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.

Judicial Limitations On Emotional Distress Claims

How much leeway should courts give to plaintiffs seeking recovery for emotional distress? Should claimants be permitted to seek recovery for emotional distress over the loss of family heirlooms, photographs or other objects to which they are emotionally attached? How can a jury be expected to separate real from spurious claims? Particularly in toxic tort litigation, claims for emotional distress can generate exposure for defendants.  How do courts guarantee that these claims are genuine? 

Some states, including New Jersey, permit a claim for emotional distress by a plaintiff who witnesses the death of a family member. Portee v. Jaffee, 84 N.J. 88 (1980). There was little doubt that the emotional distress claim in Portee was genuine.  The case involved a mother who stood by helplessly as her seven year old son was crushed to death by an elevator door while crying out in pain and flailing his arms. Shortly thereafter, the distraught grieving mother attempted suicide by slitting her wrists.

Portee has been broadened over time to include intimate acquaintances, such as friends who live together. However, the Supreme Court of New Jersey recently refused to expand Portee to allow claims for emotional distress attendant to the loss of a beloved pet. The court was concerned that permitting such a claim would create an “ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings.” The court observed that “not even all humans are engaged in a relationship that is sufficiently close to support such an award.”

The facts of McDougall v. Lamm, decided on July 31, 2012,  are poignant. Plaintiff Joyce McDougall was walking “Angel,” her maltipoo, a cross between a maltese and a poodle, when a large, mixed breed dog attacked it, grabbed it by the neck, shook it violently and dropped it dead to the ground. In her suit against the attacking dog’s owner, according to a report in the New York Law Journal on August 3, 2012, McDougall claimed that Angel had been her close companion for years and that the loss was especially hard for her since she and her husband had separated and her children had gone to college. Although the trial court awarded her $5,000 for the loss of the dog, the emotional distress count was dismissed on summary judgment. The Appellate Division affirmed.

Although the Supreme Court acknowledged that New Jersey law has treated pets differently than mere chattel in various situations (such as permitting a pet owner to recover not only the pet’s replacement cost but also for veterinary expenses), the high court drew the line on permitting recovery for emotional distress damages when pets are injured or killed. In ruling against McDougall, the court noted that, in some circumstances, a neighbor would not be permitted to seek damages for emotional distress after observing a next door neighbor’s child, with whom it had a close relationship, being torn apart by a wild animal. This would lead to the incongruous result that a plaintiff would be able to recover for emotional distress over the loss of a dog, but that a neighbor could not recover for the loss of a child with whom she shared an emotional attachment. Thus, in the end, the court left the Portee doctrine intact.

In the toxic tort context, across the Hudson River from New Jersey, New York litigants look to In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 379 F. Supp. 2d 349 (S.D.N.Y. 2005), which makes it clear that “damages are not recoverable for anxiety caused by property damage.” Recovery for emotional distress in New York requires Plaintiffs to establish that emotional distress arises from injury or fear of injury to the person.” The case General Accident Ins. Co. v. Black & Decker (U.S.), Inc., 266 A.D.2d 918, 918 (4th Dep’t 1999), stands for the proposition that “there is no cause of action for emotional distress caused by the destruction of one’s property…nor for emotional distress caused by the observation of damage to one’s property.”  In that case, the plaintiffs’ children who observed their family home burn down from across the street, but were never themselves in any physical danger, were not permitted to seek damages for emotional distress. 

New York courts draw a line where someone is claiming emotional distress for mere loss of chattel. A related claim “fear of injury to the person,” requires proof that such fear has a rational basis. MTBE Products Liability Litigation, 379 F.Supp.2d at 430. Such a ‘rational basis’ requires “the clinically-demonstrable presence of a toxin in the plaintiff’s body, or some other indication of a toxin-induced disease.” Thus, in Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 592 N.Y.S.2d 782 (2d Dep’t 1993), plaintiffs seeking damages for sleeplessness, anxiety, and fear of developing cancer because defendants did not remove asbestos from their home saw their claims dismissed on summary judgment because they could not offer evidence of asbestos contamination that might develop into cancer. In the absence of such proof, the plaintiffs were not able to “guarantee the genuineness of the claim.” Without such evidence of genuineness, New York courts typically dismiss such cases as speculative at the summary judgment phase of the proceedings.