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While “fear of” contracting AIDS cases have generally been rejected by Pennsylvania’s appellate courts, a recent verdict may point out a potential opening for some of these claims under federal law, experts say. Earlier this month, a Philadelphia jury awarded $200,000 to a New Jersey Transit worker who was pricked by a hypodermic needle thrown away in a lunchroom trash can. The worker said he then feared he might have contracted AIDS or hepatitis. The worker didn’t contract either disease, but in the lawsuit he filed against the railroad under the Federal Employers’ Liability Act, he said he suffered from anxiety, stress, anger and depression for a year after the incident until his doctor was able to assure him through medical testing that he hadn’t contracted either disease from the puncture. “The whole case was based on the emotional impact — Mr. Battista felt like there was a cloud over his head for a year before his doctor gave him a clean bill of health,” explained Rudolph DeGeorge, who represented the plaintiff, Michael Battista, in Battista v. New Jersey Transit Rail Operations Inc. In other Pennsylvania cases, plaintiffs seeking to recover damages for pain and suffering in these types of lawsuits haven’t been successful. The Pennsylvania Superior Court ruled in Shumosky v. Lutheran Welfare Services of Northeastern Pennsylvania Inc. in 2001 that a plaintiff in a fear of AIDS case must have actually been exposed to the disease to recover damages. In Shumosky, a nurse had filed suit after she was pricked with a needle used on an AIDS patient. The court said she could recover damages for emotional distress because she was actually exposed to the disease and suffered a physical impact. Unlike Shumosky, Battista never claimed that he was actually exposed to AIDS. “[The verdict] is significant because it does tend to expand the type of recoverable injury and could end up influencing Pennsylvania common law,” said William P. Murphy of Murphy & Goldstein. FELA, enacted in 1908, allows railroad employees to recover damages for work-related injuries that were are caused in whole or in part by the railroad’s negligence. “Fear of contracting a disease is a viable action under FELA,” explained DeGeorge, an attorney at the Barish Law Offices. “There’s no federal case law I’m aware of that prevents this kind of claim.” Battista, an electrician from Stroudsburg, Pa., has worked for the railroad for more than 30 years. He did not suffer any physical injury from the incident in March 2002 except the prick from the needle, DeGeorge said. The Battista trial lasted five days. After deliberating for 45 minutes, the eight jurors found New Jersey Transit was negligent in failing to provide a safe workplace for Battista. They also found that the railroad’s negligence played a part in causing Battista’s alleged emotional distress, DeGeorge said. In addition to the negligence charge, Common Pleas Judge Joseph I. Papalini, who presided, instructed the jury to consider a claim made by the defense that Battista was negligent in placing his hand into the trash can to throw a candy wrapper away. But the jury found Battista wasn’t comparatively negligent, DeGeorge said. DeGeorge said the railroad offered his client $10,000 to settle before trial, but Battista refused the offer. The defense attorney for New Jersey Transit, James Savage, referred calls to Michael Perrucci, a partner at his firm, Florio & Perrucci in Phillipsburg, N.J. Perrucci did not respond to calls for comment. The railroad has filed post-trial motions, which are pending, according to the docket. What might separate this case from the many “fear of” cases rejected by Pennsylvania’s courts in the past is that the case was brought under FELA. In March 2003, a split U.S. Supreme Court ruled in Norfolk & Western Railway Co. v. Ayers that railroad employees who had contracted physical injury as a result of being exposed to asbestos on the job could be compensated under FELA for mental anguish caused by a fear of developing cancer. In the five-justice majority opinion, Justice Ruth Bader Ginsburg explained that when FELA was enacted in 1908, “the common law had evolved to encompass apprehension of future harm as a component of pain and suffering.” The high court has outlined two categories for “fear of” claims seeking to recover damages for emotional distress, Ginsburg observed. Recovery in “stand-alone” claims — those not prompted by a physical injury — is subject to the “zone-of-danger” test. That test requires a plaintiff to show he either sustained a physical impact as a result of the defendant’s conduct or that he avoided actual physical injury but was placed in the immediate risk of being physically harmed by being in the “zone of danger.” The second type of emotional distress claim described by Ginsburg is a claim brought on by an actual physical injury. “Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or ‘parasitic’ on, a physical injury are traditionally compensable,” Ginsburg wrote. The justice quoted Section 456 of the Restatement (Second) of Torts: “If the actor’s negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for a fright, shock or other emotional disturbance resulting from the bodily harm or from which the conduct which causes it… . “ The question in Battista, said Scranton attorney Bruce Zero, is whether a needle prick is enough of a physical injury to be considered a physical “impact.” The jurors must have thought so “or they wouldn’t have returned a verdict that the railroad was negligent,” said Zero, who practices railroad law with Powell Law in Lackawanna County. “I’m sure there will be an appeal.” Murphy said he believed Battista’s pricked finger would “arguably” satisfy the impact rule, which courts have generally applied in “fear of” disease cases. Under the impact rule, any physical harm at all has usually been sufficient to trigger damages, said Murphy, who devotes part of his practice to appellate work. What might have made Battista’s argument under FELA even stronger was that he wasn’t the first N.J. Transit employee pricked by the needle on March 15, 2002, according to the plaintiff’s pre-trial memorandum. Earlier in the day, Debra Darrohn, a pipefitter for the railroad, had found the needle among feces, urine and other refuse while she was cleaning out the piping below a clogged toilet on a railway car, DeGeorge said. The needle stuck Darrohn, who testified at the trial that she had cleaned many needles out of train toilets in the course of her work. Darrohn’s supervisor told another pipefitter to dispose of the needle, and that pipefitter put it in the lunchroom trash can where Battista later encountered it, DeGeorge said. Battista’s supervisor put the needle in a Dumpster before taking Battista to the hospital. It was later fished out and taken to a hazardous waste drop at the local fire department, DeGeorge said. DeGeorge said he argued to the jury that although New Jersey Transit had a general safety rule requiring all employees to follow hazardous waste procedures, the company never outlined what the procedures were. Another NJT rule instructed employees not to drop needles into regular trash receptacles, he said. New Jersey Transit argued at trial that Battista shouldn’t have stuck his hand into the trash can and that his injury was the result of his own negligence, DeGeorge said. Anthony Rash, who has defended railroads in FELA suits, said that from a defense perspective, the needle prick did not constitute an impact causing physical injury. Under the alternative prong of the zone of danger test, Rash said he would argue that Battista was not placed in the immediate risk of being physically harmed when he was in the lunchroom where pricked his finger. But, “trying to be as broad-minded as possible, I can see a panel saying a pin prick is sufficient,” said Rash, an attorney at Dickie McCamey & Chilcote in Pittsburgh. “There was touching. There was harm.” A question the railroad may have considered in its defense, Rash said, was whether it was reasonably foreseeable that hypodermic needles would surface in a lunchroom. Another consideration, Rash said, would be whether it was reasonable for Battista to fear contracting AIDS from the needle prick. He predicted a Superior Court panel could answer that question in the affirmative. “It’s not unreasonable for a person to think they could contract a horrific disease from a needle prick,” he said.

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