                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2009

Basil Okocha v. Lab Corp Amer
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3819




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"Basil Okocha v. Lab Corp Amer" (2009). 2009 Decisions. Paper 1825.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1825


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DLD-101                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-3819


                                BASIL C. OKOCHA,
                                               Appellant

                                          v.

                 LABORATORY CORPORATION OF AMERICA;
                 CENTER FOR FAMILY HEALTH, HOBOKEN, NJ




                   On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. Civil No. 06-01791)
                     District Judge: Honorable Jose L. Linares


                 Submitted for Possible Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 12, 2009

                Before: BARRY, AMBRO and SMITH, Circuit Judges

                         (Opinion filed : February 24, 2009 )


                                      OPINION


PER CURIAM

      Appellant Basil Okocha (“Okocha”) filed this civil action against Laboratory

Corporation of America and the Center for Family Health, Hoboken, NJ (“Appellees”),
alleging that Appellees colluded with the FBI to inject him with the Human

Immunodeficiency Virus (“HIV”), then covered-up this fact by falsifying subsequent HIV

test results, which negligently inflicted emotional distress upon Okocha. The District

Court exercised federal diversity jurisdiction under 28 U.S.C. § 1332, and correctly

identified New Jersey law as controlling with respect to the substance of Okocha’s

claims. On August 15, 2008, the District Court granted Appellees’ motion for summary

judgment and dismissed Okocha’s complaint. We exercise jurisdiction pursuant to 28

U.S.C. § 1291, and will affirm.

       A party attempting to survive summary judgment “must present more than just

bare assertions, conclusory allegations or suspicions to show the existence of a genuine

issue.” Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (citation

omitted). Accepting as true that Okocha is currently HIV-positive, he nonetheless has

failed to show the existence of a genuine issue of material fact with regard to Appellees’

alleged infection of him with the retrovirus. Likewise, Okocha has also failed to offer

anything beyond pure speculation to show that Appellees falsified any of his HIV test

results.

       It follows, then, that Okocha cannot impute his alleged emotional distress to the

Appellees because he has failed to produce any evidence of tortious conduct on their part.

Equally fatal to Okocha’s claim for negligent infliction of emotional distress (“NIED”) is

the absence of any evidence in the record showing that he “has suffered emotional



                                             2
distress so severe that no reasonable [person] could be expected to endure it.” Schillaci v.

First Fid. Bank, 709 A.2d 1375, 1380 (N.J. Super. Ct. App. Div. 1998) (quoting Buckley

v. Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)).1

       On appeal, Okocha directs our attention to two New Jersey cases which he

believes compel reversal of the District Court’s decision. The first case is In re

Jascalevich License Revocation, 442 A.2d 635 (N.J. Super. Ct. App. Div. 1982), which

held, inter alia, that “a deliberate falsification by a physician of his patient’s medical

record . . . must be regarded both as gross malpractice endangering the health or life of his

patient.” Id. at 645. The second case, Rosenblit v. Zimmerman, 766 A.2d 749 (N.J.

2001), involved “a physician who deliberately destroyed and altered medical records in

anticipation of a patient’s malpractice lawsuit against him.” Id. at 752. There, the

Supreme Court of New Jersey held that the patient had an actionable fraudulent

concealment claim based on the physician’s spoliation of evidence. Id. at 758. In

addition to Okocha’s concession that “this is not a [medical] malpractice lawsuit,” (Dist.

Ct. Op. at 2-3 n.4), the aforementioned cases are also inapplicable based on our

conclusion that Okocha has failed to produce any evidence of tortious conduct on the part

of Appellees.


   1
     It is unclear why the District Court used the NIED by proxy standard, in New Jersey
referred to as a Portee bystander claim, see Dunphy v. Gregor, 642 A.2d 372, 373-74
(N.J. 1994), to assess Okocha’s NIED claim because Okocha is alleging that his injury
resulted in emotional distress to himself. Regardless, this apparent misapprehension has
no bearing on our ultimate disposition.

                                               3
      There being no substantial question presented by Okocha’s appeal, we will

summarily affirm the District Court’s order granting summary judgment for Appellees.

See LAR 27.4; I.O.P. 10.6.




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