'LL TAKE THE
CASE UNDER ADVISEMENT.