DECISION AND ORDERINTRODUCTIONPlaintiff Lenray Harris (“Plaintiff”) commenced this action against the United States of America (“Defendant”) on March 24, 2016, pursuant to the Federal Tort Claims Act (“FTCA”), as amended, 28 U.S.C. §2671 et seq. and 28 U.S.C. §1346(b)(1). (Dkt. 1). Plaintiff alleges emotional injuries from Defendant’s disclosure that several of its nurses improperly administered insulin pens during the time period that Plaintiff received treatment from Defendant. (Id. at
11-26). Plaintiff maintains Defendant caused her to fear that she had contracted a bloodborne disease. (Id.). Nonetheless, Plaintiff has not contracted any such disease and there is no evidence that Plaintiff was exposed to any such disease. Presently before the Court is Defendant’s motion for summary judgment. (Dkt. 16). Because no reasonable jury could conclude that Defendant negligently caused Plaintiff emotional injuries, the Court grants summary judgment in favor of Defendant.BACKGROUNDI. Procedural BackgroundPrior to commencing the instant action, Plaintiff, a former service member of the National Guard, filed an administrative claim with the United States Department of Veterans Affairs (“VA”) on August 5, 2014, alleging emotional damages arising from the negligence of United States government employees, agents, apparent agents, servants, or representatives practicing in the course and scope of their employment at the Buffalo Veterans Administration Medical Center. (Dkt. 1-1 at 2). On September 27, 2015, the VA issued a letter denying the claim. (Dkt. 1-2 at 2-3).On March 24, 2016, Plaintiff commenced the instant action pursuant to the FTCA. (Dkt. 1). Defendant filed an answer to Plaintiffs complaint on July 25, 2016. (Dkt. 4). Discovery in the matter closed on December 28, 2017. (Dkt. 15). On February 15, 2018, Defendant moved for summary judgment. (Dkt. 16). Plaintiff filed her opposition to the motion on March 22, 2018, (Dkt. 19), and Defendant replied in support of the motion on April 5, 2018. (Dkt. 21).II. Factual BackgroundA. OIG InvestigationFrom 2012 to 2013, the VA Office of Inspector General (“OIG”), Office of Healthcare Inspections, investigated the use of insulin pens at the Buffalo Veterans Administration Medical Center located on Bailey Avenue in the City of Buffalo (“Buffalo VAMC”). (Dkt. 16-1 at6). OIG published a report on May 9, 2013, titled “Inappropriate Use of Insulin Pens VA Western New York Healthcare System, Buffalo, New York.” (Dkt. 1-4) (the “OIG Report”).1Over eighteen million people in the United States suffer from Diabetes mellitus (diabetes), and approximately a quarter of adults diagnosed with diabetes inject insulin to manage the disease. (Id. at 7). Before 2010, the Buffalo VAMC administered insulin to its patients using a multi-dose vial prepared by the hospital’s pharmacy and labeled with the specific patient’s name. (Id.).In October 2010, the Buffalo VAMC changed its protocol and adopted the use of insulin pens on its inpatient units. (Id. at 13). Each insulin pen contains a pre-filled cartridge with 150 or 300 units of insulin and is designed for use on a single patient multiple times. (Id. at 7). The OIG Report found use of a pen on more than one patient could potentially expose patients to bloodborne diseases such as hepatitis B, hepatitis C, and the human immunodeficiency virus (HIV). (Id. at 8). Additionally, the United States Food and Drug Administration and Centers for Disease Control and Prevention both recommend that each patient have her own pen. (Dkt. 1-3 at 2). However, after reviewing the medical literature about insulin pens and various case studies, OIG found no documented cases of transmitting bloodborne pathogens related to the use of an insulin pen on multiple patients. (Dkt. 1-4 at 8-9).The Buffalo VAMC stocked unlabeled pens in refrigerators of inpatient units, and when a patient had an order for insulin, the “nursing practice procedures instructed nurses to remove a pen from the refrigerator, apply a patient label, and place the pen in a patient-specific drawer” on the patient’s medication cart. (Id. at 15). The Buffalo VAMC’s nursing practice procedures also stated that an insulin pen is “for the individual patient it was ordered for,” and that “[t]he pens are NOT to be shared.” (Id.).The OIG Report states that in October 2012, the Chief of Pharmacy at the Buffalo VAMC conducted a routine inspection and discovered six unlabeled insulin pens in the supply drawers of patient medication carts. (Id. at 12). In November 2012, the Buffalo VAMC launched an internal investigation concerning the potential improper use of insulin pens on patients. (Id. at 6). The Buffalo VAMC also notified the Veterans Health Administration (“VHA”) Central Office officials about the misuse of the pens, which prompted Congressional inquiries and the investigation by OIG. (Id. at 6-7). OIG questioned thirty-seven Buffalo VAMC inpatient nurses about their use of the pens. Six of those nurses stated they used unlabeled insulin pens, and five of those six acknowledged using the unlabeled pens on multiple patients. (Id. at 17). The remaining 31 nurses reported that they labeled the insulin pens when they removed them from the refrigerator or that the pens they used already had labels with the patient’s name. (Id.).The Buffalo VAMC identified 716 patients as at-risk from possible misuse of the insulin pens, 542 of whom were still living. (Id. at 21). Of the 395 of these patients who ultimately received blood tests, “84 patients had at least one positive test on initial screening.” (Id.). Of these 84 patients, 29 had results consistent with a hepatitis B vaccination, 28 had results indicating infection prior to exposure to the insulin pens, two had false positive results, and seven had results that were indeterminate and required additional testing. (Id.). Eighteen of the patients had results indicating recent or past exposure to bloodborne pathogens. (Id.). However, OIG could not identify insulin pen exposure as the cause of any of these 18 positive blood tests because the “exposure could have occurred at almost any point in the patients’ lives prior to testing,” and the “patients had other risk factors for bloodborne pathogens besides insulin pens.” (Id. at 21-22).B. Use of Insulin Pen on Plaintiff at the Buffalo VAMCPlaintiff is a former service member of the National Guard. (Dkt. 1-1 at 2). She suffers from diabetes, which she treats with insulin. (Dkt. 16-1 at41). In 1992, while serving in the National Guard, Plaintiff fell and injured her left knee. (Id. at36).Plaintiff had a full knee replacement at Buffalo General Hospital on August 8, 2012. (Id. at37). After the surgery she developed a Methicillin-resistant Staphylococcus aureus infection. (Id. at38). On September 24, 2012, she returned to Buffalo General for treatment. (Id.). Buffalo General then referred Plaintiff to the Buffalo VAMC for intravenous antibiotic treatment, and she was admitted to the Buffalo VAMC on September 27, 2012. (Id. at39-40). Plaintiff remained in the Buffalo VAMC’s care until October 1, 2012. (Id. at40). While admitted to the Buffalo VAMC, Plaintiff was under orders to receive insulin from an insulin pen. (Id. at41).Plaintiff received three insulin pen injections from licensed practical nurses (“LPNs”) during her stay at the Buffalo VAMC. (Id. at42). These injections were administered to Plaintiff by LPNs Natasha Crockett, Donald E. Johnson and Julia A. Garcia. (Id. at43). Defendant has submitted declarations from each of these LPNs stating that when they used insulin pens in the fall of 2012, the pens “were always properly labeled with the patient’s name in accordance with the hospital’s nursing practice procedures.” (Dkt. 16-4 at4; Dkt. 16-5 at4; Dkt. 16-6 at4). Each LPN further states that he or she “always used the patient’s individually labeled insulin pen that was stored in the patient’s medication drawer,” and that “[i]t was not [his or her] practice to use unlabeled insulin pens on patients” or “to use an insulin pen on more than one patient.” (Dkt. 16-4 at5; Dkt. 16-5 at5; Dkt. 16-6 at5). Plaintiff has no memory of whether the insulin pen the LPNs used on her during her stay with Defendant was labeled with her name. (Dkt. 16-8 at 11). The insulin pen is no longer available. (Dkt. 20 at 2).On January 14, 2013, Defendant contacted Plaintiff to inform her about the potential bloodbome pathogen exposure during her recent stay with the Buffalo VAMC and offered to perform testing for hepatitis B, hepatitis C, and HIV. (Dkt. 16-1 at48; Dkt. 1-3 at 2). Plaintiff underwent testing on or about February 19, 2013, and was advised on February 26, 2013, that she had tested negative for all three diseases. (Dkt. 16-1 at49). Plaintiff underwent additional testing, although she does not remember when, which also returned negative results. (Dkt. 16-8 at 16-17).Plaintiff maintains she “sustained great emotional harm and injury regarding her fear of having contracted HIV and/or Hepatitis C, which will continue into the future.” (Dkt. 1 at20).DISCUSSIONI. Standard of Review for Motion for Summary JudgmentRule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts….[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment…” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).II. Defendant’s Statement of Material Facts Is Deemed AdmittedIn support of its summary judgment motion, Defendant submitted a Statement of Material Facts Not in Dispute (Dkt. 16-1) (“Defendant’s Statement”), an affirmation by its attorney to which Defendant attached exhibits, declarations, and deposition transcripts supporting its statement of material facts (Dkt. 16-2 to 16-8), and a memorandum of law (Dkt. 16-9). Plaintiff’s response in opposition consisted solely of a memorandum of law. (Dkt. 20).Plaintiff failed to submit a response to Defendant’s Statement that complies with Local Rule of Civil Procedure 56(a)(2). Local Rule 56(a)(2) requires a party opposing a motion for summary judgment to submit “a response to each numbered paragraph in the moving party’s statement, in correspondingly numbered paragraphs…containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried.” Local Rule 56(a)(2) further provides that “[e]ach numbered paragraph in the moving party’s statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.” Id.; see also Fed. R. Civ. P. 56(e)(2) (when a party fails to properly support an assertion of fact or fails to address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion). Plaintiff’s opposition fails to comply with these requirements and therefore affords the Court discretion to deem Defendant’s Statement admitted for the purposes of the motion for summary judgment.The Court has discretion to excuse a party’s failure to file a statement of facts, and the Second Circuit Court of Appeals has indicated that a district court should not deem unopposed facts to be admitted when those facts are unsupported by the record. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001). However, in this case, each factual assertion within Defendant’s Statement is supported by a citation to the exhibits, declarations, and sworn testimony attached to its attorney’s affirmation, and those documents are sufficient to prove those factual assertions.2 (Dkt. 16-1 to 16-8). Accordingly, the Court deems the factual allegations set forth in Defendant’s Statement admitted. See Fed. R. Civ. P. 56(e)(2); N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998).III. Plaintiff’s ClaimsAlthough the Court deems that Defendant’s factual assertions are admitted, the conclusions Defendant draws from those assertions are not. See, e.g., Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (“The local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law….”). Thus, the Court now examines whether the record evidence warrants summary judgment in Defendant’s favor.A. The Parties’ PositionsDefendant asserts that summary judgment is warranted because Plaintiff cannot demonstrate negligent infliction of emotional distress under New York law as required to maintain her claim pursuant to the FTCA. Defendant specifically contends Plaintiff cannot show that Defendant breached its duty of care to Plaintiff or that Plaintiff suffered an injury recognized under law. (Dkt. 16-9 at 15). Defendant further argues that the evidence conclusively shows Plaintiff was not negligently exposed to infection while under the care of the Buffalo VAMC. Id. It also argues that Plaintiff has failed to prove injury because she has not demonstrated that she was infected with bloodbome pathogens or exposed to them. Id. at 15-16.Plaintiff opposes the summary judgment motion, contending that the probable presence of a bloodbome pathogen and its plausible transmission are sufficient to prove both a breach of duty by Defendant and injury. (Dkt. 20 at 1). Additionally, Plaintiff asserts that even if actual exposure is required by law, special circumstances exist here that allow her claim to go forward. Id. at 2.In reply, Defendant argues that even if the Court finds that probable exposure is the proper standard, summary judgment is still warranted because the record evidence establishes that Plaintiff was not exposed to any bloodbome pathogens by Defendant. (Dkt. 21 at 2). Defendant also contends that Plaintiff’s special circumstance arguments are without merit. (Dkt. 21 at 4-6).B. AnalysisThe FTCA establishes the liability of the United States “for injury…or personal injury…caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. . . .” 28 U.S.C. §1346(b)(1). Under the FTCA, the law of the place where the act or omission occurred applies. Id.; see also Guttridge v. United States, 927 F.2d 730, 732 (2d Cir. 1991) (“[T]he FTCA defines the liability of the United States in terms of that of a private individual under the law of the state where the alleged tort occurred ….”). Here, the alleged negligence occurred in Buffalo, New York, (Dkt. 1 at
