LAST MONTH, FOLLOWING a lengthy set of legal skirmishes including an appeal to the U.S. Supreme Court, a federal appellate judge barred hundreds of HIV-infected hemophiliacs from filing a class-action suit against companies accused of marketing tainted blood products. The plaintiffs may still file separately, but many of them could be dead by the time a lawsuit made its way through the courts.
The class action, originally filed in September 1993, alleged that four companies (Alpha, Armour--owned by Rhone-Poulenc Rorer--Baxter/Hyland, and Miles/Cutter) downplayed the risks of contamination by anonymous donors and didn't adequately screen blood by-products for HIV. It was certified in August 1994, but then in March 1995 a federal judge named Richard Posner ruled that the plaintiffs couldn't file together, claiming such an act would force the companies into bankruptcy.
There were appeals, but on January 16 Posner's ruling was upheld when the Supreme Court refused to hear the case. Part of the reason filing in a class-action format was so important, says Philadelphia attorney Cynthia Banks, who worked on the case, was to maintain confidentiality. "Many individuals are afraid to come forward and reveal their HIV status," she says.
Now, beyond their own health and longevity, potential plaintiffs must contend with statutes of limitations that vary from state to state. "Most plaintiffs have one to three years after diagnosis to file a claim," says Banks. "For some, the time is lost." There may be a loophole, albeit an ironic one: Since the courts treat HIV and AIDS as separate diseases, an individual with a recent onset of AIDS could still file, despite having been HIV-positive for years.