You are on page 1of 21

VIRGINIA:

IN THE CIRCUIT COURT OF STAFFORD COUNTY CHRISTY L. JENKS Plaintiff, v. WELBURN ASSOCIATES Defendant.
* * * * *

At Law No.: CL05-000008-00

DEFENDANT WELBURN ASSOCIATES MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT I. PRELIMINARY STATEMENT Defendant Welburn by counsel, hereby submits this Memorandum of Points and Authorities in Support of Defendants Motion for Summary Judgment and pursuant to Rule 3:20 of the Rules of the Supreme Court of Virginia, and moves this Honorable Court for summary judgment against the Plaintiff. Welburns Motion for Summary Judgment should be granted because Plaintiffs Motion for Judgment (MFJ) fails to allege compensable injury. Plaintiff, in her Motion for Judgment, asserts two causes of action: negligence (Count I) (MFJ 6-8), and negligent infliction of emotional distress (Count II) (MFJ 9). Plaintiff's negligence and emotional distress claims must both be dismissed for failure to state a claim under Virginia law as both claims fail due to failure to allege compensable injury. II. STATEMENT OF ALLEGATIONS

Plaintiff alleges that on or about January 20, 2004, she was at the premise owned and operated by Defendant, Welburn Associates (Welburn) where she purchased breakfast and she was stuck by a dirty needle provided by Defendant restaurant. The needle stick was from a used diabetic needle left by another patron. Plaintiff alleges that she did not see the needle until she picked up something from the tray and was pricked by the needle. (MFJ 4). Mr. John Rong was later identified as the individual who allegedly left the used diabetic testing needle on the tray at McDonalds See Plaintiffs Answers to Defendants First Set of Interrogatories no. 19 attached hereto as Exhibit A. Plaintiff alleges that the food was put on top of the needle of a dirty tray, and that the needle was on the tray prior to Plaintiffs food being placed on the tray. The video surveillance tape allegedly showed a customer, John Rong, at the ordering counter picking up his order from the tray on the counter and leaving the tray on the counter. Plaintiffs order was placed on that tray, where Mr. Rong had, unbeknownst to anyone at the time, allegedly left a used diabetic testing needle. Plaintiffs food items were then placed on the same tray where Mr. Rong had left the top of the needle. (Plaintiffs Answers to Defendants First Set of Interrogatories no. 25). As a result, plaintiff alleges that she received a tetanus shot, a hepatitis B vaccine and continues to be monitored for disease. (MFJ 5). Plaintiff alleges that Welburn, as owner and operator of the restaurant, owed a duty of care to all invitees to keep said premises safe from dangerous conditions and hazards of which they knew or should have known, and that Defendant was careless and negligent in permitting a used diabetic needle to be on customers tray. (MFJ 6 and 7). The complaint also states that Defendant was careless and negligent in serving Plaintiffs food on an unwashed, previously used food tray. (MFJ 8). As a result of the needle stick

Plaintiff claims she suffered bodily injury and great mental anguish, worry and concern, loss of the capacity for enjoyment of life, and expense of treatment. (MFJ 9). Plaintiff states in Plaintiffs Answers to Defendants First Set of Interrogatories no. 11 that because of the incident she had to use condoms for safe sex with her husband during six months of immunization and preventive measures for HIV and Hepatitis B testing. She states that she was treated with respect to the incident by Henry Yoo, MD of Mary Washington Hospital, Thomas Ryder, MD and Deborah Lanius MD of the Naval Medical Clinic. The expenses she incurred are $231.20 from Mary Washington Hospital and $157.00 from Fredericksburg Emergency Medical Associates, for a total of $388.20. (Plaintiffs Answers to Defendants First Set of Interrogatories no. 16 and no. 17). See also Plaintiffs Medical Bills, from Plaintiffs Responses to Defendants First Production of Documents to Plaintiff attached hereto as Exhibit C. Plaintiff states that she and her husband entered the Defendants restaurant on the day in question at approximately 9:00 in the morning. Her husband brought the food to the table and went to get straws. Plaintiff alleges that her finger got pricked by the needle and they left the restaurant at 9:45 am to seek medical attention at Mary Washington Hospital in Fredericksburg. (Plaintiffs Answers to Defendants First Set of Interrogatories no. 20). Plaintiff alleges that a diabetic testing needle about 1 in length was on her tray of food under her hash browns. A photograph of the alleged needle from Plaintiffs Responses to Defendants First Production of Documents to Plaintiff attached hereto as Exhibit B. Plaintiff states that when she reached for the pepper she felt a prick. She looked at her finger where a dot of blood was visible, she lifted the hasbrowns to find the needle. (Plaintiffs Answers to Defendants First Set of Interrogatories no.

21). The incident was reported to the restaurant manger who put the needle in a small plastic container so that Plaintiff could have it tested at the hospital. (Plaintiffs Answers to Defendants First Set of Interrogatories no. 22). Plaintiffs medical records show that she went to the Emergency Room the day of the incident and that diagnostic studies were ordered. The employee health needle puncture laboratory study was ordered after Dr. Yoo had consulted with Dr. Chang from infectious disease. (Plaintiffs Responses to Defendants First Production of Documents attached hereto as Exhibit D). The results were provided by Plaintiff (attached hereto as Exhibit E). Plaintiff was provided aftercare instructions after her January 20, 2004

visit. The instructions read: General Information: A dirty needle stick involves being stuck with a needle which came previously into contact with a patient or with one of more of the patients body fluids. The main risks are infection with skin bacteria or with some communicable disease of the patient. Two of the most serious consequences of this type of accident are the acquisition of hepatitis or of an HIV infection from the source patient. If you have recently been vaccinated against hepatitis B (the Heptavex series), it is very unlikely that you will contract hepatitis B, even if the source patient has it. An added measure of protection against hepatitis B is an intramuscular injection of hepatitis B immune globulin (HBIG), which can be administered after the dirty needle stick. Neither of these, however, is protective against hepatitis C or hepatitis A. The risk of contracting HIV, even after a deep stick with a needle from a patient with active AIDS, is about 3 in a thousand (0.3%). The risk from other types of source patients is even lower..) See Plaintiffs Responses to Defendants First Production of Documents attached hereto as Exhibit F. The Motion for Judgment was filed January 6, 2005, more than six months after the tests were taken. The Plaintiff alleged in her Motion for Judgment that she continues to be monitored for disease. (MFJ 5). Her final tests were negative, a year after the

incident (attached hereto as Exhibit G). However, according to the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention Report, How HIV Tests Work, the majority of HIV tests use blood to detect HIV infection, though tests using saliva or urine are also available. Some tests take a few days for results, but rapid HIV tests can give results in about 20 minutes. All positive HIV tests must be followed up by another test to confirm the positive result. Results of this confirmatory test can take a few days to a few weeks. See CDC, How HIV Tests Work, available at http://www.cdc.gov/hiv/topics/testing/resources/qa/tests_work.htm (last visited January 8, 2007). 1 The U.S. Department of Health and Human Services, Centers for Disease Control and Prevention also reports: Most HIV tests are antibody tests that measure the antibodies your body makes against HIV. It can take some time for the immune system to produce enough antibodies for the antibody test to detect and this time period can vary from person to person. This time period is commonly referred to as the window period. Most people will develop detectable antibodies within 2 to 8 weeks (the average is 25 days). Even so, there is a chance that some individuals will take longer to develop detectable antibodies. Therefore, if the initial negative HIV test was conducted within the first 3 months after possible exposure, repeat testing should be considered >3 months after the
1

Various cases have taken judicial notice of facts regarding HIV, including that the fluids which transmit it are blood, semen, vaginal fluids, and breast milk, and that the primary modes of transmission include sexual contact, exposure to contaminated blood or blood components, sharing of contaminated intravenous needles, and perinatally from mother to infant. See Pendergist v. Pendergrass, 961 S.W.2d 919, 922 (Mo. Ct. App. 1998); Brzoska v. Olson, 668 A.2d 1355, 1357 n. 1 (Del. 1995). As the Fifth District noted below, a negative test result after six months from the potential exposure to HIV indicates that the person has a 95% probability of not being infected with the virus. Pendergist v. Pendergrass, 961 S.W.2d 919, 926 (Mo. Ct. App. 1998). Compensation beyond that point has been held per se unreasonable even where actual exposure is proved. Pendergist, 961 S.W.2d at 926. If plaintiffs are permitted to recover on such claims, defendants, including the food service industry and the health care industry, would be subject to liability exposures based on peoples incorrect perceptions of their risk of contracting disease. If future defendants are forced to guard against claims based upon plaintiffs medically unsupported perceptions of the risk of contracting disease, the court system would be reinforcing unfounded fears and prejudices, and potential defendants would be forced to make enormous expenditures for insurance. It is sound public policy to leave medically unreasonable fears, even if they are genuine, uncompensated.

exposure occurred to account for the possibility of a falsenegative result. Ninety seven percent will develop antibodies in the first 3 months following the time of their infection. In very rare cases, it can take up to 6 months to develop antibodies to HIV. CDC/NCHSTP - Divisions of HIV/AIDS Prevention, Testing: Information for the General Public, Deciding If and When to Be Tested, available at http://www.cdc.gov/hiv/topics/testing/resources/qa/be_tested.htm (last visited January 8, 2007). III. STANDARD OF REVIEW Pursuant to Rule 3:20 of the Rules of the Supreme Court of Virginia, Defendant moves this Honorable Court for summary judgment against the Plaintiff. A summary judgment motion is proper in cases in which the only dispute concerns a question of law. General Accident Fire & Life Assurance Corp. v. Cohen, 203 Va. 810, 127 S.E.2nd 399 (1962). The rule was adopted to permit trial courts to expedite litigation where it appears that one of the parties is entitled to judgment as a matter of law within the framework of the case. Simpson v. Broadway-Manhattan Taxicab Corp., 203 Va. 892, 128 S.E.2nd 306 (1962). Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To determine which facts are material, a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). The court need not, however, accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations.

IV. ARGUMENT A. Count I (Negligence) Must Be Dismissed Because Plaintiff Has Not Alleged A Compensable Injury. This is a fear of contracting case, where damages for negligent infliction of emotional distress are sought. As a matter of law one cannot, upon being accidentally punctured by a needle, recover for the fear of infectious disease when it is established that the needle was not contaminated, and ones tests for disease all confirm that one is free from disease. In Count I of her Motion for Judgment, Plaintiff alleges that Welburn was responsible that a patron left a diabetic needle on a tray and allegedly placed Plaintiffs food on the tray resulting in her being pricked by the needle. (MFJ 3, 7). In order to state a claim for negligence, Plaintiff must allege (1) the existence of a legal duty; (2) breach of that duty; (3) proximate causation; and (4) compensable damages. See Fox v. Custis, 236 Va. 69, 73 S.E.2d 373 (1988); Goddard v. Protective Life Corp., et al., 82 F. Supp. 2d 545, 551 (E.D. Va. 2000). Here, Plaintiff has failed to allege the existence of compensable damages. Plaintiff alleges that as a result of Welburn's negligence, she suffered bodily injury and great mental anguish, worry and concern, loss of the capacity for the enjoyment of life, and expense of treatment. (MFJ 9). The bodily injury she suffered was a needle stick and the expense of treatment amounts to $388.20, she also alleges emotional disturbance over the possibility of having an infectious disease, when in fact she was never exposed to an infectious disease by the needle stick, and her tests confirm this fact. A needle prick alone is not compensable under the principle of de minimus non curat lex. In Heilman v. Microsoft, an analogous case cited as persuasive

authority, in granting the defendants' motion for summary judgment, the Court ruled that a needle-prick is not a compensable injury in the absence of evidence of exposure to infection. Heilman v. Microsoft Corp. 1999 WL 650810 (Aug. 24, 1999). In Heilman, plaintiff was employed as a busboy at a local hotel. While attempting to clear a patron's table, he was stuck by a needle wrapped in a napkin, which the patron had used to test his blood glucose levels. Heilman has been tested several times since then for HIV, hepatitis B or C, and syphilis. The obliging patron has also been tested. Both individuals have tested negative. Nonetheless, Heilman filed suit seeking damages for the emotional distress he claims to have suffered from the possibility that the needle-stick might have exposed him to a serious disease such as AIDS. Applying the principle of de minimis non curat lex (the law doesn't bother with trifles), the Court ruled that Louisiana courts have consistently required the showing of an actual injury in order to award damages. "The affidavits, depositions, and medical testimony submitted in this matter speak only to the emotional distress suffered by the plaintiff in worrying over whether or not he was exposed to a blood related disease, such as AIDS. There has been no medical testimony submitted to show that the plaintiff was damaged by the prick itself. In this case, the plaintiff merely suffered the pain associated with the prick of a needle, something every person is knowledgeable about from their own life experiences. It is the opinion of this Court that the evidence presented fails to show that a genuine issue of material fact exists regarding damages. There are certain things that we encounter in our everyday lives, that are not considered damage giving rise to a cause of action, a needle prick being one such thing. Had this been a situation where the prick caused an infection, there could have been damage sustained."

Plaintiff alleges, as did the Plaintiff in Heilman, that she suffered emotional distress from the needle stick (MFJ 9). Her conclusory allegations are not sufficient to support a cause of action for negligent infliction of emotional distress in Virginia. See Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (Jan 14, 2000). The plaintiff in Delk failed to plead with specificity that she incurred a physical injury which was the natural result of fright or shock proximately caused by the defendants' alleged negligence, thus her case was dismissed. This principle was also recognized in Hickman v. Laboratory Corp. of America Holdings Inc (VLW 006-3-429) (2006) (no emotional distress for false positive HIV test) and the case of Goddard v. Protective Life Corp., et al., 82 F. Supp. 2d 545 (E.D. Va. 2000), where plaintiffs injuries were ruled insufficient to support a claim under Virginia law. In Goddard, the Court dismissed plaintiff's negligence claim against the laboratory for a false positive HIV test on the ground that he could not prove damages that were compensable under Virginia law. Id. at 555. In so doing, the court stated: Plaintiffs' claim is a bare negligence claim, and the damages alleged are primarily, if not entirely, founded in emotional distress .... Although plaintiffs have alleged that they suffered from headaches and sleeplessness as a consequence of their emotional disturbance, and have put forth evidence that they received treatment and medication with nerve pills, these allegations do not rise to the level of physical injury as contemplated by the Virginia Supreme Court in Myseros v. Sissler, 239 Va. 8, 12, 387 S.E.2d 463 (1990). In Myseros, the court held that clear and convincing evidence of symptoms or manifestations of physical injury which are not merely symptoms of an underlying emotional disturbance is required to support a claim for negligent infliction of emotional distress. Id. For instance, the court found that, to the extent that sweating, dizziness, nausea, difficulty in sleeping and breathing, episodes of chest pain, and weight loss were typical symptoms of emotional disturbance, they did not constitute physical injury sufficient to support a claim for negligent infliction of emotional distress under Virginia law. See id. at 11.

Goddard, 82 F. Supp. 2d at 555-56. The court in Goddard relied heavily on the Supreme Court of Virginia's opinion in Myseros v. Sissler, 239 Va. 8, 387 S.E.2d 463 (1990). In that case, a truck driver was forced into a busy street on foot after the truck he was driving was rear ended. Although the truck driver did not suffer any physical injury in the rear-end accident, or when forced into the street on foot, he claimed that when he reported to work the following week he felt scared and was nervous, sweaty [and] dizzy, and soon thereafter needed psychiatric care for his emotional distress. Id. at 11, 387 S.E.2d at 465. Plaintiff alleged that his disorder was accompanied by sweating, dizziness, nausea, difficulty in sleeping and breathing, constriction of the coronary vessels, two episodes of chest pain, hypertension, unstable angina, an electrocardiogram showing marked ischemia, loss of appetite and weight, change in heart function, and problems with the heart muscle. Id. The Supreme Court of Virginia ruled in favor of the defendant, and held that the plaintiff's symptoms were typical symptoms of an emotional disturbance, for which there can be no recovery ... in the absence of resulting physical injury. Id. at 12, 387 S.E.2d at 466. Similarly, several other jurisdictions have found that needle stick cases do not give rise to a cause of action because there is no compensable injury when there is not actual exposure to a disease causing agent or no physical injury as in Howard. See cases cited in Thomas Delaney, Actual Exposure or Reasonableness? ABA Health Lawyer Magazine (August 2001) available at http://www.akingump.com/docs/publication/441.pdf (last accessed December 27, 2006). The standards governing claims of emotional distress damages for fear of contracting disease from a needle stick or dirty needle vary, but none would award such

10

damages where, as is the case here, there was found to be no actual exposure. Today, a majority of jurisdictions adhere to the actual exposure test with or without proof of an accompanying physical injury.
2

A minority of courts apply a general reasonableness

standard with some variation. Courts also have begun to express a desire to discourage claims based upon public misconceptions about infectious diseases, particularly AIDS, and to counteract the general ignorance and public hysteria about disease and the prejudice against those infected. 3 Courts which have adopted the actual exposure test generally require both the presence of the disease-causing agent, whether a virus, carcinogen or other contamination source, and a scientifically accepted channel in mode of exposure or infection. 4 Some courts consider allowing recovery without proof of exposure as purely speculative. 5 Most courts which require actual exposure to the feared disease also require proof of an accompanying physical injury. In contrast to Myseros, the Supreme Court of Virginia did find resulting physical injury in the case of Howard v. Alexandria Hospital, 245 Va. 346, 429 S.E.2d 22 (1993). Howard was a medical malpractice action in which the plaintiff sought recovery for emotional distress damages for injuries sustained during surgery performed at the hospital with instruments which allegedly were not adequately sterilized. Plaintiff was treated intravenously and given pain shots and frequent blood tests to determine whether she had contracted Hepatitis B, HIV, Staph virus and Tetanus, each of which plaintiff

Madrid v. Lincoln County Medical Center, 121 N.M. 133, 138; 909 P.2d 14 (1995). The California rule, which requires that, absent physical injury, a plaintiff prove that it is more likely than not that he or she will contract the disease, falls within the purview of the actual exposure test. See, Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550 (1993). 3 See Pendergist v. Pendergrass, 961 S.W.2d 919, 926 (1998). 4 See, e.g., John & Jane Roes v. FHD, Inc., 91Haw. 470, 476, 985 P.2d 661 (1999); Falcon v. Our Lady of the Lake Hospital, Inc., 729 So.2d 1169, 1173 (1999); Babich v. Wankesha Memorial Hospital, Inc., 205 Wis.2d 698, 556 N.W.2d 144 (1996). 5 See Rothschild v. Tower Air, Inc., 1995 U.S. Dist. Lexis 2078, 1995 WL 71053 (E.D.Pa. 1995).

11

was told she could develop. The case at bar is distinguishable from Howard because the Plaintiff in Howard developed concurrent bodily injury in response to a reaction to the medication given for her infectious disease prevention treatment. Howard, 245 Va. at 350. While most courts have defined reasonableness in the context of recovering emotional distress damages for fear of contracting an infectious disease in terms of actual exposure or accompanying physical injury, some courts have adhered to a traditional reasonableness standard relying on the totality of the circumstances presented in each case. In these cases, actual exposure and physical injury are mere factors to be considered in determining whether an individual may recover emotional distress damages. In Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (Md. App. 1993), the Maryland Court of Appeals, applied a reasonableness standard, and found that two women, who were operated upon by an AIDS-infected surgeon, stated a claim for emotional distress damages. The surgeon had died of AIDS, and the women learned of this from an article in the local newspaper. They sued the surgeons estate and the hospital for emotional distress damages alleging that they were exposed to HIV by virtue of the operations. The trial court dismissed plaintiffs claims on the grounds that they failed to establish actual exposure since they could not prove that the surgeons blood had entered their bodies. However, the Court of Appeals reversed the judgment and expressly adopted a reasonableness standard for determining whether a plaintiff is entitled to emotional distress damages for fear of AIDS. The Faya court relied heavily on a decision that was later reversed by the state supreme court, Carroll v. Sisters of St. Francis Health Services, Inc., 1992 W.L. 276717 (Tenn. App. 1992), 868 S.W. 2d 584 (Tenn. 1993). Moreover, in

12

Faya, unlike the instant case, there was at least the presence of the virus. Even the Faya court found that continued fear of contracting AIDS becomes unreasonable when a plaintiff does not test positive for HIV within six months after exposure. Id. at 337. Plaintiff has no cause of action for emotional distress from the fear of acquiring an infectious disease when she can not show actual exposure, the needle itself had been found to have been used on a diabetic. Plaintiffs fear is thus unreasonable as a matter of law and not a legally compensable injury. A survey of the "needle stick" cases throughout the United States demonstrates that, without more, a mere showing that a plaintiff was stuck by a used needle is not enough to substantiate a claim based on fear of acquiring AIDS or disease. Plaintiff was allegedly pricked with a used needle, an admittedly medically accepted channel for the transmission of infectious disease. However, she failed totally in satisfying the requirement that (1) the HIV virus was present on the needle, or (2) it was "likely and probable to believe that the virus was present." In fact, discovery revealed that the needle was not contaminated with infectious disease. Consequently, her claim fails as a matter of law. The majority of cases that require for a party to proceed on a negligent infliction of emotional distress claim for fear of contracting disease, a needle-stick, without more, is insufficient support for a claim for negligent infliction of emotional distress.6 The
6

A paramedic was stuck by a needle protruding from a container for disposing of used medical syringes. The court held that, absent any proof that the paramedic was in fact exposed to the AIDS virus, he could not recover in a products liability action for his fear of contracting the disease. Burk v. Sage Products, Inc., 747 F. Supp. 285 (E.D. Pa. 1990). Carroll v. Sisters of Saint Francis Health Services, Inc., 868 S.W. 2d 585 (Tenn. 1993). In Carroll, the plaintiff tested negative for HIV on five occasions over a three year period after the incident. She also admitted that she could not prove that the needles which pricked her were contaminated with HIV. Id. at 586-87. The court explicitly rejected the Faya decision. Consequently, the Carroll court held that, in order to recover emotional damages based on fear of contracting AIDS, the plaintiff must prove, at minimum, that he or she was actually exposed to HIV. In Seimon v. Becton Dickinson & Co., 632 N.E. 2d 603 (Ohio App. 1993), a nurse alleged that she was pricked with a contaminated needle due to the negligent design of a syringe by the manufacturer. However, she failed to produce any evidence that she was, in fact, exposed to the HIV virus. The appellate court affirmed the trial courts summary judgment for the defendant, finding that though a needle puncture caused physical injury,

13

requirement that her fear of AIDS or infectious disease claim requires injury. The injury must be in the form of exposure or likelihood of exposure to disease or, for example, physical or bodily injury from invasive treatment, not just injury from the needle prick itself. Aside from the taking of blood for testing, the plaintiff here was not subjected to invasive medical treatment or the endurance of drugs with toxic or adverse side effects so that she suffered concurrent bodily injury such as in Howard supra. In plaintiff s case, neither the needle prick nor the blood tests she experienced rise to the level of invasive treatment or caustic medication causing concurrent bodily injury contemplated by Hughes and Howard regarding negligent infliction of emotional distress damages. Plaintiffs fear of acquiring AIDS or other infectious disease is simply not compensable, as it is based solely on a speculative fear of obtaining disease from a random used needle that was ultimately shown not to be contaminated. B. Count II (Emotional Distress) Must Be Dismissed Because Plaintiff Has Not Alleged A Compensable Injury. In Virginia, recovery is prohibited for emotional damages resulting from negligence in cases that do not involve a willful, wanton or vindictive act, unless there
it was not the proximate cause of the emotional distress claimed. Id. at 604-05. In Kaufman v. Physical Measurements, Inc., 615 N.Y.S. 2d 508 (A.D. 3 Dept. 1994), a postal clerk was pricked by a hypodermic needle protruding from an envelope. The court ruled that the clerks claim for emotional distress was far too remote and speculative to be compensable as a matter of law. Id. at 509. In Babich v. Waukesha Memorial Hospital, Inc., 556 N.W. 2d 144 (Wis. App. 1996), a patient stuck with a needle that was mistakenly left in her bed linens failed to establish that the needle came from a source contaminated by HIV. She submitted to HIV testing at six months, twelve months, and eighteen months, after which her physician assured her that there was little likelihood that she would ever test positive. Id. at 145. The Wisconsin appellate court concluded that a requirement of proof of exposure to the virus strikes a proper balance between insuring that victims are compensated for their emotional injuries and that potential defendants take reasonable steps to avoid such injuries, while at the same time protecting the courts from being burdened with frivolous suits. Id. at 147. In Murphy v. Abbott Laboratories, 930 F. Supp. 1083 (E.D. Pa. 1996), on the other hand, a nurse who was stuck by a needle used on a patient infected with both HIV and hepatitis B was permitted to recover emotional distress damages. The court found that her alleged emotional injury was a direct result of physical injury from being stuck by a needle that exposed her to AIDS. This case illustrates a case of a reasonable fear of acquiring AIDS based on actual exposure.

14

has been a contemporaneous physical injury. Hickman v. Laboratory of America Holdings, Inc., 2006 WL 3240011 (W.D. Va. 2006). Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (2000). (Psychiatric facility's alleged negligence in connection with alleged assault of patient by another patient infected with human immunodeficiency virus (HIV) and alleged knowledge that patient may have been exposed to HIV did not amount to negligent infliction of emotional distress absent allegation that patient incurred physical injury resulting from fright or shock). The case of Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973), discussed the elements of a cause of action for negligent infliction of emotional distress, stating: "We adhere to the view that where conduct is merely negligent, not willful, wanton, or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. We hold, however, that where the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant's negligence. In other words, there may be recovery in such a case if, but only if, there is shown a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury." Id. at 34, 197 S.E.2d at 219; accord Myseros v. Sissler, 239 Va. 8, 9, 387 S.E.2d 463, 464 (1990). Here, Plaintiffs conclusory allegation that she incurred "great mental anguish" is not sufficient to support a cause of action for negligent infliction of emotional distress. She failed to plead with specificity that she incurred a physical injury which was the natural result of fright or shock proximately caused by the defendants' alleged negligence. Here, Plaintiff Jenks was stuck with a dirty, discarded needle. Because of this, she underwent testing for HIV, and hepatitis. She was fortunate to establish that the needle was never contaminated. Thus, Plaintiffs claim of negligent infliction of emotional distress cannot

15

stand because it is based on fear that is unreasonable as a matter of law. Plaintiff has not proven or alleged the type of physical injuries from the needle stick as in Howard that are compensable under a negligent infliction of emotional distress claim. 7 In Hughes, the plaintiff prevailed because the Supreme Court of Virginia determined that there was evidence that [the] plaintiff suffered physical injuries which were the natural result of the fright and shock proximately caused by [the] defendant's tortious conduct. Hughes, 197 S.E.2d at 220. Here, Plaintiff's alleged injuries do not rise to the level of those deemed insufficient by the courts in Delk, Hickman, Goddard and Myseros. (See MFJ 5, 9), accordingly, as in Delk, Hickman, Goddard and Myseros, the Court should rule that Plaintiff has failed to allege a compensable injury. Plaintiff here has failed to allege that she suffered the requisite level of severe emotional distress and physical injury. The question whether alleged facts will support a finding of severe emotional distress is initially one for the trial court to answer. Russo, 241 Va. at 28, 400 S.E.2d at 162. Significantly, Plaintiff in this case could not recover under even the minority views in fear of AIDS cases. Even in California, which has one of the more liberal standards, this case would be insufficient to allow the claim. Unlike Virginia, California does allow recovery for fear of contracting a disease absent a physical injury, but only if
7

This case where there was no actual exposure is clearly too speculative to proceed under any legally recognized test. The Plaintiffs allegations that Defendant was careless and negligent in permitting a used needle to be on a customers tray, and serving Plaintiffs food on the previously used food tray, appear to be based on premises liability (MFJ 6). To the extent these allegations could be construed to be based on the duties owed by food providers to ensure that food is free of contaminants, said duties are relevant only to the extent that a plaintiff seeks to recover for any injuries caused by the specific object in the food, not for a medically irrational fear that the object contains and can transmit a horrible disease, otherwise food workers and other persons infected with HIV or AIDS would not be protected as disabled under the Americans with Disabilities Act. See Bragdon v. Abbott, 118 S. Ct. 2196, 2213 (1998). Food service workers who are HIV positive do not put others at risk and need not be restricted from work. See CDC, Division of HIV/AIDS Prevention, Human Immunodeficiency Virus and Its Transmission, available at http://www.cdc.gov/hiv/resources/factsheets/transmission.htm (last visited January 8, 2007).

16

a plaintiff demonstrates exposure to a substance which threatens the disease and a belief that, based upon established medical science, one is more likely than not to contract the virus. Macys California, Inc. v. Superior Court of Solano County, 41 Cal. App. 4th 744, 48 Cal. Rptr. 2d 496 (Ct. App. 1995). In Macys Catherine Jenae Tussy-Garber sued a Macy's store because she pricked her finger on a hypodermic needle that had been left in a pocket of a jean jacket she was trying on. She tested for HIV, sued the store for negligence, negligent infliction of emotional distress, and loss of consortium. Macy's moved for summary judgment to bar recovery for emotional distress because there was no indication that Tussy-Garber was exposed to any virus. The Court ruled that Plaintiff could not claim negligent damages based on her fears. The needlestick injury was judged to be routine since it did not introduce any hazardous foreign substance into the body. The Macys court held that a needle stick would meet the requisite physical injury threshold only if a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. 48 Cal. Rptr. at 504. Without such proof, the plaintiff would be required to satisfy the more likely than not test, which a 1 in 200,000 chance of contracting HIV from a needle-stick would not satisfy. 48 Cal. Rptr. at 505. Thus, even under one of the most liberal states view, Plaintiff would not prevail, the probability of contracting AIDS from a needle stick used by an identified diabetic cannot be higher than the risk of contraction from a random needle prick. The few cases adopting a more liberal standard for fear of AIDS have been widely criticized as perpetuating the publics misconceptions and unreasonable fears of AIDS. Recognizing a claim or the fear of contracting AIDS based upon a mere allegation that one may have been exposed to HIV, totally unsupported by any medical evidence or

17

factual proof, opens a Pandoras Box of AIDSphobia claims by individuals whose ignorance, unreasonable suspicion or general paranoia causes them apprehension over the slightest of contact with HIV-infected individuals or objects. The better approach is to assess the reasonableness of a plaintiffs fear of AIDS according to the plaintiffs actualnot potential exposure to HIV. See Eric J. Knapp, Tort LawTurning Blood Into Whine: Fear of AIDS as a Cognizable Cause of Action in New MexicoMadrid v. Lincoln County Medical Center, 28 N.M. L. Rev. 165, 189 (1998)(citing Brozoska v. Olson, 668 A. 2d 1355, 1363 (Del. 1995)). Plaintiff does not present a factual situation that permits recovery for emotional damages, such as contemplated in Howard and Hughes, where the plaintiff alleged simultaneous or contemporaneous injury. 197 S.E.2d at 215. The type of emotional distress alleged in this case is analogous to that alleged in the Hickman case where the plaintiff received a false positive HIV test. Her claim for emotional distress was dismissed. Hickman ruled that the Plaintiff had failed to plead and prove, by clear and convincing evidence that an immediate or contemporaneous injury occurred. Hickman v. Laboratory Corp. of America Holdings Inc. (VLW 006-3-429) (2006). Conversely, in Howard, the physical injuries experienced did not consist solely of symptoms of emotional distress. The plaintiff in Howard demonstrated endurance of drugs with toxic or adverse side effects so that she suffered concurrent bodily injury. There, the plaintiff suffered from actual physical injuries, separate from the emotional disturbance that resulted from the shock caused by the defendant's negligence. V. CONCLUSION

18

For all of the foregoing reasons, Welburn respectfully requests that its Motion for Summary Judgment be granted. Being pricked by a used needle of unknown origin, while unfortunate, does not reasonably warrant recovery for fear of contracting a disease, when it is discovered there was no exposure to disease and the needle was not contaminated. Competing public policy considerations will continue to drive the debate over what standards should apply to determine whether a plaintiff may recover negligent infliction of emotional distress damages for fear of contracting an infectious disease. Courts will continue to grapple with the need to guard against speculative damages, excessive litigation, and harmful public misconceptions on the one hand, and the need to ensure fair treatment of legitimate claims and to deter unreasonable conduct in the name of promoting public health on the other. To permit recovery of emotional distress damages under these facts would encourage highly speculative damage claims and provide a potential for windfalls to healthy plaintiffs who will never manifest disease or injury. Thus, in view of the facts of this case, the Defendants Motion for Summary Judgment should be granted.

Respectfully submitted, WELBURN ASSOCIATES By Counsel LAW OFFICE OF CHRISTOPHER R. COSTABILE

S. Vanessa von Struensee VSB #47974 10555 Main Street, Suite 400 Fairfax, Virginia 22030

19

(703) 273-2777 (703) 691-4288-Fax Counsel for Welburn Associates

20

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via first class mail, postage prepaid, on this day of January 2007 to: John P. Harris III, Esquire 1619 Jefferson Davis Highway Fredericksburg, VA 22401 Counsel for Plaintiff S. Vanessa von Struensee

21