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Damages for pain and suffering and emotional distress in products liability cases involving strict liability and negligence.

I. INTRODUCTION: THE CONTEXT

Two of the important theories used to establish liability in modern products liability cases are negligence and strict liability. Compensatory damages are generally awarded in products liability cases based on a negligence theory in order to reimburse a plaintiff for losses (damages) caused as a result of the conduct of a defendant. (1) Cases involving strict liability focus on defects existing in a product rather than on the conduct of a particular defendant. (2)

Negligence: Elements of Proof

Numerous sections of the Restatement (Second) of Torts deal with the liability of persons who supply goods based on a theory of negligence. (3) Generally, these sections provide that the supplier is liable for the "physical harm" caused by the product. Official comments to these sections indicate that "physical harm" includes both bodily harm and property damage.

The most widely used definition of negligence provides that "[n]egligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do." (4) When a negligence action arises in products liability, the plaintiff must focus on the conduct of the manufacturer or seller; thus, the plaintiff must prove that the defective product was caused by the negligent conduct of the manufacturer or seller. (5)

In products liability cases, the plaintiff is generally required to establish four elements. First, the plaintiff must establish that the manufacturer or the seller owed a duty of reasonable care in the design, manufacture, or sale of the product. (6) Second, the plaintiff must prove that the defendant seller or the defendant manufacturer breached that duty by failing to exercise the standard of care of a "reasonable person" under the circumstances of the case. (7) Third, the plaintiff must prove that the plaintiff suffered personal injury or damage to his or her property. (8) Fourth, the plaintiff must prove that the breach of duty was both the cause-in-fact and the proximate cause of his or her injury or damages. (9) Most courts have defined cause-in-fact by the "but for" or "sine qua non" test, (10) requiring the plaintiff to prove that his or her injury would not have occurred if the product defect had not existed. (11) However, the proof-of-negligence requirements have been significantly moderated in some cases by the development of the concepts of negligence per se (12) and res ipsa loquitur (13)--but only under very limited circumstances.

Strict Liability

Strict liability in tort is an alternative to finding liability through negligence. The imposition of strict liability in tort has been justified on numerous policy grounds. Justice Traynor listed several rationales for imposing absolute liability (an earlier iteration of the theory) in his concurring opinion in Escola v. Coca Cola Bottling Co., (14) a case that was the clear precursor to the creation of the theory of strict liability in tort. These rationales, among others, include (1) providing an incentive for manufacturers to produce safer products and to minimize the losses to society from those products; (15) (2) recognizing that the manufacturer is in a better position than the consumer to absorb or pass on the costs from injuries that result from defective products; (16) (3) eliminating the problems of proof that confront plaintiffs in negligence actions, which often involve assertions of contributory negligence by the manufacturer in order to defeat a plaintiff's claim. (17) As a general proposition, Justice Traynor noted, "An injured person ... is not ordinarily in a position to refute [a showing of proper care] or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is." (18)

Indeed, it took almost twenty years for the California Supreme Court to adopt the views of Justice Traynor concerning the imposition of strict liability. Justice Traynor wrote for the court in 1963 in the seminal case of Greenman v. Yuba Power Products, Inc. (19) The framework for the adoption of strict liability in tort as a preferred theory in products liability cases was established when the American Law Institute adopted section 402A of the Restatement (Second) of Torts in 1965. That section was later revised in 1997 with the adoption of the Restatement (Third) of Torts: Products Liability. The purpose of the regime established in Section 402A is to permit the injured party to recover without the requirement of proving negligence by a defendant.

Under a strict liability rationale, the imposition of liability depends on three conditions. First, the plaintiff must prove that the product was in a "defective condition unreasonably dangerous to the user or consumer or to his property." (20) Second, the seller of the product must have been "engaged in the business of selling such a product." (21) Third, the product must have been expected to and did reach the user or consumer "without substantial change in the condition in which it [was] sold." (22) As the Supreme Court of New Jersey noted in Feldman v. Lederle Laboratories, "[t]he emphasis of the strict liability doctrine is upon the safety of the product, rather than the reasonableness of the manufacturer's conduct. It is a product-oriented approach to responsibility." (23)

In differentiating between a products case based on strict liability and one based on negligence, the Feldman court noted:
   Generally speaking, the doctrine of strict liability
   assumes that enterprises should be responsible for
   damages to consumers resulting from defective
   products regardless of fault. The doctrine differs
   from a negligence theory, which centers on the defendant's
   conduct and seeks to determine whether
   the defendant acted as a reasonably prudent person.
   This difference between strict liability and negligence
   is commonly expressed by stating that in a
   strict liability analysis, the defendant is assumed to
   know of the dangerous propensity of the product,
   whereas in a negligence case, the plaintiff must
   prove that the defendant knew or should have
   known of the danger ... This distinction is particularly
   pertinent in a manufacturing defect context. (24)


Comment c to Section 402A sets forth the statutory policy perspectives for the imposition of strict liability. The perspectives include recognizing that:

"the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products." (25)

Justice Traynor may have said it best when he noted, "The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (26)

In an action based on strict liability in tort, (27) a seller is liable for the "physical harm ... caused to the ultimate user or consumer, or to his property." (28) Section one of the Restatement (Third) reaffirms this basic construct, noting that "[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect." (29) While comments to neither the Restatement (Second) nor the Restatement (Third) categorically define the precise nature of defects, such defects are generally classified under three broad headings: (1) manufacturing defects, (30) (2) design defects, (31) and (3) inadequate instructions or warnings concerning the use or risks of a product--sometimes referred to as "marketing" defects. (32) Professors Fisher and Powers note, however, "[t]here is no single rule that applies in all cases. Jurisdictions vary widely as to the approach used. (33) Furthermore, even within a given jurisdiction, the approach used often varies over time. (34) Some jurisdictions even apply different tests to different types of defects." (35) Most courts, however, agree that the product must be evaluated in light of the technology available at the time it was made or distributed. (36)

II. COMPENSATORY DAMAGES

Courts have divided compensatory damages into two categories: general and special damages. (37) Special damages are also called economic damages. Special damages include economic losses that are a direct result of the injury caused by the defendant. Generally, special or economic damages include medical expenses, lost earnings or wages (both present and future), and the cost of repair to property or the value of replacement of property that has either been damaged or destroyed. (38) These damages are quantifiable-thus the plaintiff is required to both "plead and prove" a specific amount in order to recover special damages.

On the other hand, general damages are difficult to calculate with specificity in terms of money. As noted by Professors Kiely and Ottley, "[t]hese include disfigurement, disability, pain and suffering, and emotional distress." (39) Since it is often difficult, and practically impossible in any objective sense, to calculate with specificity these types of damages, the plaintiff is not required to plead or prove a specific amount in order to recover such damages.

Professors Kiely and Ottley cite an interesting case decided in the Eastern District of Louisiana. (40) Anderson v. Sears, Roebuck & Company, (41) exemplifies the breadth of an award of compensatory damages. In Anderson, a fire, ignited by a defective heater, completely destroy the plaintiff's home. Besides obvious property damage, the plaintiff and her infant daughter suffered severe burns, which required multiple hospitalizations, operations, and skin grafts. The daughter also suffered from a number of infections including pneumonia. The plaintiff brought a products liability suit against both the manufacturer and the retailer of the defective heater. The jury reached a verdict in favor of the plaintiffs in the amount of $2 million. The defendants claimed that the award was excessive and asked the trial court to remit the amounts the jury had decided upon. The trial court judge held that the award of $600,000 for the child's past physical and mental pain was not unreasonable. The court also upheld the jury's award of $750,000 for the future physical and mental pain that the child would undergo. In addition, the trial court upheld the award of $250,000 for future medical expenses, which might include lifetime treatment and counseling by a variety of health-care providers, as well as plastic surgeons, psychiatrists, and sociologists. The trial court also upheld the $330,000 award for the permanent loss of hearing capacity and up to $1,100,000 for permanent disability and physical disfigurement. (42)

Damages for Mental Anguish

A form of general or non-economic damages that is often sought by a plaintiff in a products liability action is emotional distress. Emotional distress is defined as "[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person's conduct ..." (43) A significant number of cases in which plaintiffs have sought damages for emotional distress in products liability cases (negligence or strict liability) have resulted from plaintiffs finding a variety of "foreign objects" in food or drink products. (44) While the plaintiff can allege intentional infliction of emotional distress, (45) in jurisdictions such as Virginia, West Virginia, Texas, Illinois, and Iowa, (46) most plaintiffs attempt to prove a cause of action based on negligent infliction of emotional distress. (47) In such cases, states follow what is known as the "impact rule," which requires the plaintiff to establish that the alleged emotional distress was caused by physical injury resulting from the defective product. For example, in Lee v. State Farm Mutual Insurance Co., (48) the Georgia Supreme Court reiterated the three traditional elements of the "impact rule" for recovery of emotional distress. The court stated that there must be (1) a physical impact, (2) causing a physical injury, and (3) mental suffering arising from the physical injury.

Opponents to the idea of awards for emotional distress commonly raise two issues: the lack of any objective standard and the speculative nature of the damages themselves. In Harned v. E-Z Finance Co., (49) the Texas Supreme Court stated:
   [M]ental anguish, standing alone, is too subtle and
   speculative to be measured by any known legal
   standard; mental anguish and its consequences are
   so intangible and peculiar and vary so much with
   the individual that they cannot reasonably be anticipated,
   hence they fall without the boundaries of any
   reasonably proximate causal connection with the act
   of the defendant; a 'wide door' might thereby be
   opened not only to fictitious claims but to litigation
   over trivialities and mere bad manners as well; and
   finally, since mental anguish can exist only in the
   mind of the injured party, not only its extent but its
   very existence can be established only by the word
   of the injured party, in the absence of some objective
   inquiry. (50)


Kroger Co. v. Beck, an Indiana case, demonstrates a non-traditional view of awarding emotional distress damages. The plaintiff was eating a piece of steak when she experienced a sharp, piercing pain in the back of her throat. When she vomited, she found that the steak contained an inch long piece of a hypodermic needle that was used for injecting animals. The Indiana appellate court affirmed a jury award of damages for the plaintiff's emotional distress even though there had been no proof of any medical treatment or that there was any evidence of any permanent physical problems. The court may have finessed the issue of awarding damages for pure emotional distress by noting that the jury award was justified by the plaintiff's understandable physical reaction and anxiety over what could have happened if she had swallowed the needle and her testimony that she had an aversion to eating meat in the future. (51)

An interesting California case represents the more traditional view. In Khan v. Shiley Incorporated, the plaintiff was the recipient of an artificial heart valve. (52) When the plaintiff learned that the implanted valve was within a group being recalled because of its propensity to fracturing, the plaintiff described emotional distress from the "constant threat of imminent death or other serious physical injury and the anxiety, fear and emotional distress." (53) The California court denied recovery to the plaintiff and stated that "a cause of action does not presently exist under any theory premised on the risk that the valve may malfunction in the future." (54) The court concluded that as long as the valve continued to function properly, the plaintiff had stated no cause of action under strict liability, negligence, or breach of warranty theories. (55)

A Brief Detour: HIV and Emotional Distress

The Khan court was faced with the question whether to allow recovery for emotional distress caused by the fear that a product will cause injury in the future; the court chose to deny recovery for such a speculative injury. (56) On the other hand, a spate of cases have involved claims of emotional distress from the threat or fear of future disease--especially from AIDS or cancer. (57) The general rule in those cases is that courts will refuse to permit recovery in the absence of any present symptoms (58) and in the absence of a "serious" or "reasonable probability" that an injury will occur. (59) However, some courts, such as Florida (60) and Georgia, (61) have permitted a recovery for emotional distress caused by the fear of contracting AIDS if the plaintiff can show exposure to the HIV virus.

While not arising in the context of a product liability case, the analysis used to determine whether to allow recovery for emotional distress in these fear-of-AIDS cases may be instructive for courts when determining whether to allow damages for fear of future injury based on a defective product. The analysis in fear-of-AIDS cases begins with traditional concepts of negligence: duty, distress claim from ingesting a Coca Cola which contained a used condom). breach, and causation. (62) In order to establish liability, the "plaintiff must prove that [the] defendant's conduct was negligent and proximately caused plaintiff's injuries." (63) Determining whether a defendant is negligent "depends on whether defendant owes a duty of care to the plaintiff, which is analyzed in terms of foreseeability." (64) In addition, the emotional injury must be both "genuine and substantial." (65) Like in the "toxic tort" cases, determining whether the defendant's actions proximately caused the fear of injury is based on whether the plaintiff's emotional distress was reasonably foreseeable. (66)

In Williamson v. Waldman, the Supreme Court of New Jersey explored questions concerning the correlation between the fear of contracting a disease and proximate causation. (67) The plaintiff in Williamson was pricked by a used lancet that had been negligently disposed of by the defendant, and she became "alarmed" about the possibility of contracting AIDS. (68) A person who has been exposed to AIDS needs to be tested for about six months to one year to determine whether that person has contracted AIDS. (69) Unfortunately, the plaintiff's doctor advised her that she would need to be tested for AIDS for up to seven years--further prolonging the plaintiff's fear. (70) The plaintiff sued for negligent infliction of emotional distress resulting from her possible exposure to AIDS. (71) The court held that a plaintiff claiming damages for emotional distress, based on fear of contracting AIDS, must prove that the defendant's negligence proximately caused "genuine and substantial distress[,] that would be [suffered] by a reasonable person of ordinary experience" who has knowledge about AIDS consistent with available public information. (72) The court was concerned about the possibility of frivolous litigation based on speculative fears of future injury. (73) Thus, the court created this "enhanced reasonableness standard" because it requires that plaintiff possess a heightened level of information as a threshold to the plaintiff's recovery for emotional distress. (74)

Consistent with this enhanced standard, the court also concluded that the emotional distress damages for fear of contracting AIDS should be limited to a "window of anxiety," after which such a reasonable and well-informed person would no longer experience emotional distress. (75) In De Millo v. Schrager, decided in 1995, the Superior Court defined the "window of anxiety" as "the period from the time of possible exposure to that point when plaintiff knew or should have reasonably have known that he [or she] was not infected with HIV." (76) Based upon a careful analysis of available scientific, medical, and legal literature, the New Jersey Supreme Court concluded that the window "appears to range from six months to a year after exposure." (77)

In Williamson, the court's application of the "window of anxiety" test was particularly complicated because the plaintiff had received erroneous information from her doctor. (78) This misinformation extended plaintiff's emotional distress beyond what the court had determined to be the typical "window of anxiety." (79) Thus, the court had to determine whether the "additional" emotional distress--clearly outside the time period of the normal "window of anxiety"--was proximately caused by "the original defendants or whether the erroneous medical advice constituted an intervening cause that was not reasonably foreseeable at the time of the original negligence." (80)

New Jersey courts have adopted the traditional viewpoint that, where a person suffers personal injury as a result of a tortfeasor's negligence, the tortfeasor is also liable for any additional harm and expense caused to the injured person by the negligence, mistake, or lack of skill of the attending physician or surgeon. (81) Would the New Jersey Supreme Court apply these traditional rules to Williamson in light of its stated policy concerns regarding ignorance about HIV and AIDS?

The court answered the question in the negative and concluded that the information provided by the doctor--that the plaintiff needed to be tested for the presence of HIV for a period of seven to ten years--was "beyond the pale of generally accepted medical evidence regarding HIV testing and ought not, as a matter of law, be deemed to be reasonably foreseeable by other health-care professionals." (82) Holding the original tortfeasors liable for such unforeseeable misinformation was inconsistent with the enhanced reasonableness standard. Under the enhanced reasonableness standard, the plaintiff's emotional distress that was attributable to misinformation provided by her doctor was not proximately caused by the original tortfeasors. Future courts in products liability cases may adopt similar standards (such as the enhanced reasonableness standard and the window of anxiety) when faced with claims for recovery for possible future injuries.

III. COMPENSATION FOR MEDICAL MONITORING

Because some courts are reluctant to permit recovery for emotional distress caused by a fear of future disease or injury, some plaintiffs who have been exposed to a drug or product may seek damages for medical monitoring (83)--in essence, demanding that the defendant absorb the costs associated with periodic medical examinations designed to monitor the long-term effects of the plaintiff's use of a drug or medical device or by the plaintiff's exposure to certain chemicals. (84) The New Jersey Supreme Court handed down an unusual decision that resulted in a truly "split verdict" for the plaintiff. In Mauro v. Raymark, the New Jersey Supreme Court held that the plaintiff was not able to recover for an enhanced risk of contracting cancer from his exposure to asbestos because the plaintiff had not presented sufficient evidence establishing that the future occurrence of cancer was a reasonable medical probability. (85) However, the same court held that the plaintiff could recover damages for medical surveillance and monitoring expenses, stating that "the medical surveillance claim [sought] reimbursement for the specific dollar costs of periodic examinations that [were] medically necessary notwithstanding the fact that the extent of plaintiff['s] impaired health [was] unquantified." (86) A similar result was reached in Arizona where the court awarded damages for "medical surveillance" of the possible development of cancer and other asbestos-related diseases. (87)

IV. BYSTANDERS

What about the situation where a "bystander" seeks compensation for emotional distress resulting from witnessing the injury or death of a third party where that death was caused by a defective product? While most courts today do not require that the bystander suffer physical impact or injury from the defective products themselves, they do require that the bystander be in sufficient proximity to the accident to be in danger of physical injury. (88) This is an iteration of what is termed the "zone of danger" test. (89)

Policy reasons for the abandonment of the impact rule were articulated in Asaro v. Cardinal Glennon Memorial Hospital, (90) in which the court noted "that a negligent actor can induce mental trauma in another without physical impacts ... and ... that advances in medical science permit the diagnosis of mental trauma with accuracy akin to that available for the diagnosis of physical trauma." (91) The Asaro court concluded that "[t]he extension of potential liability beyond impact ... thus followed a national trend which saw courts exercise their common law prerogative to reevaluate rules of liability in light of advances in science and changing societal norms." (92)

The Supreme Court of Illinois adopted the zone of danger test for product-liability bystanders in Rickey v. Chicago Transit Authority. (93) Under Rickey, "a bystander who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety, is given a right of action for physical injury or illness resulting from emotional distress." (94) Thus, under Rickey, in addition to being within the "zone of danger," the plaintiffs must show that they reasonably feared for their own safety--thereby removing the potential of a casual bystander attempting to "cash in" on an unfortunate occurrence. This narrow view was not universally accepted.

Many states today have gone beyond the narrow "zone of danger" test and have returned to a broader foreseeability test. (95) The leading case in this development was Dillon v. Zegg. (96) In Dillon, a mother was permitted to bring suit based on a claim for emotional distress after witnessing the death of her child as a result of a motorist's alleged negligence. (97) The mother was properly characterized as a "bystander" who was neither in the "zone of danger" nor threatened with bodily harm. (98) The mother alleged that as a result of witnessing the fatal accident, she had "'sustained great emotional disturbance and shock and injury to her nervous system' which caused her great physical and mental pain and suffering." (99)

In allowing the mother to recover for emotional distress, the Dillon court moved beyond the narrow "zone of danger" test and returned to an important "first principle" of tort law: Damages for mental distress could be recovered if the distress was "reasonably foreseeable" as a result of the tortfeasor's conduct. (100) In so doing, the court enunciated a new and broader basis of recovery for bystanders who sought to recover for negligent infliction of emotional distress (while at the same time retaining the "zone of danger" language from earlier cases, stated as "near the scene of the accident," and "direct impact"):
   (1) Whether plaintiff was located near the scene of
   the accident as contrasted with one who was a distance
   away from it. (2) Whether the shock resulted
   from a direct emotional impact upon the plaintiff
   from the sensory and contemporaneous observance
   of the accident. (3) Whether plaintiff and the victims
   were closely related, as contrasted with an absence
   of any relationship or the presence of only a
   distant relationship. (101)


The Maine Supreme Court had the opportunity to apply the three prong test of Dillon in a products liability case. In Culbert v. Sampson's Supermarkets, Inc., a mother suffered serious emotional distress after she witnessed her infant child gag and choke on a foreign substance contained in a jar of baby food. (102) In adopting the Dillon test, the court held that a "bystander may recover damages for serious mental distress foreseeably resulting from witnessing another person harmed by the tortfeasor's negligent act." (103)

Finessing the Issue?

Several courts have avoided choosing between the "zone of danger" test found in Rickey and the test found in Dillon and have, instead, finessed the issue by characterizing the plaintiff as a traditional user of a product rather than as a bystander. A leading case in this regard is Gnirk v. Ford Motor Co. (104)

In Gnirk, the plaintiff alleged that she stopped her car, of which she was both the owner and the driver, to open a gate. (105) Her thirteen-month-old son remained in the car with his seat belt strapped on. (106) Before getting out of the car, she shifted the car into park, but left the engine running. (107) While she opened the gate, the car shifted from park into reverse. (108) The car struck a post and then rolled forward. (109) The plaintiff chased the car, but failed to remove her son before the car completely submerged in a stock dam. (110) The plaintiff followed the car into the stock dam, but could not ultimately find the car. She then walked a mile and a half for help. (111) The plaintiff alleged that the incident "caused her great depression, insomnia, permanent psychological injury, and physical illness." (112) The district court considered the mother of the deceased child to be a "user" of the car and not a "mere bystander." (113) As such, Ford Motor Company owed Mrs. Gnirk an independent duty not to cause her harm. (114) The court then stated that the Restatement (Second) of Torts [section] 436A, comment c, was the proper standard for determining whether Mrs. Gnirk had suffered bodily injury proximately caused by the emotional disturbance inflicted by Ford. (115) The court cited the test as follows:
   [Emotional distress] accompanied by transitory,
   non-recurring physical phenomena, harmless in
   themselves, such as dizziness [and] vomiting, ...
   does not make the actor liable where such phenomena
   are in themselves inconsequential and do not
   amount to any substantial bodily harm. On the
   other hand, long continued nausea or headaches
   may amount to physical illness, which is bodily
   harm; and even long continued mental disturbance,
   as for example in the case of repeated hysterical attacks,
   or mental aberration, may be classified by the
   courts as illness, notwithstanding their mental character. (116)


The Gnirk approach has been accepted in three jurisdictions: South Carolina, (117) Iowa, (118) and California. (119) However, the Supreme Court of Utah refused to accept the premise that the plaintiff was a "user" of the product in Straub v. Fisher & Paykel Health Care. (120) In Straub, the plaintiff witnessed a death that was caused by the defendant's allegedly defective humidifier. (121) She claimed that the resulting emotional distress caused the termination of her employment, the dissolution of her marriage, and her incarceration after attempting to shoot her husband. (122, 123) She claimed no physical injury as a result of the manufacturer's allegedly defective humidifier. (124) The court distinguished this case from Gnirk:
   In reaching its decision, the court in Gnirk emphasized
   the relationship between Ford and the plaintiff
   and concluded the plaintiff was owed a duty of care.
   In Gnirk, the plaintiff was the owner of the car,
   driver, mother of the victim, and herself a potential
   physical victim of the malfunctioning gears. The
   foreseeability of the injury in Gnirk was decidedly
   greater than in the instant case. (125)


V. SHOULD THERE BE LIMITATIONS ON NON-ECONOMIC DAMAGES FOR PAIN AND SUFFERING?

As is evident, establishing liability for noneconomic damages (126) is often fraught with uncertainty, conflicting rules, and tortured reasoning by courts. Because of this, many states have enacted legislative limitations on a plaintiff's recovery for noneconomic damages. (127) Professors Kiely and Ottley note that while many of these caps on noneconomic damages apply in only medical malpractice cases, a number of these statutory caps apply in all cases--including product-liability cases. (128) Here are a few examples:

* Several states place a limit or cap on the total amount that a plaintiff can recover for pain and suffering; (129)

* Thirty-six states have enacted and are enforcing legislative limits on punitive/non-economic damages in medical malpractice cases. (130)

* Several states limit noneconomic damages in all personal injury cases; (131)

* Several states establish a variable limit or permit the amount of recovery for noneconomic damages to be raised under certain circumstances; (132)

* Ohio restricts noneconomic loss to $250,000 or three times the amount of economic loss--not to exceed $350,000 per plaintiff or $500,000 per occurrence. (133)

VI. SOME CONCLUSIONS

The issue of damages in products liability cases is still quite controversial and sometimes fractured. Until recently, courts were generally dismissive of a plaintiff's claim for damages for emotional distress or mental anguish in the absence of some form of physical injury. Questions concerning the ability of bystanders to bring suit, the availability of monetary damages for medical monitoring in the absence of proof of a present injury, and attempts to limit damages for non-economic damages, emotional distress, and pain and suffering will persist as the law of torts--both in strict liability and in negligence--attempts to meet the exigencies of the development of modern product liability law.

(1) As noted by Professor Avihay Dorfman, a lecturer in law at Tel Aviv University: "A tort remedy, on this view, purports to make the victim of a wrong whole by providing him with the compensatory damages necessary for re-directing him, economically if not physically, from his post-wrong position back to the position he occupied in the pre-wrong status quo. Moreover, this idea is nicely captured by the civil law principle of restitutio in integrum (meaning restoration to the previous condition)." Avihay Dorfman, What is the Point of the Tort Remedy?, 55 AM. J. JURIS. 105, 105 (2010). See also RESTATEMENT (SECOND)OFTORTS [section] 902 cmt. a (1965): "[A]n award made to a person by a competent judicial tribunal in a proceeding at law or in equity because of a legal wrong done to him by another."

(2) As stated in Feldman v. Lederle Laboratories, "The emphasis of the strict Liability doctrine is upon the safety of the product, rather than the reasonableness of the manufacturer's conduct. It is a product-oriented approach to responsibility." 479 A.2d 374, 450 (1984) (citing O'Brien v. Mushkin Co., 94 N.J. 169, 168 (1983) (holding that strict liability applies to prescription drugs).

(3) See RESTATEMENT (SECOND) OF TORTS [section][section] 388, 390, 392, 395, 397, 398 (1965).

(4) See, e.g., Mangum v. Pigue, 359 Ark. 373, 383 (2004). RESTATEMENT (SECOND) OF TORTS [section] 282 (1965) (stating "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm."). RESTATEMENT (SECOND) OF TORTS [section] 282 (1965). The Restatement (Third) of Torts: Liab. for Physical and Emotional Harm [section] 3 (2010) notes: "A person acts negligently if the person does not exercise reasonable care under all the circumstances." RESTATEMENT (THIRD) OF TORTS : LIAB. FOR PHYSICAL AND EMOTIONAL HARM [section] 3 (2010). In a case from 1917, the Second Circuit noted: "[T]he definition of negligence or carelessness, as the term is used in an action of this kind, is the doing of something which, under all the circumstances under which it is done, an ordinarily prudent man, with proper regard for the welfare of others, would not have done, or the leaving undone of something which, under all the circumstances, an ordinarily prudent man would have done." Lehigh Valley R. Co. v. Kruszckenski, 247 F. 98, 99 (2d Cir. 1917).

(5) See Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991).

(6) See, e.g., Dart v. Wiebe Mf'g, Inc., 709 P.2d 876, 880 (Ariz. 1985).

(7) See Trull v. Volkswagen of Am., Inc., 320 F.3d 1, 8 (1st Cir. 2002) (citing the standard of a "reasonably prudent automobile manufacturer"). See generally, DAN B. DOBBS, THE LAW OF TORTS [section] 117, 277 (2001) (explaining how courts developed "a general duty or standard of care describing the duty of all persons to exercise ordinary care, meaning the care of a reasonable person, for the benefit of other persons"); id. [section] 227, at 578 ("Among strangers those who are in no special relationship that may affect duties owed the default rule is that everyone owes a duty of reasonable care to others to avoid physical harms."). An interesting discussion of the concept of a "reasonable man" occurred in Brown v. Kendall, which is credited as being one of the first iterations of a "reasonable person" standard in tort law in the United States. Brown v. Kendall, 60 Mass. 292 (1850). In Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., the court stated: "What constitutes reasonable care" ... will involve a 'balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm...." 348 N.E.2d 57 l, 577-78 (N.Y. Ct. App. 1976) (citing 2 HARPER & JAMES, TORTS, [section] 28.4 (1995)).

(8) If the only harm suffered was to "the product itself," the plaintiff must normally rely on a warranty theory for recovery. See, e.g., Lockheed Martin Corp. v. RFI Supply, Inc., 440 F.3d 549,554 (1st Cir. 2006); Reed v. Cent. Soya Co., 621 N.E.2d 1069, 107475 (Ind. 1993). The theory behind this determination is that the damage to the product itself meant that the customer received "insufficient product value"--a traditional element of a suit for breach of contract. See Oceanside at Pine Condo. Owners Ass'n v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me. 1995). These damages fall under the category of "economic loss" which is defined as "damages for inadequate value, costs of repair or replacement of the defective product, or consequent loss of profits--without any claim of personal injury or damage to other property." See Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 620 So. 2d 1244, 1246 (Fla.1993). In East River Steamship Corp. v. Transamerica Delaval, Inc., the United States Supreme Court noted that contract law, especially the law of warranty, is better suited for commercial controversies relating to a claim of a non-working product because the "parties may set the terms of their own agreements." 476 U.S. 858, 872-73 (1986). In the alternative, the consumer can simply reject the product, or revoke its acceptance and sue for breach of contract. See U.C.C. [section][section] 2-601, 2-608, 2-612 (1977).

(9) See, e.g., Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009), reh'g denied, (stating that plaintiffs must establish all negligence elements, including causation, as a matter of law in a product liability case in order to survive summary disposition). See also Conley, 2005 U.S. Dist. LEXIS 15468, at *13-14.

(10) See, e.g., Wilcox v. Homestake Mining Co., 619 F.3d 1165, 1172 (10th Cir. 2010) (concerning the "but for" standard).

(11) See, e.g., Saunders Sys. Birmingham Co. v. Adams, 117 So. 72 (Ala. 1928) (involving an application of the "substantial factor" test concerning causation). For a discussion of cases involving proof of causation-in-fact in products liability cases, see De Luryea v. Winthrop Lab., Div. of Sterling Drug, Inc., 697 F.2d 222 (8th Cir. 1983); Menard v. Newhall, 373 A.2d 505 (Vt. 1977).

(12) See Reed v. Landstar Ligon, Inc., 314 F.3d 447, 454 (10th Cir. 2002) (applying Oklahoma law). A majority of states treat a violation of an appropriately applied statute or regulation as negligence per se. Some courts, however, treat it as evidence of negligence, which while relevant, is not conclusive. See, e.g., MacDonald v. Ortho Pharm. Corp., 475 N.E.2d 65 (Mass. 1985), cert. denied, 474 U.S. 920 (1985) (concerning FDA-mandated warning on birth control pills). See also RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL AND EMOTIONAL HARM [section] 14 Reporter's note cmt. a (2010). The Reporters state: "The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings." Id. Reporters' note, cmt. a. The Reporters also noted that this development was somewhat surprising.

(13) See Escola v. Coca Cola Bottling Co., 150 P.2d 436, 439 (Cal. 1944) (noting that that it would be sufficient if evidence existed "permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it."). RESTATEMENT (SECOND) OF TORTS [section] 328D(1) (1965) (describing the proof required for res ipsa loquitur as follows: "It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff."). In most jurisdictions that follow the rule, res ipsa loquitur creates a permissible inference of negligence which the jury is free to either accept or reject. See, e.g., Ryan v. Zweck-Wollenberg Co., 64 N.W.2d 226, 234-35 (Wis. 1954).

(14) Escola, 150 P.2d 436 (Cal. 1944).

(15) Id. at 440-41 (Traynor, J., concurring).

(16) Id. at 441 (Traynor, J., concurring).

(17) Contributory negligence takes two forms. One involves an unreasonable failure to recognize a risk; a second involves the conscious encountering of a known risk. In some jurisdictions, the latter may be termed as assumption of the risk. See generally Dix W. Noel, Manufacturer's Liability for Negligence, 33 TENN L. REV. 444 (1966); Dix W. Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 YALE L.J. 816 (1962). Assumption of risk requires that the plaintiff is subjectively aware of a risk and the assumption of the risk must be voluntary. In addition, the plaintiff's conduct need not be unreasonable to constitute the defense. See, e.g., Rohrbough v. Wyeth Labs., Inc., 719 F. Supp. 470, 478 (N.D.W. Va. 1989). While the doctrine of contributory negligence is today the minority rule in the United States, Virginia, Alabama, Maryland, the District of Columbia, and North Carolina continue to apply the doctrine in some form. See DOBBS, supra note 5, at [section] 201, 504 (2001). The majority rule today is known as comparative negligence or fault, and is applied in the remaining states. Id. at [section] 201, 503-06. Although comparative negligence comes in a variety of forms, this doctrine allows the finder of fact to compare the negligence or fault of the plaintiff and the defendant and assign a percentage to each, thereby reducing a damages award but not necessarily preventing a partially negligent plaintiff from recovering. See id. at [section] 201, 503-06; W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON TORTS [section] 67 (5th ed. 1984).

(18) Escola, 150 P.2d at 441 (Traynor, J., concurring).

(19) 377 P.2d 897 (Cal. 1963). Justice Traynor, of course, cited his own opinion in Escola! Concerning the importance of William Prosser to the development of the doctrine of strict liability, see Christopher Robinette, The Prosser Notebook: Classroom as Biography and Intellectual History, 2010 U. ILL. L. REV. 577, 580 nn.18-26. As Professor Robinette states:
   In the products liability area, Prosser played a considerable role
   in the ultimate triumph of strict liability for products.
   Prosser's 1941 treatise called for strict liability in the products
   arena three years prior to Justice Roger Traynor's concurrence in
   Escola v. Coca-Cola Bottling Co. His 1960 article, The Assault Upon
   the Citadel, written as jurisdictions were on the cusp of adopting
   strict liability, has been called, by Professor G. Edward White, "a
   model of how legal scholarship can serve to further doctrinal
   change in a common law subject." Additionally, in drafting the
   products liability sections of the Restatement (Second) of Torts,
   particularly section 402(A), Prosser legitimized strict products
   liability. Id. (citations omitted).


(20) RESTATEMENT (SECOND) OF TORTS [section] 402A (1) (1965).

(21) RESTATEMENT (SECOND) OF TORTS [section] 402A (1)(b).

(22) Id. See also Union Supply Co. v. Pust, 583 P.2d 276 (Col. 1978).

(23) 479 A.2d 374, 385 (NJ. 1984).

(24) Id.

(25) RESTATEMENT (SECOND) OF TORTS [section] 402A cmt C. See DAVID FISCHER & WILLIAM POWERS, JR., PRODUCTS LIABILITY: CASES AND MATERIALS, 50-51 (1988). See also Bailey v. Montgomery Ward & Co., 431 P.2d 108 (Ariz. Ct. App. 1967).

(26) See Greenman, 377 P.2d at 901. See also William L. Prosser, Strict Liability to the Consumer, 69 YALE L. J. 1099, 1124-1134 (1960).

(27) See RESTATEMENT (SECOND) OF TORTS [section]402A. Interestingly, this section was the product of Professor William Prosser's work; Prosser served as the Reporter for the entire Restatement. In addition to Greenman, an important step in the development of the theory of strict liability was Vandermark v. Ford Motor Co., 391 P.2d 168 (Cal. 1964), which involved a suit based upon negligence and breach of warranty.

(28) RESTATEMENT (SECOND) OF TORTS [section] 402A(1) ( 1965 ).

(29) RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 1 (1998).

(30) See RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 2 (1998). Generally speaking, a manufacturing defect typically involves an unintended flaw in a product that is contained in only a small percentage of a manufacturer's products. Defects in finished products can result from: the raw materials or the component parts used in a product. See, e.g., Bell v. T.R. Miller Mill Co., Inc., 768 So. 2d 953 (Ala. 2000) (discussing installation of the components of the product), Keeler v. Richards Mfg. Co., Inc., 817 F.2d 1197 (5th Cir. 1987) (explaining broken and defectively manufactured parts in the product), Yamaha Motor Co., Ltd. v. Thornton, 579 So. 2d 619 (Ala. 1991) (writing of manufacturing defects in parts of the product), Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1983) (discussing impure ingredients in the product), Van Wyck v. Northern Lab., 345 N.W.2d 81 (Iowa 1984).

The issues surrounding the existence of foreign objects in a product has been Especially vexing and implicates the use of either the "foreign-natural" test or the "consumer expectations" test. Applying the "foreign-natural" test distinguishes between an injury caused by a harmful object or substance that is "foreign" to the food product and an injury caused by an item that is "natural" to the product. Items that have been found to be "foreign" include: a condom in a soft drink (Hagan v. Coca-Cola Bottling Co., 804 So.2d. 1234 (Fla. 2001)); a decomposed housefly in a soft drink (LeBlanc v. Louisiana Coca-Cola Bottling Co., 60 So.2d 873 (La. 1952)); a dead mouse in a soft drink bottle (Anderson v. Tyler, 274 N.W. 48 (Iowa 1937)); decomposed human toe in chewing tobacco, which poisoned the consumer (Pillars v. R.J. Reynolds Tobacco Co., 78 So. 365 (Miss. 1918)); rocks in a breakfast cereal (Elliott v. Kraft Foods North America, Inc., 118 S.W.3d 50 (Tex. App. 2003)); foreign metal in a soup can (Campbell Soup Co. v. Dusek, 135 So.2d 414 (Miss. 1961)); glass in ice cream (Amdal v. F.W. Woolworth Co., 84 F. Supp. 657 (N.D. Iowa 1949)); and a small metal screw in chewing gum (Hickman v. William Wrigley, Jr. Co., 768 So.2d 812 (La. Ct. App. 2000)). On the other side of the controversy, courts have held that the following are found "naturally" in food products: a fish bone in fish chowder (Webster v. Blue Ship Team Room, 198 N.E.2d 309 (Mass. 1964)); and a turkey bone in a creamed turkey dish (Goodwin v. Country Club of Peoria, 54 N.E.2d 612 (I11. App. Ct. 1944)). The first case to state the "foreign-natural" test was Mix v. Ingersoll Candy Co., in which a customer of a restaurant who ordered a chicken pot pie was injured when he swallowed a fragment of a chicken bone contained in the pie. 59 P.2d 144 (Cal. 1936). The court dismissed the plaintiff's complaint grounded in negligence and on the implied warranty of fitness and held that the pie was "reasonably fit for human consumption." The court stated: "Bones which are natural to the type of meat served cannot be legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on guard against the presence of such bones." Id. at 148. The "foreign-natural" test does not include tainted, decayed, diseased, or infected meats or vegetables, Id.

Several courts have criticized the "foreign-natural" test for simply not meeting the reasonable expectations of consumers who purchase and consume food and drink products and who may be injured by an object that is found in these products. In response to these criticisms, many states turned to the "consumer expectations" test to determine if a plaintiff can recover. Under this analysis, it is irrelevant whether the injurious substance is "foreign" or "natural." Instead, the liability of the defendant is predicated on whether the consumer had a reasonable expectation that the harmful substance would not be found in the food product. As the Wisconsin Supreme Court stated in Betehia v. Cape Code Corp., "The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation." 103 N.W.2d 64 at 69 (Wis. 1960). The following cases demonstrate the court's rejection of the "foreign-natural" test in favor of the consumer expectations test: Mitchell v. Fridays, 748 N.E.2d 89 (Ohio Ct. App. 2000) (clam shell in a clam strip); Goodman v. Wenco Foods, Inc., 423 S.E.2d 444 (N.C. 1992) (bone in a hamburger); Hochberg v. O'Donnell's Rest. Inc., 272 A.2d 846 (D.C. 1971) (unpitted olive in a martini); Zabner v. Howard Johnson's, Inc., 201 So.2d 824 (Fla. Dist. Ct. App. 1967) (walnut shell in maple walnut ice cream); Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547 (Ill. 1992) (pecan shell in chocolate-covered candy). If the manufacturer or restaurant serving the food can show that the customer reasonably should have expected the substance in his or her food, the customer will be barred from recovery. See Vitiello v. Captain Bill's Rest., 594 N.Y.S.2d 295 (N.Y. App. Div. 1993) (customer should expect small bones in fish). In Young v. Marriott Corp., the district court stated that the "reasonable expectations test has largely displaced the natural/foreign test...." 656 F. Supp. 445, 448 (D. Md. 1987). The Restatement (Third) also has rejected the "foreign-natural" test and has adopted the consumer expectations test in food cases. See RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 7 cmt. b (1998). Section seven states that "a harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient." RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 7 (1998).

(31) Design defects are based upon the theory that a manufacturer should have adopted a different design that would have reduced the risk of accidental injury to the plaintiff. As noted, marketing defects involve the allegation of inadequate instructions or warnings concerning risks associated with the use of a product. See also Momen v. United States, 946 F. Supp. 196 (S.D.N.Y. 1996) (applying New York law in determining if a product defect exists).

(32) The duty to warn arises under strict liability because of the recognition that many useful products cannot be made completely safe under all possible circumstances. yet, it is often reasonable to continue to market such products. See RESTATEMENT (SECOND) OF TORTS: PROD. LIAB. [section] 402A, cmt. a (1965). In order to prevent such products from being considered as "unreasonably dangerous," the seller will be required to give appropriate directions and warnings with respect to any risks that are not generally known and recognized. RESTATEMENT (SECOND) OF TORTS: PROD. LIAB. [section] 402A, cmt. j (1965). In Thorn v. Bristol-Myers Squibb, the Tenth Circuit listed five factors for Determining whether a warning is adequate as a matter of law: (l) the warning must adequately indicate the scope of the danger; (2) the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; (3) the physical layout of the warning must adequately alert a reasonably prudent person of the dangers; (4) a simple directive may be inadequate if it fails to detail possible consequences due to the failure to follow it; and, (5) the means to convey the warning must be adequate. 353 F.3d 848,853 (10th Cir. 2003).

It must also be recognized that there is a distinction between instructions and warnings. A warning will appraise the use of a product of the risks associated with the products. Instructions explain how to use the product. Manufacturers may be found negligent as to inadequate warnings and labels if:

* They fail to warn users about recognized risk;

* The warning itself is too vague to be adequate; and

* The warning is not brought to the user's attention.

See also RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 2 (1998): A product "(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe."

In many cases, there is a close relationship between a product defect because of a failure to warn and a product defect because of a design failure. See, e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962). In Spruill, the warning was deemed inadequate in large part because of the way the product was designed. Its red color made it especially appealing to children and "its formula made it much more poisonous to children that one would expect." FISCHER & POWERS, supra note 25, at 225. Spruill is also important because it stands for the proposition that a manufacturer is required to warn a consumer or user against a foreseeable "misuse." See, e.g., Knowles v. Harnischfeger Corp., 674 P.2d 200 (Ct. App. Wash. 1983).

(33) Gray v. Manitowoc Co., Inc, 771 F.2d 866 (7th Cir. 1985) (stating the consumer expectations test); Brawner v. Liberty Insurance, 573 S.W.2d 376 (Mo. Ct. App. 1978) (stating that there are no cases where a product made for adult use is deemed defective and unreasonably dangerous solely because it has not been made child-proof); Keller v. Welles Dept. Store of Racine, 276 N.W.2d 319 (Wisc. Ct. App. 1978) (looking to "adult expectations" in determining liability).

(34) Id.

(35) FISCHER & POWERS, supra note 25, at 58.

(36) See, e.g., Maxted v. Pacific Car & Foundry Co., 527 P.2d 832 (Wyo. 1974).

(37) TERRENCE F. KIELY & BRUCE L. OTTLEY, UNDERSTANDING PRODUCTS LIABILITY LAW 302 (2006).

(38) If property has been destroyed, the plaintiff is entitled to the value of the property at the time of its destruction. See, e.g., Harman & Conway v. Nucor Corp., No. 87CA-793-MR, 1989 Ky. App. LEXIS 127 (Ky. Ct. App. Sept. 29, 1989). In a case where The property has not been totally destroyed, but where the damage is not capable of Being repaired, the measure of damages is the difference between the reasonable value of the property before and after the damage. If the damaged property can be repaired, the measure of damages is the cost of these repairs plus the amount of the difference in the value of the property, if the value of the property after repair is less than its value before it was damaged. See, e.g., Behrens v. W.S. Bills & Sons, Inc, 283 N.E.2d 1 (Ill. App. Ct. 1972).

(39) KIELY & OTTLEY, supra note 37.

(40) Id. at 302-303.

(41) 377 F. Supp. 136 (E.D. La. 1974).

(42) Id. at 138-140.

(43) BLACK'S LAW DICTIONARY 563 (8th ed. 2004).

(44) See Palmer v. Nan King Rest., Inc., 798 A.2d 583 (N.H. 2002) (plaintiff bit into a used band aid, causing fear of contracting AIDS); Ellington v. Coca Cola Bottling Co., Inc., 717 P.2d 109 (Okla. 1986). In Ellington, the plaintiff purchased a bottle of Coca-Cola and drank a portion of it. 717 P.2d 109, 109. She then noticed what she thought was a worm in the bottle and she became physically ill. Id. She went to a doctor, became dehydrated, and was later treated for a kidney infection, diarrhea, fever, and nausea. Id. It turned out that the "worm" was actually a piece of harmless candy. Id. at 110. However, the court held that recovery may be had for mental suffering where it is connected with physical suffering. Id. at 111. The court concluded that it did not matter which comes first in time--or physical or mental injury. Id. If mental suffering comes first, it is recoverable if physical suffering comes afterwards. Id. The court also held that the requirement of an initial "physical impact" rule was not applicable. Id. However, the court noted, expert testimony may be necessary to link the mental and physical suffering as to causation. Id. See also Chambley v. Apple Rest., Inc., 504 S.E.2d 551 (Ga. Ct. App. 1998) (plaintiff ate a salad containing an unwrapped condom); Way v. Tampa Coca Cola Bottling Co., 260 So.2d 288 (Fla. Dist. Ct. App. 1972) (plaintiff discovered a rat in a Coca Cola bottle). See supra note 30, concerning the "foreign-natural" or "consumer expectations" tests. As to the general issue of the use of expert testimony in Federal cases, see Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993).

(45) See RESTATEMENT (SECOND)OF TORTS [section] 46 (1965) (requiring "extreme and Outrageous conduct" as an element of a claim for intentional infliction of emotional distress).

(46) See, e.g., Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th Cir. 1991); Pope v. Rollins Protective Servs. Co., 703 F.2d 197 (5th Cir. 1983); Schwartz v. Nat'l Van Lines, 375 F. Supp. 2d 690 (N.D. Ill. 2005); Zeigler v. Fisher-Price, 261 Fed. Supp. 2d 1047 (N.D. Iowa 2003).

(47) The traditional considerations relating to negligent infliction of emotional distress include: first, that emotional distress without accompanying physical injury is harmless, fleeting, and all-too frequent to be the business of courts; second, that physical manifestations guarantee the genuineness of the emotional distress claim; and third, that where the defendant's act was only negligent, he should not have to compensate for purely mental distress. See Payton v. Abbott Labs, 437 N.E.2d 171, 178-79 (Mass. 1982) (citing RESTATEMENT (SECOND) OF TORTS [section] 436A cmt. b (1965)); see also David Crump, Evaluating Independent Torts Based upon 'Intentional' or 'Negligent' Infliction of Emotional Distress: How Can We Keep the Baby from Dissolving in the Bath Water? 34 ARIZ. L. REV. 439, 458 (1992); Jean C. Love, Discriminatory Speech and the Tort of Intentional Infliction of Emotional Distress, 47 WASH. & LEE L. REV. 123, 126 (1990).

(48) 533 S.E.2d 82 (Ga. 2000).

(49) 254 S.W.2d 81 (Tex. 1953).

(50) Id. at 86.

(51) See Kroger Co. v. Beck, 375 N.E.2d 640 (Ind. Ct. App. 1978).

(52) 266 Cal. Rptr. 106 (Cal. Ct. App. 1990).

(53) Id. at 108.

(54) Id. at 112.

(55) Id. at 111-113. Note, however, that the court reversed the grant of summary judgment on the count of deceit (essentially fraud) on grounds that this cause of action was independent of the valve manufacturing.

(56) Id. at 108, 112.

(57) The author conducted an extensive review of cases arising in the state of New Jersey. See Richard J. Hunter, Jr., HIV: Fear of AIDS or Medical Malpractice? 15 N.D.L. REV. 385 (2004). See also, e.g., Hartwig v. Oregon Trail Eye Clinic, 580 N.W.2d 86, 94 (Neb. 1998) (declaring that proof of actual exposure is not required when the identity of the patient on whom the contaminated needle is used is unknown); Williamson v. Waldman, 696 A.2d 14, 19, 22 (N.J. 1997) (same); Madrid v. Lincoln Cnty Med. Ctr., 923 P.2d 1154, 1163 (N.M. 1996) (same under the tort of intentional infliction of emotional harm).

(58) See, e.g., Payton v. Abbott Lab., 437 N.E. 2d 171 (Mass. 1982) (involving DES, a synthetic estrogen).

(59) See Sullivan v. Combustion Eng'g, 590 A.2d 681 (N.J. Super. Ct. App. Div. 1991) (citing New Jersey's long-standing rule is that "prospective damages are not Recoverable unless they are reasonably probable to occur."). See also Mauro v. Owens-Coming Fiberglas Corp., 542 A.2d 16, 24 (N.J. Sup. Ct. App. Div. 1988). The Mauro court added, "Moreover, there is no recovery allowed for the mere possible consequences of an injury inflicted by a tortfeasor." Id. (citing Lesniak v. Cnty. of Bergen, 563 A.2d 795 (1989)).

(60) See Johnson v. Am. Nat'l Red Cross, 578 S.E.2d 106 (Ga. 2003). In Johnson, the suit arose from the Red Cross's acceptance of blood from a donor who had lived in a region in Africa where a rare and undetectable strain of human immunodeficiency virus ("HIV") was known to exist and the subsequent transfusion of such blood. The court applied Georgia precedents and dismissed the claim on a motion for summary judgment. The court reasoned that "in the face of this complete absence of evidence of exposure, Mantooth [the plaintiff] feared that she was infected with the virus. However, the evidence compels a finding that Mantooth's fears were unreasonable as a matter of law." Id. at 110.

(61) Hagen v. Coca Cola Bottling Co., 804 So.2d 1234 (Fla. 2001) (involving emotional

(62) Caputzal v. The Lindsay Co., 222 A.2d 513, 516 (N.J. 1966).

(63) Decker v. Princeton Packet, 561 A.2d 1122, 1128 (N.J. 1989).

(64) Id.; See also Dunphy v. Gregor, 642 A.2d 372, 375-78 (N.J. 1994) (permitting damages for emotional distress for an unmarried cohabitant who witnessed the death of a fiance after he was struck by a car).

(65) Decker, 561 A.2d at 1128; see also Carey v. Lovett, 622 A.2d 1279, 1286-88 (N.J. 1993) (permitting a mother's claim for emotional distress based on a doctor's misdiagnosis of a fetus because the "physical and emotional ties between mother and fetus so unite them that a physician should anticipate that any malpractice that adversely affects the fetus will cause emotional distress to the mother").

(66) See, e.g., Mauro v. Raymark Indus., Inc., 561 A.2d 257, 260-65 (N.J. 1989) (determining that a plaintiff could recover damages for emotional distress based upon a reasonable concern that he or she has an enhanced risk of contracting cancer as a result of an exposure to asbestos).

(67) 696 A.2d 14 (N.J. 1997).

(68) Id. at 16. A lancet is used by doctors to prick fingers for the purpose of drawing blood.

(69) Id. at 23.

(70) Id. at 16.

(71) Id. at 16-17.

(72) Id. at 22 (emphasis added).

(73) Williamson, 696 A.2d at 19.

(74) Id. at 24 (emphasis added). The court concluded that the establishment of an "enhanced reasonableness standard," which requires a higher level of knowledge, would help address the policy questions raised in the Fink article, serving to discourage "hysteria as well as prejudice and discrimination against people living with HIV." Id. at 2122.

(75) Id. at 23.

(76) 666 A.2d 627, 636 (N.J. Super. Law Div. 1995).

(77) Williamson, 696 A.2d 14, 23 (N.J. 1997). But see R.F. v. Abbott Labs., 745 A.2d 1174 (N.J. 2000) (placing the time period from two weeks to a year or more). See Generally Lawrence O. Gostin, Zita Lazzarini, Dianne D. Alexander, Allan M. Brandt, Kenneth H. Mayer & Daniel C. Silverman, HIV Testing, Counseling, and Prophylaxis After Sexual Assault, 271 J.A.M.A. 1436, 1439 (1994) (stating that the vast majority of Individuals infected with HIV have detectable antibodies within three to six months); Matthew Warren Grill, Recovery for Emotional Distress Due to Fear of AIDS: Exposing AIDSphobia in Alabama, 49 ALA. L. REV. 1009 (1998) (predicting the development of AIDSphobia law in Alabama by applying AIDSphobia principles from other jurisdictions to Current Alabama tort law).

(78) Williamson, 696 A.2d at 23.

(79) Id.

(80) Id.

(81) 232 A.2d 833, 836 (N.J. Super. Ct. App. Div. 1967); see also KEETON ET. AL., supra note 17, at [section] 44,308.

(82) Williamson, 696 A.2d at 24.

(83) See generally David R. Geiger & Creighton K. Page, Donovan v. Philip Morris: Massachusetts Supreme Judicial Court Recognizes Medical Monitoring Claim Despite Lack of Clinically Manifest Injury, 54 B.B.J. 7 (2010) (discussing the Massachusetts Supreme Judicial Court's decision to allow medical monitoring as a claim even if there is no actual injury; see Donovan v. Phillip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009)).

(84) See, e.g., Xavier v. Philip Morris USA, Inc., No. C 10-02067 WHA, 2010 WL 3956860, at *3 (N.D. Cal. Apr. 18, 2011) ("The California Supreme Court has answered this question. 'Recognition that a defendant's conduct has created the need for future medical monitoring does not create a new tort. It is simply a compensable item of damage when liability is established under traditional tort theories of recovery.'")

(85) 561 A.2d 257, 264 (N.J. 1989).

(86) Id. at 263 (quoting Ayers v. Twp. of Jackson, 525 A.2d 287, 313 (N.J. 1987)).

(87) See Burns v. Jaquays Mining Corp., 752 P.2d 28, 33 (Ariz. Ct. App. 1987). The court cited an important "public health" consideration by holding that a damage award for "medical surveillance" is "consistent with the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease...." Id. at 33 (quoting Ayers, 525 A.2d at 311). The court noted that the availability of medical monitoring prior to the onset of the consequences of the plaintiff's exposure would have the "effect of preventing or mitigating serious future illnesses and thus reduce the overall costs of the responsible parties." Burns, 752 P.2d at 33.

(88) See, e.g., John J. Kircher, The Four Faces of Tort Law: Liability for Emotional Harm, 90 MARQ. L. REV. 789, 819-831 (2007).

(89) 457 N.E.2d 1,5 (Ill. 1983).

(90) 799 S.W.2d 595, 598-99 (Mo. 1990).

(91) Id. at 598 (citing Tobin v. Grossman, 249 N.E.2d 419, 420-21 (N.Y. 1969)).

(92) Asaro, 799 S.W.2d at 598.

(93) 457 N.E.2d 1 (Ill. 1983).

(94) Id. at 5. Several states have confined the application of the "zone of danger" principle to cases arising from the negligence of the defendant and have not extended it to cases arising from strict liability in tort. See Pasquale v. Speed Prods. Eng'g, 654 N.E.2d 1365, 1373 (Ill. 1995) (holding that fault is a requirement in an action for infliction of emotional distress). In Pasquale, the plaintiff and his wife were viewing an automobile race when parts from one of the cars flew into the stands, striking the wife and killing her. Id. at 1369. The plaintiff alleged severe emotional trauma as a result of witnessing his wife's death. Id. at 1370. The court denied recovery against the manufacturer in the absence of proof of some negligence on its part. Id. at 1373.

(95) See, e.g., Sills v. Massey-Ferguson, Inc., 296 F. Supp. 776, 781-82 (N.D. Ind. 1969) (holding that the zone of strict liability is commensurate with the zone of Foreseeable risk).

(96) 441 P.2d 912 (Cal. 1968).

(97) Id. at 914.

(98) Id. at 915.

(99) Id. at 914.

(100) Id. at 921.

(101) Id. at 920 (emphasis added).

(102) 444 A.2d 433, 434 (Me. 1982).

(103) Id. at 438. See also Shepard v. Superior Court, 142 Cal. Rptr. 612, 614 (Cal. Ct. App. 1977) (upholding a cause of action against an automobile manufacturer for damages when the plaintiff witnessed his sister being run over and killed by another car).

(104) 572 F. Supp. 1201 (D.S.D. 1983).

(105) Id. at 1202.

(106) Id.

(107) Id.

(108) Id.

(109) Id.

(110) Gnirk, 572 F. Supp. at 1202.

(111) Id.

(112) Id.

(113) Id. at 1202.

(114) Id. at 1203.

(115) Id. at 1204-05.

(116) Gnirk, 572 F. Supp. at 1204-05 (quoting RESTATEMENT (SECOND) OF TORTS [section]436A cmt. c (1965)).

(117) See Bray v. Marathon Corp., 588 S.E.2d 93, 95-96 (S.C. 2003).

(118) See Walker v. Clark Equip. Co., 320 N.W.2d 561, 563 (Iowa 1982).

(119) See Kately v. Wilkinson, 195 Cal. Rptr. 902, 909 (Cal. Ct. App. 1983).

(120) 990 P.2d 384 (Utah 1999).

(121) Id. at 386.

(122) Id.

(123) Id.

(124) Id. at 387.

(125) Id. at 391.

(126) Noneconomic damages traditionally include things like "pain and suffering, loss of consortium, emotional distress, and other intangible losses." Joanna M. Shepherd, Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. REV. 905, 915 (2008).

(127) For a discussion of damage caps, see Bryan W. Hernandez, The Crossroad: An Analysis of the Intersection Between Medical Malpractice, Health Care Costs, and Prostate Cancer, 18 ELDER L.J. 361, 379 (2011) (footnotes omitted) ("Perhaps the most Contentious solution proposed to rectify the medical malpractice and lofty health care cost situation is the use of damage caps. The idea behind damage caps is a simple one: place a limit on the amount of damages a plaintiff with a medical malpractice claim can recover. These damage caps often come in one of two varieties: non-economic damage caps (which include punitive damage caps) and total damage caps. Non-economic damage caps place a limit on the amount of money a plaintiff can recover for nonpecuniary losses, or damages that are non-compensatory in nature. Non-economic damages traditionally include things like "pain and suffering, loss of consortium, emotional distress, and other intangible losses." Total damage caps place a limit on the total amount of any kind of damages recoverable by a plaintiff, including compensatory damages.").

(128) Kiely & Ottley, supra note 38, at 313 n.80 (citing MO. REV. STAT. [section] 538.210 (2005)). The authors note that so-called "tort reform" legislation and damage caps have been challenged on constitutional grounds. See, e.g., Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991); Fairfax Hosp. Sys., Inc. v. Nevitt, 457 S.E.2d l0 (Va. 1995); Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005). The website, Lawyers and Settlements.com, notes that:
   Medical negligence occurs when a doctor, dentist, nurse, surgeon or
   any other medical professional performs their job in a way that
   deviates from the accepted medical standard of care. Negligence
   becomes medical malpractice, and the basis of a medical malpractice
   lawsuit, when it results in undue injury to a patient. On the other
   hand, medical negligence does not always result in injury to the
   patient. Doctors must take the Hippocratic Oath, which is a promise
   that they will treat their patients to the best of their ability,
   and to the accepted medical standard of care, so as to do no harm
   to their patients. If this oath is broken, a medical professional
   is negligent.


Medical Malpractice, Lawyers and Settlements, http://www.lawyersandsettlements.com/case/medical_malpractice.html (last updated Apr. 23,2011).

Most negligence incidents arise from the following: misdiagnosis; failure to diagnose in time; surgical error; failure to follow up with treatment; failure to treat in a timely manner; anesthesia error; and medication or prescription error. Id.

(129) See, e.g., HAW. REV. STAT. [section] 663-8.7 (2002) (limiting damages for pain and suffering to $375,000, subject to exclusions); KAN. STAT. ANN. [section] 60-19a01(b) (2004) (limiting damages for pain and suffering to $250,000 in personal injury actions).

(130) See Nat'l Conf. of State Legislatures, State Medical Malpractice Tort Laws, http://ncsl.org/print/standcomm/sclaw/tortchart04.pdf (last updated Nov. 5, 2004). The states are Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawai'i, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin. Id.

(131) See MD. CODE ANN., CTS. & JUD. PROC. [section] 11-108(b)(1) (2002) (limiting Noneconomic damages in personal injury actions to $350,000); Miss. CODE ANN. [section] 11-160(2)(b) (2002) (limiting damages to $1,000,000 in non-health care provider cases).

(132) See ALASKA STAT. [section] 09.17.010(c) (1997) (noneconomic damages may not exceed the greater of $400,000 or $8,000 multiplied by the years of the plaintiff's life expectancy; however, if the plaintiff suffers "severe permanent injury," the amount increases to the greater of $1 million or $25,000 times the years of the plaintiff's life expectancy); COLO. REV. STAT. [section] 13-21-102.5(3)(a) (2007) (imposing a $250,000 cap on noneconomic damages, but permitting a court to increase the amount to $500,000 if it finds "clear and convincing evidence" to do so); IDAHO CODE ANN. [section] 6-1603(1) (2003) (limiting noneconomic damages to $250,000 with certain adjustments based on the average of Idaho's annual wages).

(133) OHIO REV. CODE ANN. [section] 2315.18(B)(2) (2005). However, the established Ohio cap is not applicable in cases of "catastrophic injury," which the statute defines as an injury resulting in "permanent and substantial physical deformity, loss of use of limb, or loss of bodily organ system." Id. [section] 2315.18(b)(3)(a). The Ohio statute also waives the cap where there has been "a permanent physical injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities." Id. [section] 2315.18(B)(3)(b).

Richard J. Hunter, Jr., Professor of Legal Studies, Seton Hall University; Adjunct Professor of Law, Rutgers University School of Law, Camden and Newark.

Henry Amoroso, Associate Professor of Legal Studies, Seton Hall University, Partner.
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Publication:Faulkner Law Review
Date:Mar 22, 2012
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