Majca v. Beekil

Annotate this Case
Majca v. Beekil/Doe v. NW Univ., Nos. 83677, 83886 (10/1/98)
Docket Nos. 83677, 83886 cons.--Agenda 16--May 1998.
EILEEN MAJCA et al., Appellants, v. STEVEN BEEKIL et al.,
Appellees.--JOHN DOE et al., Appellants, v.
NORTHWESTERN UNIVERSITY et al., Appellees.
Opinion filed October 1, 1998.

JUSTICE MILLER delivered the opinion of the court:
The plaintiffs in these consolidated cases filed complaints in
the circuit court of Cook County seeking to recover damages for
their fear of contracting acquired immune deficiency syndrome
(AIDS). In cause No. 83677, the trial judge granted summary
judgment in favor of defendants. In cause No. 83886, the trial
judge dismissed plaintiffs' complaint. In each case, the appellate
court affirmed. We granted plaintiffs' petitions for leave to appeal
(166 Ill. 2d R. 315) and consolidated the cases for the purposes
of this appeal. We affirm the judgments of the appellate court.

BACKGROUND
Cause No. 83677
Plaintiff, Eileen Majca, was employed as an office worker by
Dr. Jorge Gaffud, a general surgeon with an office in Homewood,
Illinois. Eileen's duties included scheduling appointments,
cleaning the office, and emptying the waste baskets. Defendant,
Dr. Steven Beekil, rented space from Dr. Gaffud and was entitled
to use the office for his podiatry practice on Mondays,
Wednesdays, and Fridays. In turn, Dr. Beekil allowed Dr. Peter
Lacher, whose estate is a defendant, to use the office on Mondays
for Dr. Lacher's podiatry practice. In exchange for using the
office, Dr. Lacher paid Dr. Beekil 50% of the fees that Dr.
Lacher collected from patients he saw at the office.
Eileen stated in her deposition that she emptied the waste
baskets before she left the office on Friday, March 1, 1991. On
Monday, March 4, 1991, Dr. Lacher saw two patients. Eileen did
not know what treatment, if any, the patients received and did not
recall the identity of the patients. The following afternoon
(Tuesday, March 5, 1991), Eileen again emptied the waste
baskets. Eileen was the only person in the office that day because
Dr. Gaffud was on vacation.
Dr. Lacher's waste basket was filled with trash. Eileen
pressed down on the trash to compact it so that she could grab
the plastic liner. As she was withdrawing her hand, Eileen felt a
twinge, looked down, and saw that her hand was cut and
bleeding. Eileen saw that there was a scalpel in the waste basket.
In addition to her own wet blood on the scalpel, Eileen stated that
she saw dried blood and a clear, mucus-like substance on the
scalpel. The surrounding trash consisted of used tissues, paper
towels, scrap paper, and gauze.
After consulting a doctor across the hall, Eileen went to a
nearby hospital's emergency room. The cut on her hand required
six stitches to close and Eileen was tested for human
immunodeficiency virus (HIV). Following treatment, Eileen
returned to the office. Eileen cleaned up the blood from her cut
and then dumped the trash, including the scalpel, into the
dumpster. Eileen's HIV test was negative. Two subsequent HIV
tests, performed three and nine months after the incident, were
also negative.
Following the incident, Eileen stated that Dr. Lacher did not
return to the office for a few months. In retrospect, Eileen
believed that Dr. Lacher was suffering from an HIV or AIDS
related illness at the time. After a few months, Dr. Lacher
returned to the office on at least one occasion. Eileen, however,
did not ask Dr. Lacher any questions regarding the presence of
the scalpel in the waste basket. It was the custom in the office to
always dispose of scalpels and needles in a red "sharps"
container. Also, Eileen did not attempt to find out whether Dr.
Lacher knew who had used the scalpel or if he knew on whom
the scalpel had been used. Dr. Lacher later died of an AIDS-
related illness on November 1, 1991.
Eileen and her husband, Michael Majca, filed a four-count
amended complaint against Dr. Beekil and the estate of Dr.
Lacher. Plaintiffs alleged that Dr. Lacher was either the partner
of Dr. Beekil or the actual or apparent agent of Dr. Beekil. Under
count I (negligence), count II (ultrahazardous or inherently
dangerous activities), and count III (negligent infliction of
emotional distress), plaintiffs sought damages for Eileen's medical
expenses, the pain and suffering caused by the injury to her hand,
and her fear of contracting AIDS as a result of the cut. Under
count IV (loss of consortium and society), plaintiffs sought
damages for Michael's fear of contracting AIDS through sexual
contact with Eileen.
Defendants filed motions for summary judgment. See 735
ILCS 5/2--1005 (West 1994). Both the estate of Dr. Lacher and
Dr. Beekil argued that plaintiffs' claim for fear of contracting
AIDS must fail because there was no evidence to show that
Eileen was actually exposed to HIV or AIDS. Dr. Beekil also
argued there was no evidence to support plaintiffs' claim that he
was negligent or that he was vicariously liable for the actions of
Dr. Lacher.
Plaintiffs responded to defendants' motions and attached the
affidavit of Dr. Linda Pifer, a microbiologist with experience in
the fields of HIV infection and AIDS. See 735 ILCS 5/2--1005
(West 1994); 145 Ill. 2d R. 191(a). In her affidavit, Dr. Pifer
opined that Eileen was exposed to HIV on March 5, 1991, that
Eileen was at risk of contracting HIV, and that Eileen's fear of
contracting HIV or AIDS was reasonable. In support of these
opinions, Dr. Pifer stated that "whether or not HIV can be
unequivocally proved to be on the scalpel is beside the point and
immaterial to [Eileen's] fear of becoming HIV positive."
Dr. Beekil filed a motion to strike Dr. Pifer's affidavit
because the affidavit failed to satisfy Supreme Court Rule 191(a)
(145 Ill. 2d R. 191(a)). In part, Rule 191(a) provides that an
affidavit in opposition to a motion for summary judgment "shall
set forth with particularity the facts upon which the claim,
counterclaim, or defense is based *** [and] shall not consist of
conclusions but of facts admissible in evidence."
At a hearing on defendants' motions for summary judgment,
the trial judge found that Dr. Pifer's affidavit contained legal
conclusions unsupported by a factual basis. The judge struck the
affidavit pursuant to Rule 191(a). The judge then granted
summary judgment in favor of defendants on plaintiffs' claim for
fear of contracting AIDS. The judge relied on Doe v. Surgicare
of Joliet, Inc., 268 Ill. App. 3d 793, 798 (1994), for the
proposition that a claim for fear of contracting AIDS requires
actual exposure to HIV and a likelihood of developing AIDS in
the future. The judge found there was no evidence to demonstrate
that Eileen was actually exposed to HIV or that Eileen was likely
to develop AIDS in the future.
In addition, the judge found there was no evidence to
demonstrate that Dr. Beekil was vicariously liable for the actions
of Dr. Lacher or that Dr. Beekil was negligent. Thus, the judge
granted summary judgment in favor of Dr. Beekil on plaintiffs'
remaining claims. At a later hearing, plaintiffs and the estate of
Dr. Lacher informed the judge that they had reached a settlement
agreement regarding Eileen's medical expenses and the pain and
suffering that resulted from the cut to her hand. The settlement
agreement resolved outstanding issues as to the estate of Dr.
Lacher.
The appellate court affirmed the judgment of the circuit
court. 289 Ill. App. 3d 760. The three-judge panel, however, did
not agree on a standard for evaluating plaintiffs' claim for fear of
contracting AIDS. Two separate special concurrences were filed
with the opinion that contained the judgment of the court.
We granted plaintiffs' petition for leave to appeal and
consolidated the case with cause No. 83886. While the appeal
was pending here, Dr. Beekil and the estate of Dr. Lacher each
filed a motion to strike the references in plaintiffs' brief to the
affidavit of Dr. Pifer. Plaintiffs have filed an objection to
defendants' motions. We have taken these motions with the case.

Cause No. 83886
In cause No. 83886, the plaintiffs, John Doe, Anita Doe,
Bertha Doe, Brian Doe, Carol Doe, and Laurel Doe, each received
dental treatment from defendant, Dr. John Noe. At the time of
plaintiffs' treatment, Dr. Noe was a dental student providing
treatment to patients at Northwestern University's dental clinic.
Northwestern University is also a defendant. The Does and Dr.
Noe are proceeding under fictitious names pursuant to section 2--
401(e) of the Code of Civil Procedure (735 ILCS 5/2--401(e)
(West 1992) ("Upon application and for good cause shown the
parties may appear under fictitious names")).
On July 22, 1991, Northwestern sent a letter to plaintiffs and
other clinic patients treated by Dr. Noe which stated in part:
"Recently we learned that a dental student involved in
providing care to you in the Dental Clinic has tested positive
for HIV, the virus that causes Acquired Immune Deficiency
Syndrome (AIDS).
We believe, based on the most current and reliable
scientific evidence, that the likelihood that you were infected
with the HIV virus as a result of contact with this student is
extremely low. All persons providing dental care are required
to follow precautions designed to prevent the communication
of diseases, including HIV. These precautions have been
taken. However, we strongly recommend that you be tested
for the presence of the virus.
The Northwestern University Dental School is offering
free testing for HIV." (Emphasis in original.)
Dr. Noe is the student referred to in the letter.
After plaintiffs' original and two amended complaints were
either dismissed or voluntarily withdrawn, plaintiffs filed a third
amended complaint containing 12 counts against Northwestern
and Dr. Noe. Plaintiffs alleged that at the time of their treatment
by Dr. Noe, Dr. Noe was infected with HIV. Count I sought class
certification with plaintiffs serving as representatives for the class
of all patients who received Northwestern's letter. In counts II
through XII, plaintiffs sought damages for their fear of
contracting AIDS as a result of receiving dental treatment from
Dr. Noe. In addition, plaintiffs sought punitive damages in counts
II through VII and in count XII.
Plaintiffs alleged breach of fiduciary duty (counts II, III),
intentional infliction of emotional distress (counts IV, V), battery
(count VI), common law fraud (count VII), breach of contract
(counts VIII, IX), and dental malpractice (counts X, XI). In count
XII, plaintiffs alleged consumer fraud. Although the consumer
fraud claim was previously dismissed with prejudice (count VII
of plaintiffs' first amended complaint), plaintiffs stated that they
realleged the claim in the third amended complaint so as not to
waive the issue in the event of an appeal.
Defendants filed a motion to dismiss plaintiffs' third amended
complaint under section 2--615 of the Code of Civil Procedure
(735 ILCS 5/2--615 (West 1992)). Defendants argued that the
complaint did not state a cause of action because plaintiffs failed
to allege that they were actually exposed to HIV or that they were
likely to develop AIDS in the future. See Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 798 (1994). Defendants also
argued that the theories set forth in counts II through XII failed
to establish any legal duties that were breached by defendants. In
the alternative, defendants filed a motion under section 2--
619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--
619(a)(9) (West 1992)) seeking to dismiss certain counts of the
third amended complaint because Dr. Noe did not treat any of the
named plaintiffs after Dr. Noe learned that he was HIV positive.
The trial judge dismissed plaintiffs' complaint. The judge
relied on Surgicare, finding that Surgicare was in accord with
other jurisdictions that have considered claims for fear of
contracting AIDS. Under the standard adopted in Surgicare--
actual exposure to HIV and a likelihood of developing AIDS in
the future--the judge found that plaintiffs failed to plead in any
count of their complaint that they were actually exposed to HIV.
Alternatively, the judge also dismissed several counts of the
complaint because plaintiffs failed to allege a likelihood of
contracting AIDS in the future and because Dr. Noe did not treat
any of the plaintiffs after he learned that he was HIV positive.
The appellate court affirmed. 289 Ill. App. 3d 39. Although
the majority agreed with plaintiffs that actual exposure to HIV is
not required to state a claim for fear of contracting AIDS, the
court believed that plaintiffs' complaint failed to allege sufficient
facts to demonstrate a substantial risk of HIV infection. The
special concurrence would have adopted an actual-exposure
requirement. See 289 Ill. App. 3d at 51-55 (DiVito, P.J., specially
concurring). Both the majority and the special concurrence would
have limited damages to the time in which a plaintiff reasonably
feared a substantial, medically verifiable possibility of contracting
AIDS.
We granted plaintiffs' petition for leave to appeal and
consolidated the case with cause No. 83677.

DISCUSSION
Our review of the judge's grant of summary judgment in
cause No. 83677 is de novo. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary
judgment is proper "where the pleadings, affidavits, depositions,
admissions, and exhibits on file, when viewed in the light most
favorable to the nonmovant, reveal that there is no genuine issue
as to any material fact and that the movant is entitled to judgment
as a matter of law." Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). Our review of the judge's dismissal of plaintiffs'
third amended complaint in cause No. 83886 is also de novo
(Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)) and we assume
the truth of all well-pleaded factual allegations in the complaint
(People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11
(1991)).
Plaintiffs in these consolidated cases argue that they should
be able to recover damages for their fear of contracting AIDS for
the time period between a possible exposure to HIV and the
receipt of reasonably conclusive HIV-negative test results.
Although this standard is similar to the one adopted by the
appellate court in cause No. 83886, plaintiffs, as appellants in
cause No. 83886, argue that the appellate court erred when it
found that their complaint alleged insufficient facts to demonstrate
a substantial risk of HIV infection. Plaintiffs in both cases
contend that actual exposure to HIV should not be a prerequisite
to recovery. Plaintiffs claim a jury should determine if an
individual's fear of contracting AIDS is reasonable under the
particular circumstances of each case, regardless of whether the
individual provides proof that he or she has actually been exposed
to HIV.
Although plaintiffs acknowledge that their position is in the
minority, plaintiffs rely for support on cases in which courts have
considered and rejected a requirement of actual exposure to HIV
in order to state a claim for fear of contracting AIDS. See
Williamson v. Waldman, 150 N.J. 232, 696 A.2d 14 (1997);
Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998); Madrid v. Lincoln County Medical Center, 122 N.M.
269, 923 P.2d 1154 (N.M. 1996); Faya v. Almaraz, 329 Md. 435,
620 A.2d 327 (Md. 1993); see also Marchica v. Long Island R.R.
Co., 31 F.3d 1197 (2d Cir. 1994) (rejecting actual exposure
requirement in Federal Employers' Liability Act cases).
In addition, plaintiffs rely on cases in which courts have not
discussed an actual-exposure requirement but have nevertheless
allowed a plaintiff to proceed on a claim for fear of contracting
AIDS absent evidence of actual exposure to HIV. See Howard v.
Alexandria Hospital, 245 Va. 346, 429 S.E.2d 22 (1993); Dollar
Inn, Inc. v. Slone, 695 N.E.2d 185 (Ind. App. 1998); Bordelon v.
St. Frances Cabrini Hospital, 640 So. 2d 476 (La. App. 1994);
Castro v. New York Life Insurance Co., 153 Misc. 2d 1, 588 N.Y.S.2d 695 (1991).
We note that the persuasive value of Bordelon and Castro is
open to debate. In Stewart v. St. Frances Cabrini Hospital, 698 So. 2d 1 (La. App. 1997), the court did not follow the lead of
Bordelon. Instead, the court stated that "[w]ithout evidence of the
presence of an infectious disease and without allegations of a
channel for infection, this claim [for fear of HIV infection]
becomes one steeped in speculation." Stewart, 698 So. 2d at 3.
Also, in Brown v. New York City Health & Hospitals Corp.,
225 A.D.2d 36, 648 N.Y.S.2d 880 (1996), the appellate court did
not adopt the position of the trial court in Castro. Rather, the
court stated that "in order to maintain a cause of action for
damages due to the fear of contracting AIDS, a plaintiff who has
not tested seropositive must offer proof of 'actual exposure.' "
Brown, 225 A.D.2d at 45, 648 N.Y.S.2d at 886. The court in
Brown noted that its approach was consistent with the results
reached in five other New York decisions. See Brown, 225 A.D.2d at 45, 648 N.Y.S.2d at 886.
Defendants argue that plaintiffs' fears of contracting AIDS
cannot be reasonable without actual exposure to HIV. Defendants
argue that, in the absence of actual exposure to HIV, a claim for
fear of contracting AIDS must fail as a matter of law.
In support of their position, defendants rely on cases from
jurisdictions that require actual exposure to HIV in order to state
a claim for fear of contracting AIDS. The cases relied on by
defendants include decisions from courts of last resort in several
states: Brzoska v. Olson, 668 A.2d 1355 (Del. 1995); K.A.C. v.
Benson, 527 N.W.2d 553 (Minn. 1995); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Johnson v. West Virginia University
Hospitals, Inc., 186 W. Va. 648, 413 S.E.2d 889 (1991); Neal v.
Neal, 125 Idaho 617, 873 P.2d 871 (1994) (requiring actual
exposure to a sexually transmitted disease including HIV). The
cases relied on by defendants also include decisions from
intermediate state courts of appeal: Kerins v. Hartley, 27 Cal. App. 4th 1062, 33 Cal. Rptr. 2d 172 (1994); Russaw v. Martin,
221 Ga. App. 683, 472 S.E.2d 508 (1996); Reynolds v. Highland
Manor, Inc., 24 Kan. App. 2d 859, 954 P.2d 11 (1998);
Pendergist v. Pendergrass, 961 S.W.2d 919 (Mo. App. 1998);
Brown v. New York City Health & Hospitals Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880 (1996); Seimon v. Becton Dickinson & Co.,
91 Ohio App. 3d 323, 632 N.E.2d 603 (1993); Drury v. Baptist
Memorial Hospital System, 933 S.W.2d 668 (Tex. Ct. App. 1996);
Stewart v. St. Frances Cabrini Hospital, 698 So. 2d 1 (La. App.
1997) (requiring proof of a "channel for infection"); Babich v.
Waukesha Memorial Hospital, Inc., 205 Wis. 2d 690, 556 N.W.2d 144 (Wis. App. 1996) (requiring proof of a "contaminated
source"). In addition, defendants rely on the federal district
court's decision in Burk v. Sage Products, Inc., 747 F. Supp. 285
(E.D. Pa. 1990) (applying Pennsylvania law, the court required
actual exposure to HIV to state a claim for fear of contracting
AIDS).
Thus, a majority of the courts that have considered claims for
fear of contracting AIDS have required a showing of actual
exposure to HIV. Comment, Emotional Distress Damages for
Fear of Contracting AIDS: Should Plaintiffs Have to Show
Exposure to HIV?, 99 Dickinson L. Rev. 779, 794 (1995); Note,
Can HIV-Negative Plaintiffs Recover Emotional Distress Damages
for Their Fear of AIDS?, 62 Fordham L. Rev. 225, 237-39
(1993).
Further, by way of analogy, defendants rely on cases in
which courts have addressed an individual's fear of contracting a
future illness. The future illness is often cancer. In order to
recognize a claim for fear of contracting a future illness, the
courts in these cases have required actual exposure to a harmful
agent. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965,
863 P.2d 795, 25 Cal. Rptr. 2d 550 (1993) (a plaintiff must show
actual exposure to a toxic substance and that it is more likely than
not cancer will develop); Urman v. South Boston Savings Bank,
424 Mass. 165, 674 N.E.2d 1078 (1997) (without evidence of
actual exposure to trichloroethylene, summary judgment against
plaintiffs was proper); Leaf River Forest Products v. Ferguson,
662 So. 2d 648 (Miss. 1995) (without evidence of actual exposure
to dioxin, plaintiffs failed to prove their claim); see also Simmons
v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996) (although
plaintiffs demonstrated actual exposure to asbestos, they did not
demonstrate an accompanying physical injury). Like a claim for
fear of contracting a future illness, defendants argue that a claim
for fear of contracting AIDS must include a showing of actual
exposure to the harmful agent--HIV.
We agree with defendants. Without proof of actual exposure
to HIV, a claim for fear of contracting AIDS is too speculative to
be legally cognizable. Simply put, "[i]t is unreasonable for a
person to fear infection when that person has not been exposed to
a disease." Brzoska, 668 A.2d at 1363. We believe that a
requirement of actual exposure to HIV distinguishes claims based
on conjecture and speculation from those that are based on a
genuine fear of contracting AIDS.
Several reasons support an actual-exposure requirement.
Because HIV is the cause of AIDS, a person will not develop
AIDS without having been exposed to HIV. A person may be
exposed to HIV when that person's bodily fluids, nonintact skin,
or mucous membranes come in contact with HIV-infected blood,
blood components or products, semen, vaginal fluids, or breast
milk. See Brzoska, 668 A.2d at 1357 n.1, 1361; Faya, 329 Md.
at 445, 620 A.2d at 331-32; K.A.C., 527 N.W.2d at 558-59; Bain,
936 S.W.2d at 625 n.5. As medical research uncovers more
information regarding the transmission of HIV, an actual-exposure
requirement will take these developments into account while
limiting claims based on unsupported modes of exposure.
In addition, an actual-exposure requirement prevents an
individual from recovering damages for fear of contracting AIDS
when that fear is based on a lack of information or inaccurate
information regarding the transmission of HIV. See Brzoska, 668 A.2d at 1363; K.A.C., 527 N.W.2d at 559-60; Williamson, 150
N.J. at 244, 696 A.2d at 19-20; Bain, 936 S.W.2d at 625 (Tenn.
1997); 99 Dickinson L. Rev. at 801-04; 62 Fordham L. Rev. at
251. Thus, the public is not discouraged from allaying its
concerns regarding the spread of HIV in order to capitalize on
unfounded fears of contracting AIDS.
Furthermore, a requirement of actual exposure is an objective
standard by which to evaluate claims for fear of contracting
AIDS. An objective standard helps to ensure stability,
consistency, and predictability in the disposition of these claims.
See K.A.C., 527 N.W.2d at 559; Pendergist, 961 S.W.2d at 926;
99 Dickinson L. Rev. at 803-04.
Accordingly, we examine plaintiffs' claims for fear of
contracting AIDS in light of plaintiffs' actual exposure to HIV.
In cause No. 83677, Eileen Majca cut her hand on a scalpel found
in a waste basket. Plaintiffs' amended complaint alleged that the
scalpel which injured Eileen "was exposed to the AIDS virus, or
alternatively, active H.I.V., by virtue of being wielded by DR.
PETER LACHER at a time when he had full blown AIDS, or
active H.I.V. from which he subsequently died." Plaintiffs did not
allege that the dried blood or clear, mucus-like substance
observed on the scalpel by Eileen was actually infected with HIV.
A review of the evidence in a light most favorable to
plaintiffs fails to demonstrate that either of the substances
observed on the scalpel was infected with HIV. Because Eileen
disposed of the scalpel, the scalpel was not available for
examination. Also, there is no evidence in the record from the
three individuals who likely had information regarding the
scalpel--Dr. Lacher, who is deceased, and his two unidentified
patients. Based on evidence in the record, the likely inference to
be drawn is that Dr. Lacher used the scalpel on one of the two
patients that were seen on Monday, March 4, 1991.
At most, plaintiffs have established that Eileen cut her hand
on a scalpel that may have been used by an HIV-infected
podiatrist. Plaintiffs, however, have presented no evidence that
Eileen was actually exposed to HIV. With no evidence of actual
exposure, summary judgment was properly granted in favor of
defendants on plaintiffs' claim for fear of contracting AIDS.
In cause No. 83886, plaintiffs alleged in their third amended
complaint that Dr. Noe was infected with HIV at the time he
provided dental treatment to plaintiffs. On a motion to dismiss,
we accept this allegation as true. Plaintiffs, however, did not
allege that they were actually exposed to HIV in any of the 12
counts contained in their complaint. For example, it was never
alleged that: Dr. Noe bled into a plaintiff's mouth by accidentally
cutting himself during a dental procedure; Dr. Noe pricked
himself with a needle prior to using the needle on a plaintiff; or
Dr. Noe otherwise exposed a plaintiff to HIV. Without an
allegation of actual exposure to HIV, plaintiffs have failed to state
a cause of action for fear of contracting AIDS and dismissal
under section 2--615 was proper.
In addition, defendants argue that plaintiffs' claims for fear
of contracting AIDS fail because plaintiffs have not demonstrated
a likelihood of developing AIDS in the future. Defendants explain
that even if an individual is actually exposed to HIV, infection
does not often result. If, however, actual exposure does result in
HIV infection, an individual will test positive for HIV within six
months of exposure approximately 99% of the time. Therefore, if
an individual tests negative for HIV more than six months after
an actual exposure incident, the individual is not likely to develop
AIDS in the future as a result of that particular exposure incident.
See Brzoska, 668 A.2d at 1359 n.3; Faya, 329 Md. at 446 & n.4,
620 A.2d at 332 & n.4; K.A.C., 527 N.W.2d at 557 n.5.
Accordingly, because plaintiffs here have not demonstrated that
they are likely to develop AIDS in the future, defendants argue
that plaintiffs' claims for fear of contracting AIDS must fail.
We find defendants' argument unpersuasive. We have already
found that once an individual is actually exposed to HIV, a
genuine fear of contracting AIDS may exist. The subsequent
receipt of HIV-negative test results cannot erase an individual's
genuine fear of contracting AIDS during the period between
actual exposure and the eventual receipt of HIV-negative test
results more than six months later. In fact, defendants' recitation
of the current status of medical research emphasizes that there
exists a period of time in which the exposed individual will
simply not know what the future may hold. This interim period,
sometimes referred to as the "window of anxiety," is when an
individual's fear of contracting AIDS may be reasonable. See
Bain, 936 S.W.2d at 624; Williamson, 150 N.J. at 250, 696 A.2d
at 23. We therefore believe that an individual need not
demonstrate a likelihood of developing AIDS in the future in
order to state a claim for fear of contracting AIDS. Once in
receipt of reliable HIV-negative test results, however, an
individual's fear of contracting AIDS would no longer be
reasonable.
Because of our holding regarding plaintiffs' claims for fear
of contracting AIDS, it is unnecessary to address the other issues
raised by plaintiffs in this appeal. As a final matter, however, we
must dispose of defendants' motions to strike the references to
Dr. Pifer's affidavit contained in plaintiffs' brief in cause No.
83677. Dr. Pifer's affidavit was attached to plaintiffs' response to
defendants' motions for summary judgment. The trial judge struck
Dr. Pifer's affidavit because the affidavit contained legal
conclusions unsupported by facts.
A review of the affidavit reveals that it contains Dr. Pifer's
opinions and conclusions instead of facts admissible in evidence
as required by Rule 191(a). In the affidavit, Dr. Pifer opines that
Eileen was exposed to HIV, that Eileen was at risk of contracting
HIV, and that Eileen's fear of contracting AIDS was reasonable.
Facts demonstrating Eileen's actual exposure to HIV, however,
are not set forth in the affidavit. Moreover, Dr. Pifer's
conclusions assume that the presence of HIV on the scalpel "is
beside the point and immaterial" to Eileen's fear of contracting
AIDS. We believe that the trial judge properly struck Dr. Pifer's
affidavit and therefore grant defendants' motions to strike the
references to Dr. Pifer's affidavit contained in plaintiffs' brief.

CONCLUSION
For the foregoing reasons, we affirm the appellate court's
judgment in cause No. 83677, which affirmed the trial judge's
grant of summary judgment in favor of defendants. Also, we
affirm the appellate court's judgment in cause No. 83886, which
affirmed the trial judge's dismissal of plaintiffs' complaint.

Appellate court judgments affirmed.

JUSTICE McMORROW took no part in the consideration or
decision of this case.