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January 26, 1993

JOHN L. MARCHICA, Plaintiff,

The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 According to several recent commentaries, the Acquired Immune Deficiency Syndrome ("AIDS") "carries the potential to be the greatest natural tragedy in human history." *fn1" For the legal profession, the ramifications of this protean epidemic force those entrusted with applying the law into unexplored territory.

 It is in this context that the instant case raises the question, for what appears to be the first time in this Circuit, whether the fear of contracting AIDS can form the basis of a cause of action under the Federal Employers' Liability Act ("FELA"). The defendant employer, the Long Island Rail Road, moves for summary judgment contending that there is no basis in law for such a cause of action in the circumstances of this case. The plaintiff, on the other hand, argues that these are precisely the circumstances Congress had in mind when it passed the FELA to protect federal employees in the work environment.


 John Marchica ("Marchica" or "the plaintiff") had been working for the Long Island Rail Road ("LIRR") as a structural welder for approximately seven years at the time of the incident alleged in the Complaint. On October 25, 1989, he was assigned by his supervisor to work at the Hempstead Railroad Station. Specifically, Marchica was directed to secure a metal grating above a window shaft in the station in order to prevent homeless people from getting into the trainmen's room. Marchica and his crew were to ensure that the grating could not be opened or raised from the outside, but at the same time could be opened safely and quickly from the inside by the trainmen in case of emergency.

 When he arrived at Hempstead Station, Marchica went through the station building and down into the trainmen's room where he observed a pile of debris, approximately three inches deep, at the bottom of the window shaft. The debris consisted of leaves, sticks, broken glass, papers and assorted refuse. According to the plaintiff, there had been a continuing problem with homeless people and drug addicts loitering in the area, and a number of break-ins or attempted break-ins of the trainmen's room had occurred.

 It appeared to the plaintiff that it would be necessary to enter the shaft to secure certain pins to the wall to fasten the grating. According to Marchica, railroad regulations required him to clear away the litter before standing in the shaftway. While wearing heavy duty work gloves and clothing, the plaintiff reached into the shaftway with his right hand to clear away part of the pile when he suddenly felt a sharp pain. When he withdrew his hand, he observed a hypodermic needle which had penetrated his glove and was still embedded in his finger.

 Marchica immediately removed the needle and for several seconds was in shock. He did not observe whether there was any fluid inside the barrel of the hypodermic. A co-worker retrieved the needle, placed it in a bag, and gave it to the plaintiff who was then taken by another co-worker to the Emergency Room at Winthrop University Hospital. At Winthrop, the plaintiff's wound was cleaned and he was advised to go for an HIV blood test and hepatitis shot and to abstain from all sexual contact for at least six months.

 The plaintiff then went to see his own physician, Dr. Homayoon, who referred him to the Medical Center at Stony Brook for further tests and treatment. Dr. Homayoon saw the plaintiff on several occasions and during one visit, he drew blood for an additional HIV test. In November, 1989 and April, 1990, additional HIV tests were performed.

 Based on personal difficulties he was experiencing -- which he ascribes to this incident and to the information he was given at Winthrop that it takes six months for the HIV virus to incubate -- Marchica saw Dr. Jay Gassman, a psychologist in Lake Ronkonkoma, to whom he stated that he felt as if he were "on a death sentence" (Marchica Deposition, p. 42). The plaintiff complained of sleeping disorder, nightmares, disruption of his family bonds and increased irritability. At one point, he began receiving calls from co-workers saying that they heard he had died of AIDS. Numerous persons would not shake hands with him, and his co-workers, including his supervisor Barry Vernon, told him they were afraid they might catch something from him.

 After seeing Marchica for approximately two months, Dr. Gassman referred him to Dr. Raymond Lambert, a Smithtown psychiatrist who prescribed several anti-depressants, including Prozac and Taxmaraphin. Sometime in the first half of 1990, Marchica learned that the second HIV test was negative. In February, 1992, the plaintiff received a letter from the LIRR instructing him to go for a psychological evaluation, which was performed by Dr. Michael Melamed on April 6, 1992.

 In June, 1992, Marchica brought this action pursuant to the FELA statute, 45 U.S.C. §§ 51-60 (1988), alleging that the defendant LIRR was negligent in failing to provide him with a safe place to work, specifically in failing to maintain the premises at the Hempstead Railroad Station in a reasonably safe condition, which caused both the physical and psychological injuries he sustained.

 Essentially, one part of the plaintiff's claim sought compensation for the physical injury to his right hand, caused by the needle entering his finger. He also makes a claim for the resulting emotional distress attendant upon the physical injury, including a claim of fear of contracting AIDS. In his answer to interrogatory No. 26, the plaintiff listed these latter injuries as post-traumatic stress disorder, depression, anxiety, feelings of detachment or estrangement, restricted range of affect, sleep disturbances, concentration difficulties, irritability, outbursts of anger, psychological deterioration, extremely reduced social contacts, inability to engage in sexual relations with his wife, and diminution of the social relationship with his wife.


 The defendant Long Island Rail Road moves, pursuant to Fed. R. Civ. P. 56, for partial summary judgment, dismissing certain elements of the alleged injuries and damages claimed by the plaintiff. Specifically, the LIRR asks the Court to "dismiss all claims relating or pertaining to the plaintiff's alleged fear of contracting AIDS (Acquired Immune Deficiency Syndrome) on the grounds that there is no proof that the Plaintiff was exposed to the HIV (Human Immune Deficiency Virus) and the fact that the Plaintiff has been tested negatively for such exposure" (Kronenberg Affidavit, P 2).

 The defendant relies upon a series of cases which conclude that an injured party can not recover on a claim of fear of contracting a disease, including AIDS, where the plaintiff had not shown that he was exposed to the disease (see, e.g., Wisniewski v. Johns-Manville Corp., 759 F.2d 271 [3d Cir. 1985]; Burk v. Sage Products, Inc., 747 F. Supp. 285 [E.D. Pa. 1990]; Hare v. State, 173 A.D.2d 523, 570 N.Y.S.2d 125 [2d Dept. 1991]; Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 471 A.2d 493 [1984]). The defendant maintains that the plaintiff has alleged no injury "which arose as the result of exposure to the HIV virus itself" (Defendant's Memorandum of Law at p. 14). According to the LIRR, the specific damages in this category are clearly "speculative" and therefore not recoverable.

 In opposing the motion, the plaintiff contends that the defendant has a heavy burden to overcome in attempting to obtain summary judgment in this FELA cause of action. Relying upon Halko v. New Jersey Transit Rail Operations, Inc., 677 F. Supp. 135 (S.D.N.Y. 1987), the plaintiff argues that railroad workers may assert claims under FELA for a wholly mental injury. In fact, the plaintiff maintains, it has been previously determined that a railroad worker who incurs physical or mental injury from unsafe working conditions has a ...

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