by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
Funny how officials repeat how hard it is to get Ebola, that the NYC doctor did all the right things, that you can’t catch it when there aren’t symptoms, so there’s no need to sanitize the subway because there’s essentially no risk. New York’s health commissioner at the first press conference related that the doctor at issue kind of self-quarantined, but not really...
One online commenter said:
“Self quarantine is useless unless one is symptomatic. the moment he became symptomatic, he notified health officials. this man was never a risk to the public from a logically sound, well thought out and rationed scientific standpoint at least. From a fear based standpoint, he was terrifying.” 
-- But --
They’re sanitizing the bowling alley where he bowled, have a HazMat truck parked outside his Hamilton Heights apartment building, sealed off his apartment, are glad he didn’t go to work at the hospital since his return, which is their rule, are tracing EVERY place he went on his Metrocard, his fiancée was hospitalized and being monitored, and quarantined his 2 friends who had the most contact with him, handed out “Ebola – Am I at risk?” flyers in his neighborhood, consulted Ron Klain, Ebola czar appointed by Pres. Obama, a special CDC team is coming to New York , officials are unleashing their medical detectives to trace every person he had contact with, but ... no need to worry?!
So, which one is it? You can’t have it both ways.
You know what’s wrong with sort-of reassurance? It doesn’t really work, especially in situations which may have a low risk of injury (hard to become injured), but high risk of harm (easy to die or at least, suffer badly), as is the case with Ebola: hard to get, hard to survive (about 50/50).
Dr. Mary Travis Bassett, New York City's health commissioner said: “Chances of anyone contracting the virus from contact with him are ‘close to nil.’" You know what the difference is between nil and close to nil? Or between “nothing” and “almost nothing”? Like being a little pregnant vs. not pregnant.
A number of people wonder why such a knowledgeable person didn’t just bite the bullet and take one for the team and just stay home for 3 weeks, rather than do part of the NYC marathon, covering two boroughs (after stopping in two countries en route home to the U.S. from Guinea)? Especially considering the potential harm to others, is that really a big ask? Doubt it. Yes, it must be inconvenient and boring, but compared to the millions of residents and tourists in NYC who were not interested in potentially coming in contact with his bodily fluids, anger and anxiety are likely to replace compassion and sympathy for the good doctor. The only way they’d believe that there is no risk is if he did not crisscross the city. Period. As some comments reflect:
- “In Africa, Ebola spreads through ignorance. Their customs, their traditions all help the spread. In the U.S, it will spread through Stupidity. People who know better, but just don't care or think they are impervious.”
- “Stupidity, and in this case, narcissism.”
- “No, but a physician should know the risk associated with treating Ebola patients and then travelling across the world, possibly carrying the virus, and exposing it to others. That's just common sense.”
Ask anyone how they might come in contact with his bodily fluids and you’ll run out of time before you run out of answers. Add to that, that the “experts” are uncertain about precisely whether some people get fever and how much or how soon in relation to a viral load, the exact moment someone may have become contagious, and on and on, till you can work yourself up into a froth of worry. While running a 3-mile jog along Riverside Drive, someone might just sweat a little. If someone pays by credit card, how many points of contact with their sweat might there be? The pen supplied by the vendor, the credit card itself, the leather folder? If someone uses the shoes and bowling balls at a bowling alley? If someone drinks from a coffee cup in Chelsea? If someone holds onto a pole on the A train? If someone sneezes?! If someone uses a fork at the meatball restaurant in the Village? If someone brushes their teeth, then touches their face? If there’s an eyelash to wipe away? If someone cleared the cup and dishes and silverware he used?
What will happen to those people and things he had contact with, such as the Uber driver, or at the bowling alley, the café, the eatery, the subway? How many people will want to get into that car, or bowl at that place, or eat or drink at those places? Or take the subway.
Online comments by ordinary people give us a peak into the kinds of things on people’s minds. On one hand, we have the calm, rational folks who say that there is no reason for someone without symptoms to be quarantined until/unless they have symptoms, which is what happened here, so there’s nothing to worry about now. On the other, we see this response:
- “Why aren't healthcare workers from Ebola-stricken areas quarantined for 21 days before being allowed to travel?” [Barkway]
When I was growing up in Brooklyn, N.Y., “Bellevue” was where “crazy people” were sent. Now, it is the go-to place for treating Ebola. Funny, how things change. Also funny are the facts. More New Yorkers will risk getting tuberculosis, the flu, and other airborne diseases which they are much more likely to encounter than Ebola, but fear them less because those involve high risk of injury, but a lower risk of harm. And, they are more familiar and less exotic. They aren’t diseases from “over there” that happen to “other people,” like Ebola.
Fast forward (say 21 days or so from Oct. 23rd), and, if someone in New York (who does not know the good doctor, or who was not involved in the heroic attempt to contain Ebola in west Africa) gets Ebola, what will the caption on the legal Complaint look like? How many Plaintiffs and how many defendants might it include?
Say no one gets sick (hopefully), but only the mayor, the governor or others in the PR campaign to reassure New Yorkers, sort of, decide they’d rather not bowl at Gutters in Williamsburg, nor have coffee at the Blue Bottle coffee stand at High Line Park in Chelsea, nor eat at the Meatball Shop in the west village, nor take the A, 1 or L trains, who will pay?
My guess is that the owners of these entities may face a battle for business interruption, loss of business, the cost of cleaning up and investing in overcoming their losses and other issues they may face.
Who might be liable? Can plaintiffs establish proximate cause with the patronage of the doctor? If so, is he or Doctors Without Borders or others potentially liable? Who else may be?
Established “experts,” including the CDC, issue changing protocols, so who can say whether someone has followed the rules or whether the rules which keep changing are sufficient? If not, I see a lawsuit in the making. As far as we know, the doctor followed the existing “rules” and did nothing wrong, but if someone else gets sick in the next 21 days, that won’t be enough.
Of course, most of all, we all wish the good doctor, who is clearly a humanitarian, a full and speedy recovery and we appreciate his noble efforts dedicated to heal others in need. We also wish he had used Netflix and ordered in instead of what he did... and it would no doubt cost a lot less to all concerned.
The good news? The “experts” say that a hard surface that had contact with the virus only poses a risk of transmission for about 2-4 hours after the infected contact, so if -- before you take a subway or ride in an Uber car, or go bowling, drink or eat, you read this blog and peruse some of our other articles v-e-r-y s-l-o-w-l-y, you will hopefully be, almost completely, just about 100% ... safe.
Other articles from A2L Consulting focused on likability, trust and psychology:
- Like It or Not: Likeability Counts for Credibility in the Courtroom
- 5 Things Every Jury Needs From You
- 10 Things Every Mock Jury Ever Has Said
- 10 Signs the Pressure is Getting to You and What to Do About It
- 7 Videos About Body Language Our Litigation Consultants Recommend
- Storytelling at Trial - Will Your Story Be Used?
- Are Jurors on Your “Team”? Using Group Membership to Influence
 marktopherAlex at http://www.cnn.com/2014/10/24/health/new-york-ebola timeline/index.html
 Seanem44 PoohBearJoey, op cit 1.
 MonkeyProud Seanem44, ibid.
 Zoidberg, ibid.