While Maryland’s top court made several important rulings on fraud and punitive damages in Exxon Mobil Corporation v. Albright and others, the Court of Appeals also made a significant ruling on “fear” or “emotional distress” damages. The question on the issue of emotional distress for the Jacksonville homeowners and businesses was whether they could be awarded damages for their fear that they would develop cancer because of the gasoline leak.
The Jacksonville homeowners and business owners were concerned about contracting cancer because of exposure to chemicals in the gasoline that, while not believed to be cancer causing, are known to have mutagenic properties. Of the 84 properties involved in the case, Exxon discovered contamination in only 10 wells and only eight wells had levels above the Maryland Department of the Environment action level for drinking water.
The plaintiffs contended that any exposure in any well was enough to support their claims of fear of cancer and medical monitoring. Many of the plaintiffs testified regarding their opinions that they, members of their family and their pets contracted disease as a result of the gas leak; however, the court noted, none of them asserted a claim for the sickness or death of a person or animal. Through an expert witness, they contended that there is no safe level of contamination and that any exposure increases an individuals’ risk.
The jury also awarded to all plaintiffs non-economic damages for emotional distress, including fear of contracting cancer and damages for the cost of future medical monitoring. Generally, in households with children, the awards for the adults were reduced by the amount of the awards for the minors. The total amount of damages awarded was approximately $147 million. However, the Court of Appeals reversed except for one plaintiff.
The court explained what has to be shown in order to recover emotional distress damages: We hold that, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) he or she was exposed actually to a toxic substance due to the defendant’s tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a disease; and (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination.
Many of the plaintiffs did not satisfy the first part — actual exposure — of the test, the court said. Here, 88 of the plaintiffs recovered damages for emotional distress for fear of contracting cancer, yet did not provide evidence of any detectable contamination in their potable wells, air, or water vapors. In the absence of demonstrable contamination, these plaintiffs have provided no evidence of actual exposure to toxic chemicals stemming from Exxon’s conduct and cannot recover damages for fear of cancer.
The court then turned to the second part of the test. In addition to actual exposure, a plaintiff must demonstrate an objective, reasonable fear of developing cancer in order to recover emotional distress damages. The plaintiffs contended that proof that the aquifer was contaminated with methyl tertiary-butyl ether (MTBE), a chemical additive to motor fuel, and benzene was sufficient to support a claim for emotional distress for fear of cancer, regardless of any actual, demonstrable exposure. In effect, the plaintiffs argued that there was no safe level of exposure. The relevant drinking water standards are 5 parts per billion for benzene, and 20 parts per billion for MTBE, according to information presented at trial.
“We determine that [plaintiffs] who were exposed actually to MTBE as a result of the Jacksonville Exxon leak (as determined by tests of their potable wells), but at levels below the relevant EPA and MDE action levels, cannot demonstrate an objective, reasonable fear of developing cancer,” the court said. In order to have an objectively reasonable fear of developing cancer as a result of water contamination, measurable contamination must meet or exceed the relevant environmental action levels, if applicable, for the allegedly carcinogenic or mutagenic contaminant, the court said. As a result, it reversed the awards for those plaintiffs.
Lastly, turning to the third part of the test – physical injury – the court found that there was legally insufficient evidence of physical injury. The court noted that only eight of the plaintiffs recovering emotional distress damages for fear of cancer offered well test results detecting contamination sufficient to create an objectively reasonable fear of developing cancer. However, they still had to prove a physical injury resulting from their objectively reasonable fear through expert testimony. Only one, Gloria Quinan, presented expert testimony attributing alleged physical injury to the Jacksonville Exxon leak, as a result, the court reversed the remaining jury awards for emotional distress for fear of contracting cancer. Quinan’s claim for emotional distress for fear of contracting cancer was sent back to the trial court for a new trial.
Exxon Mobil Corporation v. Albright and others and the companion case, Exxon Mobil Corporation v. Ford and others, are important for a number of reasons including that they provide further elaboration on “fear of cancer” cases and the proof that is required to make a successful claim for such damages. The rulings in these cases might also have some implications for the victims of Baltimore gynecologist/obstetrician Dr. Nikita Levy victims.
Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for clients who have been the victims of negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.