Burk v. Sage Products, Inc.

• Decision Date: 27 September 1990
• Docket Number: Civ. A. No. 90-3077.
• Citation: 747 F. Supp. 285
• Parties: Scott R. BURK, Plaintiff, v. SAGE PRODUCTS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

747 F. Supp. 285

Scott R. BURK, Plaintiff, v. SAGE PRODUCTS, INC., Defendant.

Civ. A. No. 90-3077.

United States District Court, E.D. Pennsylvania.

September 27, 1990.

Thomas X. McAndrew, Jr., Media, Pa., for plaintiff.

Edward J. Stolarski, Jr., Philadelphia, Pa., for defendant.

MEMORANDUM ORDER

BECHTLE, Chief Judge.

AND NOW, to wit, this 27th day of September, 1990, upon consideration of defendant's motion for summary judgment, IT IS ORDERED that defendant's motion is granted.

FACTS

Plaintiff is a paramedic at the Mercy Catholic Medical Center. Defendant is the manufacturer and distributor of the Sharps Disposable Container, Model 8980, a device designed and manufactured by defendant for the disposal and containment of used medical syringes. Plaintiff alleges that, while using the Sharps Disposable Container during the course of his duties on January 18, 1989, he was stuck by a needle that was protruding from the container.

Plaintiff brought this products liability action against defendant. Plaintiff alleges that several patients suffering from acquired immune deficiency syndrome ("AIDS") were seen on the hospital floor where plaintiff was using the container on the date of the needle stick incident. Plaintiff admits that he cannot prove that the needle that stuck him was a needle that was used on an AIDS patient. Plaintiff also admits that he has tested negatively for HIV antibodies¹ on five separate occasions. Nonetheless, plaintiff alleges that he has lived in fear of contracting AIDS since the occurrence of the incident. Plaintiff maintains that this fear was caused by a defective condition of the product. Plaintiff seeks recovery for various ailments that purportedly stem from his fear of contracting AIDS, and has brought actions based on negligence, breach of warranty, and strict liability. Additionally, plaintiff and his wife bring an action for the deterioration of their marriage which allegedly resulted from plaintiff's emotional distress.

Defendant now brings this motion for summary judgment. For the reasons that follow, the court hereby grants defendant's motion.

DISCUSSION

The grant of summary judgment is appropriate when the court determines that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.1987) (en banc); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir.1986).

Plaintiff's claims stem entirely from his fear of contracting AIDS as a result of the needle-stick injury. Pennsylvania courts, whose law is controlling in this case, have, at least impliedly, recognized that in certain cases an emotional fear of contracting a disease can be a compensable injury. The question at hand is whether plaintiff's claim presents such a case. Because plaintiff has failed to establish exposure to the AIDS virus, and because plaintiff can now be presumed to be free from AIDS infection, the court finds that plaintiff's claim must fail.

Most Pennsylvania courts addressing the subject of recovery for emotional distress have ruled that emotional distress must be accompanied by physical injury before it can be deemed actionable. See Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988), and cases cited therein. See also Restatement (2nd) of Torts, § 436A. Although defendant contests the issue, plaintiff appears to have pleaded a sufficiently "physical" injury by averring that he has lost all sexual function as a result of the needle-stick accident. See Crivellaro v. Pennsylvania Power and Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985), and cases cited therein. The court is more concerned with defendant's second ground for challenging plaintiff's complaint; namely, that plaintiff cannot demonstrate that he was actually exposed to the AIDS virus because he cannot prove that the needle with which he was stuck was a needle that was used on an AIDS patient.

Many jurisdictions have allowed recovery based on a fear of contracting a disease when the disease is one that involves a latency or incubation period. Each of these cases, however, involves circumstances where the plaintiff's initial exposure to the agent which caused the potential for disease was not at issue. For example, courts have allowed recovery to individuals who fear that they may develop cancer or asbestosis after ingesting asbestos fibers. See, e.g., Herber v. Johns-Mansville Corp., 785 F.2d 79 (3rd Cir. 1986); Jackson v. Johns Mansville Sales Corp., 781 F.2d 394 (5th Cir.1986), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743. Similarly, courts have allowed plaintiffs who can prove exposure to artificial environmental hazards to recover against the party that created the environmental hazard based on the plaintiff's apprehension of contracting disease in the future. See, e.g., Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D.C.Mass.1986) (fear of contracting cancer after drinking contaminated water held to be a compensable injury).

In the case at hand, plaintiff has admitted that he is unable to demonstrate that the needle that pricked him was used on an AIDS patient. Accordingly, plaintiff cannot show that he has been exposed to the AIDS virus. Plaintiff's position is in marked contrast to the other situations where recovery for fear of contracting a disease has been held compensable, in that plaintiff in this case is unable to demonstrate an exposure to a disease-causing agent. The cases which have allowed recovery for fear of disease have done so when the plaintiffs were faced only with the question of whether they would contract the disease in the future; the plaintiff in the instant case faces the additional question of whether he has been exposed to the AIDS virus in the first place. The court has been unable to locate a single case, from any jurisdiction, which has permitted recovery for emotional distress arising out of a fear of contracting disease when the plaintiff cannot prove exposure to the agent which has the potential to cause the disease.

Pennsylvania case law supports the position that plaintiff must show exposure to the AIDS virus before he can recover. In Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), the plaintiff claimed a right to recovery based on a fear of contracting disease by virtue of the fact that she allegedly inhaled asbestos fibers brought home on her husband's work clothes. The court rejected plaintiff's claim because she failed to allege a physical injury, holding that "until plaintiff is able to allege some physical injury or some medically identifiable effect linked to her exposure to asbestos particles, her claim for negligent infliction of emotional distress is not legally cognizable." Cathcart, 471 A.2d at 508 (emphasis added).

At least one court has relied on this language from Cathcart to refuse to allow recovery for fear of disease, even...