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De Milio v. Schrager

July 14, 1995

CARMEN DE MILIO AND DENISE DE MILIO, HUSBAND AND WIFE, PLAINTIFFS,
v.
DR. PHILIP SCHRAGER, JOHN DOES 1-4, FICTITIOUS NAMES FOR PERSONS AND/OR ENTITIES UNKNOWN, DEFENDANTS.



Wolfson, J.s.c.

The opinion of the court was delivered by: Wolfson

OPINION

WOLFSON, J.S.C.

I

In a case of first impression, this court is being asked to resolve a two-fold question: (1) whether a plaintiff can recover damages for negligent infliction of emotional distress, based on the fear of developing acquired immune deficiency syndrome (AIDS); and (2) if so, whether such fear is unreasonable as a matter of law absent proof of actual exposure to the human immunodeficiency virus (HIV).

I conclude that a plaintiff may recover for emotional distress arising out of a fear of AIDS only where there exists proof of actual exposure to the AIDS virus and where a scientifically acknowledged channel of transmission has been articulated; but where there exists proof that a defendant's wrongful conduct was either intentional or recklessly indifferent, a rebuttable presumption of exposure will arise, enabling plaintiff to survive a motion for summary judgment.

On or about September 15, 1989, Carmen De Milio was stuck in the forearm by a dental instrument while collecting trash from Dr. Philip Schrager's North Brunswick office. One of plaintiff's co-workers extracted the deeply embedded instrument from Mr. De Milio's arm and threw it into the "hopper" of their garbage truck. The State Department of Environmental Protection was thereafter notified and an investigation, conducted by the Division of Waste Management, ensued. The Division's investigation confirmed that the defendant had, in addition to dental probes and other instruments, sought to discard other categories of medical waste, including extracted teeth, blood stained gauze and towels, and bloody by-products. Consequently, Dr. Schrager was issued three separate violation notices *fn1 essentially charging him with improper disposal of medical waste.

In addition to the physical injury caused by the probe, plaintiff seeks compensation for the severe emotional stress allegedly caused by his fear of contracting AIDS in the future.

II

AIDS has become the recurrent theme fueling our worst nightmares. *fn2 The disease is known to be fatal in 100 percent of cases, has no known cure, and is spreading at a horrifying rate, having "increased more than 100-fold since [it] was discovered in 1981." Marsha F. Goldsmith, "Critical Moment" at Hand in HIV/AIDS Pandemic, New Global Strategy to Arrest its Spread Proposed, 268 JAMA 445 (1992).

Individuals with AIDS are often subjected to severe social stigma. Consequently, it is not surprising that panic over the spread of HIV/AIDS in the United States has burgeoned into an influx of emotional distress claims based on the fear of contracting AIDS, (Stephanie B. Goldberg, AIDS Phobia: Reasonable Fears or Unreasonable Lawsuits?, A.B.A.J., June 1992, at 88), both by those who were actually exposed to the HIV virus, and who were potentially or theoretically exposed. See Marriott v. Sedco Forex Int'l Resources, Ltd., 827 F. Supp. 59, 74-75 (D. Mass. 1993).

In the present case, although plaintiff could theoretically have contracted the virus by the puncture *fn3, he has, fortunately, repeatedly tested negative over a period now extending some five years.

III

To state a cause of action in negligence, a plaintiff must allege that the defendant had a duty of care which it breached, and that the breach proximately caused legally cognizable injury. Caputzal v. The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966). Applying this general analysis to cases involving negligent infliction of emotional distress, our Supreme Court has concluded: "Liability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted, thus then bringing the ...


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