Lee v. G & K Servs., Co.

• Decision Date: 25 September 2012
• Docket Number: No. 2010–CA–01103–COA.,2010–CA–01103–COA.
• Citation: 98 So.3d 489
• Court: Mississippi Court of Appeals
• Parties: Kathy LEE, Appellant v. G & K SERVICES, CO., Appellee.

98 So.3d 489

Kathy LEE, Appellant

v.G & K SERVICES, CO., Appellee.

No. 2010–CA–01103–COA.

Court of Appeals of Mississippi.

April 24, 2012.

Rehearing denied Sept. 25, 2012.

Elise Berry Munn, attorney for appellant.

James Lawrence Jones, Everett Eaves White, attorneys for appellee.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. Kathy Lee alleges she pricked her finger on a used hypodermic needle while reaching into the pocket of her employee uniform—a uniform recently supplied by G & K Services, Co. (G & K). Lee sued G & K to recover expenses she had incurred in testing for whether she had contracted a disease. She also sought emotional-distress damages for her six-month “window of anxiety” while she awaited test results.

¶ 2. Mississippi does not recognize fear of disease as an actionable injury absent substantial proof of exposure to a disease. Because Lee could not show her fear of contracting a disease was based on actual exposure to a disease, we must affirm the grant of summary judgment in G & K's favor on Lee's emotional-distress claim. But we reverse the grant of summary judgment to G & K on Lee's medical-expense claim, because Lee presented expert testimony that testing for disease is part of standard treatment for a needle stick when the original user is unknown. We remand this case to the circuit court solely on Lee's claim for medical expenses.

FACTS AND PROCEDURAL HISTORY

¶ 3. G & K provides employee uniforms to various entities, including Lee's employer, Copiah–Lincoln Community College (Co–Lin). On March 5, 2008, Tim Malone, a G & K representative, delivered uniforms to Co–Lin. Among those uniforms were two jackets for Lee, a Co–Lin maintenance employee.

¶ 4. Lee claims she placed her hand in the left pocket of one of the jackets and pricked her finger on a used hypodermic needle. Lee alleges she found three used needles and syringes in the jacket's pocket. Lee took the needles to a doctor and, from March 2008 through September 2008, underwent testing for various diseases, including AIDS and hepatitis. All tests came back negative.

¶ 5. Lee filed suit against G & K on December 31, 2008, alleging negligence and res ipsa loquitur. Lee sought recovery for her medical bills, totaling approximately $700, and for six months of emotional distress due to her alleged fear of contracting a disease, requesting $10,000 per month. G & K filed a motion for summary judgment, arguing Lee had offered no evidence she was actually exposed to the disease and, thus, could not prove she was injured. Lee move for additional time to respond and further discovery.

¶ 6. At a November 16, 2009 hearing, the circuit court decided to hold G & K's motion for summary judgment in abeyance to allow Lee time to conduct further discovery. Soon after, the parties jointly submitted the syringes and needle for testing by Douglas Crawford, a chemist at the Mississippi State University Chemistry Laboratory. Crawford provided the parties the results of the testing in January 2010, reaching the following conclusions: (1) the syringes are designed for one-time insulin injections and are supposed to be discarded after use; (2) the reddish-brown substance in one of the syringes was dried blood; and (3) the blood did not indicate the presence of any illicit drugs or toxins. Crawford further expressed the futility of testing for HIV or hepatitis at that point, as the needle should have been tested within days or weeks of exposure and any disease-causing agents were no longer present. Lastly, Crawford confirmed Lee was no longer at risk for contracting a disease and had not been since six months after the needle stick.

¶ 7. On March 3, 2010, G & K renewed its motion for summary judgment due to Lee's failure to provide sufficient evidence of a compensable claim of emotional distress based on fear of disease. Lee responded to the motion, attaching an affidavit from Dr. Joel Nitzkin. Dr. Nitzkin, a public health physician, described the proper testing protocol following a needle stick. Dr. Nitzkin explained: (1) if the original user and needle-stick victim are both known and the exposure occurs within hours to a few days of the initial contamination, the blood of both is tested; but (2) if the original needle user is not known, the victim's blood is tested during the six months following exposure. “Either way,” Dr. Nitzkin attested, “the needle itself is never submitted for laboratory analysis” because:

Testing a needle for the presence of such viruses, even in a research setting, would not conclusively confirm or rule out exposure. The needle could test “negative” because the virus died before or after exposure. [And a] “positive” test on material found in or on the hypodermic needle would not confirm that exposure sufficient to transmit illness has occurred.

In Dr. Nitzkin's opinion, the “protocol of testing the victim for symptoms is the only method to conclusively determine exposure.

¶ 8. At the conclusion of the May 19, 2010 hearing, the circuit court, relying on Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995) and South Central Regional Medical Center v. Pickering, 749 So.2d 95 (Miss.1999), held “exposure must be proved either by the presence of a substance on the offending instrument, proof that at some time there was such a substance—for instance, that the instrument had previously been used on a person with a disease—or, third, obviously disease in the plaintiff that can be tied back to the instrument.” The circuit judge found “[n]one of those are present here.... [A]bsent proof of exposure, plaintiff is not entitled to recover on a fear of illness claim.” The court granted G & K's motion for summary judgment and dismissed Lee's claims with prejudice.

¶ 9. Lee timely appealed.

STANDARD OF REVIEW

¶ 10. Summary judgment is proper “if 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.” M.R.C.P. 56(c). “Summary judgment must be granted when the nonmoving party ‘fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.’ ” Kitchens v. Dirtworks, Inc., 50 So.3d 388, 389 (¶ 4) (Miss.Ct.App.2010) (quoting Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009)).

¶ 11. “We conduct a de novo review of a trial court's grant or denial of a motion for summary judgment.” Id. at (¶ 3) (citing Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002)). In deciding whether summary judgment was proper, we view the facts in the light most favorable to the nonmovant. Id. (citation omitted).

DISCUSSION

¶ 12. “To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury.” Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3 (¶ 5) (Miss.2007)( Paz I ) (quoting Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 922 (¶ 7) (Miss.2006)). This appeal solely concerns the element of injury. We must decide whether Lee's fear of contracting a disease from the needle stick—in the absence of proof that the needle exposed Lee to any diseases—is a legally cognizable “injury” such that Lee can potentially recover for the “window of anxiety” between the needle stick and the final negative test results.

¶ 13. Lee argues that inherent in every needle-stick case is a “window of anxiety” between the stick and conclusive test results six months later, which the Mississippi Supreme Court acknowledged in Pickering as a compensable emotional-distress injury. Alternatively, Lee asserts she was physically injured by the needle stick and is entitled to emotional-distress damages tied to her injury. Because part of the protocol following a needle stick is to test for diseases for six months, she claims she should be allowed to also pursue her claim for the emotional distress of waiting for the results of the tests.

¶ 14. According to the supreme court in Pickering and Ferguson, the “window of anxiety” must result from actual exposure to be an actionable injury. And Lee did not present substantial evidence of actual exposure. Though Lee can potentially recover her medical expenses incurred in testing for disease after the physical injury of the needle stick, she cannot recover corresponding emotional-distress damages without proving actual exposure to diseases was part of the physical injury.

I. Emotional Distress Based on Fear of Disease

¶ 15. “Injury” is not synonymous with “harm.” An “injury” is “the invasion of any legally protected interest of another,” while “harm” is “the existence of loss or detriment in fact of any kind to a person resulting from any cause.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 398 (5th Cir.2009)( Paz II ) (quoting Restatement (Second) of Torts § 7(1)-(2) (1965)). “[H]arm, like injury, is not necessarily actionable” and “gives rise to a cause of action only when it results from the invasion of a legally protected interest, which is to say an injury.” Id. at 399 (quoting Restatement (Second) of Torts § 7 cmt. d).

¶ 16. Lee's alleged injury is not that she was exposed to a disease but that she feared she was exposed to a disease—and that her fear was a reasonable, foreseeable result of the needle stick. See Burk v. Sage Prods., Inc., 747 F.Supp. 285, 288 (E.D.Pa.1990) (finding “[p]laintiff ... has alleged no injury which arises out of his exposure to the AIDS virus[, but r]ather, plaintiff's only injuries stem from his fear that he has been exposed to the disease”). We are certainly sensitive to Lee's allegations that she was harmed—that she feared the needle stick exposed her to diseases like AIDS or hepatitis. But we are bound by the supreme court's delineation between an actionable versus an...