Herbert v. Regents of University of California

• Decision Date: 06 July 1994
• Docket Number: No. B073239,B073239
• Citation: 26 Cal.App.4th 782,31 Cal.Rptr.2d 709
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 USLW 2061, 91 Ed. Law Rep. 1064 Linda C. HERBERT, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

Page 709

31 Cal.Rptr.2d 709

26 Cal.App.4th 782, 63 USLW 2061, 91 Ed. Law Rep. 1064

Linda C. HERBERT, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

No. B073239.

Court of Appeal, Second District, Division 1, California.

July 6, 1994.

Review Denied Oct. 20, 1994.

Besser & Chapin, Robert S. Besser and Christopher Chapin, Los Angeles, for plaintiff and appellant.

Patterson, Ritner, Lockwood, Zanghi & Gartner, and Robert R. Scholl, Los Angeles, Greines, Martin, Stein & Richland, Martin Stein, and Roxanne Huddleston, Beverly Hills, for defendant and respondent.

MIRIAM A. VOGEL, Associate Justice.

While waiting in an examining room at the UCLA Medical Center, three-year-old Jonathan Herbert got his hands on some used needles and stuck himself. His mother's first thought was of AIDS, and although Jonathan then and later tested negative, Jonathan's mother sued the Regents of the University of California for negligent infliction of emotional distress. The trial court granted the Regents' motion for summary judgment. We affirm, holding that the "fear of cancer" rule announced in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, applies to a case based upon fear of AIDS (acquired immune deficiency syndrome).

FACTS

On May 30, 1990, Linda Herbert took Jonathan to the UCLA Medical Center after he drank some liquid Tylenol with codeine. A doctor in the pediatric ward examined Jonathan, then directed Mrs. Herbert and Jonathan to wait in an examination room. A few minutes later, Mrs. Herbert went across the hall, telling Jonathan to stay on the bed while she tried to call his father. Jonathan got off the bed, explored the room, found a "needle box" on the floor under a sink and opened it to find a bunch of used and discarded needles and syringes. At that point, Mrs. Herbert looked into the room, saw what Jonathan was doing and saw there was blood on his left hand. She returned to the room, at which point Jonathan tried to hide behind the door. When she asked him what he was doing, he dropped two needles onto the floor. Mrs. Herbert picked them up and "threw them in the trash."

The "first thing" Mrs. Herbert thought of was AIDS. She called a passing nurse, who cleaned a small scratch on Jonathan's hand. A few minutes later, they were joined by John Kevill, M.D., who said it was possible that one or more of the needles could have been used on an AIDS patient since there had been an "AIDS clinic" in the pediatric ward the previous day. Dr. Kevill went on to explain that no one knew or could determine whether that particular room had been used for an AIDS patient but that, even if it had and even if they assumed the needle which scratched Jonathan's hand was contaminated, the risk that Jonathan would contract the HIV virus which causes AIDS was about one-half of 1 percent. Within a few days, Mrs. Herbert was informed that Jonathan tested negative for the HIV virus (and the results have been negative in all subsequent tests).

The needle which scratched Jonathan was discarded before Mrs. Herbert or anyone at UCLA thought to preserve it and, as a result, it could not be determined whether it had, in fact, been contaminated with the HIV virus.

About five months after the incident, Mrs. Herbert sued the Regents for negligent and intentional infliction of emotional distress (the latter claim has been voluntarily abandoned). The Regents answered and discovery was conducted by both sides. In late 1992, the Regents' motion for summary judgment was granted. Mrs. Herbert appeals.

DISCUSSION

Mrs. Herbert contends she was both a "direct victim" of the Regents' negligence and a "bystander" to negligence directed at Jonathan. She also contends she should be given the opportunity to explain to a trier of fact that it is the Regents' fault that she is unable to establish whether the needle was, in fact, contaminated. Finally, she contends she is entitled to recover for her "fear of AIDS" without regard to whether it is "more likely than not" that Jonathan will ever contract AIDS. Since we disagree with Mrs. Herbert's position on damages, we resolve her appeal on that issue without reaching her other contentions. ¹

A.

In Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 973-974, 25 Cal.Rptr.2d 550, 863 P.2d 795, our Supreme Court held that "emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance" is not an "injury for which damages may be recovered in a negligence action in the absence of physical injury" unless the plaintiff is able to plead and prove "that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure." (Emphasis added.)

Several policy reasons were cited in support of the Court's conclusion. First, everyone is exposed to carcinogens every day, thus creating an unlimited class of potential plaintiffs which must be restricted by the imposition of some limitation. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 990-991, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Second, the "more likely than not threshold" is necessary to prevent the "unduly detrimental impact that unrestricted fear liability would have in the health care field." (Id. at p. 991, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Third, allowing recovery to all victims who have a fear of cancer could work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure by driving the defendant into bankruptcy. (Id. at p. 993, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Fourth, imposition of the "more likely than not limitation" establishes a "sufficiently definite and predictable threshold for recovery to permit consistent application from case to case.... Indeed, without such a threshold, the likelihood of inconsistent results increases since juries may differ over the point at which a plaintiff's fear is a genuine and reasonable fear, i.e., one jury might deem knowledge of a 2 or 5 percent likelihood of future illness or injury to be sufficient ..., while another jury might not. A more definite threshold will avoid inconsistent results and may contribute to early resolution or settlement of claims." (Ibid.)

With these points in mind, the court summarized its holding thus: "Unless an express exception to this general rule is recognized: in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer. The plaintiff must further show that...