Pichowicz v. Hoyt CV-92-388-M 02/11/00
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Nicholas and Joan Pichowicz,
Plaintiffs
v. Civil No. 92-388-M
Opinion No. 2000 DNH 040
Pearl M. H o y t ,
Defendant
O R D E R
Plaintiffs move to amend the judgment or for new trial on
several grounds, but basically because they believe the court
erred in not awarding damages for severe emotional distress and
in failing to credit the medical causation testimony of their
expert. Dr. Robert Feldman.
In its previous order (document no. 173) the court ruled
that plaintiffs had met their burden of establishing, by a
preponderance of the evidence, that their property was damaged by
the migration of volatile organic compounds from defendant's
property, and awarded damages in the amount of Two Hundred Five
Thousand Three Hundred Eleven Dollars ($205,311.00).
However, the court also determined that plaintiffs failed to
meet their burden of persuasion regarding causation as related to
claimed personal injuries (various medical conditions and ills
including depression, neurological abnormalities, headaches,
memory loss, tremors, numbness, lack of balance, s l e e p lessness).
Essentially, the court found Dr. Laura Green's expert testimony
to be credible and Dr. Robert Feldman's expert testimony neither
persuasive nor credible. Accordingly, the court found that
plaintiffs' ingestion of low levels of volatile organic compound
(VOC) contaminants prior to 1984 did not cause or substantially
contribute to cause their asserted medical difficulties, since
the contaminants at issue were not shown by a preponderance to
have neurotoxic effects, and were not shown by a preponderance to
be causally linked to any of plaintiffs' claimed difficulties.
Severe Emotional Distress Claim
In their motion to amend the judgment, plaintiffs argue that
even if they did not establish a medical causal link between the
comparatively small amounts of ingested VOCs and their claimed
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medical and psychological problems, they did demonstrate a
psychological c o n n ection. That is, they say that learning that
the well was contaminated, even at low levels, and realizing they
drank from it, combined to evoke a natural reaction of severe
emotional distress, rising to the level of clinically diagnosed
depression, with accompanying physical manifestations (i.e., the
alleged tremors, sleeplessness, memory loss, lost motivation,
physical imbalance, etc.). So, they argue, under applicable New
Hampshire law, they are at least entitled to recover damages for
severe emotional distress.
Plaintiffs did not bring an action for negligent or
intentional infliction of emotional distress against Defendant
Hoyt. Rather, they brought a straight negligence claim (Count
III). But, in Thorpe v. State of New Hampshire Department of
Corrections, et a l ., 133 N.H. 299 (1990), New Hampshire's Supreme
Court applied the Corso v. M e r r i l l ,
119 N.H. 647 (1979) standard
for negligent infliction of emotional distress recovery to
negligence actions:
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Therefore, we conclude that before a plaintiff can
recover damages for emotional distress pursuant to a
negligence cause of action, he or she must prove that
physical injury resulted therefrom.
T h o r p e , 133 N.H. at 304. And, the court held that "when damages
for impact are not sought [in a negligence case], expert
testimony is required to prove that the plaintiff experienced
physical symptoms from the alleged emotional distress." I d ., at
305. Damages for "impact" are not sought by plaintiffs.
Plaintiffs rely on the testimony of Dr. Ronald J. Kulich, a
psychologist, to establish their psychological injury and a
causal link to the contamination. Dr. Kulich testified that
there was no question in his mind that Mr. Pichowicz suffered
from severe depression "precipitated by his reaction to
discovering that there was toxic waste on his land" and his fear
of its effect on his spouse, children, and grandchildren. But,
Dr. Kulich also described Mr. Pichowicz's depression as being
"secondary to neurological deficits and major life stressors and
persistent pain and related disabilities," none of which were
actually caused by his ingestion of the comparatively small
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amounts of VOCs at issue in this case (at most 20 to 100 parts
per billion over a limited time p e r i o d ) .
Dr. Kulich opined that Mrs. Pichowicz suffered from "major
depression precipitated by the discovery of her toxic exposure."
But, he also observed that the strain generated by coping with
Mr. Pichowicz also caused her major stress, and, as discussed in
the earlier order (document no. 173), other explanations and
causes existed that would more plainly explain Mrs. Pichowicz's
depression.
Dr. Thomas, plaintiffs' treating physician, also testified
about the plaintiffs' depression and possibly related physical
symptoms, but offered no persuasive opinions regarding medical
causation relative to low level VOC ingestion, or even whether
their physical symptoms could be tied to the depression (i.e.,
emotional distress caused depression which in turn caused
physical m a n i f e s t a t i o n s ) .
Assuming, without deciding, that there is enough in this
record to satisfy the Corso and Thorpe predicates to recovery of
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emotional distress damages (and that is arguable ) , nevertheless.
plaintiffs still failed to meet their burden of persuasion.
In New Hampshire, as elsewhere, "the specific circumstances
under which a plaintiff may recover damages for emotional
distress are limited by the doctrine of foreseeability." Corso,
199 N.H. at 651-52. So, not only must a plaintiff suffer
physical harm caused by the emotional distress alleged, but the
physical harm must also be manifested by objective symptomatology
and confirmed by expert medical testimony. And, critical here,
the emotional distress for which compensation is sought
must be reasonably foreseeable: unless a plaintiff
proves that the defendant knew or should have known of
special factors affecting that plaintiff's response to
the circumstances of the case, the plaintiff can
recover only for that degree of emotional distress
which a reasonable person, normally constituted, would
have experienced under those circumstances. Whether
the emotional distress which a plaintiff is alleged to
have experienced is reasonable, is to be determined by
the finder of fact.
Payton v. Abbott Labs, et al., 386 Mass. 540, 557,
437 N.E.2d
171, 181 (1982); see a l s o , Kelley v. Schlumberqer Technology
C o r p .,
849 F.2d 41, 44 (1st Cir. 1988) (jury instructions
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correctly advised that plaintiff can only recover for emotional
distress if it was foreseeable and "a reasonable person in the
plaintiff's position would have been seriously distressed" under
the c irc u m s t a n c e s ) . See generally Orono Karate, Inc. v. Fred
Villari Studio of Self Defense, Inc., 77 6 F.Supp. 47, 50 (D.N.H.,
1991) (there is no material conflict as to recovery for emotional
distress among the jurisdictions of New Hampshire, Maine, and
Massachusetts); Morancv v. M o r a n c v ,
134 N.H. 493 (1991) (the law
only intervenes when the distress inflicted is so severe that no
reasonable person could be expected to endure i t ) .
In this case plaintiffs cannot recover for two basic
reasons. First, their claimed severe emotional distress
(diagnosed depression) was not reasonably foreseeable because a
reasonable person, normally constituted, would not have
experienced severe emotional distress under the circumstances of
this case. To be sure, a reasonable person, normally
constituted, who learned that measurable migration of VOCs
contaminated their property, and found its way into his or her
well at levels of 20 - 100 ppb (comparatively small q u antities),
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and he or she ingested that water for a period of time years
earlier, would no doubt be anxious, even angry and upset. But,
it does not follow that any and every exposure to or ingestion of
low levels of VOCs in drinking water warrants imposition of
emotional distress damages, simply because the particular
plaintiff in fact suffered severe emotional distress.
Both the entitlement to emotional distress damages and the
measure of such damages are limited by the tort concept of
reasonable foreseeability - i.e., would a reasonable, normally
constituted, person suffer severe emotional distress under these
circumstances, and if so, to what degree? Thus, plaintiffs bore
the burden of demonstrating that their asserted injuries were
reasonably foreseeable. They failed to carry that burden.
Consequently, I find that a reasonable, normally constituted
person would not suffer compensable severe emotional distress
under the circumstances of this case. A reasonable person would
understand that the well contamination levels were relatively
minor, and ingestion of water from the well at low levels would
probably not cause any discernable or long term or debilitating
neurotoxic effects, and, although the contaminants exceeded EPA
safe drinking water standards, the risk of actual injury to
health was statistically increased only slightly, if at all.
Certainly, no persuasive evidence was presented suggesting
otherwise, (and no persuasive evidence or argument was presented
showing that a reasonable person either would or should react to
these circumstances with justifiable alarm or severe emotional
distress). While there was passing reference to the character of
the contaminants as carcinogens, plaintiffs did not (and do not)
complain of an increased risk of, or fear of, developing cancer.
They did not introduce persuasive evidence of or argue the
probabilities of increased risk of cancer, or whether such
apprehensions, if they actually harbored them, were reasonable or
even realistic.
Plaintiffs fairly straightforwardly pursued the theory that
the contaminants themselves caused their neurological complaints
and depression. To the extent they also argue that their
depression was caused by their perception or fear of diffuse
health risks or injuries, I find that the circumstances of this
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case would not give rise to severe emotional distress or serious
depression in a reasonable, normally constituted person.
Plaintiffs claim they nevertheless did suffer severe
emotional distress, but that is not dispositive here, because,
even if they are not substantially exaggerating their subjective
complaints, the defendant is only liable to the extent a
reasonable person would suffer severe emotional distress under
the circumstances. The degree to which a reasonable person would
suffer emotional distress under these circumstances (assuming
that he or she could be expected to suffer severe emotional
distress) would at best be minimal, warranting only nominal
damages. "Absent specific knowledge of plaintiff's unusual
sensitivity, there should be no recovery for hypersensitive
mental disturbance where a normal individual would not be
affected under the circumstances." Daley v. LaCroix, 179 N.W. 2d
390, 396 (Mich. 1970) (citations omitted).
Plaintiffs' emotional distress damages claims fail, then,
for several discrete reasons. A reasonable person would not
suffer severe emotional distress under the circumstances of this
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case. Even if reasonable people could (legally) suffer severe
emotional distress under the factual circumstances of this case,
the degree and duration would be minimal, warranting only nominal
damages. Plaintiffs did not prove by a preponderance of the
evidence that low level contaminants in their well cause
neurotoxic effects, and their claimed distress based on that fear
is not reasonable. Plaintiffs failed to offer evidence to
support (and did not claim) that they suffered severe emotional
distress based upon other concerns - like the potentially
carcinogenic nature of the contaminants (i.e., nature and degree
of an elevated risk of disease, and fear of developing such
disease). And, the court is persuaded that plaintiffs' diagnosed
depression, a rather extreme reaction under these circumstances,
was not a foreseeable result of the low level contamination, and
was not substantially caused or contributed to by the
contamination, given the other plausible causes and evidence of
basically normal physical examinations (i.e., Mr. Pichowicz'
neurological e x a m i n a t i o n ) .
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Post-Hearing Submissions
Plaintiffs also take issue with the court's failure to
accept Dr. Feldman's medical causation testimony as either
persuasive or scientifically reliable, beyond perhaps suggesting
a basis for further scientific inquiry into a possible causal
connection between low level exposure to VOCs (like TCE) in
drinking water for a defined period of years and neurological
injuries of various sorts. Plaintiffs also suggest that p o s t
hearing literature submitted at the court's invitation support
their position and might have been overlooked. To the contrary,
the literature submitted by Dr. Feldman tends to support Dr.
Green's expert opinion testimony. An exhaustive dissection is
unnecessary, but the articles and related material submitted by
Dr. Feldman (document no. 169) generally do not establish the
neurotoxicity of low level exposure to VOCs (like TCE) in
drinking water over defined periods of time, and in fact are
replete with scientific disclaimers. S e e , e . g . . Exhibit A-l.
"This indicated a possibility of an association of contaminated
water with the manifestation of symptoms. It is hypothesized
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that the increased rate of symptoms observed in the exposed
group, when compared to the control group, may have been caused
by one or more of the following factors: (1) effect of TCE at a
threshold level higher than 28 ppb [about the levels involved in
this case], (2) effect of a single chemical entity other than
TCE, and (3) additive or synergistic effects of several
chemicals. Tt i_s also possible that there are factors other than
water contaminants associated with the recorded symptoms, e.g.
stress, that may have had an important influence in the exposed
group but not in the control group." (emphasis added) And:
"The data indicate that there were no observable adverse health
effects in the exposed aroup of residents, compared with the
control aroup, which could be ascribed to lona-term. low-level
exposure to trichloroethvlene (TCE) and other volatile oraanic
c o m p o u n d s ." (emphasis a d d e d ) ); see also Exhibits A-3 (open debate
about the real mechanism of TCE neurotoxicity); A-5 (no
significant difference between exposed and control group, but
subjective complaints in exposed group "warrant further
attention"); A - 9 ("Also misleading is the sentence that 'TCE is
n e u r o t o x i c ; B-6 (clear evidence of alterations in the nervous
system from TCE exposure are few, except after exposure to very
high d o s e s ) ; D-4 (recent article of Feldman, et a l ., recommends
an electrodiagnostic test for a nonexistent disorder; TCE does
not cause cranial n e u r o p a t h y ) .
Certainly further scientific inquiry into the matter may be
warranted, but as to medical causation of plaintiffs' complaints
of physical injury, the court accepted Dr. Green's testimony,
rejected Dr. Feldman's testimony, and found that plaintiffs
failed to meet their burden of proof on that issue. Plaintiffs
have asserted no grounds warranting reexamination of those
findings, and no damages are awarded for plaintiffs' claimed
medical/neurological injuries because they failed to establish
causation. No damages are awarded for severe emotional distress
for the reasons discussed.
Conclusion
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Plaintiffs' Motion for New Trial and/or to Amend Judgment
(document no. 175) and Supplemental Motion for New Trial and/or
to Amend Judgment (document no. 17 6) are denied.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
February 11, 2000
cc: Linda J. Argenti, Esq.
Joseph G. Abromovitz, Esq.
M. Ellen LaBrecque, Esq.
Peter S. Wright, Jr., Esq.
Thomas H. Richards, Esq.
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