The subsequent assurances received by plaintiff that his risk diminished with the lapse of time and the receipt of comforting test results do not eradicate his original and understandable fear and anguish. However there appears to be no physical injury to support a claim for intentional tort, and plaintiff has presented no competent evidence of severe emotional distress to permit that claim to go forward.
It is not unreasonable to infer that upon learning that one's lover has AIDS, there is a period of intense anxiety awaiting the result of one's own tests over an extended period of time. But that inference alone is not sufficient to support a claim for emotional distress. What makes that claim viable is the intensity of the distress, not its mere existence. Thus in order to withstand defendant's motion for judgment, plaintiff must come forward with competent evidence regarding the severity of his emotional distress, and he has failed to do so.
Those who knowingly put others at such grave risk should not escape liability merely by the fortuitous circumstances that their conduct did not result in the actual transmittal of the disease. If nothing else, fear of liability may serve as a deterrent to such hateful conduct in the guise of love. Properly supported by competent evidence and medical opinion, claims for emotional distress are and should be cognizable. In this matter, however, plaintiff has failed to meet the threshold necessary to permit this matter to go forward.
Thus, although the court has great sympathy for the anguish plaintiff undoubtedly suffered as a result of this betrayal, his claim must be dismissed because of his failure to document his claim either through his own sworn statement or that of a medical expert.
Plaintiff J. P. commenced this action in January of 1992 alleging various causes of action against the Estate of J. K. ["decedent"]. For the purposes of this motion, the following facts are undisputed unless otherwise noted.
In January of 1986, decedent began having sexual relations with plaintiff. In the summer of 1986, decedent tested positive for the Human Immunodeficiency Virus ("HIV"). In or about late 1987 or early 1988, decedent was diagnosed as having Acquired Immune Deficiency Syndrome ("AIDS"). Decedent continued to have sexual relations with plaintiff until July of 1990. He did not disclose his medical status to plaintiff during the four year period in which they were intimate. Both decedent and plaintiff had other sexual partners during this four-year period. Plaintiff did not learn that decedent had contracted AIDS until September 4, 1990. He died from his condition on October 16, 1990.
Plaintiff has been tested for the presence of HIV on various dates over the last five years: June 7, 1988, June 5, 1989, June 5, 1990, September 14, 1990, July 2, 1991, and February 11, 1992. On each occasion, plaintiff has tested negatively. Defendant alleges that plaintiff has continued to engage in homosexual relations with new partners.
Plaintiff's complaint states four causes of action. Count one alleges that decedent "negligently" engaged in consensual sexual relations with plaintiff without proper precautions and without disclosing his condition. Complt. at 2. Count two alleges that decedent "intentionally" engaged in consensual sexual relations with plaintiff which defendant knew or should have known created a risk that plaintiff would become HIV-infected. Complt. at 3. Count three states that decedent "intentionally" or "negligently" made representations to plaintiff which prevented plaintiff from learning of the defendant's condition and which induced plaintiff to engage in activity which exposed him to HIV-infection. Complt. at 4. Count four alleges that decedent breached his fiduciary duty to plaintiff by not disclosing the fact that he had tested positively for HIV and that he was subsequently diagnosed with AIDS. Complt. at 5.
In his prayer for relief, plaintiff seeks to recover compensatory and punitive damages for his medical testing expenses, for the intentional tort of exposing him to HIV infection, for the enhanced risk that he will contract AIDS, and for the intentional infliction of emotional distress.
Defendant has now moved for summary judgment on all counts of the complaint. Defendant has also moved for an order compelling plaintiff to produce certain discovery responses and for sanctions.
I. Defendant's Motion for Summary Judgment
In order to prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that, viewing the facts in the light most favorable to the non-movant, the movant will prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 84 (3d Cir. 1987).
In his opposition to defendant's motion, plaintiff clarifies that he is only pursuing claims for the intentional tort of exposing him to HIV infection and for the intentional infliction of emotional distress. Pl. Supp. Mem. at 1. Plaintiff asserts that he will not pursue his claims for misrepresentation, for breach of a fiduciary duty, for enhanced risk, or for medical surveillance costs. Accordingly, these claims are dismissed.
A. Intentional Exposure to HIV Infection
Plaintiff alleges that the decedent committed the intentional tort of knowingly and recklessly exposing him to HIV infection by engaging in consensual sexual relations with him. Defendant counters that this cause of action is fatally flawed because plaintiff has no injury. The court agrees.
Defendant has submitted a medical report from William E. Farrer, M.D., F.A.C.P., Chief of the Division of Infectious Diseases at St. Elizabeth Hospital in Elizabeth, New Jersey, indicating that HIV infection "can be transmitted through sexual contact or through exposure to infected blood or body fluids." Def. Mem. Exh. A. Plaintiff's last sexual contact with the decedent was in July of 1990, over three years ago. Dr. Farrer states that a person who has contracted HIV infection will normally test positively for the presence of HIV within four to twelve weeks after being exposed. Def. Mem. Exh. A. However, Dr. Farrer recommends that "for a person of high-risk exposure, follow-up testing at six months, twelve months, and possibly even two years may be performed." Id. Plaintiff has tested negatively for the presence of HIV in at least six tests conducted over the last three years, the most recent having been performed on February 11, 1992. Plaintiff's papers indicate that he believes that he is currently not HIV positive.
Defendant argues that if plaintiff has not yet tested positively for the presence of HIV, he did not contract HIV infection from his relations with decedent. Defendant further argues that plaintiff's behavior of continuing to engage in homosexual relations with new partners has severed the causal connection between plaintiff's contact with decedent and any future test which indicates that plaintiff has become HIV positive. Defendant has submitted the report of Dr. Farrer in support of this argument. The report states in relevant part that:
If a person possibly exposed to HIV infection were to have a negative ELISA test [the enzyme-linked immunoabsorbant assay test used to detect HIV infection] at two or more years after exposure, their chance of being truly infected but seronegative is extremely small. If such a person had continued high-risk contacts with potentially HIV-infected individuals and subsequently then became HIV positive, it would be more likely that they were infected by the subsequent contacts.