AIDS Poses Question of Who’s Liable for Infection

For a litigious society that ranks AIDS among its most dreaded enemies, the question has painful relevance: Is an AIDS victim who is aware of his deadly illness legally liable if he fails to warn a sex partner?

Yes, answers Marvin M. Mitchelson, who previously gave the legal world the word palimony and who now appears poised to break new ground in representing the man who was Rock Hudson’s lover for the last year of the actor’s life.

“I believe if an AIDS victim doesn’t warn a sex partner, he is civilly liable and criminally liable,” said Mitchelson, adding that nearly half the states have criminal liability laws involving persons who knowingly transmit contagious diseases.

Mitchelson recently filed a $10-million lawsuit on behalf of Hudson’s former lover, Marc Christian, 32, against Hudson’s estate, which is estimated to be worth $30 million.

“We allege that in June of 1984 Hudson was told he had AIDS and was sharing his bed with Christian,” Mitchelson said in an interview. “Rock failed to tell Marc about the disease but continued to have sex with him for eight or nine months.

Blamed on Anorexia

“On two specific occasions Marc asked Rock if he had AIDS and Rock denied it, saying his weight loss was due to anorexia and that he was losing weight on purpose.”

Mitchelson, who represented Michelle Triola in her partly successful palimony suit against actor Lee Marvin in 1979, predicted there will be other cases like Christian’s.

The suit, believed the first of its kind, names the actor’s business manager, Wally Sheft, longtime secretary Mark Miller, and two doctors not yet identified for conspiring to keep knowledge of Hudson’s disease from Christian.

“We know Hudson was aware he had AIDS,” said Mitchelson, adding that he has a witness, a nurse on the set of the TV series “Dynasty,” who treated him for open sores during filming.

Those named in the suit, according to Mitchelson, knew Hudson suffered AIDS and conspired not to divulge the information to Christian.

“One of the doctors said the news would be devastating to Marc,” Mitchelson said. “So Marc innocently continued his relationship with Rock.

5-Year Incubation

“Eventually, Miller and Sheft helped Marc get to a Paris hospital to be monitored for AIDS. The test was negative at the moment, but the disease can incubate for five years.

“Hopefully, Marc hasn’t contracted AIDS, but the emotional and mental distress is what counts in this suit. Marc is keeping a deathwatch. He could wake up any day with AIDS. He has nightmares about it all the time.”

Mitchelson believes that “there could be thousands of men and women out there in the same boat with Marc Christian.

“Like killer bees, we have killer humans walking around who can spread a deadly disease to everyone else. We may even have to think of quarantine.”

The state of Texas already has.

The state Board of Health has tentatively approved a rule adding AIDS to the list of quarantinable diseases. It is aimed at so-called incorrigible AIDS patients--those who say they will continue to have sex--and could allow them to be jailed.

Paul Caruso, a friend and sometimes adversary of Mitchelson, said he doubts that the case against the Hudson estate has much of a future.

“I think this case is largely illusory,” Caruso said. “It would be different if Christian had AIDS, which would change his life expectancy. I think Christian has a long way to travel.

“It’s the story of a kid who slept with Hudson and who is afraid he might get AIDS.

“I don’t think there should be a law requiring people to announce they have AIDS. A man isn’t under oath to tell a girl he’s married when he goes to bed with her. Caveat emptor-- let the buyer beware. Nobody put a gun to Christian’s back.”

Caruso said 99% of the cases like the Christian suit will never see the inside of a courtroom.

“After the initial splash of publicity,” Caruso said, “there’s a long road ahead to get to court, including depositions of litigants, expert witnesses and doctors who charge from $1,000 to $10,000 a day to testify.”

Mitchelson concedes that if an individual doesn’t know he has the disease and gives it to a sex partner, there is no basis for a lawsuit.

He said that although he is breaking new ground, there is pending in New York a similar case involving a suit against a man who allegedly knew he had herpes but did not warn his wife. There are also other herpes cases in U.S. courts.

“But herpes isn’t fatal,” Mitchelson said. “If a person has a fatal transmittable disease, it’s like a time bomb and could almost involve criminal liability.”

Caruso said anyone with AIDS has a moral duty to tell a sex partner, “but I’m not at all sure he has the legal responsibility. If Hudson were alive he could be liable--if Christian gets AIDS.”

‘New Legal Wrinkle’

Charles S. Vogel, president of the Los Angeles County Bar Assn., sees the suit against Hudson’s estate as one that could make legal history.

“This is a new legal wrinkle. It could be a precedent-setting case,” he said.

“It appears to me that if someone is a carrier of a virulent disease and knows that he or she is a Typhoid Mary, that person has a duty to not spread it and a duty to inform anyone of the risk involved.”

Vogel predicted that this new legal battlefield will draw people who are “dead broke and looking for something for nothing. The makings are there, especially in Hollywood.

“But most AIDS victims won’t be in a financial position to present their cases adequately.”

Robert S. Schlifkin, a trustee of the Los Angeles County Bar Assn. and president-elect of the Los Angeles Trial Lawyers Assn., said there are existing laws that cover liability for spreading communicable diseases.

“There are cases that indicate if you are specifically asked and know that you have a communicable disease--and you deny it--you can be liable,” Schlifkin said.

Schlifkin said a new law might be created if Christian wins the case and is able to prove Hudson knew he had AIDS and denied it.

The debate sparked by the Christian suit comes at a time when the legal community is tooling up to deal with anticipated AIDS cases in the years ahead.

In March, 1986, a three-day legal seminar will be held in Chicago to examine complex legal questions dealing with blood tests, employee hiring practices, family responsibilities, victim liability and medical ethics.

Sympathy a Question

Attorney Larry R. Feldman, former president of the Los Angeles Trial Lawyers Assn., said it is now legal to submit a claim against someone who knows they have the disease and fails to disclose it.

Technically, such a claim could be stated, Feldman said. “But there is a practical question whether juries will be sympathetic to homosexual victims.

“I don’t think Christian will get $10 million. I don’t think a jury would be sympathetic to someone trying to get money from Hudson’s estate under these circumstances.

Mitchelson countered: “If I win this case, a lot of people will complain that their bedrooms will be invaded and their right of privacy is lost.

“But the important thing is that the public will discover the bedroom is no more sanctified than an automobile when it comes to liability. An AIDS victim can commit murder in a bedroom.”