                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 03-2166



JANE DOE,

                                                Plaintiff - Appellant,

            versus


PHARMACIA & UPJOHN, INCORPORATED,

                                                 Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
03-702-PJM)


Argued:   October 28, 2004                  Decided:   February 4, 2005


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Order of certification of questions of law to the Court of Appeals
of Maryland.


ARGUED: Stephen Bennett Mercer, SANDLER & MERCER, P.C., Rockville,
Maryland, for Appellant. Stephen Edward Marshall, VENABLE, L.L.P.,
Baltimore, Maryland, for Appellee.     ON BRIEF: Paul F. Strain,
Mitchell Y. Mirviss, Mark D. Maneche, VENABLE, L.L.P., Baltimore,
Maryland, for Appellee.
PER CURIAM:

     Jane Doe appeals from the dismissal of her amended complaint

for failure to state a claim upon which relief can be granted.1

See Fed. R. Civ. P. 12(b)(6).   In her amended complaint, Jane Doe

alleges   generally   that   John    Doe   contracted   the   human

immunodeficiency virus (“HIV”) while he was employed by Pharmacia

& Upjohn, Incorporated (“Pharmacia”) as a laboratory technician at

Pharmacia’s Montgomery County, Maryland, viral production facility;

that Pharmacia negligently tested and informed John Doe that he did

not have HIV; and that she subsequently contracted HIV from John

Doe through unprotected marital relations.     The district court

dismissed the amended complaint, which (for our purposes) is

grounded in Maryland negligence law, based on its conclusion that

Pharmacia did not owe a legal duty of care to Jane Doe.

     Pursuant to Maryland Code Ann., Cts. & Jud. Proc. §§ 12-605

and 12-606, we now certify the following questions of Maryland law

to the Court of Appeals of Maryland:

     (1) For purposes of a negligence cause of action, does a
     commercial manufacturer of two strains of HIV (“HIV-1"
     and “HIV-2"), which conducts blood tests on its employees
     who have been exposed to HIV while on the job, and which
     manufactures test kits for HIV-1, owe a legal duty to its
     employees’ spouses to exercise reasonable care in
     conducting testing, including testing for both strains of
     the virus?



     1
      The district court authorized Jane Doe to proceed under a
fictitious name.   We refer to Jane Doe’s husband, who is not a
party to this litigation, as “John Doe.”

                                 2
     (2) For purposes of a negligence or negligent
     misrepresentation cause of action, does a commercial
     manufacturer of two strains of HIV (“HIV-1" and “HIV-2"),
     which conducts blood tests of its employees who have been
     exposed to HIV while on the job, owe a legal duty to its
     employees’ spouses to exercise reasonable care in
     informing the employees of the nature of the test
     results, including the fact that a “false positive” test
     result for HIV-1 may indicate an HIV-2 infection?

The answers to these questions, which are potentially determinative

of this appeal, do not appear to be directly controlled by any

Maryland appellate decision, constitutional provision, or statute.

We   acknowledge   that   the   Court    of    Appeals   of   Maryland    may

reformulate   these    questions.       We    also   emphasize   that    these

questions are premised on the factual allegations of Jane Doe’s

amended complaint which, as explained below, indicate (1) that

Pharmacia was specifically aware of many pertinent facts, including

the identity of Jane Doe as John Doe’s wife and sexual partner and

that the test results could indicate the presence of HIV-2; and (2)

that Pharmacia had the capability to test its employees for both

HIV-1 and HIV-2.

     Counsel of record for Jane Doe is Stephen B. Mercer, Sandler

& Mercer, P.C., 27 West Jefferson Street, Suit 201, Rockville,

Maryland, 20850.      Counsel of record for Pharmacia is Stephen E.

Marshall, Venable Baetjer and Howard LLP, Two Hopkins Plaza, Suite

1800, Baltimore, Maryland, 21201.




                                    3
                                      I

     Jane Doe alleges the following facts in her amended complaint

which, for purposes of this appeal, are not disputed.            See GE Inv.

Private Placement Partners II v. Parker, 247 F.3d 543, 546 (4th

Cir. 2001) (“Because the complaint was dismissed pursuant to Rule

12(b)(6), we assume the facts alleged in the complaint are true”).

     Jane Doe has been married to, and living as husband and wife

with, John Doe since 1971.        (Amended Complaint (“A.C.”) ¶ 1).

Between 1974 and 1991, John Doe was employed by Pharmacia as a

laboratory technician at its Montgomery County, Maryland, viral

production facility.    (A.C., ¶ 4).       Pharmacia cultivated pathogens

at this facility for use in diagnostic test strips manufactured and

sold by Pharmacia and others.     (A.C. ¶ 3).       John Doe’s primary job

responsibilities     included   the       daily   feeding,   growing,    and

harvesting of pathogens for large scale propagation.             (A.C. ¶ 4).

Pharmacia closed this facility in 1991.           (A.C. ¶ 4).

     In 1984, researchers discovered that the primary causative

viral agent of acquired immune deficiency syndrome (“AIDS”) is HIV.

(A.C. ¶ 7).    By 1986, two types of HIV, designated as “HIV-1” and

“HIV-2,” had been discovered.     (A.C. ¶ 7).      The first reported case

of HIV-2 in the United States was in 1987, and there have been few

reported HIV-2 cases in the United States.         (A.C. ¶ 7).    Both HIV-1

and HIV-2 have the same modes of transmission and are associated

with AIDS.    (A.C. ¶ 7).   Compared with persons infected with HIV-1,


                                      4
those with HIV-2 are less infectious early in the course of

infection.       (A.C. ¶ 7).2

      Beginning in 1984, approximately 80% of the viral production

at the Pharmacia facility where John Doe worked was HIV-1 and HIV-

2.   (A.C. ¶ 3).       Pharmacia cultivated and harvested HIV cultures on

a    daily     basis    and   shipped    them    to   another    facility     for

incorporation into a test for HIV antibodies.            (A.C. ¶ 3).      Between

1985 and 1991, John Doe was exposed to high concentrations of HIV-1

and HIV-2 while on the job.          (A.C. ¶ 9).

      At some point around 1985, Pharmacia (through its agent) began

testing its employees, including John Doe, who were exposed to HIV

in the workplace every six months.              (A.C. ¶¶ 11, 12).       Pharmacia

manufactured the test strips that were used in this testing. (A.C.

¶ 11).        Although Pharmacia was aware of the existence of HIV-2,

commercial test kits were not available in the United States to

test for an injurious exposure to HIV-2 before 1991 because of the

statistically insignificant incidence of the virus.                   (A.C. ¶ 7).

Therefore, Pharmacia’s testing was limited to detection of HIV-1.

(A.C.     ¶    10).      However,    Pharmacia    possessed     the    materials,

knowledge, and capability to manufacture its own test strips to

detect HIV-2.         (A.C. ¶ 10).



      2
      In Faya v. Almaraz, 620 A.2d 327 (Md. 1993), the Court of
Appeals of Maryland, finding that a surgeon who had AIDS owed a
duty to his patients to warn them of his condition, took judicial
notice of several facts about HIV and AIDS.

                                         5
     The testing conducted by Pharmacia consisted of a two-part

protocol whereby an initial screen (the Elisa test) would, if

positive, be followed by a confirmatory test (the Western Blot) for

HIV-1.   (A.C. ¶ 11).   By 1989, Pharmacia was aware that the HIV

tests being used would detect core proteins present in both HIV-1

and HIV-2, and that while the HIV-2 proteins (among other factors)

could cause a positive result on the Elisa test, the Western blot

test would confirm only the presence of HIV-1.   (A.C. ¶ 13).   Thus,

as of 1989, a person infected with HIV-2 could test positive on the

Elisa test but negative on the Western blot test.      (A.C. ¶ 14).

This type of result was considered to be a “false positive” for

HIV-1.   (A.C. ¶ 14).

     John Doe consistently tested negative until 1989, when he

received a positive result on the Elisa test.     (A.C. ¶¶ 11, 22).

John Doe was retested, and the result was negative.    (A.C. ¶ 22).

John Doe’s subsequent tests were negative.   (A.C. ¶ 22).

     Pharmacia did not counsel or warn either John Doe, Jane Doe,

or its testing agent about the potential negative ramifications of

a “false positive” test.    (A.C. ¶¶ 15, 16, 18, 19).       However,

Pharmacia (and/or its agent) did tell John Doe after the “false

positive” test that the Western Blot test failed to confirm the

presence of HIV-1; that the test result could have been caused by

factors unrelated to exposure to HIV; that the test result did not

indicate that he was infected with the virus that causes AIDS; and


                                6
that the test result did not indicate a significant risk to his

health.      (A.C. ¶ 27).    Neither Jane Doe nor John Doe was aware that

a “false positive” test could indicate an HIV-2 infection.         (A.C.

¶¶ 20, 21).

       In October 2000, John Doe was admitted to the hospital where

he was found to be suffering from multiple AIDS-like conditions.

(A.C. ¶ 5).      Although John Doe tested negative for HIV-1, he tested

positive for HIV-2 and was diagnosed as having AIDS.         (A.C. ¶ 5).

John Doe became infected with HIV-2 while handling the virus as a

Pharmacia employee.         (A.C. ¶ 6).3

       Upon learning that he was infected with HIV-2, John Doe

immediately informed Jane Doe. (A.C. ¶ 29). Subsequent testing of

Jane Doe revealed that she also is infected with HIV-2.          (A.C. ¶

29).       Jane Doe was John Doe’s only sexual partner and was known as

such by Pharmacia.          (A.C. ¶ 30).   Jane Doe became infected with

HIV-2 because of unprotected marital relations with John Doe.

(A.C. ¶ 30).         The Does would not have engaged in unprotected

marital relations had they been aware that John Doe was infected

with HIV-2.       (A.C. ¶ 29).

       Pharmacia was aware at times pertinent to this case that HIV-2

was a pathogen that could have significant consequences, including



       3
      Jane Doe attached to the amended complaint a report from her
medical expert who opines within a reasonable degree of scientific
certainty that John Doe became infected during the course of his
employment by Pharmacia.

                                       7
death for humans, and that it could be transmitted by sexual

contact and exchange of body fluids.          (A.C. ¶ 32).     Pharmacia also

knew that the spread of HIV-2 between sexual partners could be

effectively prevented through behavior modification and the use of

barrier devices.     (A.C. ¶ 33).       Pharmacia also learned, subsequent

to the conclusion of John Doe’s employment, that at least one co-

worker   of   John   Doe’s   at   the    Montgomery   County    facility   had

unexpectedly become infected with one or more lethal pathogens that

had been propagated in that facility; however, despite having this

knowledge, Pharmacia did not warn the Does of any danger.             (A.C. ¶

41).

                                        II

       Jane Doe filed this action in Maryland state court.             After

Pharmacia removed this case from state court and moved to dismiss

pursuant to Rule 12(b)(6), Jane Doe filed an amended complaint with

nine causes of action. Pharmacia then moved to dismiss the amended

complaint.     Following briefing on the motion to dismiss, the

district court conducted oral argument.          At the conclusion of the

hearing, the district court orally granted the motion and dismissed

the case. The district court subsequently denied Jane Doe’s motion

for reconsideration.




                                        8
     This appeal involves only five of Jane Doe’s causes of action,

all of which sound in negligence.4   Specifically, Jane Doe asserts

in these five causes of action claims for negligent operation of an

HIV production facility (Count I); negligent failure to rule out an

HIV-2 infection (Count II); negligent failure to test for HIV-2

(Count III); negligent failure to warn of cross reactivity (Count

V); and negligent misrepresentation (Count IX).   Jane Doe asserts

that Pharmacia breached a duty of care to her -- as a person known

to Pharmacia to be at risk of contracting HIV-2 from John Doe -- by

“failing to rule out that John Doe had been injuriously exposed to

HIV-2 at [Pharmacia’s] production facility” (Count II); by “failing

to test . . . John Doe for HIV-2 where John Doe was exposed to HIV-

2 at [Pharmacia’s] production facility” (Count III); by “failing to

warn John Doe . . . that HIV-2 would produce a ‘false positive’

HIV-1 test result” (Count V); and by “negligently misrepresenting

to John Doe that his ‘false positive’ test result for HIV-1 did not

indicate the presence of the virus that causes AIDS and did not

indicate a significant health risk.”5    Jane Doe alleges that she

became infected with HIV-2 (through unprotected marital relations




     4
      Jane Doe withdrew three causes of action (Counts IV, VI, and
VII) in the district court, and she has not appealed the dismissal
of another cause of action (Count VIII).
     5
      In Count I, Jane Doe does not assert a specific duty owed by
Pharmacia to her.    Rather, Jane Doe’s allegations relate more
generally to Pharmacia’s alleged duties to its employees.

                                9
with John Doe) as a direct and proximate result of Pharmacia’s

breach of these asserted duties.

       The district court held that each of these claims fails as a

matter of law based on the lack of a legal duty of care owed by

Pharmacia to Jane Doe. The district court specifically relied upon

Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. App. 1998), in

which the plaintiff contended her husband was exposed to asbestos

in his workplace and that she developed asbestosis as a result of

handling his work clothes.         The Maryland Court of Special Appeals

held that the plaintiff’s negligence claim against her husband’s

employer failed as a matter of law because the employer “owed no

duty   to   strangers    based    upon   providing   a   safe   workplace   for

employees.”    Id. at 66.        The district court concluded that Adams

“suggest[s] that the Maryland courts would, if asked to decide this

case, hold that there is no duty that an employer has with regard

to alleged deficient workplace standards to the spouse of an

employee.”    J.A. 74.

       In her motion for reconsideration, Jane Doe argued that the

district court failed to consider another Maryland intermediate

appellate decision, Lemon v. Stewart, 682 A.2d 1177 (Md. App.

1996), which she contends is in conflict with Adams.             In Lemon, the

Court of Special Appeals rejected a medical malpractice claim

brought by extended family members against a physician because he

failed to inform them that his patient -- their relative -- was


                                         10
HIV-positive.     Although the Court of Special Appeals recognized

that the physician had a duty to inform the patient of his

condition, the extended family members could not base their claim

on the breach of that duty.       The Court of Special Appeals did note,

however, that “[h]ad any of the appellants been a sexual or

needle-sharing partner of [the patient], an arguable claim could be

made that they were foreseeably potential victims of any breach of

the duty to [the patient] and ought to have a cause of action for

that breach, to the extent they could prove injury.”             Id. at 1184.

     Because    of     this   purported    conflict,   Jane    Doe   asked   the

district court to certify the case to the Court of Appeals of

Maryland.     The district court found that Lemon -- which involved

duties   to    third    parties   arising     from   the    physician-patient

relationship -- is inapplicable and that the part of the Lemon

opinion relied upon by Jane Doe is dicta.                  The district court

reiterated its holding that this case is controlled by Adams, and

it therefore found certification to the Maryland Court of Appeals

to be inappropriate.

                                     III

     On appeal, Jane Doe contends that the district court erred in

holding under Maryland law that Pharmacia did not owe a duty of

care to her.    Under Maryland law, a necessary element of a cause of

action for both negligence and negligent misrepresentation is that

the defendant owed a legal duty of care to the plaintiff.               Patton


                                      11
v. United States of America Rugby Football, 851 A.2d 566, 570 (Md.

2004)   (negligence);        Law    v.    International      Union    of    Operating

Engineers Local No. 37, 818 A.2d 1136, 1145 (Md. 2003) (negligent

misrepresentation).

     A legal duty is “an obligation, to which the law will give

recognition and effect, to conform to a particular standard of

conduct    toward    another.”           Patton,   851    A.2d   at   571   (internal

quotation marks omitted).             The existence of a legal duty is a

question of law to be decided by the court, and in deciding whether

a legal duty exists courts must consider a variety of factors

including the foreseeability of harm to the plaintiff; the degree

of certainty that the plaintiff suffered the injury; the closeness

of the connection between the defendant’s conduct and the injury

suffered; the moral blame attached to the defendant’s conduct; the

policy of preventing future harm; the extent of the burden to the

defendant and consequences to the community of imposing a duty to

exercise    care     with    resulting      liability      for   breach;     and   the

availability,       cost    and    prevalence      of    insurance    for   the    risk

involved.    Id. at 570-71.          “The determination of whether a duty

exists under Maryland law is the ultimate function of various

policy considerations as adopted by either the Legislature, or, if

it has not spoken, . . . by Maryland courts.”                    Grimes v. Kennedy

Krieger Institute, Inc., 782 A.2d 807, 850 (Md. 2001).




                                           12
     No Maryland appellate decision, constitutional provision, or

statute appears to address the precise questions presented in this

case.6   The answers to the certified questions are potentially

determinative of this appeal because Jane Doe’s claims, sounding in

negligence, may go forward only if Pharmacia owed her a legal duty.

Therefore, the questions are properly subject to review by the

Court of Appeals of Maryland on certification.

                                IV

     Accordingly, pursuant to the privilege made available by the

Maryland Uniform Certification of Questions of Law Act, we hereby

ORDER: (1) that the questions stated above be certified to the

Court of Appeals of Maryland for answer; (2) that the Clerk of this

Court forward to the Court of Appeals of Maryland, under the

official seal of this Court, a copy of this Order, together with

the original or copies of the record before this Court to the

extent requested by the Court of Appeals of Maryland; and (3) that

the Clerk of this Court fulfill any request for all or part of the

record simply upon notification from the Clerk of the Court of

Appeals of Maryland.

                                                 QUESTIONS CERTIFIED



     6
      Pharmacia contends that the recent decision in Dehn v.
Edgecombe, No. 117, 2005 Westlaw 77094 (Md. Jan. 14, 2005),
dictates that it did not owe a legal duty to Jane Doe. However,
because the facts and circumstances of Dehn are distinguishable
from the facts of this case, we are not convinced that Dehn is
controlling.

                                13
