Barg Coffin Lewis & Trapp, LLP Articles

January 1996

Emotional Distress Claim Barred in Needle Stick Case

by Stephen C. Lewis

The California Court of Appeal, in Macy's California, Inc. v. Superior Court, has held that a plaintiff who sustained a needle stick could not sue for emotional distress damages based upon her fear of contracting AIDS and hepatitis, because she could not prove that the needle stick caused detrimental change to her body, or that she was more likely than not to actually contract the feared diseases.

While trying on a denim jacket at a Macy's department store, the plaintiff put her hand into one of the jacket pockets and pricked her finger on a hypodermic needle, which had apparently been left in the pocket with some other drug paraphernalia. The plaintiff sued Macy's for negligence, claiming that she could not sleep, had panic attacks, cried all the time, and worried constantly about her future and that of her family if she contracted AIDS.

The plaintiff sought treatment for hepatitis, and was tested for the human immunodeficiency virus (HIV). She never tested positive for HIV, acknowledged that her chances of contracting the virus were only one in 200,000, and as late as three years after the needle stick, had no hepatitis-related infection.

In barring plaintiff's claim, the Court of Appeal relied upon the landmark California Supreme Court opinion on recovery of emotional distress damages for fear of cancer, Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993). Potter involved claims against Firestone by landowners adjacent to a landfill where Firestone disposed of liquid industrial wastes, including solvents, cleaning fluids, and oils. None of the landowners suffered any physical injuries; however, their private drinking water wells were contaminated with chemicals--two of which were known to be human carcinogens. The landowners claimed their risk of developing cancer was increased, and they suffered from fears of developing cancer.

The Potter court noted that, under California law, a plaintiff is entitled to recover damages for emotional distress based upon fear of contracting some disease in the future where a defendant's negligence causes some physical injury to the plaintiff, and where the plaintiff suffers anxiety and distress due to a reasonable fear of future harm specifically attributable to that injury. Such emotional distress damages are considered "parasitic" to the physical injury.

Where there is no physical injury, however, the Potter court held that, before a plaintiff can recover emotional distress damages for fear of cancer, he must prove that (1) as a result of defendant's negligence, he was exposed to a toxic substance which threatens cancer, and (2) the fear stems from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that he will develop cancer in the future as a result of the toxic exposure. (A less stringent standard exists where a plaintiff can prove entitlement to punitive damages.)

The Potter standard for recovery of emotional distress damages for fear of cancer has been extended to other fear-of-future disease claims, and was found equally applicable in the "fear of AIDS" context in Herbert v. Regents of University of California, 26 Cal.App.4th 782 (1994), and Kerins v. Hartley, 27 Cal.App.4th 1062 (1994). However, like Potter, neither of those cases involved a claim of physical injury to the plaintiff. In both cases, summary judgment for the defendants was affirmed because neither plaintiff could meet the Potter "more-likely-than-not" test.

How Severe Must Injury Be?

The Macy's decision is significant because the plaintiff there did claim that her needle stick was a physical injury. The decision specifically asks and answers the question not addressed in Potter or the other fear-of-future-disease cases; namely, how much physical injury is required for recovery of parasitic emotional distress damages for fear of disease? The Macy's court answered that question: such injury must be enough to result in "detrimental change to the body":

"The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous substance, introduced to the body through the needle, causes detrimental change to the body. Only if the plaintiff proves detrimental change to the body may he or she recover parasitic emotional distress damages. Without such proof, the plaintiff must satisfy Potter's more-likely-than-not test."

Thus, because the plaintiff could not demonstrate any detrimental change to her body, she was required to prove that she was more likely than not to ultimately become infected with HIV or hepatitis -- which she was unable to do because she had never tested positive for HIV and showed no signs or symptoms of HIV or hepatitis infection.

The Macy's decision goes one step further in defining the parameters for emotional distress claims based upon fear of future disease, and will support trial courts inclined to dismiss those claims which lack sufficient foundation in medicine or science, or which otherwise are not sufficiently genuine, serious, and reasonable.

Macy's California, Inc. v. Superior Court, No. A071386, 95 Daily Journal D.A.R. 17131, 95 C.D.O.S. 9913 (Cal. Ct. App. Dec. 26, 1995)

This article was authored with the assistance of Landels Ripley & Diamond, LLP attorney Beth S. Jordan.
These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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