that one would normally expect the nonmoving party to make the required
showing that a genuine issue of material fact exists. Id. See Also,
Morgan v. Havir Manufacturing Co., 887 F. Supp. 759 (E.D.Pa. 1994);
McGrath v. City of Philadelphia, 864 F. Supp. 466, 472-473 (E.D.Pa.
A. Statute of Limitations
Under Pa.C.S.A. § 5524(2), (7), an action to recover damages for
injuries under a theory of negligence must be commenced within two years
from the date of the purportedly negligent act. Judge Ludwig, in In re
Latex Gloves Products Liability Litigation, 152 F. Supp.2d 667 (E.D.Pa.
2001) succinctly summarized the "discovery rule" under Pennsylvania law:
Ordinarily, the limitations period "begins to run as soon as the right
to institute and maintain a suit arises; lack of knowledge, mistake or
misunderstanding do not toll the running of the statute of limitations."
Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84,
468 A.2d 468, 471 (1983). However, an exception known as the discovery
rule "arises from the inability of the injured, despite the exercise of
due diligence, to know of the injury or its cause." Id. at 85, 468 A.2d
at 471. "Where the existence of the injury is not known to the
complaining party and such knowledge cannot reasonably be ascertained
within the prescribed statutory period, the limitations period does not
begin to run until the discovery of the injury is reasonably possible."
Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325,
608 A.2d 1040, 1043 (1992) (citation omitted). "Conversely, if the
existence of the injury and cause thereof are reasonably ascertainable
within the two-year statutory period, the discovery rule does not apply
and no tolling occurs." Baumgart v. Keene Building Products Corp.,
542 Pa. 194, 199, 666 A.2d 238, 240 (1995).
Defendants here argue that the plaintiff's cause of action began to
accrue when she knew, or should have known through additional inquiry,
that she was not HIV positive. According to the defendants, this occurred
as early as March of 1991 and again in April and September of 1997, when
she was advised that her blood counts were high and inconsistent with an
HIV-positive diagnosis and that she should see an infectious disease
specialist for further testing. While we would agree with the defendants
that, in hindsight, the plaintiff should have consulted an infectious
disease specialist or perhaps requested further follow-up, there is also
evidence that the defendants continued to treat and counsel her about her
HIV-positive status through the years, including advising her to undergo
a tubal ligation to avoid conceiving an HIV-positive child. This
evidence, we believe, warrants submission of the issue of whether the
statute of limitations was effectively tolled until March, 1998 when Ms.
Wilder was informed by a physician at Pennsylvania Hospital that she did
not have the virus which causes AIDS. Accordingly, the defendants' motion
for summary judgment on the basis of the statute of limitations is
B. "Fear of AIDS"
Defendants alternatively argue that they are entitled to judgment
in their favor as a matter of law given that Pennsylvania law does
not allow recovery for fear of contracting AIDS in the absence of
actual exposure to the disease. We agree.
Although the Pennsylvania Supreme Court has yet to address the issue,
the Pennsylvania Superior Court has repeatedly held that in order to
recover for the fear of contracting a disease, a plaintiff must show that
there has been some actual
exposure to the disease. Shumosky v. Lutheran
Welfare Services of Northeastern Pennsylvania, Inc., 784 A.2d 196, 202
(Pa.Super. 2001); Doe v. Philadelphia Community Health Alternatives Aids
Task Force, 745 A.2d 25, 29 (Pa.Super. 2000); Lubowitz v. Albert Einstein
Medical Center, 424 Pa. Super. 468, 471, 623 A.2d 3, 5 (1993). See Also:
Rothschild v. Tower Air, Inc., Civ. A. No. 94-2656, 1995 U.S. Dist. LEXIS
2078 (E.D.Pa. Feb. 22, 1995); Griffin v. American Red Cross, Civ. A. No.
93-5924, 1994 U.S. Dist. LEXIS 16838 (E.D.Pa. Nov. 28, 1994); Burk v.
Sage Products, Inc., 747 F. Supp. 285, 287 (E.D.Pa. 1990). The plaintiff
here has adduced no evidence whatsoever that she was ever actually
exposed to the AIDS virus. Consequently, to the extent that the damages
which Ms. Wilder seeks to recover are for her fear of AIDS and fear of
passing the virus to her unborn children, summary judgment must be entered
in favor of the defendants.
Plaintiff, however, attempts to distinguish this case by arguing that
her causes of action are for negligence in rendering medical care and
negligent and intentional infliction of emotional distress and not merely
for fear of AIDS. These actions also fail.
Although the Pennsylvania Supreme Court has never expressly recognized
the tort of intentional infliction of emotional distress, the
Pennsylvania Superior Court has held that a claim for such a tort will
lie where "one who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another." Atamian v.
Assadzadeh, Civ. A. No. 00-3182, 2002 U.S. Dist. LEXIS 6269 (E.D.Pa.
Apr. 9, 2002), quoting Hinger v. Grand Cent. Sanitation, 447 Pa. Super. 575,
670 A.2d 173, 177 (1996) and Restatement (Second) of Torts, § 46. See
Also: Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988
(1987). In determining conduct that is "extreme and outrageous," it must
be "conduct that is so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community."
In other words, the case must be "one in which the recitation of the
facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim "Outrageous!" Id., citing
Kazatsky, 527 A.2d at 994.
Moreover, the Pennsylvania Supreme Court has further held "that if
section 46 of the Restatement is to be accepted in this Commonwealth, at
the very least, existence of the alleged emotional distress must be
supported by competent medical evidence." Kazatsky, 515 Pa. at 197, 527
A.2d at 995.
The actions complained of here can in no way be categorized as
outrageous. Although it is indeed unfortunate that the plaintiff was
advised that she was HIV positive when she was not, there is nothing in
this record to suggest that the defendants intentionally deceived her or
that they relayed this information to her in an atrocious or offensive
manner. Rather, it appears that the defendants repeatedly urged Plaintiff
to seek another opinion and care from someone specializing in infectious
diseases but that the plaintiff refused to do so because she "was
comfortable" with the people at Covenant House and because she was
fearful of learning that her AIDS had progressed. We therefore find that
judgment is properly entered in favor of the defendants on Plaintiff's
claim for intentional infliction of emotional distress.
To recover for negligent infliction of emotional distress, a plaintiff
must prove at least one of the following four
elements: (1) that the
defendant had a contractual or fiduciary duty toward him; (2) that
Plaintiff suffered a physical impact; (3) that Plaintiff was in a "zone
of danger" and at risk of an immediate physical injury; or (4) that
Plaintiff had a contemporaneous perception of tortious injury to a close
relative. Doe v. Philadelphia Community Health Alternatives, 745 A.2d at
27. A plaintiff must also establish the elements of a negligence claim,
i.e., that the defendant owed a duty of care to the plaintiff, the
defendant breached that duty, the breach resulted in injury to the
plaintiff, and the plaintiff suffered an actual loss or damage. Brown v.
Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868
(Pa.Super. 2000), citing, inter alia, Martin v. Evans, 551 Pa. 496, 502,
711 A.2d 458, 461 (1998); Atamian, supra. To satisfy the requirement of
causation, the complainant must demonstrate that the breach was both the
proximate and the actual cause of the injury. Reilly v. Tiergarten, Inc.,
430 Pa. Super. 10, 633 A.2d 208, 210 (1993). While actual and proximate
causation are often confused, a finding of proximate cause turns upon
"whether the policy of the law will extend the responsibility for the
negligent conduct to the consequences which have in fact occurred. The
term `proximate cause' is applied by the courts to those more or less
undefined considerations which limit liability even where the fact of
causation is clearly established. Brown, supra, quoting Bell v. Irace,
422 Pa. Super. 298, 619 A.2d 365, 367 (1993). Proximate cause is
primarily a problem of law and it is the court's responsibility to
evaluate the alleged facts and refuse to find an actor's conduct the
legal cause of harm when it appears to the court highly extraordinary
that the actor's conduct could have brought about the harm. Thus,
proximate cause must be determined by the judge and it must be established
before the question of actual cause is put to the jury. Id., citing
Reilly, 633 A.2d at 210. Stated otherwise, Pennsylvania law will not
support a finding of proximate cause if the negligence, if any, was so
remote that as a matter of law, the defendant cannot be held legally
responsible for the harm which subsequently occurred. Brown, 760 A.2d at
869. The test for proximate causation is whether the defendant's acts or
omissions were a "substantial factor" in bringing about the plaintiff's
harm. First v. Zem Zem Temple, 454 Pa. Super. 548, 686 A.2d 18, 21
Section 433 of the Restatement of Torts, Second (1965) sets forth
a method of determining whether negligent conduct is a substantial
factor in producing injury. It provides:
§ 433. Considerations Important in Determining
Whether Negligent Conduct is Substantial Factor in Producing Harm
The following considerations are in themselves or in combination with
one another important in determining whether the actor's conduct is a
substantial factor in bringing about harm to another: