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MURPHY v. ABBOTT LABS.

April 9, 1996

MARY A. MURPHY and KENNETH P. MURPHY
v.
ABBOTT LABORATORIES



The opinion of the court was delivered by: GAWTHROP

 Gawthrop, J.

 April 9, 1996

 Mary and Kenneth Murphy, Pennsylvania citizens, brought this diversity products-liability action against Abbott Laboratories, an Illinois corporation seeking to recover for injuries allegedly caused by a needle-stick that Mrs. Murphy suffered while working as a registered nurse at a Philadelphia hospital. *fn1" Plaintiffs allege that on November 13, 1993, Mrs. Murphy cared for a patient, who was being administered antibiotics intravenously. The patient was known to be both HIV- and Hepatitis B-positive. While handling the intravenous device Mrs. Murphy stuck her hand with a needle, which defendant had designed, manufactured, and sold to the hospital as a "needleless system." The device was designed to prevent this very kind of incident, having been capped with defendant's safety product by a fellow hospital employee.

 Plaintiffs do not allege that Mrs. Murphy has tested positive for HIV, Hepatitis B, or any other communicable disease. Nor do they allege that she has even been tested for any disease. What they allege is that this incident caused Mrs. Murphy to suffer a direct physical injury and an attendant fear of contracting a deadly disease. Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Pennsylvania does not recognize a cause of action for fear of developing AIDS. *fn2" Upon the following reasoning, I shall deny defendant's motion.

 In deciding a Rule 12(b)(6) motion to dismiss for failure to state a cause of action, the factual allegations in the complaint are to be accepted as true. The complaint should be dismissed only if it is clear that no relief could be granted under any set of facts that could be consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). Accordingly, for the purposes of this motion, all of plaintiffs' allegations and all reasonable inferences that can be drawn from them will be regarded as true. Because this is a diversity case, Pennsylvania substantive law applies. Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). As seems to be so often the case, however, the Supreme Court of Pennsylvania has not told us its view of the law of the Commonwealth in this area. I am thus required to predict what the Pennsylvania Supreme Court would decide if faced with this case. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3rd Cir. 1985).

 The issue before me is whether an individual who is injured by the penetration of an intravenous needle ("IV") into her body, which needle was used to administer an IV antibiotic to a patient who had AIDS and was known to have AIDS, has a cause of action not only for the direct physical injury she suffered, but also for the emotional distress arising from that injury. Plaintiffs contend that her fear of contracting AIDS is a consequence of her physical injury - namely, the needle-stick itself. Under traditional tort principles all consequential damages flowing from the physical injury are recoverable. Plaintiffs argue that to be emotionally distressed at the prospect of contracting AIDS after having been stuck by a needle, which had shortly before been immersed in the bodily fluids of one who had already tested positive for AIDS, is a natural consequence of that physical injury. I agree.

 Where a defendant's negligence inflicts a direct physical injury, courts have allowed recovery for the purely mental distress accompanying it. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 54, at 362-63 (5th ed. 1984). When a cause of action is based on immediate physical harm, these so-called "parasitic" damages are awarded. The policy rationale for allowing such parasitic damages, as distinct from mental distress damages standing alone, is that the direct physical injury provides sufficient assurance that the emotional distress is not feigned.

 Following these general principles of tort law, it had long been the rule in Pennsylvania that there could be no recovery for injuries resulting from mental distress, unless they were accompanied by physical injury or physical impact. Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). The Pennsylvania Supreme Court abandoned this rather rigorous rule in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), where the court supplanted the "impact rule," as it was called, with the "zone of danger rule." Under the "zone of danger rule" a plaintiff could recover for mental distress and physical injuries attendant to the negligent incident, even absent a direct physical injury or impact, as long as the plaintiff was in the "zone of danger" created by the defendant's negligence. The court went further in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), and allowed recovery where a close relative suffered mental distress and physical injuries attendant to the negligent incident, even though the plaintiff was a bystander not within the traditional zone of danger.

 In Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992), the Pennsylvania Supreme Court reaffirmed the long line of authority supporting the "impact rule." In that case the plaintiff, a fireman, suffered minor physical injuries when he inhaled carbon monoxide from an airpack that had been negligently filled. The plaintiff also suffered consequential psychological and emotional injuries. After the jury awarded the plaintiff a substantial verdict, the Superior Court granted the defendant a remittitur, reducing his damages to out-of-pocket medical expenses. The Pennsylvania Supreme Court reversed, holding that:

 
It is simple black letter law that a tortfeasor must take its victim as it finds him. Plaintiff-Appellant suffered objective, measurable, observable physical injuries here (although they were relatively mild). All of the consequent psychological and emotional pain and suffering is compensable in that situation, and our law has long so held under the so-called 'impact rule.'

 Id. at 165, 611 A.2d at 1176 (citation omitted).

 As recently as last week, in Simmons v. Pacor, Inc., 674 A.2d 232, 1996 Pa. LEXIS 587 (Pa. 1996), the Pennsylvania Supreme Court discussed the distinction between emotional distress damages attendant to physical injury and emotional distress damages standing alone. In this consolidated appeal the court held that the plaintiff-appellants could not recover for emotional distress caused by occupational exposure to asbestos. The plaintiffs sought to recover for the risk and fear of contracting cancer, where the diagnosis of asymptomatic pleural thickening of the lungs, brought on by occupational exposure to asbestos, caused them to suffer mental anguish but no discernible physical injury. The court held that, because plaintiffs could not establish that asymptomatic pleural thickening was a physical injury, they could not recover for their resultant emotional distress:

 
It is the general rule of this Commonwealth that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress unless ...

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