Heileman v. Microsoft Corp ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30950
Summary Calendar
_____________________
CLINTON J HEILEMAN, JR
Plaintiff-Appellant
v.
MICROSOFT CORPORATION; ET AL
Defendants
MICROSOFT CORPORATION; JOHN STEER
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
Docket No. 98-CV-3202-T
_________________________________________________________________
March 9, 2000
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Clinton J. Heileman, Jr. (“Heileman”)
appeals from the district court’s entry of summary judgment in
favor of Defendants-Appellees Microsoft Corporation (“Microsoft”)
and John Steer (“Steer” or, with Microsoft, the “Appellees”).
I. BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Heileman is a busboy at the Hilton Hotel in New Orleans,
Louisiana. In late July 1998, Steer was staying at the Hilton
and attending a conference held by his employer, Microsoft.
Steer is diabetic and must closely monitor his blood-glucose
level. Several times a day, Steer pricks his finger with a
disposable lancet to draw a small amount of blood for testing.
On the morning of July 28, 1998, after a meal at the hotel coffee
shop, Steer pricked his finger for a blood test. Rather than
properly disposing of the used lancet, Steer left it on the table
wrapped in a napkin. Heileman subsequently pricked his right
index finger on the used lancet when clearing Steer’s table.
Heileman immediately reported the incident to his
supervisors, who sent him to Tulane Medical Center (“Tulane”) for
an examination. Tulane took a sample of Heileman’s blood and
tested it for the human immunodeficiency virus (“HIV”), hepatitis
B and C, and syphilis. The test results were negative. Tulane
put Heileman on a one-year testing schedule and tested him for
blood borne diseases at regular intervals. Each test indicated
that Heileman was negative for HIV, hepatitis B and C, and
syphilis.
While Heileman was at Tulane, medical personnel contacted
the Hilton to determine if a hotel guest had used the lancet.
After determining that the lancet belonged to Steer, Tulane asked
him to come to the hospital for a blood test to determine whether
he carried any disease that could have been transmitted to
Heileman via the lancet. Steer demurred and told Tulane that he
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was HIV- and hepatitis-free. Nonetheless, Steer told Tulane that
when he returned home to Washington he would submit to a blood
test by his personal doctor and forward the results.
Steer did not have a blood test immediately upon returning
to Washington, but he did have a test on October 21, 1998. The
test showed that Steer was negative for HIV, and hepatitis B and
C. The results of this test were forwarded to Heileman. Steer
was tested again, on March 19, 1999, and on July 8, 1999. The
results of both tests were negative and, again, the results were
provided to Heileman.
On September 17, 1998, Heileman filed suit against Steer and
Microsoft in Louisiana state court.1 Heileman’s suit alleged
that Steer was negligent in leaving the lancet on the table where
Heileman could prick his finger. As a result of this negligent
behavior, Heileman allegedly suffered severe emotional distress
because he feared he might have contracted a blood-borne disease.
Heileman also claimed that Steer negligently caused Heileman to
suffer further emotional distress by failing to submit to a blood
test at Tulane. Because Microsoft employed Steer, and because
Steer was in New Orleans as part of his employment, Heileman
alleged that Microsoft was equally liable for Steer’s negligence.
The Appellees removed the case to federal court on diversity
grounds and moved for summary judgment. At a hearing on the
1
Heileman’s original complaint named Microsoft and “John Doe”
as defendants. Heileman subsequently substituted Steer in place
of “John Doe.”
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summary judgment motion, Heileman emphasized the fact that Steer
refused to submit to a blood test at Tulane and had waited nearly
two months before submitting to a blood test in Washington.
Heileman argued that this behavior amounted to an intentional
infliction of emotional distress. Appellees responded by noting
that Heileman never alleged a claim of intentional infliction of
emotional distress in his complaint. Additionally, the Appellees
argued that because the blood tests indicated that Heileman was
never exposed to disease as a result of the lancet prick, he
cannot recover on his negligent infliction of emotional distress
claim.
The district court granted summary judgment to the Appellees
on Heileman’s negligent infliction of emotional distress claim
because it found that Heileman could not show that the lancet
prick resulted in exposure to disease. The court observed that
Steer’s two month delay in taking a blood test raised an
“interesting issue” as to whether he “intentionally” avoided
taking a blood test. However, the court noted that Steer did
eventually have a blood test and that the delay was not so
“extreme and outrageous” as to give rise to a claim of
intentional infliction of emotional distress. The court then
directed the parties to submit briefs discussing whether Heileman
had a right to recover for any physical damage caused by the
lancet prick. After briefing, the district court entered summary
judgment in favor of Appellees.
The day after the summary judgment hearing, Heileman moved
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for leave to amend his complaint. Heileman sought to add an
intentional infliction of emotional distress claim based on
Steer’s failure to promptly submit to a blood test. The court
granted Heileman’s motion for leave to amend, but later admitted
that it did so inadvertently. The court subsequently granted
Appellees’ motion to strike the amended complaint.
On appeal, Heileman argues that he pled a valid “infliction
of emotional distress” claim and that the district court erred in
granting the Appellees’ motion for summary judgment.2 Heileman’s
brief fails to delineate whether Steer’s alleged infliction of
emotional distress was negligent or intentional; it only alleges
that the Appellees acted “irrationally and cruelly.”
To the extent that Heileman contends the infliction of
emotional distress was negligent, we agree with the district
court that there is no genuine issue of fact for trial. To the
extent that Heileman’s claim is based on an intentional
infliction of emotional distress, we find that Heileman failed to
properly raise this claim below and we decline to consider it on
appeal.
II. DISCUSSION
2
In his brief, Heileman’s “Statement of the Issue” section
claims that he is appealing the district court’s decision to
grant Appellees summary judgment on his physical injury claim.
However, Steer does not address the “physical injury” issue in
the body of his brief, nor does he provide any legal support for
this claim. As such, he has waived appellate consideration of
this issue. See Applewhite v. Reichhold Chemicals, Inc., 67 F.3d
571, 573 & n.7 (5th Cir. 1995).
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A. Negligent Infliction of Emotional Distress
We review the district court’s grant of summary judgment de
novo, applying the same standards as the court below. See
Matagorda County v. Law, 19 F.3d 215, 217 (5th Cir. 1994).
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317 (1986).
To recover damages for negligent infliction of emotional
distress based on a fear of contracting an infectious disease,
Louisiana law requires that the plaintiff present evidence
showing that there was a “channel of exposure,” such as a needle
prick, and that the plaintiff was actually exposed to a disease.
In Nesom v. Tri Hawk Int’l, 985 F.2d 208, 210 (5th Cir. 1993), we
noted that Louisiana law does not allow a party to maintain an
action based on fear of contracting a disease “absent a showing
that the party was actually exposed” to disease. We noted that
“[t]o allow someone to recover merely because he fears that he
may have been exposed to a [disease] goes too far.” Id. at 211.
In Vallery v. Southern Baptist Hosp., 630 So. 2d 861, 867 (La. Ct.
App. 1993), the Louisiana Fourth Circuit Court of Appeals
postulated that a plaintiff may not recover when he can show that
a “channel of exposure” existed but cannot show that the channel
of exposure resulted in actual exposure to disease. Although a
plaintiff’s fear in such a situation may be genuine, the court
reasoned that such fear “is based on speculation rather than
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fact.” Id.
Similarly, in Stewart v. St. Frances Cabrini Hosp., 698
So. 2d 1, 5 (La. Ct. App. 1997), the Louisiana Third Circuit Court
of Appeals found that the plaintiff, the wife of a hospital
worker who had been pricked with a needle, could not state a
compensable claim based on her fear of becoming infected with HIV
without alleging a channel of infection and the “presence of an
infectious disease.” Id. The court noted that Stewart’s fear of
contracting a disease was “real and genuine,” but because she
failed to allege a channel of exposure and actual exposure to
HIV, her claim was not cognizable. Id.
Heileman looks to Vallier v. Louisiana Health Systems, Inc.,
722 So. 2d 418 (La. Ct. App. 1998), to support his emotional
distress claim. In Vallier, the Louisiana Third Circuit Court of
Appeals held that a cause of action existed based upon the mental
anguish the plaintiff suffered when she discovered that she had
been operated on with improperly disinfected instruments. Even
though Vallier could not show that she was actually exposed to an
infectious disease, the court allowed her to pursue an emotional
distress claim. The court allowed Vallier to proceed because it
found that the hospital owed her a heightened duty of care, and
because no tests were ever performed on the instruments to
determine whether they carried an infectious disease. See id. at
421. Such is not the case here. Steer owed no special duty to
Heileman and, in any event, blood tests conclusively show that
Heileman was not exposed to disease as a result of the lancet
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prick.
Heileman has clearly alleged a channel of exposure-- the
lancet prick. And we do not doubt that his fear of infection was
genuine. However, he can present no evidence that he was
actually exposed to any disease. Under Louisiana law, fear of
exposure, absent proof that one was actually exposed to disease,
can not support a claim of negligent infliction of emotional
distress. Therefore, the district court did not err in granting
Appellees’ motion for summary judgment.
B. Intentional Infliction of Emotional Distress
Much of Heileman’s argument, both in his brief and at the
summary judgment hearing, focused on Steer’s refusal to submit to
a blood test at Tulane and his two month delay in taking a blood
test when he returned to Washington. Heileman alleges that
Steer’s delay amounts to an intentional infliction of emotional
distress. However, Heileman’s original complaint never alleged
any intentional action on Steer’s part. This argument was first
raised at the summary judgment hearing and then repeated in
Heileman’s amended complaint.
We will not consider on appeal a claim that was never
properly before the district court. See Portis v. First Nat’l
Bank of New Albany, 34 F.3d 325, 331 (5th Cir. 1994). An issue
is properly before the district court if it is raised in the
pleadings, the pretrial order, or tried by consent. See id.
Because Heileman never raised an intentional infliction of
8
emotional distress claim in his original complaint, and because
the district court struck his amended complaint, the issue was
never properly before the district court and we refuse to
consider it on appeal.
Furthermore, by failing to argue that the district court
erred in striking his amended complaint, Heileman has waived any
consideration of the issue on appeal. See Childs v. State Farm
Mut. Auto. Ins. Co., 29 F.3d 1018, 1029 (5th Cir. 1994). Even if
Heileman had properly challenged the district court’s order
striking his amended complaint, we do not believe that the
court’s action was not an abuse of discretion. While Federal
Rule of Civil Procedure 15 provides that leave to amend “shall be
freely given when justice so requires,” the decision to grant
leave is a matter firmly within the discretion of the trial
court. See In the Matter of Southmark Corp., 88 F.3d 311, 314
(5th Cir. 1996). In striking the amended complaint, the district
court noted that the motion for leave to amend was filed nearly
eighteen months after the deadline for all amendments to the
pleadings, and that there was no evidence indicating that
Heileman was unable to amend his complaint prior to the deadline.
Given the untimely nature of the amendment, we can not say that
the district court abused its discretion in striking Heileman’s
amended complaint. See Wimm v. Jack Eckerd Corp., 3 F.3d 137,
139 (5th Cir. 1993) (stating that a district court may consider
factors such as “undue delay” by the plaintiff when deciding
whether to grant leave to amend).
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III. CONCLUSION
For the above stated reasons, we find that the district
court did not err in granting summary judgment to the Appellees.
AFFIRMED.
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