disposable biohazard towels until it was in his opinion, clean.
He then placed the shield back on and completed the examination.
See id. at 209-15. In his examination of the monkey's tail,
plaintiff observed some fresh blood and pus. Because plaintiff
considered this event to be an "incident" rather than an
"exposure," he did not report it to Wyeth's occupational health
department. See id. at 227.
A few weeks later, around or prior to early May 1996, plaintiff
began manifesting flu-like symptoms, including headache, cold
sweats, shaking uncontrollably and light sensitivity. See id.
at 59-63. Pursuant to Wyeth company standard procedure, he
reported his complaints to an occupational health nurse and was
cultured for HBSV. Plaintiff thereafter learned that one of the
swabs from a mouth sore had come back positive on a PCR
(polymerase chain reaction) test and he should begin anti-viral
treatment.*fn1 See id. at 263-64.
The medical histories of two of the monkeys demonstrate that
they had tested positive for antibodies to HBSV in July 1995.
Both of these monkeys tested negative on two later successive
occasions before they were shipped to Wyeth. See McCarthy Aff.
Ex. B. While plaintiff is not certain that either of those two
monkeys was involved in the incident which is the subject of this
lawsuit, defendants have agreed that this point may be assumed
true for purposes of this motion. Defendants likewise assume as
true that at the moment of the tail incident, the involved monkey
was "shedding" HBSV, such that it was capable of transmitting the
virus to another being. See Covance Mem. at 10 n. 2.
In an earlier incident occurring in November 1995, plaintiff's
gloved hand was struck with a needle he was using for
subcutaneous injections on a monkey. Plaintiff stated in his
deposition that he did not believe the needle penetrated his two
pairs of gloves, but nevertheless immediately notified his
supervisor. He subsequently cleansed the area in accordance with
standard procedure. Plaintiff was examined by at least two
different doctors following the event. See Griffith Aff. Ex. C
at 97-99. He experienced a cold or flu in December, the following
month, and reported it. However, after some blood work was
performed, he experienced no further difficulties. See id. at
During his approximately two-year tenure at Wyeth, plaintiff's
work with monkeys included performing oral gavages, blood draws,
subcutaneous injections, administering medication, handling fecal
matter from monkeys, and swabbing the eyelids, mouths, and
genitalia of monkeys. Plaintiff testified, however, that in the
two years prior to the tail-whip incident at Wyeth, plaintiff had
never been splashed with any fluids or secretions from monkeys,
had not received any monkey bites or scratches, and had not
scratched himself on a monkey cage. See id. at 94-96.
Jurisdiction over this matter is based upon diversity of
citizenship pursuant to 28 U.S.C. § 1332 and the amount in
controversy exceeds $75,000.
B. Summary Judgment Standard
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. See Fed.R.Civ.P. 56; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Richardson v. New York State
Dep't of Correctional Service, 180 F.3d 426, 436 (2d Cir.
1999). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v.
Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences
therefrom, and ambiguities must be viewed in a light most
favorable to the nonmovant. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); Richardson, 180 F.3d at 436; Project
Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
Once the moving party has met the initial burden of
demonstrating the absence of a genuine issue of material fact,
the nonmoving party "must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty
Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505; Celotex Corp.,
477 U.S. at 323, 106 S.Ct. 2548. At that point the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. To withstand a
summary judgment motion, sufficient evidence must exist upon
which a reasonable jury could return a verdict for the nonmovant.
See Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. 2505;
Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.
1. Dr. Norman D. Bernstein
Plaintiffs concede that in order to prevail on each of the
causes of action alleged in their complaint, they must prove the
element of causation. That is, plaintiffs must prove that the
incident complained of on April 11, 1996, actually and
proximately caused the injury alleged. In this case, plaintiffs
must ultimately establish by a preponderance of the evidence,
that plaintiff became infected with HBSV as a result of being
exposed to monkey fluids of one of two monkeys that plaintiff
argues Covance should not have supplied to Wyeth, in the
tail-whip incident described above.
Defendants offer the opinion of Norman D. Bernstein, M.D.,
F.A.C.P. to meet their initial burden of demonstrating a lack of
any triable issue of fact as to causation. Defendants argue that
Dr. Bernstein's opinion demonstrates that it is not possible,
within a reasonable degree of medical certainty, for plaintiff to
have acquired HBSV from the tail-whip incident. Accordingly,
defendants submit that plaintiff's action must be dismissed for
lack of causation as a matter of law.
Dr. Bernstein is board certified in infectious diseases and
treated patients in the Pensacola, Florida cluster of HBSV in
1987. Dr. Bernstein has published articles on issues relating to
HBSV and has presented to professional organizations on these
topics. See Bernstein Aff. ¶¶ 5-12. Prior to offering his
opinion, Dr. Bernstein reviewed the portions of plaintiff's
deposition testimony in which he describes his protective
clothing and those where he describes how the incident occurred.
See id. ¶ 13.
Dr. Bernstein states in his affidavit that in order for HBSV to
spread from animals to humans, "[t]he virus must be present in
the secretions, excretions, tissues, blood or body fluid of the
monkey or its lab specimen and this material must contaminate a
break in the skin, or the mucous membranes of the eyes, nostrils,
mouth or tracheobronchus of the human." Id. ¶ 18. Further,
"intact barrier precautions such as the protective garb worn by
the plaintiff, prevent spread of Herpes B Simian virus. Casual
exposure such as being in the same room with the Herpes B Simian
virus does not result in the spread of the virus." Id. ¶ 19.
Accordingly, Dr. Bernstein opined as follows:
As described above, transmission of this disease
requires a mechanical transmission by contact of the
virus from the
monkey's body fluids, tissues, secretions or
excretions to the exposed surface tissues of the
human recipient. There is no evidence here of any
such transmission. According to his own testimony,
plaintiff had no broken skin and all of his mucous
membranes (e.g., nose, mouth, eyes) were covered by
several layers of protective equipment (OSHA-approved
face mask, safety goggles, plexiglass face shield).
There is little, if any, possibility that any trace
of monkey fluids possibly containing the virus could
have gotten through the multiple layers of protective
clothing [plaintiff] was wearing. Therefore, it is my
opinion with a reasonable degree of medical
certainty, that [plaintiff] did not contract Herpes B
Simian virus from the alleged incident he describes
involving a monkey's tail. Furthermore, it is my
opinion that it would be impossible for any credible,
knowledgeable, experienced physician to say with a
reasonable degree of medical certainty that, in fact,
[plaintiff] did contract Herpes B Simian virus from
this alleged exposure. Under these circumstances, it
would be pure speculation to say that he did.
Id. ¶¶ 33-35.