Coca-Cola Bottling Co. v. Hagan

750 So.2d 83

COCA-COLA BOTTLING COMPANY, et al., Appellants/Cross-Appellees, v. Linda HAGAN and Dobie Hagan, et al., Appellees/Cross-Appellants.

No. 98-1463.

District Court of Appeal of Florida, Fifth District.

December 3, 1999.

Rehearing Denied January 7, 2000.

Raoul G. Cantero, III, Gregory A. Victor, and Jeffrey W. Blacher, of Adorno & Zeder, P.A., Miami, for Appellants/Cross-Appellees.

Russell S. Bohn, of Caruso, Burlington, Bohn Compiani, P.A., West Palm Beach, and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.A., Stuart, for Appellees/Cross-Appellants.

W. SHARP, J.

Florida Coca-Cola Bottling Company and Coca-Cola Enterprises, Inc. (Coca-Cola) appeal from money judgments rendered against them after a jury verdict, which awarded $25,000.00 (each) to Linda Hagan and Barbara Parker, inclusive of medical bills, and $8,000.00 to Willie Parker (Barbara Parker's husband) for loss of consortium. Hagan and the Parkers cross-appeal the trial court's granting of Coca-Cola's motion for remittitur, and reduction of the jury's award, from $75,000.00 plus medical expenses (each), to Hagan and Barbara Parker, and from $20,000.00 to Willie Parker.

This is a case of first impression in the State of Florida. It presents us with the legal issue of whether or not, in a negligence case, a plaintiff can recover damages for fear of contracting AIDS, where no physical damage or injury to the plaintiff is proven, and further, no contact with HIV infected materials by the plaintiffs is shown. Because we think the plaintiffs failed to prove a prima facie case allowing recovery under these circumstances, we reverse, and do not address nor reach the issues raised on cross appeal.

The record in this case is not factually disputed or complex. In September of 1992, Hagan went to a nearby store to buy soft drinks on her lunch hour. She purchased two Cokes and one Sprite and returned to Hastings Academy Day Care where she was working as a teacher. The day care center was owned and operated by Hagan's sister, Barbara Parker, in the small town of Hastings, which is near St. Augustine, Florida. It accommodates children ages two to twelve.

Hagan drank one Coke on the way back to the center. When she got to the center, Parker asked if she could have one of the drinks. Hagan gave her the other Coke. Parker broke the seal on the bottle and poured part of the contents into a cup and drank some. She remarked to Hagan that there was something wrong with the Coke, and she asked her to taste it. Hagan took a sip from the cup and agreed. Both women testified the Coke was flat. It appeared to have lost its carbonation, and it tasted like water.

Hagan took the bottle off Parker's desk and went into the bathroom to hold it up to the light. When she turned the bottle upside down, she could see something floating in the remaining liquid in the bottle. Both women testified it looked like a used condom, with oozy stringy stuff coming out of the top. Hagan testified she became nauseated. Both testified they became frightened for their health.

They telephoned the Health Department, but had received no response by the time the center closed. The following morning (a Saturday) they went to the emergency room of the local hospital, gave their statements of what happened (i.e., that there was an oozing condom in a Coke which they had injested) to a police officer, the nurses and doctors, and were given shots. They were also advised to go to the Health Department to get a test for HIV.

At the Health Department, Hagan and Parker were immediately tested for HIV, and proved negative. They were also interviewed by Health Department persons, questioned about their sexual practices and partners, and given a lecture about AIDS. Six months later Hagan and Parker were given a second HIV test, and both were negative. Neither has had a HIV test since then. Nor has either suffered any physical illness resulting from drinking the Coke from the cup, or from the emotional upset it caused them.

The Coke bottle and cup containing the remaining liquid Parker had poured out, were left in the day care center, on Barbara's desk over the weekend. They were later taken to Parker's house, sealed in evidence bags, and locked in a filing cabinet. There they remained until they were delivered, about a week later, to an attorney Parker and Hagan had hired to represent them in a possible suit against Coca-Cola.

Neither the plaintiffs nor their attorney opened the sealed bags, or had the contents tested. However, on October 6, 1992, the plaintiffs' attorney turned the sealed bags over to an employee for Coca-Cola, for the purposes of testing. The employee signed a receipt which stated he had picked up sealed bags containing a Coke bottle with a condom inside. However, the employee testified he did not open the bags, and merely initiated the transport of the materials to Atlanta, Georgia, for examination.

Dr. Forrest Bayer, a Ph.D. chemist who was, at the time of the incident, the manager for Coca-Cola's Quality Assurance Department testified at trial. He received the evidence bags containing the Coke and other materials on Oct. 12, 1992, in Atlanta, and had them taken to the laboratory. He observed some brownish material floating in the Coke bottle near the neck. At first he thought it was a condom.

Dr. Bayer instructed a lab technician to pour the material out of the bottle into a beaker and to take photographs of each step. Dr. Bayer left the lab and was called back ten minutes later. Dr. Bayer observed a foreign object floating in a beaker and, upon visual inspection, determined it was a mold. He used metal forceps and removed it from the beaker, to examine it on a table.

It was a gelatinous mass, one-inch in diameter, semi-solid, tanish brown, and had a rubbery texture. He put a piece under a microscope, and saw the typical cellular structure common to mold. He did no further tests, such as a chemical analysis, because they were not warranted. He put the beaker and mold into a lab refrigerator, and testified items such as these remained locked in storage until any lawsuit involving them had concluded, as a matter of business practice.

At trial, Dr. Bayer produced a petre dish which he testified, contained remnants of the mold, although there was no identifying mark on the dish. He explained that over time this kind of mold dries up and shrinks in size because of its large water content. He also explained that this kind of mold can grow in beverages which have lost their carbonation. He said that given the date this particular Coke was bottled,¹ the heat in Florida, and other conditions which may have occurred prior to its purchase by Hagan, it was possible for the mold to grow in the bottle to its size and shape when discovered by Parker and Hagan.

He concluded that, to a "scientific certainty," the item floating in the Coke bottle was not a condom. He admitted on cross-examination, however, that he did not see the lab technician pour the Coke and item into the beaker. Parker, Hagan, and Willie Parker all testified they were certain they had seen a used condom floating in the Coke bottle. In addition, enlarged photographs of the Coke bottle with something floating in its contents, apparently taken by plaintiffs' attorney were admitted into evidence.

There was no medical or scientific evidence presented at trial that HIV was present in the Coke poured into the cup; nor that it was present in a condom, assuming the jury could have chosen to disregard Dr. Bayer's testimony. Further there was no medical or scientific evidence presented that HIV can be transmitted from a contaminated source in this manner, or that if it could be, how long a person who tasted the Coke, would be at risk for contracting AIDS. The trial judge ruled, based on case law from other jurisdictions, that the plaintiffs' recovery for emotional distress should be limited to the time beginning with the plaintiffs' possible exposure to the disease (drinking part of the Coke), and ending with their negative HIV test results six months later. He concluded that after obtaining a negative HIV test result six months after possibly being exposed, the plaintiffs' fears and anxieties about contracting AIDS would not be reasonable, and that there is no scientific basis to substantiate their emotional upset beyond that point.²

There was testimony that both Hagan and Parker suffered emotional upset from drinking the Coke. Part of their distress was caused by their perception that the nurses and doctors at the emergency room, and other persons who heard of the incident, thought it was funny, and they felt embarrassed and humiliated. Parker was concerned that information about the incident could damage her day care business. Neither Parker nor Hagan told anyone about the incident outside of their immediate families, nor did they consult their medical doctors. Hagan mentioned it to her doctor "in passing" several months later, while she was having a general check up, but he found it unremarkable.

The plaintiffs' greatest upset was their fear and concern that they could, in the indefinite future or at least for the next several years, contract AIDS, an admittedly terrible and terminal disease. They testified this damaged their peace of mind, caused them trouble sleeping, and made them worry about the future. There was also testimony that Willie Parker observed his wife's and Hagan's emotional upset, and that the Coke incident had interfered with his marital relationship with Parker. But, there was no evidence the plaintiffs sought or needed professional counseling or suffered a mental illness which required medical attention as a result of the incident.

Coca-Cola moved for a directed verdict, renewed at close of the evidence, on the ground that based on Florida case law a plaintiff cannot recover for the negligent infliction of emotional distress, unless the emotional distress is caused by...