IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-30950 Summary Calendar _____________________

CLINTON J HEILEMAN, JR

Plaintiff-Appellant

v.

MICROSOFT CORPORATION; ET AL

Defendants

MICROSOFT CORPORATION; JOHN STEER

Defendants-Appellees

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana Docket No. 98-CV-3202-T _________________________________________________________________ March 9, 2000 Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Clinton J. Heileman, Jr. (“Heileman”)

appeals from the district court’s entry of summary judgment in

favor of Defendants-Appellees Microsoft Corporation (“Microsoft”)

and John Steer (“Steer” or, with Microsoft, the “Appellees”).

I. BACKGROUND

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Heileman is a busboy at the Hilton Hotel in New Orleans,

Louisiana. In late July 1998, Steer was staying at the Hilton

and attending a conference held by his employer, Microsoft.

Steer is diabetic and must closely monitor his blood-glucose

level. Several times a day, Steer pricks his finger with a

disposable lancet to draw a small amount of blood for testing.

On the morning of July 28, 1998, after a meal at the hotel coffee

shop, Steer pricked his finger for a blood test. Rather than

properly disposing of the used lancet, Steer left it on the table

wrapped in a napkin. Heileman subsequently pricked his right

index finger on the used lancet when clearing Steer’s table.

Heileman immediately reported the incident to his

supervisors, who sent him to Tulane Medical Center (“Tulane”) for

an examination. Tulane took a sample of Heileman’s blood and

tested it for the human immunodeficiency virus (“HIV”), hepatitis

B and C, and syphilis. The test results were negative. Tulane

put Heileman on a one-year testing schedule and tested him for

blood borne diseases at regular intervals. Each test indicated

that Heileman was negative for HIV, hepatitis B and C, and

syphilis.

While Heileman was at Tulane, medical personnel contacted

the Hilton to determine if a hotel guest had used the lancet.

After determining that the lancet belonged to Steer, Tulane asked

him to come to the hospital for a blood test to determine whether

he carried any disease that could have been transmitted to

Heileman via the lancet. Steer demurred and told Tulane that he

2 was HIV- and hepatitis-free. Nonetheless, Steer told Tulane that

when he returned home to Washington he would submit to a blood

test by his personal doctor and forward the results.

Steer did not have a blood test immediately upon returning

to Washington, but he did have a test on October 21, 1998. The

test showed that Steer was negative for HIV, and hepatitis B and

C. The results of this test were forwarded to Heileman. Steer

was tested again, on March 19, 1999, and on July 8, 1999. The

results of both tests were negative and, again, the results were

provided to Heileman.

On September 17, 1998, Heileman filed suit against Steer and

Microsoft in Louisiana state court.1 Heileman’s suit alleged

that Steer was negligent in leaving the lancet on the table where

Heileman could prick his finger. As a result of this negligent

behavior, Heileman allegedly suffered severe emotional distress

because he feared he might have contracted a blood-borne disease.

Heileman also claimed that Steer negligently caused Heileman to

suffer further emotional distress by failing to submit to a blood

test at Tulane. Because Microsoft employed Steer, and because

Steer was in New Orleans as part of his employment, Heileman

alleged that Microsoft was equally liable for Steer’s negligence.

The Appellees removed the case to federal court on diversity

grounds and moved for summary judgment. At a hearing on the

1 Heileman’s original complaint named Microsoft and “John Doe” as defendants. Heileman subsequently substituted Steer in place of “John Doe.”

3 summary judgment motion, Heileman emphasized the fact that Steer

refused to submit to a blood test at Tulane and had waited nearly

two months before submitting to a blood test in Washington.

Heileman argued that this behavior amounted to an intentional

infliction of emotional distress. Appellees responded by noting

that Heileman never alleged a claim of intentional infliction of

emotional distress in his complaint. Additionally, the Appellees

argued that because the blood tests indicated that Heileman was

never exposed to disease as a result of the lancet prick, he

cannot recover on his negligent infliction of emotional distress

claim.

The district court granted summary judgment to the Appellees

on Heileman’s negligent infliction of emotional distress claim

because it found that Heileman could not show that the lancet

prick resulted in exposure to disease. The court observed that

Steer’s two month delay in taking a blood test raised an

“interesting issue” as to whether he “intentionally” avoided

taking a blood test. However, the court noted that Steer did

eventually have a blood test and that the delay was not so

“extreme and outrageous” as to give rise to a claim of

intentional infliction of emotional distress. The court then

directed the parties to submit briefs discussing whether Heileman

had a right to recover for any physical damage caused by the

lancet prick. After briefing, the district court entered summary

judgment in favor of Appellees.

The day after the summary judgment hearing, Heileman moved

4 for leave to amend his complaint. Heileman sought to add an

intentional infliction of emotional distress claim based on

Steer’s failure to promptly submit to a blood test. The court

granted Heileman’s motion for leave to amend, but later admitted

that it did so inadvertently. The court subsequently granted

Appellees’ motion to strike the amended complaint.

On appeal, Heileman argues that he pled a valid “infliction

of emotional distress” claim and that the district court erred in

granting the Appellees’ motion for summary judgment.2 Heileman’s

brief fails to delineate whether Steer’s alleged infliction of

emotional distress was negligent or intentional; it only alleges

that the Appellees acted “irrationally and cruelly.”

To the extent that Heileman contends the infliction of

emotional distress was negligent, we agree with the district

court that there is no genuine issue of fact for trial. To the

extent that Heileman’s claim is based on an intentional

infliction of emotional distress, we find that Heileman failed to

properly raise this claim below and we decline to consider it on

appeal.

II. DISCUSSION

2 In his brief, Heileman’s “Statement of the Issue” section claims that he is appealing the district court’s decision to grant Appellees summary judgment on his physical injury claim. However, Steer does not address the “physical injury” issue in the body of his brief, nor does he provide any legal support for this claim. As such, he has waived appellate consideration of this issue. See Applewhite v. Reichhold Chemicals, Inc.,

, 573 & n.7 (5th Cir. 1995).

5 A. Negligent Infliction of Emotional Distress

We review the district court’s grant of summary judgment de

novo, applying the same standards as the court below. See

Matagorda County v. Law,

(5th Cir. 1994).

Summary judgment is proper when there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett,

(1986).

To recover damages for negligent infliction of emotional

distress based on a fear of contracting an infectious disease,

Louisiana law requires that the plaintiff present evidence

showing that there was a “channel of exposure,” such as a needle

prick, and that the plaintiff was actually exposed to a disease.

In Nesom v. Tri Hawk Int’l,

(5th Cir. 1993), we

noted that Louisiana law does not allow a party to maintain an

action based on fear of contracting a disease “absent a showing

that the party was actually exposed” to disease. We noted that

“[t]o allow someone to recover merely because he fears that he

may have been exposed to a [disease] goes too far.”

.

In Vallery v. Southern Baptist Hosp.,

(La. Ct.

App. 1993), the Louisiana Fourth Circuit Court of Appeals

postulated that a plaintiff may not recover when he can show that

a “channel of exposure” existed but cannot show that the channel

of exposure resulted in actual exposure to disease. Although a

plaintiff’s fear in such a situation may be genuine, the court

reasoned that such fear “is based on speculation rather than

6 fact.”

Similarly, in Stewart v. St. Frances Cabrini Hosp.,

(La. Ct. App. 1997), the Louisiana Third Circuit Court

of Appeals found that the plaintiff, the wife of a hospital

worker who had been pricked with a needle, could not state a

compensable claim based on her fear of becoming infected with HIV

without alleging a channel of infection and the “presence of an

infectious disease.”

The court noted that Stewart’s fear of

contracting a disease was “real and genuine,” but because she

failed to allege a channel of exposure and actual exposure to

HIV, her claim was not cognizable.

Heileman looks to Vallier v. Louisiana Health Systems, Inc.,

(La. Ct. App. 1998), to support his emotional

distress claim. In Vallier, the Louisiana Third Circuit Court of

Appeals held that a cause of action existed based upon the mental

anguish the plaintiff suffered when she discovered that she had

been operated on with improperly disinfected instruments. Even

though Vallier could not show that she was actually exposed to an

infectious disease, the court allowed her to pursue an emotional

distress claim. The court allowed Vallier to proceed because it

found that the hospital owed her a heightened duty of care, and

because no tests were ever performed on the instruments to

determine whether they carried an infectious disease. See

. Such is not the case here. Steer owed no special duty to

Heileman and, in any event, blood tests conclusively show that

Heileman was not exposed to disease as a result of the lancet

7 prick.

Heileman has clearly alleged a channel of exposure-- the

lancet prick. And we do not doubt that his fear of infection was

genuine. However, he can present no evidence that he was

actually exposed to any disease. Under Louisiana law, fear of

exposure, absent proof that one was actually exposed to disease,

can not support a claim of negligent infliction of emotional

distress. Therefore, the district court did not err in granting

Appellees’ motion for summary judgment.

B. Intentional Infliction of Emotional Distress

Much of Heileman’s argument, both in his brief and at the

summary judgment hearing, focused on Steer’s refusal to submit to

a blood test at Tulane and his two month delay in taking a blood

test when he returned to Washington. Heileman alleges that

Steer’s delay amounts to an intentional infliction of emotional

distress. However, Heileman’s original complaint never alleged

any intentional action on Steer’s part. This argument was first

raised at the summary judgment hearing and then repeated in

Heileman’s amended complaint.

We will not consider on appeal a claim that was never

properly before the district court. See Portis v. First Nat’l

Bank of New Albany,

(5th Cir. 1994). An issue

is properly before the district court if it is raised in the

pleadings, the pretrial order, or tried by consent. See

Because Heileman never raised an intentional infliction of

8 emotional distress claim in his original complaint, and because

the district court struck his amended complaint, the issue was

never properly before the district court and we refuse to

consider it on appeal.

Furthermore, by failing to argue that the district court

erred in striking his amended complaint, Heileman has waived any

consideration of the issue on appeal. See Childs v. State Farm

Mut. Auto. Ins. Co.,

(5th Cir. 1994). Even if

Heileman had properly challenged the district court’s order

striking his amended complaint, we do not believe that the

court’s action was not an abuse of discretion. While Federal

Rule of Civil Procedure 15 provides that leave to amend “shall be

freely given when justice so requires,” the decision to grant

leave is a matter firmly within the discretion of the trial

court. See In the Matter of Southmark Corp.,

(5th Cir. 1996). In striking the amended complaint, the district

court noted that the motion for leave to amend was filed nearly

eighteen months after the deadline for all amendments to the

pleadings, and that there was no evidence indicating that

Heileman was unable to amend his complaint prior to the deadline.

Given the untimely nature of the amendment, we can not say that

the district court abused its discretion in striking Heileman’s

amended complaint. See Wimm v. Jack Eckerd Corp.,

(5th Cir. 1993) (stating that a district court may consider

factors such as “undue delay” by the plaintiff when deciding

whether to grant leave to amend).

9 III. CONCLUSION

For the above stated reasons, we find that the district

court did not err in granting summary judgment to the Appellees.

AFFIRMED.

10