Caesar’s Atlantic City Casino may have to defend itself at trial against two patrons of its health spa who claim that use of unsterilized lancets during facials exposed them to risk of disease.
Chief U.S. District Judge Jerome Simandle in Camden on Wednesday denied most of the casino’s motion for summary judgment seeking dismissal of the suit, Denisco v. Boardwalk Regency Corp., 10-cv-3612.
In significant part, Simandle ruled that the plaintiffs can use the doctrine of res ipsa loquitur to establish negligence based on common knowledge, without need of expert testimony, since the issue of negligence here was not technical but “readily apparent to anyone of average intelligence and ordinary experience.”
He also let go forward claims for negligent training and supervision, assault and battery, intentional and negligent infliction of emotional distress, and punitive damages.
Cheryl Denisco of Duryea, Pa., and her mother-in-law, Marie Denisco of Pittstown, Pa., allege that they went to the casino’s Qua Spa on July 19, 2008, for a massage, followed by an “Optimal Hydration Facial.”
Linda Ventura, an aesthetician employed by the casino, using a lancet — a small, scalpel-like instrument — to remove blemishes. She allegedly used the same lancet on both women and did not sterilize it between uses. N.J.A.C. 13:28-2.15 makes lancet use for cosmetology purposes illegal.
The plaintiffs claim Ventura did not tell them she would be using a lancet or ask their permission and, while using it on Cheryl, admitted the procedure was illegal in some states and discussed precautions she takes to protect herself from HIV and other blood-borne pathogens.
The lancet allegedly left multiple punctures. Cheryl claims that afterward she saw red swollen spots and dried blood on her face and that spa personnel were unable to answer her questions about sterilization procedures.
Cheryl allegedly returned to the treatment room to ask about sterilization and found only one lancet, in the trash, which Ventura admitted using on both women, and no clean, unopened unused ones.
After being examined by a nurse on the casino staff, Cheryl and Marie went to the AtlantiCare Hospital Emergency Room.
They allege that to protect themselves they took a course of prophylactic antiretroviral drugs, which caused side effects like nausea and fatigue.
Doctors instructed them to use condoms, which meant Cheryl and her husband had to delay plans to have children, they allege. Both husbands asserted claims for loss of consortium.
Cheryl and Marie assert that they suffer from anxiety over contracting HIV and worry about the long-term effects of the drugs, with Cheryl claiming she suffered substantial weight loss, depression, sleeping difficulties and other psychological problems.
In his ruling on res ipsa, Simandle said a “jury should be permitted to find that the use of unsterilized needles on multiple patients or customers does not ordinarily occur without negligence, upon proof that the instrumentality was in defendant’s sole control and there is no indication of contributory negligence.”
He added, “From such evidence may arise a permissible, but not mandatory, presumption of negligence, and the Defendants are then required to present an explanation to refute the presumption that the incident did not occur by a lack of care.”
The casino argued that the res ipsa doctrine applied only in limited tort situations, such as a stairway collapse or unexpected soda-bottle explosion.
But Simandle analogized the plaintiffs’ claims to those in medical malpractice matters where the doctrine has been allowed.
The judge, however, limited the time period for which the plaintiffs could seek emotional distress damages to one year, the “window of anxiety” after which a reasonable person would no longer worry about contracting an infection.
The plaintiffs’ lawyer, Edith Pearce, who heads a firm in Philadelphia, says people usually worry about getting sick from needle sticks in hospitals and medical settings, rather than spas.
The case “has brought to light that although there are laws in place to protect people, those performing the services may not be aware of the law,” she says.
She sees it as significant that Simandle allowed the punitive damages claim, which requires proof of actual malice or a wanton and willful disregard of harm, and held that res ipsa could be used.
Simandle threw out only one of the plaintiffs’ claims, that of negligent hiring. An “employer is not required to ask all conceivable questions about a prospective employee’s practices or techniques,” he said. That is especially so where, in this case, the applicant was duly licensed and “there is no indication that her prior use of lancets was unlawful or without consent of her clients.”
The casino’s lawyer, Reena Shah of Camacho Mauro Mulholland in Princeton, declines comment. Ventura’s lawyer, John Simons of Hoagland, Longo Moran Dunst & Doukas in New Brunswick, did not return a call.