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Faurote v. United States

United States District Court, M.D. Florida, Tampa Division

July 13, 2018



          Charlene Edwards Honeywell United States District Judge.

         This matter comes before the Court upon the Defendant's Motion to Dismiss (Doc. 6) and Plaintiffs' response in opposition (Doc. 14). In the motion, Defendant contends that the Court should dismiss the Complaint because the Plaintiffs' allegations do not satisfy the Florida impact rule for emotional distress claims. The Court, having considered the motion and being fully advised in the premises, will grant Defendant's Motion to Dismiss, in part.

         I. STATEMENT OF FACTS [1]

         Daniel K. Faroute and Eda M. Smith live together in Pasco County, Florida. Doc. 1 at ¶ 6. On July 7, 2016, Faroute received surgical treatment at the Tampa Veteran's Administration Medical Center (the “Tampa VA”) for obstructive sleep apnea. Id. at ¶ 13. A month after the procedure, Faroute and Smith had a meeting at the Tampa VA. Id. at ¶ 14. The Tampa VA's chief of staff told Faroute that the medical staff used instruments in his procedure that did not satisfy all Tampa VA sterilization requirements. Id. Two of the three indicator strips on the instrument tray indicated that the tray did not reach the temperature and pressure levels required for proper sterilization. Doc. 1-1 at 3. Faroute and Smith received routine blood testing to ensure that neither had contracted HIV or hepatitis as a result of the incident. Doc. 1 at ¶ 16. Plaintiffs do not allege that either has contracted HIV or hepatitis. See id. at ¶¶ 15, 16. Faroute and Smith have a sexual relationship which created a risk of exposure to Smith. Doc. 1-1 at 2. Plaintiffs sue for negligence and demand $500, 000 in damages for pain and suffering and loss of enjoyment of life.


         To survive a motion to dismiss, a pleading must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in the complaint. Id.


         The United States argues that the impact rule bars Plaintiffs' recovery. Specifically, because the alleged injury derives from Defendant's disclosure that the surgical tools were not properly sterilized as opposed to the surgery itself, it argues that the emotional distress does not flow from an impact. The United States relies on R.J. v. Humana of Fla., Inc., 652 So.2d 360 (Fla. 1995) for the proposition that Florida law requires a physical impact from a negligent act to sustain a claim for emotional distress. Plaintiffs argue that the alleged negligence is the failure to sterilize the surgical tools, not the disclosure, and therefore Faroute's physical contact during the surgery is sufficient to satisfy the impact rule; R.J. is distinguishable; Smith's sexual contact with Faroute and blood testing satisfies the physical impact rule; and the Complaint otherwise states a proper claim for relief.

         Under federal law, the United States is liable for personal injury caused by the negligence of a government employee “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Plaintiffs allege negligence at the Tampa VA implicating Florida law.

         Florida's version of the impact rule bars a claim for mental or emotional damages caused by a defendant's negligence unless: (1) the plaintiff sustained a physical impact from an external source; (2) the claim arises from a situation in which the “impact” requirement is relaxed and the plaintiff manifests a significant discernible physical injury or illness as a result of the emotional trauma; or (3) one of the narrow exceptions to the impact rule applies rendering the rule inapplicable. Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007) (per curiam); Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla. 2007) (per curiam); Gracey v. Eaker, 837 So.2d 348, 355 (Fla. 2002).

         In Willis, the Florida Supreme Court clarified that no physical injury is necessary to overcome the impact rule where the plaintiff sustains “an impact or touching.” 967 So.2d at 850 (“When an impact or touching has occurred the rule has no application.”). “The essence of that the outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiff's body.” Id. (quoting Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 527 (Fla. 3d DCA 1985)). In the absence of an impact and in limited situations “the manifestation of severe emotional distress such as physical injuries or illness” may suffice to sustain a claim for emotional distress. Abril, 969 So.2d at 205. Florida courts have identified a few narrow exceptions to the impact rule, such as intentional torts, certain “freestanding torts, ” and breaches of the duty of confidentiality as to the release of sensitive personal information. Id. at 206.

         The United States argues that the surgery itself is not an “impact” because at the time that the tools touched Faroute, he did not know they were potentially contaminated. It also argues that the blood testing was not an “impact” because it involved ordinary touching and testing by a doctor. It states that to “permit liability for fear alone encourages inherently speculative, intangible claims and renders nearly impossible the defense of those claims.” Doc. 6 at 5 (citing R.J., 652 So.2d at 362-63).

         As alleged in the complaint, the negligent act was the improper sterilization of the surgical tools, which caused trauma to Faroute upon notification of this failure to properly sterilize. The physical contact flows from the alleged negligent conduct. Thus Faroute has set forth sufficient allegations to demonstrate a slight “impact” to proceed with his case, at this stage of the litigation.

         Faroute's claim is similar to the plaintiffs' claims in Alvarado v. U.S., 10-22788-CIV, 2010 WL 11553432, at *1 (S.D. Fla. Oct. 15, 2010). There, the plaintiffs argued that they suffered damages from the “negligent infliction of emotional distress that occurred when Plaintiffs learned that they were at a potential risk of having various diseases as a result of colonoscopies performed at a veterans' hospital operated by the Veteran's Administration[.]” Id. The defendant, relying on R.J., argued that the letter informing the plaintiffs of their potential risk caused the plaintiffs' distress. Therefore, it argued, the operation was not an “impact” for purposes of the impact rule. Id. at *3. The court held that R.J. was distinguishable in that the negligence alleged in R.J. related to the testing in a laboratory miles away and not in ...

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