Don’t get stuck: Massachusetts and New Hampshire require “actual exposure” to maintain a cause of action for HIV/AIDS-phobia

Issue Vol. 11 No. 1 January 2009 By By Martin C. Foster, Stephen M. Fiore and Kerry A. Sousa


A majority of jurisdictions in the United States, including Massachusetts and New Hampshire, strictly limit a plaintiff’s ability to maintain a cause of action for emotional distress resulting from fear of acquiring HIV or AIDS, otherwise known as “HIV/AIDS-phobia,” by imposing an objective “actual exposure” standard for determining the cause of the emotional distress. To meet this standard, a plaintiff who has not tested seropositive must prove both a scientifically accepted method of transmission of the virus and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive.

Silverware, handshakes, and toilet seats, oh my! Objective standard guards against compensation for unrealistic fears

In the 2001 Massachusetts Appellate Division case Cole v. D.J. Quirk, Inc., 2001 WL 705730 (Mass.App.Div. 2001), a husband and wife who purchased a used car brought claims against the dealership for negligent infliction of emotional distress after the husband pierced his finger on a pair of surgical tweezers left in the car by its previous owner. The plaintiffs subsequently learned that the previous owner was a physician and found prescription scripts in the car with the words “viral,” “ELISA,” “antibodies” and “specific toxicity,” causing them to fear that the surgical tweezers had been contaminated with HIV. The husband never tested positive for HIV, and the plaintiffs never had the tweezers tested to determine the presence of HIV. The trial judge directed a verdict in favor of the defendants. The Massachusetts Appellate Division, in a well-written opinion authored by former Justice Daniel B. Winslow of the District Court’s Southern Appellate Division, adopted the objective actual exposure standard of causation. The court, affirming the directed verdict, determined that the plaintiffs failed to meet their burden of proof at trial because they did not show that the source of the allegedly transmitted blood or fluid was in fact HIV-positive.

Rest easy — Pandora’s box remains locked and guarded

As Cole was a case of first impression in Massachusetts on this issue, the court analyzed the holdings of other jurisdictions and considered the two competing views regarding the proof of causation necessary to establish a claim for HIV/AIDS-phobia: the objective “actual exposure” standard and the subjective “reasonable fear” standard. Under the minority reasonable fear standard, adopted in only a handful of jurisdictions, a plaintiff who has not tested seropositive may recover damages for emotional distress by proving a specific incident of potential exposure sufficient to create a reasonable fear of having contracted the AIDS virus, even in the absence of a proven source and channel of exposure.

The court recognized that many lay persons, despite scientific proof to the contrary, continue to believe that HIV can be transmitted through food, silverware, handshakes and toilet seats. With this understanding, Cole explicitly rejected the minority view because the reasonable fear standard weighs heavily against public policy by stigmatizing persons infected with HIV, and it fails to guard against claims for HIV/AIDS-phobia that are “trivial, evanescent, temporary, feigned, or imagined.” Therefore, Cole does not preclude a plaintiff’s recovery for emotional distress arising out of fear of acquiring HIV/AIDS, but it limits a plaintiff’s ability to recover by objectively deciding which fears are compensable in HIV/AIDS-phobia cases. By rejecting the subjective reasonable fear standard, Massachusetts, like the majority of other jurisdictions that have addressed this issue, has appropriately thrown away the key to Pandora’s Box, along with the potential of stigmatizing persons infected with HIV.

Questions still remain, however. The Massachusetts Appellate Division explained in Cole that both the reasonable fear and actual exposure views are “tempered” in some jurisdictions by application of a “window of recovery” that limits damages for emotional distress. This limitation allows for recovery only until the plaintiff has had a sufficient opportunity to determine with reasonable medical certainty that he or she has not been exposed to or infected with HIV. The Cole court did not address whether a claim for HIV/AIDS-phobia would be subject to this type of limitation in Massachusetts.

Cole also left open the issue of how to handle HIV/AIDS-phobia cases where the defendant destroys key evidence, such as a potentially-contaminated needle, prior to the evidence being tested. The court in Cole did note, however, that some courts would apply spoliation principles to presume that the alleged source of transmission was in fact HIV positive and leave it to the defense to prove otherwise.

It’s objective! New Hampshire adopts “actual exposure” standard in 2008

As recently as Sept. 12, 2008, New Hampshire Grafton Superior Court, in Brocklehurst v. Dartmouth-Hitchcock Medical Center, addressed the HIV/AIDS-phobia issue and also adopted the actual exposure standard. There, the court granted summary judgment against a plaintiff who claimed emotional distress resulting from a fear of acquiring HIV and/or hepatitis. In adopting the actual exposure standard, the court agreed with the reasoning of the Missouri Court of Appeals in Pendergist v. Pendergrass, 961 S.W.2d 919 (Mo. Ct. App. 1998), which when grappling with this issue offered several reasons for preferring the actual exposure test: (1) it ensures that a genuine basis for the fear exists and that the fear is not premised on public misconceptions about AIDS, thereby preventing plaintiffs from opening ‘a Pandora’s Box of AIDS-phobia claims’; (2) an actual exposure rule preserves an objective component in emotional distress cases necessary to ensure stability, consistency and predictability in the disposition of those cases; and (3) the rule ensures that victims who are exposed to HIV or actually contract HIV as a result of a defendant’s negligence are compensated for their emotional distress.


The overwhelming majority of jurisdictions (including Massachusetts and New Hampshire) require that a claimant prove actual exposure to HIV in order to make out a prima facie case involving incidents of “needle sticks” or other penetrations of bodily integrity. Consequently, when such events occur, care should be taken to identify and test source instruments that caused the insult. In the absence of such evidence, it will prove difficult or impossible for a plaintiff to recover.

Martin C. Foster is a senior partner at Foster & Eldridge LLP in Cambridge, where his practice focuses on the defense of medical providers in malpractice actions. He is also chairman of the Board of Trustees of New England Law Boston.

Stephen M. Fiore is an associate at Foster & Eldridge LLP, where he specializes in the defense of medical providers and provides risk management advice to health care professionals.

Kerry A. Sousa is a J.D. candidate at New England Law Boston (2010) and a graduate of Boston University (B.A. 2005).  She is also the law clerk for 12 attorneys at Foster & Eldridge LLP.