Court Establishes A Precedent For Suing Over Fear of Contracting AIDS

Man Can't Sue Because Standard Not Met

Contacts:

David L. Yas, Publisher
(617) 218-8112

Aubrey Haznar
(617) 218-8312
(781) 226-8616-Pager

BOSTON –(July 2, 2001)- A Massachusetts man who was pricked by a pair of surgical tweezers when he was cleaning out a newly purchased car can't sue the car dealership over the fear of contracting the AIDS virus. Because of the case, a Massachusetts court has for the first time said when someone can sue simply over the fear of contracting the deadly disease.

Timothy Cole of Weymouth purchased the used car from D.J. Quirk of Quincy. When Cole picked up the car, he noticed the vehicle's interior had not been cleaned and began to clean it. When Cole reached into the back seat pocket, he cut his hand on surgical tweezers that were apparently left by the previous owner, a physician. Cole sued the car dealerships based on the fear he may contract the fatal disease. A lower court threw the case out. The Appellate Division of the District Court upheld the dismissal, and in doing so established a new precedent-setting standard that makes it very difficult for people in Massachusetts to sue over the fear of contracting the AIDS virus or other diseases, according to an exclusive story in today's Massachusetts Lawyers Weekly. Details of the case can also be found on the weekly legal newspaper's web site, www.MassLaw.com.

"This is an important ruling by the Appellate Division because for the first time a Massachusetts court has explicitly said that someone can sue for emotional distress over the fear of contracting the virus which causes AIDS, even if that person has tested negative. However, the court set a very high hurdle for plaintiffs. The mere fear that a person 'might' have been exposed is not enough. A plaintiff has to show that he or she was actually exposed to the disease. In this case there was no indication that the needle was actually infected and therefore the suit had to be dismissed," said attorney David Yas, Publisher of Massachusetts Lawyers Weekly.

Some courts across the country have allowed plaintiffs to seek emotional distress damages when they have reason to fear they have been exposed, even if they cannot prove actual expsure, Yas noted.

But, in the present ruling, District Court Judge Daniel Winslow wrote a defendant must meet a certain burden of proof illustrating "both a scientifically accepted method of transmission….and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive."

Timothy Cole has never tested positive for the virus that causes AIDS. In his claim, he said after he was pricked by the tweezers, he was so fearful of contracting the disease he suffered from vomiting, diarrhea and nausea and abstained from sexual intercourse with his wife.