Opinion
No. 3-99-CV-1057-BD(G)
March 21, 2000.
MEMORANDUM OPINION AND ORDER
Defendant Mervyn's, Inc. has filed a motion for partial summary judgment with respect to certain claims alleged by plaintiff is this personal injury case. For the reasons stated herein, the motion is granted.
I.
Plaintiff Stephanie Baird bought a pair of Levi's blue jeans from a Mervyn's department store in Mesquite, Texas on April 12, 1997. When she put the jeans on the next day, plaintiff was stuck in the leg by a hypodermic needle hidden in one of the pockets. The needle punctured her skin and caused plaintiff to bleed. (Plf. Orig. Pet. ¶ III). Plaintiff underwent emergent AIDS prevention treatment for the next thirty days. This regimen included the administration of potent drugs which caused nausea, vomiting, fatigue, and difficulty concentrating. ( Id. ¶ V; Def. App. at 10-11, 13, 17-18). Plaintiff continued to experience many of these symptoms for several months after she completed her treatments. ( Id. at 10-11). She continues to be tested periodically for the AIDS virus. (Plf. Orig. Pet. ¶ V).
Plaintiff sued defendant in Texas state court for negligence, strict liability, and breach of implied warranty. Defendant timely removed the case to federal court and filed a motion for partial summary judgment. Specifically, defendant contends that: (1) plaintiff cannot recover mental anguish damages; (2) it had no duty to inspect the merchandise made the basis of this suit; and (3) plaintiff is not entitled to recover on her theories of strict liability or negligent failure to warn. Plaintiff was ordered to file a response to the motion by March 1, 2000. See ORDER, 2/2/00. However, she failed to do so. This matter is now ripe for determination.
Plaintiff does not clearly identify her claims for relief or theories of recovery. With respect to liability, plaintiff alleges:
The jeans in question were defective and unsafe for their intended purposes. The jeans were defective so as to render them unreasonably dangerous to Plaintiff. Defendants are strictly liable for the selling of the jeans in question in such a condition as well as under their implied warranty. In addition, Defendants failed to warn their customers of the characteristics, dangers and hazards of the jeans, and such failure was a producing cause of Plaintiff's injuries and damages. Defendants failed to act in any manner so as to take remedial measures to protect those such as Plaintiff from being injured by defective jeans.
The above acts constituting negligence, among others, were each a proximate cause of the occurrence in question and the injuries sustained by Plaintiff.
(Plf. Orig. Pet. ¶ IV). The Court construes this pleading to alleges claims for: (1) strict liability and negligence for selling a defective product that was unreasonably dangerous; (2) strict liability and negligence for failing to warn of a defective product; (3) strict liability and negligence for failing to remedy an unreasonably dangerous condition caused by a defective product; and (4) breach of implied warranty.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All the evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993); Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986).
III.
Plaintiff has not responded to the motion for summary judgment. Although the court may not enter a "default" summary judgment, it may accept the evidence submitted by defendant as undisputed. Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.). The Court will consider the motion with this standard in mind.
A.
Defendant first argues that plaintiff cannot recover mental anguish damages in this case. The Court agrees. Under Texas law, a plaintiff cannot recover damages for mental anguish resulting from the fear of contracting HIV or AIDS without proof of actual exposure to the disease. Drury v. Baptist Memorial Hospital System, 933 S.W.2d 668, 674-75 (Tex.App.-San Antonio 1996, writ denied). Plaintiff has offered no such evidence. In fact, plaintiff admitted that she did not know whether the hypodermic needle had been contaminated with HIV-tainted blood or bodily fluid. (Def. App. at 36-39). Moreover, plaintiff was tested for HIV on five separate occasions and has never tested positive for the disease. The incubation period is three weeks to six months, yet plaintiff still tested negative one year after the incident. ( Id. at 39-40, 47). Defendant's expert, Dr. William L. Sutker, testified that plaintiff "will never develop HIV from that exposure." ( Id. at 47). In light of this uncontroverted evidence, plaintiff cannot recover damages for mental anguish resulting from her fear of contracting HIV or AIDS.
The Texas Supreme Court has never addressed this precise issue. However, it recently held that a plaintiff cannot recover damages caused by the fear of contracting asbestos-related cancer unless he actually has the disease. Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88, 93 (Tex. 1999). The court would likely reach the same conclusion under the facts presented in this case. See Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999) (where state's highest court has failed to address issue of state law, federal court sitting in diversity must make " Erie guess" as to how court would decide the issue).
B.
Defendant next contends that it had no duty to inspect the defective blue jeans. In order to prove negligence for failure to inspect, plaintiff must show that defendant knew about the defect at the time of sale or had reasonable grounds to anticipate that failure to inspect the jeans would result in injury. See Holley v. Central Auto Parts, 347 S.W.2d 341, 344 (Tex.Civ.App.-Austin 1961, writ ref'd n.r.e.). No such evidence has been presented here. Accordingly, defendant is entitled to summary judgment as to this claim.
C.
Finally, defendant argues that plaintiff is not entitled to recover on her theories of strict liability or negligent failure to warn. Under either theory, plaintiff must prove that defendant knew or should have known that the jeans were defective so as to render them unreasonably dangerous at the time they were sold. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert. denied, 95 S.Ct. 127 (1974) ("The requirement that the danger be reasonably foreseeable . . . is an important limitation on the seller's liability."); Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978). Nothing in the record suggests that defendant actually knew that a hypodermic needle was concealed the jeans purchased by plaintiff. Nor was it reasonably foreseeable that such an unlikely item would be found in the pocket of a new pair of blue jeans. Defendant is entitled to summary judgment on this ground.
CONCLUSION
There is no genuine issue as to any material fact with respect to plaintiff's claims for: (1) mental anguish damages resulting from the fear of contracting HIV or AIDS; (2) negligent failure to inspect; and (3) strict liability and negligence for failure to warn. Defendant is entitled to judgment as a matter of law as to these claims.
SO ORDERED.
DATED: March 20, 2000.