Marchica v. Long Island R. Co.

• Decision Date: 29 July 1994
• Docket Number: No. 773,D,773
• Parties: , 9 IER Cases 1560 John J. MARCHICA, Plaintiff-Appellee, v. LONG ISLAND RAILROAD COMPANY, Defendant-Appellant. ocket 93-7521.
• Court: U.S. Court of Appeals — Second Circuit

Page 1197

31 F.3d 1197

63 USLW 2092, 9 IER Cases 1560

John J. MARCHICA, Plaintiff-Appellee, v. LONG ISLAND RAILROAD COMPANY, Defendant-Appellant.

No. 773, Docket 93-7521.

United States Court of Appeals, Second Circuit.

Argued Dec. 8, 1993.

Decided July 29, 1994.

Leon D. Lazer, Melville, NY (Pamela D. Armstrong, Lazer, Aptheker, Feldman, Rosella & Yedid, of counsel), for defendant-appellant.

Michael Barasch, New York City (Angelo Busani, Altier & Barasch, of counsel), for plaintiff-appellee.

Before: NEWMAN, Chief Judge, OAKES and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Certain words when directed at a person deliver such a dread message as to strike terror in that person's heart. AIDS, a modern word, less than 20 years old, is accompanied by many myths and misconceptions; it also carries with it in the public's mind such an image of inevitable death as to bring home that terror. After John J. Marchica's hand was stuck by a discarded hypodermic needle with blood in its syringe, he feared he On this appeal, we must decide whether Marchica's alleged fear of developing AIDS was actionable under FELA, so that his jury award for the railroad's tort of negligent infliction of emotional distress may stand. Because in our view FELA encompasses a cause of action for negligent infliction of emotional distress based on a fear of developing AIDS, and because plaintiff produced sufficient evidence to support the jury's award of damages for this tort, we affirm.

would develop Acquired Immune Deficiency Syndrome (AIDS). This fear was exacerbated by the fact that Marchica could not determine who had used the discarded needle and therefore whether or not he had been exposed to the human immunodeficiency virus (HIV), the disease that causes AIDS. The incident occurred when Marchica, then 31-years old, was working as a welder for the Long Island Railroad Company (LIRR, railroad or defendant). Marchica sued the LIRR under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1988), and the jury found the LIRR partly liable for Marchica's emotional distress. The LIRR now appeals a judgment entered May 4, 1993 in the Eastern District of New York (Spatt, J.) awarding Marchica $126,000.

BACKGROUND

A. Facts

In setting forth the facts found in the trial record, we review them in a light most favorable to plaintiff because he obtained a favorable jury verdict. See, e.g., Johnson v. Celotex Corp., 899 F.2d 1281, 1286 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990). Marchica worked as a welder for the LIRR in 1989. During the fall of that year it was discovered that an open metal grating set over a shaftway at the LIRR's Hempstead station in Nassau County, Long Island, New York was unfastened. The grating could be lifted easily and, when open, gave access to a shaftway leading to a basement window of a trainman's room. Vagrants had opened the grating, crawled through the four foot shaftway, broken the window and gained access to the trainman's room. Drug paraphernalia consisting of hypodermic instruments and crack vials was often found on the floor and in the environs of the Hempstead station, which was reputed to be a center for drugs, illegal aliens and prostitution. In light of this, the railroad wanted the metal grating over the shaftway secured.

Plaintiff, because he was a welder, was dispatched with co-workers on October 25, 1989 to do the job. When the crew began welding the grate, sparks from their acetylene torches fell into the bottom of the shaft and onto an accumulated cover of leaves, paper, glass, and other debris. The debris began to smolder. Marchica volunteered to clear it out, and putting on heavy duty welding gloves to protect his hands from the heat and the glass, went down into the trainman's room and began to push the smoldering debris aside. Unfortunately, and despite the protection of his heavy gloves, a hypodermic needle lying hidden among the pile of refuse, suddenly stabbed plaintiff's hand. Upon turning his hand over he saw a hypodermic needle sticking in the palm of his right hand.

One of plaintiff's co-workers testified he saw blood coming from the puncture wound in Marchica's hand, and also stated he observed blood in the hypodermic syringe. The co-worker called a supervisor to report the injury and was told to bring Marchica to the nearest hospital, and that plaintiff should report to the LIRR medical department afterwards. Taking the needle, which had been put into a paper bag, plaintiff went to the emergency room of Winthrop University Hospital. There he was advised to have a tetanus and hepatitis shot and to get a test for HIV.

Afterwards, when Marchica reported to the LIRR's medical department, he was told the instructions given him by Winthrop physicians concerning the HIV test were ridiculous and that he should just go home and wash his hands with warm soapy water. Nonetheless, Marchica followed the orders of Winthrop and had an AIDS test a couple of days later. On a return visit to the LIRR medical department several months after the accident, a LIRR physician instructed Marchica to have a repeat HIV test. Without bothering to conduct tests of the needle or Plaintiff was advised by a physician to abstain from having relations with his wife, and to be tested for HIV. He had tests done one month, six months and one year from the date of the October 25, 1989 incident. In November 1989 Marchica began seeing a psychologist because he was having difficulty sleeping, experiencing nightmares, and suffering from irritability. His wife and co-workers observed him on different occasions crying and vomiting. One co-worker estimated that plaintiff lost 30 pounds following his injury. After approximately one month of treatment, he was referred to a psychiatrist who prescribed several anti-depressants. During the course of his treatment Marchica learned that the second HIV test taken in May 1990 was negative. His final blood test taken two years later was also negative.

the blood that had been observed in the syringe to determine whether these instruments were in any way contaminated, the railroad's medical department as a matter of policy disposed of the hypodermic needle and syringe to prevent the spread of infectious diseases.

B. Prior Proceedings

In June 1992 plaintiff brought suit against the LIRR pursuant to FELA, alleging that the railroad was negligent in failing to provide him with a safe place to work, and more particularly in failing to maintain the premises at the Hempstead Railroad Station in a reasonably safe condition, and that its negligence caused both the physical and psychological injuries he sustained. The railroad moved for summary judgment, declaring there was no evidence that plaintiff was exposed to the HIV virus or was infected with it. The district court denied defendant's motion.

After acknowledging that there was no authority in point, the trial court held that "FELA does encompass a cause of action for fear of contracting the AIDS virus where the basis of the claim is a documented physical injury sustained by the plaintiff." Marchica v. Long Island R.R., 810 F.Supp. 445, 449 (E.D.N.Y.1993). The case therefore proceeded to trial. Under the rule it adopted when it denied the LIRR's motion for summary judgment, the trial court allowed the jury to determine causation and damages, placing no limit on the time a plaintiff's fear is reasonable. The jury returned a verdict finding plaintiff 55 percent culpable, the LIRR 45 percent culpable, and awarding plaintiff $225,000 for past pain, suffering and emotional distress, and $55,000 for future damages. Because defendant was 45 percent culpable for the total jury award of $280,000, judgment was taken against it for $126,000. From this judgment the railroad appeals.

DISCUSSION

On appeal the LIRR argues, first, that the district court erroneously permitted recovery for past and future emotional distress because under a proper legal standard, fear of developing AIDS would be unreasonable as a matter of law when plaintiff has not proven exposure to the disease. It advocates a rule that would require a plaintiff to prove exposure plus a reasonable medical probability of developing the disease in order to recover for the mental distress associated with the fear of developing AIDS. Under such a standard, the LIRR contends, plaintiff should not have been allowed to recover for his fear of developing AIDS because the testimony revealed to a medical certainty plaintiff was not exposed to the HIV virus.

Second, defendant contends Marchica failed to inform himself as to how HIV is transmitted. It advocates a "due diligence" requirement under which a plaintiff must seek information and become familiar with the realities of the disease in order to ensure that the fear is objectively rational.

The LIRR urges, third, that even if exposure is not a requirement to state a claim for negligent infliction of emotional distress under FELA based on a fear of developing AIDS, recovery should be limited to the time between the possible exposure and when the plaintiff could have learned to a medical certainty that he had not been exposed or would not develop the disease. In the following discussion we deal with the points defendant raises.

I Common Law Cases Delineate Bounds of FELA Recovery

Congress enacted FELA so that railroad employees who were injured due to the negligence of their employer or of a co-worker would have a remedy. The remedy was intended to be broad and Congress prohibited employers subject to liability under the Act from limiting that liability through contract or otherwise. See Atchison, T. & S.F.R.R. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987). Section 1 of FELA provides in part:

Every common carrier by railroad while engaging in [interstate] commerce ... shall be liable in damages to any person suffering injury while he is employed by such...