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Two sisters from northeast Florida who sipped from a Coke bottle that may or may not have contained a used condom are entitled to recover damages for emotional injuries, the Florida Supreme Court ruled on Thursday. In a 5-1 decision, the high court found that plaintiffs don’t have to prove they were physically injured in order to recover damages. The ruling is significant because it changes the law on the physical injury requirement in connection with Florida’s so-called impact rule, says Russell Bohn, an appellate lawyer at Caruso Burlington Bohn & Compiani in West Palm Beach, Fla. “It changes case law because the court now says ingestion is an impact,” Bohn says. However, the court did not rule on the broad issue raised by the 5th District Court of Appeal of whether the impact rule should be abolished or amended. The impact rule generally requires that for plaintiffs to recover damages for emotional distress, they must demonstrate that the emotional distress flowed from physical injuries sustained in an impact. The case also is significant because no tort claim for fear of AIDS had ever been heard previously by the Florida Supreme Court, though it has become a recognized cause of action in other states. The case dates to 1992, when Linda Hagan and her sister, Barbara Parker, both drank from the same bottle of Coke. After holding it up to the light, they saw what appeared to be a used condom. The women went to a health care facility and were given shots. They were also told they should be tested for HIV and AIDS. They were tested twice and the results came back negative. The bottle was then delivered to Coca-Cola for testing. One analyst determined that the foreign object in the bottle was mold. During the state court trial, however, the sisters testified they were certain it was a condom. A jury returned a verdict in favor of the sisters, awarding each $75,000, along with $20,000 to Barbara Parker’s husband for loss of consortium. The judge reduced the award to $25,000 for each of the sisters and $8,000 for Parker’s husband. The 5th DCA reversed the verdict, holding that under case law concerning the impact rule, the two women had not established a claim because neither had suffered a physical injury. In its ruling, it certified for review the question of whether the impact rule should be abolished or amended. But in its ruling, the supreme court, which historically has declined to follow other states in eliminating the impact rule, declined to address that broader issue. It narrowed the question to whether the impact rule precludes a claim “for emotional distress caused by the ingestion of a contaminated food or beverage … despite the lack of an accompanying physical injury.” In a dissenting opinion, Justice Major B. Harding wrote that the sisters had “failed to establish the necessary threshold for their fear of contracting AIDS claim.”

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