Genetic Transformation Injury As A Basis For Emotional Distress Damages

The traditional rule in tort law is that the threat of future harm, not yet realized, is not sufficient to state a claim. However, over the past twenty-five years, plaintiffs in toxic tort litigation have sought to assert new non-injury damage claims, such as medical monitoring and fear of cancer. Providing compensation for an event that has not yet occurred and, indeed, may never occur, is a long way from traditional tort, which only permits recovery when a victim has suffered a harm.

In November 2012, KBR, the largest U.S. military contractor, lost a federal court jury verdict in Portland, Oregon, in the case, Bixby et al v. KBR, Inc, et al,  and ordered to pay twelve U.S. soldiers $85,000,000 in non-economic and punitive damages for alleged toxic  hexavalent chromium dust exposure at a company work site in Iraq in 2003. The trial was a test case over injuries allegedly suffered by Oregon National Guardsmen who were tasked with protecting KBR workers at Qarmat Ali, a water treatment facility the company was hired to rehabilitate after the overthrow of Saddam Hussein in 2003.

The Veterans Administration has developed a medical surveillance program for veterans who may have been exposed to hexavalent chromium at the Qarmat Ali Treatment Facility in Iraq. The program is provided free of any charge.  While VA does not expect to find many serious Qarmat Ali-related illnesses, the VA believed it prudent to monitor the health of those who may have been exposed.

The jury awarded each plaintiff $850,000 in non-economic damages (later reduced to $500,000 under the Oregon statutory damages cap) and $6,250,000 in punitive damages. The only “injury” plaintiffs had in common was an untested, fleeting, and imperceptible “genetic transformation injury” on which their emotional distress damages for fear of cancer were based.

On its pending appeal before the Ninth Circuit, KBR argues that it was error for the trial court to permit such recovery on the ground that Oregon law does not permit recovery of emotional distress damages where, as here, there is no present physical harm associated with the purported future risk of harm or, indeed, there is no physical injury at all.

An Amici Curiae brief filed by the International Association of Defense Counsel (“IADC”) and American Chemistry Council (“ACC”) argues persuasively that a majority of U.S. courts do not permit a plaintiff to satisfy the physical injury requirement through allegations of sub-cellular harm where the plaintiff is asymptomatic with no observable physical symptoms. For this important assignment, IADC and ACC turned to veteran appellate lawyers, Mary-Christine Sungaila and Patrick Kelly of Snell & Wilmer LLP,  Thieir brief provides an excellent overview of the law on this issue.

Courts are properly concerned about flooding the judicial system with false emotional distress claims. To allay this concern, some courts have imposed “floors” for recovery (e.g., a requirement that emotional distress be “serious”) and “hurdles” to recovery (e.g., the presence of physical harm requirement for emotional distress claims).

 In the KBR litigation, the plaintiffs’ expert, Dr. Carson, was unable to say whether any individual plaintiff experienced a “genetic transformation injury” at Qarmat Ali, much less whether such an injury persisted in any particular individual. Moreover, he acknowledged that “genetic transformation injury” is asymptomatic with no observable physical symptoms and may be spontaneously repaired by the body.

As the Ninth Circuit held in Dumontier v. Schlumberger Technology Corp., 543 F.3d 567 (9th Cir. 2008), “not every alteration of the body is an injury” and sagely observed that “all life is change, but all change is not injurious.” Thus, even if radiation always changes DNA, that does not mean that there will always be corresponding compensable physical pain, injury or disease.

On the basis of their well-crafted arguments, Sungaila and Kelly argue that if the court were to accept plaintiffs’ claim, it would throw open the possibility of litigation by any person experiencing even the most benign sub-cellular damage. Sungaila and Kelly distinguish KBR from other cases where, for example, a plaintiff who demonstrated actual mutations that would trigger cancer upon arriving at the age of puberty or sexual maturity.

We look to the Ninth Circuit to reverse the trial court decision and to reject plaintiffs’ argument that sub-cellular or genetic transformation is sufficient, in and of itself, to permit recovery for emotional distress damages.

Emotional Distress Claim Disallowed in Business Dispute

In the absence of clear judicial guidelines, claims for intentional infliction of emotional distress would potentially become part and parcel of every civil litigation. There is little question that a business dispute can cause significant anxiety to the business people involved. However, what does it take for that anxiety to rise to the level of an actionable claim for intentional infliction of emotional distress?  In New York, the answer is "a great deal".

A commercial litigation provided an opportunity for Justice Cynthia S. Kern of New York County Supreme Court to review the required elements of a such a claim. In Steinhouse v. Lesser, 112196/10, NYLJ 1202567349247, at *1 (Sup., NY, Decided July 30, 2012), plaintiffs commenced an action to compel the defendants, two of the limited partners of a partnership, to sign an operating agreement which would convert their limited partnership to a limited liability company. When the action was brought, eighty-eight of the ninety partners, representing 98.68% of the equity of the partnership, had already signed to the conversion. The defendants were the last holdouts.

In their counterclaim for intentional infliction of emotional distress, the defendants argued that the plaintiffs had sent repeated letters and made repeated calls with requests or demands that the defendants sign the new operating agreement. In dismissing the counterclaim on summary judgment, Judge Kern held that defendants had failed to state a claim. Pursuant to Lau v. S&M Enterprises, 72 A.D.3d 497, 498 (1st Dep’t 2010), the elements for a claim of intentional infliction of emotional distress are “(1) extreme and outrageous conduct; (2) an intent to cause – or disregard of a substantial probability of causing – severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) the resultant severe emotional distress.”

Based upon the facts presented in the court’s decision, the defendants’ counterclaim fell far short of meeting the requisite elements of such a claim.  However, it is certainly not inconceivable that a claim for intentional infliction of emotional distress might properly lie in a business dispute that was particularly acrimonious and personal.  But the bar is high.  How high is revealed by the New York State Court of Appeals in Howell v New York Post Co., 81 NY2d 115, 121 [1993)   

Howell arose against the backdrop of the Hedda Nussbaum story, which made tabloid headline news in 1988. Nussbaum was the “adoptive” mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest. On September 1, 1988, a newspaper photographer trespassed onto the grounds of Four Winds Hospital, a private psychiatric facility in Westchester County. With a telephoto lens, the tabloid photographer took outdoor pictures of Nussbaum in the company of plaintiff Pamela J. Howell, another patient. After the photographs were taken, the hospital’s medical director telephoned the newspaper editor requesting that the paper not publish any patient photographs. It was imperative for Howell’s recovery that her hospitalization remained a secret from all but her immediate family. Despite the admonition of the hospital medical director, the newspaper published the photographs of Nussbaum, which included the plaintiff. Although plaintiff’s name was not mentioned, her face was readily discernible.

Alleging she experienced emotional distress and humiliation, plaintiff commenced an action against the newspaper, the photographer and two writers, seeking damages for alleged violations of the Civil Rights Law §§50 and 51. Even under these egregious facts, the Court of Appeals determined that plaintiff did not have a claim for intentional infliction of emotional distress. In part, the court determined that the newspaper’s publication of a newsworthy photograph fell within the contemplation of the “privileged-conduct” exception. The court reached this conclusion because it found there was a newsworthy relationship between the article and the photograph of the plaintiff in the company of Nussbaum. 

In light of the high bar, why is it that courts are occasionally willing to countenance intentional infliction claims in an environmental setting?  The may be a few explanations.  Although it is necessary to show "extreme and outrageous conduct", some judges have not fully considered whether the environmental contamination at issue poses a threat to human health or the environment.  In many instances, there may be exceedances of state regulatory levels for a particular contaminant in groundwater or soil, but far below the level that could cause actual harm. 

Thus, it is imperative that courts understand the difference between a level of contamination that may give rise to actual harm versus a level of contamination that may give rise to regulatory scrutiny, which is quite different..  In this era of sometimes sensationalized media reporting concerning environmental incidents, there is always the possibility that some excitable person will imagine that he or she has had some exposure to a harmful chemical and became emotionally distraught.  It is defense counsel’s job to ensure that the court understands that the claimed exposure is often remote or, at best, fleeting, but hardly ever the result of "extreme and outrageous" conduct..