Exxon Mobil Corp. v. Ford
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Opinions
PER CURIAM.
In accordance with Md.Code (1973, 2006 ReplVol.), Courts and Judicial Proceedings Article, § l-403(c), a majority of the incumbent judges of this Court ordered this appeal from the Circuit Court for Baltimore County by appellant Exxon Mobil Corporation to be reheard in banc.
The in banc panel unanimously concludes: that counsel for Exxon Mobil did not waive the appellant’s right to challenge [11]*11the compensatory damage award; and that the circuit court did not err in admitting the testimony of appellees’ expert witness on diminution in property values in Jacksonville as a result of the spill.
A majority of the panel determines that, with the exception of the property damage award to one family (the Grecos), the damage award for diminution in value shall be affirmed.
A majority finds that, under certain circumstances, Maryland law permits recovery for emotional distress related to reasonable fear of cancer. However, a different majority concludes that there was insufficient evidence of emotional distress for 58 Jacksonville residents. Thus, their judgment for this component of damages shall be reversed.
Although a majority of the panel determines that there was sufficient evidence of emotional distress to support a damage award for the remaining appellees, a different majority/plurality concludes that a faulty instruction on damages for emotional distress requires a new trial for these appellees.
A majority of the in banc panel would recognize a damage award for medical monitoring under certain circumstances. However, a different majority/plurality concludes that the evidence was insufficient to support such a remedy.
Therefore, the judgment of the Circuit Court for Baltimore County is affirmed in part and reversed in part and the case is remanded for proceedings consistent with this Court’s mandate.
JUDGMENT FOR DIMINUTION IN VALUE IN FAVOR OF ANDREA GRECO AND VERONICA GRECO REVERSED. JUDGMENTS FOR DIMINUTION IN VALUE IN FAVOR OF ALL OTHER APPELLEES AFFIRMED.
JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF LUKE DEKOOMEN, SETH DEKOOMEN, THOMAS BENNEY, LISA BENNEY, BARTLETT COL-GAN, PATRICIA COLGAN, ELAINE LINDSEY, TRESIA PARKS, WATER MERSKI, ANTHONY MONTONE, VALERIE MONTONE, LEON NICKEL, THERESA NICKEL, [12]*12RICCI DEPASQUALE, JR., JOSEPH DEPASQUALE, ALICIA DEPASQUALE, WYATT DOBB, DAVID FRITZ, JR., BRENDAN FRITZ, AIDAN FRITZ, MELO DIE HEG-GIE, ROBERT LIBERTINI, JR., NICHOLAS LIBERTINI, MICHELLE SHINDLEDECKER, ZACHARY VACOV-SKY, BROOK VACOVSKY, CHRISTOPHER VOGLER, CARLI VOGLER, STEVEN STELMACK, AMTUL BAIG, JOSEPH BATEMAN, DENNIS BERLIN, ALEXIS BLAIR, SPENCER BLAIR, ALLISON CARROLL, STEPHANIE CARROLL, JASON CARROLL, JOHN DEPASQUALE, MADISON DOBB, EMILY FABER, ALEXANDER FA-BER, KATHERINE LIBERTINI, DAVID MAHONEY, ROSEMARIE MAHONEY, LAUREN McLEWEE, LINDA OBERLIN, AMY PETERS, LESLIE RUSH, MARIA CHAVEZ, EVAN TIZARD, EMMA TIZARD, MARLENA WIT-TELSBERGER, AND LAUREN WITTELSBERGER REVERSED.
JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF ALL OTHER APPELLEES REVERSED AND CASES REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR A NEW TRIAL ON THAT CLAIM CONSISTENT WITH THE MAJORITY/PLURALITY VIEWS OF THIS COURT.
JUDGMENTS FOR MEDICAL MONITORING IN FAVOR OF ALL APPELLEES REVERSED.
COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY APPELLEES WHOSE JUDGMENTS FOR EMOTIONAL DISTRESS OR MEDICAL MONITORING ARE REVERSED, IN EQUAL SHARES.
KRAUSER, C.J., MATRICCIANI, J., and KEHOE, J. did not participate in the argument or the decision in this case.
ZARNOCH, J., concurring and dissenting, in which MEREDITH, J., WOODWARD, J. and WRIGHT, J., join.
This appeal challenges a jury verdict awarding compensatory damages totaling over $147 million to hundreds of plaintiffs who claimed that appellant, ExxonMobil, was responsible for [13]*13contaminating their groundwater with certain chemicals found in gasoline. Appellees, the plaintiffs, represent over 88 households in the Four Corners neighborhood of Jacksonville in Baltimore County, Maryland. It is undisputed that a leak at the Jacksonville Exxon station discharged over 700 gallons of gasoline per day for 37 days before it was discovered and shut down in February of 2007. The plaintiffs filed claims against ExxonMobil in the Circuit Court for Baltimore County alleging strict liability for an abnormally dangerous activity, private nuisance, trespass, negligence, and fraudulent concealment. ExxonMobil accepted liability for all of the claims except fraudulent concealment, disputing only causation and damages.
The trial began in October of 2008 and lasted for five months with the Hon. Maurice W. Baldwin presiding. The jury ultimately rejected the fraudulent concealment claim as well as the request for punitive damages. The $147 million compensatory award comprised both economic and non-economic damages, including diminution in value, emotional distress, fear of cancer, and the cost of medical monitoring. Appellant filed several post-trial motions requesting judgment notwithstanding the verdict, a new trial, or remittitur and asserted, inter alia, that the verdict was excessive and formulaic when compared to the evidence presented at trial. After a hearing, the circuit court ordered remittitur as to the diminution in value awards to four households that had sold their homes since the leak.1 The court denied the remaining motions and upheld the verdict. Appellant noted this appeal.
FACTS & LEGAL PROCEEDINGS
The Leak
Because liability is not an issue in this appeal, I will discuss the events leading to the leak only briefly, in order to provide [14]*14context for the disputed issues. This case began on a truly unfortunate Friday the thirteenth in January 2007, when a contractor working on the fuel delivery system at the Jacksonville Exxon station accidentally drilled a hole in an underground gas line.2 The punctured line carried regular grade gasoline from the underground storage tank to the fuel pump. As a result of the leak, the electronic line leak detector automatically shut down the line and sounded an alarm, which was received by both Storto Enterprises, the station operator,3 and Gilbarco Veeder-Root, a central monitoring company. Gilbarco notified an independent service contractor who issued an emergency work order to Alger Electric Inc.
Alger technicians arrived at the Jacksonville Exxon station ■within a few hours of the alarm. The technicians found no evidence of a gas leak and believed the problem was being caused by a faulty pump motor. Upon replacing the motor, however, the Alger technicians did not properly recalibrate the leak detector. The alarm therefore failed to signal the continuing leak. It was later established that approximately 700 gallons of gasoline per day leaked from the underground line, beginning January 13 and continuing for 37 days until the leak was finally discovered on February 17, 2007. Storto’s station operator, Andrea Loiero, testified that she and the station manager noticed a discrepancy in their daily inventory during the time of the leak. The parties dispute when and how often ExxonMobil was informed of this inventory discrepancy. It is clear, however, that on February 16, Loiero reported the large discrepancy to an ExxonMobil territory manager, who advised her to shut down all of the gas pumps. The territory manager arrived at the station within an hour.
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PER CURIAM.
In accordance with Md.Code (1973, 2006 ReplVol.), Courts and Judicial Proceedings Article, § l-403(c), a majority of the incumbent judges of this Court ordered this appeal from the Circuit Court for Baltimore County by appellant Exxon Mobil Corporation to be reheard in banc.
The in banc panel unanimously concludes: that counsel for Exxon Mobil did not waive the appellant’s right to challenge [11]*11the compensatory damage award; and that the circuit court did not err in admitting the testimony of appellees’ expert witness on diminution in property values in Jacksonville as a result of the spill.
A majority of the panel determines that, with the exception of the property damage award to one family (the Grecos), the damage award for diminution in value shall be affirmed.
A majority finds that, under certain circumstances, Maryland law permits recovery for emotional distress related to reasonable fear of cancer. However, a different majority concludes that there was insufficient evidence of emotional distress for 58 Jacksonville residents. Thus, their judgment for this component of damages shall be reversed.
Although a majority of the panel determines that there was sufficient evidence of emotional distress to support a damage award for the remaining appellees, a different majority/plurality concludes that a faulty instruction on damages for emotional distress requires a new trial for these appellees.
A majority of the in banc panel would recognize a damage award for medical monitoring under certain circumstances. However, a different majority/plurality concludes that the evidence was insufficient to support such a remedy.
Therefore, the judgment of the Circuit Court for Baltimore County is affirmed in part and reversed in part and the case is remanded for proceedings consistent with this Court’s mandate.
JUDGMENT FOR DIMINUTION IN VALUE IN FAVOR OF ANDREA GRECO AND VERONICA GRECO REVERSED. JUDGMENTS FOR DIMINUTION IN VALUE IN FAVOR OF ALL OTHER APPELLEES AFFIRMED.
JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF LUKE DEKOOMEN, SETH DEKOOMEN, THOMAS BENNEY, LISA BENNEY, BARTLETT COL-GAN, PATRICIA COLGAN, ELAINE LINDSEY, TRESIA PARKS, WATER MERSKI, ANTHONY MONTONE, VALERIE MONTONE, LEON NICKEL, THERESA NICKEL, [12]*12RICCI DEPASQUALE, JR., JOSEPH DEPASQUALE, ALICIA DEPASQUALE, WYATT DOBB, DAVID FRITZ, JR., BRENDAN FRITZ, AIDAN FRITZ, MELO DIE HEG-GIE, ROBERT LIBERTINI, JR., NICHOLAS LIBERTINI, MICHELLE SHINDLEDECKER, ZACHARY VACOV-SKY, BROOK VACOVSKY, CHRISTOPHER VOGLER, CARLI VOGLER, STEVEN STELMACK, AMTUL BAIG, JOSEPH BATEMAN, DENNIS BERLIN, ALEXIS BLAIR, SPENCER BLAIR, ALLISON CARROLL, STEPHANIE CARROLL, JASON CARROLL, JOHN DEPASQUALE, MADISON DOBB, EMILY FABER, ALEXANDER FA-BER, KATHERINE LIBERTINI, DAVID MAHONEY, ROSEMARIE MAHONEY, LAUREN McLEWEE, LINDA OBERLIN, AMY PETERS, LESLIE RUSH, MARIA CHAVEZ, EVAN TIZARD, EMMA TIZARD, MARLENA WIT-TELSBERGER, AND LAUREN WITTELSBERGER REVERSED.
JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF ALL OTHER APPELLEES REVERSED AND CASES REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR A NEW TRIAL ON THAT CLAIM CONSISTENT WITH THE MAJORITY/PLURALITY VIEWS OF THIS COURT.
JUDGMENTS FOR MEDICAL MONITORING IN FAVOR OF ALL APPELLEES REVERSED.
COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY APPELLEES WHOSE JUDGMENTS FOR EMOTIONAL DISTRESS OR MEDICAL MONITORING ARE REVERSED, IN EQUAL SHARES.
KRAUSER, C.J., MATRICCIANI, J., and KEHOE, J. did not participate in the argument or the decision in this case.
ZARNOCH, J., concurring and dissenting, in which MEREDITH, J., WOODWARD, J. and WRIGHT, J., join.
This appeal challenges a jury verdict awarding compensatory damages totaling over $147 million to hundreds of plaintiffs who claimed that appellant, ExxonMobil, was responsible for [13]*13contaminating their groundwater with certain chemicals found in gasoline. Appellees, the plaintiffs, represent over 88 households in the Four Corners neighborhood of Jacksonville in Baltimore County, Maryland. It is undisputed that a leak at the Jacksonville Exxon station discharged over 700 gallons of gasoline per day for 37 days before it was discovered and shut down in February of 2007. The plaintiffs filed claims against ExxonMobil in the Circuit Court for Baltimore County alleging strict liability for an abnormally dangerous activity, private nuisance, trespass, negligence, and fraudulent concealment. ExxonMobil accepted liability for all of the claims except fraudulent concealment, disputing only causation and damages.
The trial began in October of 2008 and lasted for five months with the Hon. Maurice W. Baldwin presiding. The jury ultimately rejected the fraudulent concealment claim as well as the request for punitive damages. The $147 million compensatory award comprised both economic and non-economic damages, including diminution in value, emotional distress, fear of cancer, and the cost of medical monitoring. Appellant filed several post-trial motions requesting judgment notwithstanding the verdict, a new trial, or remittitur and asserted, inter alia, that the verdict was excessive and formulaic when compared to the evidence presented at trial. After a hearing, the circuit court ordered remittitur as to the diminution in value awards to four households that had sold their homes since the leak.1 The court denied the remaining motions and upheld the verdict. Appellant noted this appeal.
FACTS & LEGAL PROCEEDINGS
The Leak
Because liability is not an issue in this appeal, I will discuss the events leading to the leak only briefly, in order to provide [14]*14context for the disputed issues. This case began on a truly unfortunate Friday the thirteenth in January 2007, when a contractor working on the fuel delivery system at the Jacksonville Exxon station accidentally drilled a hole in an underground gas line.2 The punctured line carried regular grade gasoline from the underground storage tank to the fuel pump. As a result of the leak, the electronic line leak detector automatically shut down the line and sounded an alarm, which was received by both Storto Enterprises, the station operator,3 and Gilbarco Veeder-Root, a central monitoring company. Gilbarco notified an independent service contractor who issued an emergency work order to Alger Electric Inc.
Alger technicians arrived at the Jacksonville Exxon station ■within a few hours of the alarm. The technicians found no evidence of a gas leak and believed the problem was being caused by a faulty pump motor. Upon replacing the motor, however, the Alger technicians did not properly recalibrate the leak detector. The alarm therefore failed to signal the continuing leak. It was later established that approximately 700 gallons of gasoline per day leaked from the underground line, beginning January 13 and continuing for 37 days until the leak was finally discovered on February 17, 2007. Storto’s station operator, Andrea Loiero, testified that she and the station manager noticed a discrepancy in their daily inventory during the time of the leak. The parties dispute when and how often ExxonMobil was informed of this inventory discrepancy. It is clear, however, that on February 16, Loiero reported the large discrepancy to an ExxonMobil territory manager, who advised her to shut down all of the gas pumps. The territory manager arrived at the station within an hour. After examining the records and finding total unexplained [15]*15losses of 25,000 gallons, he suspected a meter problem and arranged for a helium test to be performed on the gas line. The test, performed the following day, revealed the catastrophic gas leak. ExxonMobil reported the leak to the Maryland Department of the Environment (“MDE”) and cleanup efforts began immediately.
MTBE and Benzene
The primary concern, and the subject of this case, is the contamination of groundwater with two volatile organic compounds found in gasoline: methyl tertiary-butyl ether (“MTBE”) and benzene. MTBE is a compound commonly added to gasoline to help it burn “cleaner,” reducing emissions of air pollutants from automobile exhaust systems. Because MTBE is highly water soluble, it easily disperses through groundwater at higher concentrations than many other contaminants. At trial, the plaintiffs’ toxicology expert, Dr. Kenneth Rudo, testified that MTBE is a known mutagen4 and therefore, from a toxicological standpoint, “there is no safe level.”5 Some animal studies have indicated that MTBE is carcinogenic, but there have been no human studies linking MTBE to cancer.6 He also testified that twenty-five states [16]*16have banned the use of MTBE because of groundwater contamination concerns. The EPA has classified MTBE as a potential human carcinogen at large doses, but there is not enough data to classify it as a human carcinogen at low exposure levels in drinking water. Dr. Rudo described MTBE as a “probable human carcinogen.” and he testified that the plaintiffs whose wells were contaminated with MTBE faced “an incremental risk of developing these cancers in the future.”
Due to the lack of scientific consensus, the EPA has not set a maximum contaminant level (“MCL”) for MTBE, only an aesthetic standard of 20-40 parts per billion (“ppb”).7 At concentrations exceeding 20-40 ppb, water contaminated with MTBE has an unpleasant odor and taste. The MDE has set an action level of 20 ppb for the State of Maryland, based largely on these aesthetic concerns, although it is also the position of the Department that the 20 ppb standard is “protective of human health and safety.”8 The EPA standards for both MTBE and benzene reflect the levels at which, based on the current science, a person could be exposed to the chemical every day for 70 years with only a negligibly increased risk of cancer.
Benzene, another gasoline additive, is the second contaminant of concern in this case. Unlike MTBE, benzene has been used industrially for many years and its potential carcinogenicity has been known since at least the 1940s. The EPA classifies benzene as a known human carcinogen. According to the expert testimony, benzene has been specifically linked [17]*17to an increased incidence of leukemia, as well as a variety of noncancer effects related to its hematopoietic toxicity, including anemia and lowered blood concentrations of leukocytes, lymphocytes, and platelets. The EPA has set the MCL for benzene at 5 ppb, a standard also used by the MDE. The MCL is an enforceable standard believed by the EPA to be technologically and economically reasonable; it does not necessarily reflect the amount below which no adverse health effects are possible. A certain amount of “background exposure” to both MTBE and benzene is incidental to everyday life, occurring when people refill their car fuel tanks, enter parking garages, or live in homes with attached garages.
The plaintiffs’ toxicologist described the methods of potential exposure to MTBE and Benzene:
Q. Dr. Rudo, when someone is potentially at risk for being exposed to a contaminant and, particularly in this case, MTBE, and in the case of five of the plaintiffs, Benzene, what are the potential sources of exposure? In other words, drinking, eating, bathing and what are the formal ways of classifying them?
A. You have to—first of all, it depends on the chemical. Is the chemical a substance that can evaporate in the air, say if you are taking a shower, is it volatile, where it gets into the air and it can mix with the water vapor in the air and can you be exposed in that way. With MTBE, the answer is yes, it is a very volatile chemical, does evaporate in the air. As a result, one of the avenues of exposure obviously is from drinking the water, if it is—if you have contaminated water, you are drinking the water with it, so ingestion is one avenue. Also what we have found to be a very, very significant exposure route is bathing and showering in a bathroom because it does evaporate, it gets into the air. So you take a ten or 15-minute bath or shower and you are actually exposed to levels of the chemical in the air in your bathroom that may be equal to or greater than what you would drink over the course of a day. So those are the two main routes. There is also a minor, [18]*18more minor route would be what we can whole house exposure, where any kind of use, you use your washing machine, your dishwasher and dryer, it can get into the air that way, generally using the sink to clean dishes. So those would be lower levels than in a bathroom, but those are also avenues.
Q. What about dermal exposure?
A. There would also be in the bathroom, there is both what we would call inhalation exposure and dermal exposure through, dermal through the skin, the MTBE will, can be absorbed though the skin and it can be, you can take it in through the water vapor that is in....
Contamination of Wells on Appellees’ Properties
The parties dispute how long it took ExxonMobil to notify the community surrounding the station of the gas leak and the potential contamination of potable wells.9 At some point, prior to receiving any of the water sample test results, ExxonMobil began delivering free bottled water to residents within a certain radius of the station. Pursuant to its statutory powers, MDE required ExxonMobil to submit an Interim Remedial Measure Plan. See Md.Code (1982, 2007), Environmental Art., §§ 4-401-4-419. Part of the immediate response was to begin drilling wells for monitoring and recovery in different areas around the Exxon property. The monitoring wells were dug at various depths for the purpose of continuous water sampling to determine the presence and extent of the contamination plume (sometimes called the “strike zone”). The recovery wells were used to treat groundwater in hopes of preventing further expansion of the plume.
By October of 2007, there were 227 monitoring wells and MDE had ordered the drilling of an additional 30 wells for purposes of long term monitoring. Water samples have been [19]*19taken from both the monitoring wells and residential potable wells continuously since February 2006. Of the 88 properties at issue in this case, water testing revealed MTBE concentrations above the action level in only two potable wells, those on the Anderson and Fox properties. The highest concentrations of MTBE measured in those wells was 20.4 ppb and 40.7 ppb, respectively. ExxonMobil paid for the installation of point of entry treatment (“POET”) systems to filter all water entering those homes. Traceable amounts of MTBE below the action level were found in samples from potable wells on an additional 66 properties.10 At the time of trial, the most recent test results revealed no potable wells with MTBE concentrations exceeding the action level, while 40 wells had detectable amounts of MTBE below the action level.11 Samples from five potable wells contained detectable amounts of benzene: Dobb (0.42 ppb); Fritz (0.096 ppb); Rush (0.10 ppb); Yacovsky (0.13 ppb); and Wiedey (0.10 ppb). None of the water samples taken from potable wells contained benzene in an amount exceeding the MCL. Dr. Harry Cohen, the plaintiffs’ expert hydrogeologist, testified that some homes that were initially perceived to have a low probability of contamination did become contaminated because of changing plumes.
Monitoring wells were dug on at least 13 of the appellees’ properties.12 MTBE concentrations exceeding the action level were found in samples from monitoring wells on six properties: Anderson (76.7 ppb); Baig (317,000 ppb); Brady (754 ppb); Dobb (60.7 ppb); Libertini (156,000 ppb); and McLewee (37,200 ppb). Benzene levels exceeding the 5 ppb MCL were found in samples from monitoring wells on five properties: Baig (18,500 ppb); Brady (7.9 ppb); Libertini (5130 ppb); McLewee (324 ppb); and Tizard (11.8 ppb). Aside from the [20]*20groundwater contamination, the noise, bright lights, and influx of work crews and heavy equipment necessary for the digging of monitoring wells and other remediation activities caused considerable disruption to nearby property owners.
The Lawsuit
Appellees, representing 88 households, all lived less than a mile from the Exxon station in the “Four Corners” neighborhood of Jacksonville for some period of time after January 13, 2006. The first lawsuit was filed on October 17, 2007. One year later, 90 cases went to trial in the Circuit Court for Baltimore County on claims of strict liability for an abnormally dangerous activity, private nuisance,, trespass, negligence, and fraudulent concealment. Regarding the first four claims, ExxonMobil accepted liability and disputed only causation and damages. The plaintiffs sought three types of compensatory damages: (1) diminution in the fair market value of their real property; (2) non-economic damages for their emotional distress, including fear of cancer; and (3) damages for the cost of future medical monitoring. The plaintiffs sought punitive damages for fraudulent concealment, the only claim for which ExxonMobil denied liability.
During trial, the jury heard testimony from 167 witnesses, including many of the plaintiffs and various experts in the areas of toxicology, hydrogeology, and real estate appraisal. After a five month trial, 88 of the cases ultimately went to the jury.13 On March 12, 2009, the jury returned a verdict finding appellants not liable for fraud or any resulting punitive dam-, ages. As for compensatory damages, the jury awarded the owners of each home 100% of the pre-leak value of their real property. Most of the plaintiffs also received emotional distress damages totaling approximately $ 1,000,000 per household. Finally, most of the plaintiffs received damages for [21]*21medical monitoring, with the amount of the award equaling 100, 50, or 25 percent of their claimed costs, depending on the degree of contamination. Altogether, the jury awarded more than $150 million in damages.
ExxonMobil filed six postjudgment motions: (1) motion for judgment notwithstanding the verdict (“JNOV”) on the damages for medical monitoring, claiming that Maryland does not recognize such a claim; (2) motion for JNOV regarding the claims of nineteen specific households; (3) motion for new trial or remittitur regarding property damage awards for those families whose properties did not have contamination at or above the State action level; (4) motion for new trial based on admission of prejudicial evidence, specifically Dr. Rudo’s testimony that he believed MTBE to be a human carcinogen and, separately, an email written by a high ranking Exxon official, which was used by the plaintiffs during cross-examination; (5) motion for JNOV or new trial on the emotional distress claims; and, finally, (6) motion for new trial or remittitur on the claims for property damage.
The court denied the first four motions. As for the fifth, the court denied the motion for JNOV and new trial, but reduced the non-economic damages awards of four plaintiffs to the statutory cap of $665,000.14 Finally, the court rejected the sixth motion for a new trial or remittitur as to the property damages awarded to 84 of the households. For the four families who had sold their properties since the leak, however, the court granted the remittitur as to the claims of diminution in value, reducing the award to an amount equal to the difference between the pre-leak adjusted value and the actual sales price.15 The court also denied the plaintiffs’ omnibus motion, which argued that ExxonMobil was estopped from pursuing its post-trial motions because it conceded liability [22]*22and stated to the jury, during closing argument, that it would pay whatever the jury saw fit to award the plaintiffs. Exxon-Mobil filed a timely appeal to this Court.
The facts relevant to damages will be discussed in greater detail below.
QUESTIONS PRESENTED
Appellant presents the following five issues for review, which I have reworded for brevity:16
1. Was there sufficient evidence to uphold the jury’s verdict that all of the appellees’ properties were worthless?
2. Did the court properly admit the appellees’ expert witness’s opinion testimony on diminution of property values?
3. Was there sufficient evidence to support the jury’s emotional distress awards, including damages for fear of cancer?
[23]*234. Does Maryland law permit damages for medical monitoring and, if so, was the evidence in this case sufficient to support such an award?
5. Is a new damages trial required when a jury awards similar compensatory damages to many plaintiffs with different alleged injuries?17
In their brief, appellees raise the additional question of whether appellant has waived its right to raise each of the above issues. The in banc panel finds that it has not. As to the remaining questions, with the exception of one of the appellees, I would affirm the judgment of the circuit court.
DISCUSSION
I. Waiver
The in banc panel must first address appellees’ contention that certain statements made by ExxonMobil’s attorney during opening and closing arguments amounted to a waiver of appellant’s right to appeal the compensatory damages award. Appellees argue that this appeal is precluded by appellant’s strategic decision to seek a quid pro quo arrangement with the jury, premised on appellant’s promise to pay any compensatory damages in exchange for the jury’s decision not to award punitive damages. The following excerpts from appellant’s closing argument are representative:
[W]e accept responsibility to pay for whatever damages you find occurred here, that’s not blaming somebody else. That’s saying it’s us.... We’ve taken responsibility. We [24]*24pay. You find that people were hurt here, you charge us. We pay.
Now, are we blaming people for punitive damages. Of course, not. We spent a lot of time proving to you they couldn’t be guilty of punitive conduct because they didn’t know.
[Appellees’ attorney] argues to you that your verdict should send a message____But his message can’t be sent because he did not prove to you what he said he was going to prove to you about fraud----I want you to send a message that when a company makes a mistake and then does what it ought to do, which is take responsibility, apologize and try to make it right, that if a company stands up and does what it is supposed to do to make things right, that it will not be punished if all there is is an accident.... So it is not a reward, it is a withholding of punishment in order to send the message we want you to behave like ExxonMobil behaved in this case____
(Emphasis added).
With respect to the compensatory damages for diminution in property value, appellant’s attorney told the jury:
I’m not going to put up a chart where I tried to tell you what are the suggested numbers for each household. My reasoning is this: I do not want you to award even a dollar less than the amount you think it takes to make it right for each plaintiff household that you determine is actually harmed.
That’s your call. I want you to make that decision. Not [appellees’ attorney]. Not somebody[’s] expert. I want you to make that call.
Now, obviously, some homes are not impacted and some are, and you know the difference. Those with nondetects, those that are now nondetect, there’s no impact. Those that have detections ... then it’s a question of how much.
[25]*25Relying on these statements, appellees argue that appellant forfeited its right to appeal by acquiescence. As the Court of Appeals has stated, “the right of appeal may be waived where there is acquiescence in the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right to appeal.” Grandison v. State, 305 Md. 685, 765, 506 A.2d 580 (1986). Waiver is “the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.” Gould v. Transamerican Assoc., 224 Md. 285, 294, 167 A.2d 905 (1961). It may be express or inferred from circumstances. Id. For instance, a party who reaps the benefit of a judgment generally waives the right to appeal that judgment. See Downtown Brewing Co. v. Mayor & City Council of Ocean City, 370 Md. 145, 150, 803 A.2d 545 (2002). Appellees’ theory has been alternately called waiver, equitable estoppel, and estoppel by waiver. Regardless of the label, however, the essence of the rule is “that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.” Franzen v. Dubinok, 290 Md. 65, 69, 427 A.2d 1002 (1981). Because the consequences are severe, this rule is applied narrowly, only to conduct “necessarily inconsistent” with the later appeal. See Downtown Brewing Co., 370 Md. at 149, 803 A.2d 545.
Here, appellees urge the Court to find that appellant’s conduct during closing arguments, before the case was turned over to the jury, constituted acquiescence to the later judgment. The circuit court considered and rejected appellees’ waiver argument before deciding the post trial motions. In a written opinion, the court concluded that “by saying ‘we pay,’ Exxon was not empowering the jury to ignore the Court’s instructions on damages.” As for appellees’ argument that there was a quid pro quo bargain with the jury, whereby appellant would pay any compensatory damages in exchange for avoiding a punitive award, the court concluded that “a fair reading of the closing arguments” did not reveal such an arrangement. The in banc panel agrees with the circuit court that appellant did not waive its right to appeal the judgment.
[26]*26This Court addressed a similar contention in Boyd v. Bowen, 145 Md.App. 635, 806 A.2d 314 (2002). In that case, the appellee, representing herself pro se before the orphans court, said in her closing argument: “I will abide by whatever Order of the Court.” Id. at 664, 806 A.2d 314. After deciding the case on other grounds, this Court observed that there were no cases applying the acquiescence rule to pre-judgment conduct where the party had not expressly consented to the entry of judgment. Id. at 666, 806 A.2d 314.18 This is so because “to take actions that are necessarily inconsistent with challenging a judgment, a party must have knowledge of the nature and effect of the judgment” Id. A party ordinarily does not have knowledge of a judgment before it is entered, and this case is no exception.19 Appellant told the jury that it would pay whatever compensatory damages the jury felt appropriate based on the evidence presented at trial. The essence of this appeal is that ExxonMobil believes that the damages awarded did not reflect the actual evidence on the questions of property values and emotional distress. There was certainly no express consent to the actual judgment, and appellant’s conduct during closing argument was not inconsistent with this appeal.
II. Admissibility Of Expert Testimony
Appellant first argues that the trial court erroneously admitted the testimony of the appellees’ expert witness, [27]*27Kenneth Acks, on the question of diminution in property values. Maryland Rule 5-702 sets forth three requirements for admitting expert testimony: (1) the witness must qualify as an expert on the topic about which he or she intends to testify; (2) the subject must be appropriate for expert testimony; and (3) there must be an adequate factual basis supporting the testimony. On appeal, ExxonMobil challenges the admission of Acks’s testimony only under the third prong. Appellant raises two specific objections to Acks’s testimony, alleging: (1) that the methodology underlying his diminution in value estimates was unreliable, and (2) that the estimates were not based on sufficient facts because he “ignored” actual sales. This Court reviews a trial court’s decision to admit expert testimony for an abuse of discretion. CSX Transp. Inc. v. Miller, 159 Md.App. 123, 183, 858 A.2d 1025 (2004).20 As the Court of Appeals has explained, “the admissibility of expert testimony is a matter largely within the discretion of the trial court and its action will seldom constitute a ground for reversal.” Radman v. Harold,, 279 Md. 167, 173, 367 A.2d 472 (1977).
Although Rule 5-702 provides simply that the court must determine “whether a sufficient factual basis exists to support the expert testimony,” this Court has interpreted this factor to encompass two sub-issues: factual basis and method[28]*28ology. CSX Transp. Inc., 159 Md.App. at 189, 858 A.2d 1025. Appellant has challenged Acks’s testimony on both fronts.
A. Factual Basis
Rule 5-703(a) sets forth guidelines for evaluating the factual basis of an expert’s testimony:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Acks identified the following facts or data on which his opinion was based: (1) the pre-leak appraised values of the homes; (2) the presence of actual potable well contamination; (3) the risk of future contamination, as determined by another expert; (4) whether people have been able to sell homes within a one mile radius of the Exxon station; and (5) peer-reviewed articles discussing diminution in property value in other contamination events. Appellant contends that Acks’s testimony was inadmissible because he did not give weight to real estate market fluctuations or rely on comparable sales data, a factor widely-accepted as being generally useful to the jury’s determination of fair market value. See Bern-Shaw Ltd. P’ship v. Mayor & City Council, 377 Md. 277, 289, 833 A.2d 502 (2003) (discussing use of comparable sales in condemnation cases).
Regarding the market fluctuations, it would be troubling if Acks had indeed completely failed to consider the presence or absence of these fluctuations. However, his testimony makes clear that this is not the case. On this topic, he testified that he looked at data from the Maryland Association of Realtors regarding the Baltimore County housing market in 2006, 2007, and 2008. He concluded that the market went up in 2006 and 2007, then dropped in 2008. Overall, he found that the fluctuations were more or less a wash. Therefore, he did not incorporate market fluctuations into his estimates. Appellant [29]*29essentially complains that Acks reached a different conclusion than its expert regarding the net market decline since 2006. This is a critique going to the weight, not the admissibility, of Acks’s testimony. Appellant properly addressed it during cross-examination of Acks and in its direct examination of its own property value expert.
Appellant also argues that the factual basis for Acks’s opinion was inadequate because he did not consider comparable sales. Evidence showed that 49 homes had been sold within a mile of the Jacksonville Exxon station between the time of the leak and the trial.21 Five of those belonged to the plaintiffs. Acks testified that these initial sales were not necessarily indicative of the overall diminution in value, characterizing them as “low-hanging fruit,” picked off by a first wave of the “most interested buyers” who are likely to ignore contamination. Acks testified that after this initial wave of sales, there would be fewer and fewer buyers willing to consider the properties for a reasonable price. Regarding the other 45 or so homes that had sold, those not belonging to plaintiffs, Acks explained that he could not use comparable sales data for these properties because there was no pre-spill appraisal available and it is impossible to determine the diminution in value based only on the sale price: “A home could sell for a million dollars, and that might sound like a lot, but if it’s really a $3 million home, then there’s a big diminution.”
Although comparable sales data is a rehable measure of fair market value, as this Court has often recognized, it is clear that the trial court did not abuse its discretion by admitting Acks’s testimony. He acknowledged the existence of other sales and explained his reasons for not relying on those sales in this case. While comparable sales are certainly the kind of data “reasonably relied upon by experts in the particular field,” there is no support in Maryland case law for the [30]*30proposition that a reasoned decision not to incorporate such data, due to the particular circumstances of the case, mandates the exclusion of the expert’s testimony. The trial court did not abuse its discretion in finding that Acks’s opinion was supported by an adequate factual basis.
B. Methodology
As this Court recognized in CSX Transportation v. Miller, the questions of factual basis and reliable methodology often overlap and blur into each other. 159 Md.App. at 202, 858 A.2d 1025. Nevertheless, they present distinct issues. Id. To meet the threshold requirement of reliable methodology, “an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data.” Id. at 203, 858 A.2d 1025. Again, the trial court’s decision on this evidentiary question is reviewed for an abuse of discretion. Where the trial judge has admitted the testimony, the appellant must convince the appellate court that, as a matter of law, the expert’s methodology “was not even arguably reliable and that any judge who could even think otherwise would be guilty, ipso facto, of an abuse of discretion.” Id. at 208, 858 A.2d 1025.
This part of the Rule 5-702 inquiry focuses on whether there is “an adequate theory or rational explanation of how the factual data led to the expert’s conclusion.” Id. The explanation cannot be merely “because I say so.” Wood v. Toyota, 134 Md.App. 512, 525, 760 A.2d 315 (2000) The Wood court explained that the trial judge had not erred in excluding an expert’s opinion on this basis where:
[The expert] never explained how the data upon which he relied led him to the conclusion that the size of the vent holes caused appellant’s injuries. No trier of fact could conclude that vent holes in an air bag caused an injury merely because an expert said that they did. [The expert’s] theory provided no rational explanation for why the size or [31]*31location of the vent holes had anything to do with the injuries that appellant sustained.
Id. at 523-24, 760 A.2d 315.
Here, appellant objects to Acks’s use of “a combination of methods” rather than one single, commonly-accepted method of valuing contaminated real property. Acks testified that the Jacksonville leak presented a unique situation and, based on his experience, it was necessary to combine several methods in order to achieve the most accurate estimate. He explained that it is common for appraisers to use combined methods of valuation and cited a peer-reviewed article which recommended the use of a “variety of techniques” instead of any one method.22 Acks testified that he derived his method for estimating diminution in value from this study, which concerned PCB contamination, but he had adjusted the diminution values to account for differences between MTBE and benzene contamination.
In addition to the PCB contamination study, Acks testified about several other articles that he had considered when formulating his appraisals. For example, he identified one study looking at the effect of an underground storage tank leak on residential properties, a situation similar to that in Jacksonville, by surveying potential buyers.23 But Acks explained to the jury that those authors had discarded the survey results of potential buyers who said they would never bid on the property or would bid only one percent of the property value, a decision that Acks found “very conservative.” Another article examined the effect of environmental disclosure requirements and suggested, according to Acks, that “a lot of people use data points to come up with relatively [32]*32low value diminutions which really aren’t very relevant because [potential buyers] don’t know about the contamination or don’t understand it.”24
Upon review of Acks’s testimony, the in banc panel does not believe that the trial court abused its discretion by finding that the expert’s methodology was sufficiently reliable to be admitted under Rule 5-702. Although Acks did not identify a peer-reviewed article applying the precise combination of methods he had used in this case, he identified the articles and methods he had considered and explained how he had arrived at his figures. Real estate appraisal is not an exact science in the same way as automobile engineering or DNA comparison. Appellant raises legitimate concerns about Acks’s methods, but these criticisms go to the weight, not the admissibility, of his testimony. See Thomassen Lincoln-Mercury, Inc. v. Goldbaum, 45 Md.App. 297, 305, 413 A.2d 218 (1980) (finding that “appellant’s complaints about the manner in which [an expert witness] derived and stated his opinion as to value go to the weight to be accorded his testimony rather than to its admissibility.”).
In sum, as to both the factual basis and methodology underlying Acks’s expert testimony, it is clear that this case falls squarely in what Judge Moylan has aptly described as “that 80% bulge of the bell-shaped curve wherein the trial judge, within her discretion, could have gone either way and still been affirmed.” CSX Transp., Inc., 159 Md.App. at 198, 858 A.2d 1025.
III. Property Values
Appellant next argues that the court erred in denying its motion for a new trial or, in the alternative, a remittitur on the basis of excessive compensatory damages. The plaintiffs, [33]*33comprising the owners of eighty-eight properties, sought damages for the diminution in their property values resulting from the leak. The jury ultimately concluded that the properties were all worthless and awarded each homeowner the full pre-leak value of their property. Appellant filed a post-trial motion challenging the award, and the circuit court ordered a remittitur as to four of the households who had sold their homes after the leak: the Bradys, Csicseks, Simmses, and Murrays. For these families, the court reduced the award from the full pre-leak value to the difference between the full pre-leak value and the actual sales price. The court denied the motion for a new trial or remittitur for owners of the remaining 84 households, whose property had not been sold since the leak. Appellant claims that those homeowners failed to produce sufficient evidence that their properties were worthless, and that the evidence only permits the conclusion that those properties retained substantial value post-leak.
A. Standard of Review
On appeal, this Court reviews both the denial of a motion for new trial and the refusal to grant a remittitur under an abuse of discretion standard. See Edsall v. Huffaker, 159 Md.App. 337, 342, 859 A.2d 274 (2004)(motion for new trial); Hebron Vol. Fire Dept., Inc. v. Whitelock, 166 Md.App. 619, 642, 890 A.2d 899 (2006)(remittitur). “It is well settled that the trier of fact may believe or disbelieve, accredit or disregard, any evidence introduced,” and this Court “may not decide on appeal how much weight should have been given to each item of evidence.” Edsall, 159 Md.App. at 342, 859 A.2d 274 (internal quotations omitted). Moreover, “when results cannot be characterized as ‘clearly unjust, we will not find an abuse of discretion whichever way the trial court may choose to exercise discretion.’ ” Id. (quoting Holden v. Blevins, 154 Md.App. 1, 8 n. 9, 837 A.2d 1053 (2003)). The breadth of a judge’s discretion, and appellate deference, is greatest when “the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and [34]*34justice.” Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 58-59, 612 A.2d 1294 (1992).
Any evidence “however slight” is sufficient to carry the case to the jury and the “weight and value of such evidence will be left to the jury.” Cavacos v. Sarwar, 313 Md. 248, 258, 545 A.2d 46 (1988). In passing upon the question of the legal sufficiency of the evidence to support the verdict, a reviewing court examines the testimony and all proper inferences in a light “most favorable to the plaintiffs case.” Bergeman v. State Roads Comm., 218 Md. 137, 144, 146 A.2d 48 (1958). The function of an appellate court in reviewing the denial of a motion for judgment NOV is a “narrow one.” Meyers v. Meagher, 277 Md. 128, 132, 352 A.2d 827 (1976). The truth of all credible evidence and all inferences fairly deduced therefrom must be assumed in the light most favorable to the plaintiff. Id. Evidence is legally sufficient if there is some evidence, including all inferences, that may be permissibly drawn therefrom, that, if believed and if given maximum weight, could logically establish all the elements necessary to prove the plaintiffs case. CR-RSC Tower I v. RSC Tower I, 202 Md.App. 307, 346-47, 32 A.3d 456 (2011). Even inadmissible evidence, if not objected to, can support the sufficiency of the jury’s verdict. The Court of Appeals (quoting from McCormick on Evidence) has said:
If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetence under the exclusionary rules.
Old v. Cooney Detective Agency, 215 Md. 517, 526, 138 A.2d 889 (1958). See also Schmitt v. State, 140 Md.App. 1, 22-24, 779 A.2d 1004 (2001).
[35]*35In the context of a trial judge deciding whether to order a remittitur or new trial based on the excessiveness of compensatory damages, this Court has observed that the trial judge’s discretion is “virtually boundless.” John Crane, Inc. v. Puller, 169 Md.App. 1, 52-53, 899 A.2d 879 (2006). As the Court of Appeals summarized in Banegura v. Taylor, the standard applied by the judge in exercising this discretion “has been variously stated as whether the verdict is ‘grossly excessive,’ or ‘shocks the conscience of the court,’ or is ‘inordinate’ or ‘outrageously excessive,’ or even simply ‘excessive.’ ” 312 Md. 609, 624, 541 A.2d 969 (1988) (citations omitted). This Court has often emphasized that “it is not necessary that the trial court’s view of the verdict be the only rational view” in order to be upheld on appeal. Balt. Harbor Charters, Ltd. v. Ayd, 134 Md.App. 188, 201, 759 A.2d 1091 (2000), vacated in part on other grounds by Balt. Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 780 A.2d 303 (2001). It is necessary, however, that the trial judge “ ‘extend the fullest consideration possible’ to the jury’s verdict before determining that ‘it shocked his conscience.’ ” Owens Corning v. Bauman, 125 Md.App. 454, 526, 726 A.2d 745 (1999) (quoting Conklin v. Schillinger, 255 Md. 50, 69, 257 A.2d 187 (1969)).
B. The Compensatory Damages Award And Supporting Evidence
At trial, the parties stipulated to the pre-leak values of the properties and submitted the question of post-leak values to the jury. The jury ultimately concluded that the properties were all worthless and awarded each homeowner the full pre-leak value of their property.
1. Expert Testimony
Each party presented expert testimony regarding the property values. Acks, the plaintiffs’ expert, was an economist with many years of experience appraising contaminated residential and commercial properties. He estimated the diminution in value of each home based on the current contamination or, for the properties whose wells were not yet contaminated, [36]*36the risk of future contamination.25 Acks’s estimates followed a specific formula: the value of contaminated properties diminished 60%, while the value of uncontaminated properties diminished 30% if risk of future contamination was low, 45% if risk of future contamination was medium, and 50% if there was a high risk of future contamination.26 His final appraisal values reflected academic articles about appraising contaminated properties and actual data indicative of the local real estate market.
Acks testified that all appraisals assume a willing, fully informed buyer and a willing, fully informed seller. He also discussed the data, including selling price and days on the market, from homes put up for sale within a two mile radius of the Jacksonville gas station. Regarding the homes that had already been sold, he explained that those sales may not reflect the true market value of the homes:
[T]he initial sales in any contamination event are sort of a low hanging fruit. You have the people, the most interested buyers that will be most likely to overlook the contamination ... pick up homes, but then as these low hanging fruit are gone, they have already purchased homes, then the potential market is reduced and potential buyers are a lot lower.[ 27)
Acks also proposed that the difference between actual sale price and the estimated diminution in value may be explained, at least in part, by a lack of information on behalf of the buyer. In addition to the potential lack of willing buyers, [37]*37Acks also recognized that several plaintiffs had indicated an unwillingness to sell on moral grounds, believing that they would be passing their problems on to someone else. He said that he did not conclude that any of the homes were worthless. However, he added: “[I]f the seller is not willing to sell a contaminated property, then one could argue that the value is zero.”
On cross-examination, appellant’s counsel questioned the witness about the “life cycle” of contamination-related diminution in property values, with the highest diminution occurring after the spill but before cleanup. This life cycle was acknowledged by Acks, who then clarified that this cycle was incorporated into his estimates, which assumed that proper cleanup and remediation would take place. He stated that “if this was just a single point in time, the estimate would have been much higher.” Overall, Acks described his estimates as “conservative.” 28 Acks was asked by appellees’ counsel:
Q. What if any effect would it have on the stigma to the neighborhood if Exxon is unable to get all of the contamination out of the ground?
A. That would be very significant.
Q. And why:
A. Because, as I stated, I have stated throughout, this report assumes that it will be cleaned in a timely manner. And I actually provided some estimates initially that would be significantly higher if the property were not cleaned sufficiently or in a timely manner. And my initial estimates assume that and my continued estimates assume that cleanup proceeds in an appropriate pace and that there aren’t undiscovered new issues of a—a lot of contamination cases you find things that you think things are clean for awhile and then new [38]*38problems turn up. So it is not really clean. So that would definitely have a very significant impact.[29]
Appellant called Ronald Lipman as a property appraisal expert. The scope of Lipman’s testimony was restricted by the trial court’s exclusion of portions of his testimony that were either based on values from property tax assessments or not provided to the plaintiffs until two days before his testimony.30 Therefore, Lipman generally did not offer his own estimate of the diminution in each plaintiffs property value that could be attributed to the leak.31 Instead, he testified about trends in the national and local residential real estate market since 2005. According to Lipman, the number of houses sold in the plaintiffs’ zip code had declined from a high of 93 in 2005 to 49 in 2008, while the average number of days on the market almost doubled over the same time period. Looking at the median prices of homes sold in the Jacksonville area, Lipman testified that the home prices have been declining since 2006. In 2007, the median price of a home sold in Jacksonville fell 10% compared to 2006. The median price declined another 8% in 2008. The stipulated pre-leak appraisal values of the plaintiffs’ homes reflect the home values as of February 16, 2006, the day before the leak was discovered. Lipman conducted “matched pair analysis”32 of homes sold over this time period and concluded that local real estate [39]*39market fluctuations, unrelated to the leak, resulted in approximately a 12% decline in Jacksonville home values since February 2006.33
Lipman testified that none of the Jacksonville homes are worthless. Limiting his testimony to the plaintiffs’ homes that had been sold since February of 2006, Lipman examined the pre-leak value and selling price of those six homes, adjusted for the general decline in the housing market. He concluded the sold homes had diminished in value by an average of 10% as a result of the leak. Lipman testified that he believed these homes to be comparable to the plaintiffs’ homes which had not been sold.34
Lipman also told the jury that he did a survey of 75 real estate brokers and agents and asked them whether the spill had affected their sales. Eighty percent of those surveyed said “no” and 20 percent said “yes.” Some brokers and agents blamed the spill for bad sales four or five miles away from the spill, he testified. However, Lipman said in his opinion the decline in sales was due to a downturn in the market and that “those brokers were becoming somewhat defensive about why they couldn’t sell the house and they were latching onto the notion that the spill had affected them.”
2. Evidence Of Other Lawsuit
During Acks’s testimony, appellees’ attorney asked him if he was aware that one family who had purchased a Jacksonville home after the leak had since filed a lawsuit against the realtor, alleging that the contamination was not disclosed to them. The court permitted this line of questioning over appellant’s objection that it was not relevant and unfairly prejudicial. In their brief, appellants allege that the court erred in permitting the jury to hear about this other lawsuit. [40]*40This is incorrect. Appellants presented evidence that a number of homes in the Jacksonville area had sold since the leak, including properties at issue in the lawsuit. The court permitted the testimony on the condition that appellees’ attorney make it clear to the witness that the suit was still pending and the allegations had not been resolved. Acks used the lawsuit to support two points: (1) that the actual sales were not necessarily useful indicators of fair market value because the buyers may not have been fully informed, and (2) that “even the mere fact that they’re being sued does have an influence on property value” because lawsuits are expensive and stressful, even if frivolous and ultimately dismissed. The court did not abuse its discretion by admitting this testimony for these relevant purposes, after making it clear to the jury that the allegations had not been proven.
3. Plaintiffs’ Lay Testimony
In addition to the expert testimony, many plaintiffs without objection testified as to their own opinion of their property’s value after the leak or of the marketability of other property in “the neighborhood.” Jurors heard testimony from the owners of 73 of the 88 homes in dispute. The property owners’ testimony on this point can be roughly divided into three categories: (1) those who testified that their property had diminished in value by some unspecified percentage; (2) those whose testified that they believed their properties to be worthless or were unwilling to sell for moral reasons; and (3) those who did not express any opinion on the value of their home.35 At least five of the property owners were real estate agents or brokers.36
[41]*41Thirty-nine homes fell within the first group, with owners testifying that they believed their homes had diminished in value by some unspecified amount, but not going so far as to suggest that the homes had no value.37 The testimony of Mr. Faber seems to reflect the attitude of much of this group. He optimistically stated that the value of his home had “gone down just a huge amount,” but not to zero, as “someone would buy my house for $10.” Ms. Colgan testified that living in her house, without the use of her well water, was “like camping and better than a tent.” These plaintiffs described their property value using terms like “greatly diminished” or “severely impacted.” They also testified that they believed it would take a long time for their homes to sell. Some plaintiffs, like the Gregorys, had unsuccessfully tried to sell their homes,38 while others reported that their neighbors could not sell their properties after the leak.39 Nearly all of the plain[42]*42tiffs testified that their neighborhood had a “stigma” from the news coverage of the leak. Mr. McLewee stated that he believed “98% of [potential buyers] wouldn’t even consider” his property.40 Several plaintiffs expressed a desire to sell, but felt that they could not do so because they would not be able to get enough to pay off their mortgage.
The second group of homeowners expressed, either explicitly or implicitly, that they believed their homes retained absolutely no market value. It would appear that at least 26 properties fell in this category.41 Many of these homeowners specifically stated that their homes were “worthless,” “had no value,” or worth “absolutely negative, zero.” Mr. Barone testified that his house was on the market for a year and did not sell; therefore at that time he was “starting to think that [he] can’t even give the house away.” Many of these plaintiffs testified that they wouldn’t buy their own homes and couldn’t imagine why anyone else would. In the words of Ms. Cremen, if she were looking to buy a $700,000 house and “found out there was a potential of carcinogenics being in my water, I would probably just say no, thank you, I have got other options.” She went on to say that she “could not imagine anybody buying it for whatever the amount of money,” a sentiment echoed by the other homeowners in this group. Although acknowledging that some of the leak-affected homes had sold, Mr. Jenkins observed “there [are] a limited number [43]*43of fools out there that will pay money for a property that is completely surrounded by ... positive test results for gas.”
A number of these homeowners also expressed an unwillingness to sell their homes for moral or ethical reasons. Mr. Facinoli testified that even if he and his wife could sell their home, they did not want “to put this problem, this burden on someone else.” Ms. DeBolt similarly expressed her family’s unwillingness to sell because they “can’t put anyone else in this situation.” Ms. DeDeo testified that she was “morally uncomfortable” with selling the house to a family with children. Mr. Blair elaborated: “I am not comfortable in my home right now. I could not in good conscience sell my home to a willing buyer who thinks they’re getting a great deal on a beautiful home and have them live with the same stress, the same worry that we live with right now.” Mr. Ford, a real estate agent, explained that he would not let a client buy a house like his: “As soon as ... [the seller] disclosed the well was contaminated, I would tell my buyers to walk away ... I wouldn’t even entertain writing a contract.” Mr. Lamos echoed that “any reasonable person would be very concerned about whether or not they should be moving into that house.”
The eight remaining homeowners who testified either did not say anything about the value of their home or made statements that, while relevant, do not fit into either of the above two categories.42 Ms. Shimp, for example, testified that she and her husband entered into a contract to build their home in October 2005. When they learned of the leak in February of 2006, the Shimps tried to get out of the construction contract, but it was too late as work had already begun. Ms. Shimp testified that she believed they would have difficulty selling the house. Ms. Elkinton reported that after a neighbor’s unsuccessful attempt to sell their house, she feared that she would end up in the same situation. The Csicseks [44]*44sold their home after the leak. Ms. Csiesek testified that she “did not expect any offers” when they put the house on the market, and they were “stunned” when it sold.
Without objection, some of the homeowners testified in more global terms about the valuelessness or unmarketability of their neighbor’s homes or homes “in Jacksonville” or in “the neighborhood” or “in the area.” Others questioned the marketability of homes “close to the strike zone,” those located “six-tenths of a mile from a remediation site,” or those “completely surrounded by ... positive test results for gas.” A number of witnesses emphasized “the neighborhood stigma.” One homeowner stated that there was “an absolute stigma in the area about real estate in the area.” Another testified that there was a stigma attached to his neighborhood, and that people make negative comments to him about the neighborhood at least once a week. One homeowner/real estate agent stated her belief that there was a negative stigma associated with the Jacksonville area.43
Most of the homeowners, from these groups, testified that their home value declined for three reasons: (1) safety and convenience concerns related to the actual contamination and risk of future contamination; (2) the stigma associated with the neighborhood due to the contamination; and (3) the inconvenient and unsightly remediation efforts. Regarding the remediation, homeowners described constant and loud noise, bright lights, and yards ruined from the digging and heavy equipment. For example, Mr. Libertini, whose property has been the site of extensive remediation, testified that the noise was so loud that his children had trouble sleeping at night and that they are unable to open their windows. He also stated that the children could not play in the yard anymore because of the dangerous equipment. Many plaintiffs reported that they could see and hear heavy equipment from their homes at [45]*45all hours of the day and night. Ms. Heggie, whose property contains several ponds, testified that the remediation work caused the water in her ponds to dry up.
C. Excessiveness/Sufficiency of the Evidence
As noted above, once this Court is satisfied that a trial judge fully and fairly considered a party’s motion for a new trial or remittitur on the grounds of excessive compensatory damages, it will reverse a denial only in an extraordinary case where the verdict is “ ‘grossly excessive’ or ‘shocks the conscience of the court.’ ” See Banegura v. Taylor, 312 Md. 609, 624, 541 A.2d 969 (1988). In addition, once this Court finds some evidence, however slight, to support the jury verdict, its task has ended. Here, it is clear that the circuit court thoroughly examined appellant’s contention that the property damage verdict was excessive. The court granted the request for remittitur as to the four properties sold since the leak. As for the rest, the trial judge noted that the jury clearly discounted both experts’ opinions that the properties retained some value and gave significant weight to the belief of some homeowner’s that nobody would buy their homes. In his written opinion, the circuit judge concluded:
This writer is very tempted to substitute my view of the evidence for that of the jury and grant post trial relief. I will decline that strong temptation by keeping in mind that the jury’s view of the admitted evidence should be respected unless the verdict is against the weight of the evidence, shocks the conscience, is grossly excessive, or is excessive. It is not, but is a millimeter shy of those standards.
Without gauging the precision of the court’s measurement, I agree with the trial judge’s assessment of the jury verdict. Even if I did not, however, I see no reason to substitute this Court’s judgment for that of the judge who personally viewed all of evidence presented in a five month trial. The decision to deny a new trial was well within the broad discretion Maryland law affords trial judges in this situation. See John Crane, Inc. v. Puller, 169 Md.App. 1, 52-53, 899 A.2d 879 [46]*46(2006) (observing that the trial judge’s discretion in this area is “virtually boundless”).
As noted above, owners of twenty-six properties offered some testimony that they believed their homes to be worthless and unmarketable.44 For at least another thirty-nine properties, the owners testified that they believed then-homes had significantly decreased in value and would be difficult to sell. Some of these homeowners made comments like “someone would buy my home for $10” or the home is “better than a tent.” Eight more homeowners testified in a manner that could not be classified as above, expressing general fears about trying to sell their homes without fully addressing whether the home retained value. An additional fifteen homeowners did not testify at all.45
Valuation of real property is one of the few areas of the law where lay opinion testimony is admissible. “Unlike an expert witness, the owner of the property is presumptively competent to express his opinion of its value. This presumption is based upon the owner’s familiarity with the land, that ‘merely by virtue of his ownership ... he may be presumed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use, [so as] to have a reasonably good idea of what it is worth.’ ” Brannon v. State Roads Commission, 305 Md. 793, 801-2, 506 A.2d 634 (1986) (a takings case) (quoting Baltimore City v. Schreiber, 243 Md. 546, 553, 221 A.2d 663 (1966)). In Bran-[47]*47non, 305 Md. at 802, 506 A.2d 634, the Court of Appeals quoted the following passage from the U.S. Court of Appeals for the District of Columbia on the subject of owner testimony:
The owner does not testify as just another expert, but from his unique position as the individual who stands to gain or lose the most from the tribunal’s determination of the value of his property. The owner is draped with no cloak of expertise; the jury is free to evaluate his testimony, even to discard it altogether, in weighing the evidence.
District of Columbia Redevelopment Land Agency v. Thirteen Parcels of Land et al., 534 F.2d 337, 340 (D.C.Cir.1976).
Appellant’s brief emphasizes that a property owner’s lay opinion testimony is only admissible to establish the value of his own property, with which he is presumptively familiar. Absent an objection, a property owner cannot testify about the value of a neighboring property without qualifying as an expert witness. Under Maryland law, the converse is true. Unobjected to, inadmissible and incompetent testimony can support the legal sufficiency of the jury’s verdict. Old, supra, 215 Md. at 526, 138 A.2d 889. There was probative testimony here by some appellees about the valuelessness or unmarketa-bility of neighborhood properties. Whether such testimony should have been admitted is not an issue here. It came in, and the jury was entitled to rely upon such statements, even as to those properties whose homeowners did not testify about the diminution of value of their property. On the basis of this and other evidence, the jury could have found that as a result of the spill, a home in Jacksonville would be “an unmarketable pariah for years to come.” SCA Services of Indiana, Inc. v. Thomas, 634 F.Supp. 1355, 1364 (N.D.Ind.1986). The plume was a moving target, even endangering homes with a low detect. See pp. 18-20, 40 A.3d at 524-25, supra. It would not have been irrational for the jury to conclude that the location of a low-detect or non-detect property near a contaminated one or near a site in remediation would result in the same stigma. The jurors could have simply found that if 26 properties scattered throughout the area were worthless, so too [48]*48would neighboring properties. Lay testimony aside, there was other evidence to support the jury’s finding of worthlessness. Plaintiffs’ expert, Acks, emphasized that his diminution estimates assumed a willing, fully informed buyer and seller. He testified that “theoretically if you have a seller that’s just unwilling to sell this property, the value could be zero rather than what I had estimated, but I don’t know of any real discussion in the literature about such a situation.” Even Exxon’s property value expert told the jury that 20 percent of brokers and agents he had surveyed blamed the spill for bad sales, even four or five miles away from the location of the leak. While the expert did not believe the 20 percent, the jury could have. Further, the jury heard that the buyers in one of the comparable sales relied on by appellant had since sued the realtor for fraud, although the allegations were not yet proven. It was possible for the jury to have concluded that no fully informed buyer would buy any of the plaintiffs’ properties at any price. In sum, although the jury’s finding of worthlessness may appear unusual, I agree with the trial court that it falls short of shocking the conscience or of utterly lacking in sufficiency.
Appellant also contends that a group of 13 property owners who had no current contamination and a low risk of future contamination, according to the plaintiffs’ expert, were not entitled to any recovery for diminution in property value.46 In support of this argument, appellant relies on Exxon Corp. v. Yarema, 69 Md.App. 124, 516 A.2d 990 (1986), for the proposition that, in the absence of physical impact, property damages may only be recovered where the plaintiff suffers “substantial, albeit intangible, interference with the reasonable use and enjoyment of their properties in the form of govern[49]*49mental restrictions on the use of water and the sale of those properties.”47
In Yarema, however, this Court held that physical impact is not an essential element of the tort of nuisance. Id. at 151, 516 A.2d 990. “The tort of nuisance should be viewed as a disturbance of some right or interest in land which may or may not involve physical invasion of the plaintiffs property.” Id. Relying on two out-of-state cases, this Court emphasized that the plaintiffs must still prove harm to their property, not mere diminution in value, but “harm to property should be construed broadly to include intangible tortious interferences of plaintiffs’ use and enjoyment of their properties.” Id. at 151-52, 516 A.2d 990 (citing McCaw v. Harrison, 259 S.W.2d 457, 458 (Ky.1953)48; Gray v. Southern Facilities, 256 [50]*50S.C. 558, 188 S.E.2d 438, 443 (1971)). The plaintiffs in this group all had wells drawing from the contaminated aquifer, with some risk of future contamination depending on how the plume moved, and they suffered the same stigma and remediation-related intrusions as the other plaintiffs. Yarema does not preclude recovery in the absence of either current well contamination or government restrictions on the land.49 Thus, the circuit court did not err or abuse its discretion in denying appellant’s post-trial motions with respect to the property damage awards.50
IY. Emotional Distress And Fear Of Cancer
Appellant also challenges the trial court’s denial of its motion for JNOV or a new trial on the issue of non-economic damages. The jury awarded the plaintiffs over $70 million total in compensation for non-economic damages, including emotional distress and fear of cancer. According to appellant, the emotional distress award must be set aside because: (1) [51]*51the plaintiffs did not prove any physical manifestation of their mental distress; (2) only eleven plaintiffs provided evidence satisfying the standards set by Hunt v. Mercy Medical Center, 121 Md.App. 516, 710 A.2d 362 (1998), for the award of emotional distress damages; and (3) the plaintiffs could not recover for fear of cancer because they failed to prove that there is a reasonable probability that they will develop cancer due to the leak. The verdict sheet did not require the jury to itemize the different types of non-economic damages awarded, so it is impossible to tell which aspects of emotional distress the award is based on.51 Thus, the question before the Court is whether the evidence in this case, viewed in the light most favorable to appellees, was sufficient to support the jury’s non-economic damages verdict under any of the theories of recovery on which the jury was instructed.
A. Introduction
The jury in this case was instructed: “Because ExxonMobil has accepted responsibility for injuries and dangers actually caused by this spill, you need not take the time in your deliberations to determine if ExxonMobil is responsible under the four legal claims [strict liability, private nuisance, trespass and negligence].” Although Exxon contested causation and damages, it did not otherwise question the elements of these torts.52
B. Fear of Cancer
Appellant argues that the jury was erroneously instructed on the standard of recovery for fear of cancer. On appeal, this Court will not disturb the ruling below as long as the jury [52]*52instructions fairly cover the applicable law. Univ. of Md. Med. Sys. Corp. v. Malory, 143 Md.App. 327, 337, 795 A.2d 107 (2001). Appellant has the burden of showing both prejudice and error. Id. Under the circumstances of this case, where the fear of cancer damages cannot be separated from the emotional distress damages, a finding of error in the fear of cancer instruction would merit reversal of all of the non-economic damages verdicts. See id.; Oaks v. Connors, 339 Md. 24, 36, 660 A.2d 423 (1995).
Neither this Court nor the Court of Appeals has directly addressed whether Maryland law allows a plaintiff to recover for fear of cancer after tortious exposure to a carcinogen. However, the Court of Appeals’s opinion in Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993), suggests that such recovery would be permissible. In Faya, the plaintiffs sued their surgeon for negligently failing to inform them that he was HIV positive prior to the operation. Id. at 450, 620 A.2d 327. They claimed that the surgeon’s negligence put them in fear of contracting HIV, causing severe emotional distress. Id. at 451, 620 A.2d 327. The Court of Appeals held that the plaintiffs could recover for mental anguish caused by a reasonable fear of contracting HIV. Id. at 455, 620 A.2d 327. It was not necessary that the plaintiffs prove actual transmission, only that the defendant’s conduct had created circumstances such that the plaintiffs fear of contracting the disease was reasonable. Id. The Court noted that requiring plaintiffs to prove actual transmission “would unfairly punish them for lacking the requisite information to do so.” Id. The Faya plaintiffs tested negative for HIV approximately one year after the surgery, and the evidence showed that there was a 95% certainty that a person who has contracted the virus would test positive, if at all, within six months after exposure. Id. The Court also noted that this 95% figure may be conservative, citing a Centers for Disease Control statement advising that patients be tested 6 months after last exposure in order to “be sure” that they have not contracted the disease. Id. at 456 n. 9, 620 A.2d 327. Under these circumstances, the Court held that it would be unreasonable as a matter of law for the [53]*53plaintiffs to continue to fear contracting HIV after the negative test. Id. at 455, 620 A.2d 327. Therefore, they could only recover for the mental anguish suffered from the time they learned of the surgeon’s HIV-positive status until their subsequent negative blood test. Id. at 456, 620 A.2d 327.
The Faya Court repeatedly cited to fear of cancer cases from other jurisdictions as analogous to the fear of HIV/AIDS context. Id. at 452 n. 7, 8, 620 A.2d 327. Although there are clear factual differences between this case and Faya, it is apparent that the principles espoused by the Faya Court fairly apply to all cases involving fear of future disease.53 This conclusion is further supported by Buck v. Brady, 110 Md. 568, 73 A. 277 (1909), where the Court of Appeals held that a plaintiff who had been bitten by a rabid dog was properly permitted to testify about her continuing fear of developing rabies, although she did not currently have the disease and had undergone immediate treatment to prevent her from contracting it in the future. Id. at 572-73, 73 A. 277 (citing Godeau v. Blood, 52 Vt. 251, 254 (1880) (“[T]he apprehension of poison from the bite of the dog, and the fear and solicitude as to evil results therefrom—all pain, anguish, solicitude, occasioned by the bite—were proper matters for consideration by the jury in estimating damages.”)).
Having decided that Maryland law permits recovery for emotional distress related to a reasonable fear of cancer, I turn to a tougher question: when is a plaintiff’s fear of cancer objectively reasonable? Faya did not address this issue directly, except to say that when there is a 95% certainty, at least, that the plaintiff had not contracted HIV, it is unreasonable for the plaintiff to continue to fear the disease. 329 Md. at 455, 620 A.2d 327. HIV differs in many important ways [54]*54from chemical carcinogens, particularly in that there is no dispute that HTV more likely than not causes AIDS. Moreover, HIV positive status is itself an injury. Therefore, Faya did not have occasion to directly address this issue and I am aware of no other Maryland case that has done so.
Courts around the country have considered this and similar issues with divergent results. See Annot.: Future Disease or Condition, or Anxiety Relating Thereto, as Element of Recovery, 50 A.L.R.4th 13 (1986). The variety of the state laws on the issue only compounds the confusion. For instance, some jurisdictions distinguish between physical damages for increased risk of developing cancer and emotional distress damages for fear of cancer, see Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir.1988)(applying Tennessee law), while others permit no recovery at all, Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 93 (Texas 1999). Several courts have stressed that the fear must be genuine, see, e.g., Ferrara et al. v. Galluchio et al., 5 N.Y.2d 16, 21, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958), and a foreseeable result of the tortious conduct, see, e.g., Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 867 (Mo.App.1985). Most jurisdictions require proof of actual exposure. See Reynolds v. Highland Manor, 24 Kan.App.2d 859, 866, 954 P.2d 11 (1998) (surveying different states’ exposure requirements in the context of fear of HIV claims).
Appellant argues that the plaintiffs’ fear is unreasonable as a matter of law unless they can prove that it is more likely than not that MTBE exposure will cause cancer. Some jurisdictions have followed this more-likely-than-not standard. See, e.g., Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 816 (1993). However, Maryland courts have not addressed it, although Faya suggests that there is some point where the likelihood of contracting future disease is so slim that the fear is objectively unreasonable. Appellant places significant weight on Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), a Fourth Circuit case interpreting Maryland law prior to Faya. In Lohrmann, a steelworker sued his employer for [55]*55negligently exposing him to asbestos continuously over the course of his 39 year employment, ultimately causing him to develop asbestosis. Id. at 1158. At trial, it was disputed whether the plaintiff actually had asbestosis or, in fact, had other chronic lung conditions attributable to a decades-long cigarette habit. Id. The trial court granted summary judgment to the defendants, and plaintiff appealed, challenging, inter alia, the trial judge’s limitations on the mention of the risk of cancer due to asbestos exposure. Id. at 1160.54
The Fourth Circuit upheld the district court’s exclusion of the cancer testimony because it was unfairly prejudicial on the issue of liability. Id. The Court concluded that “Maryland law is clear that such evidence is not admissible to prove damages where there is less than a reasonable probability that the cancer will develop.” Id. For Maryland law, the Court relied on the following passage from Pierce v. Johns-Manville Sales Corp.:
In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are ‘mere possibilities.’ Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the evidence is anything less.
296 Md. 656, 666, 464 A.2d 1020 (1983) (citing Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422, 427-28 (1975)). Pierce considered when the statute of limitations began to toll on the negligence claim of a plaintiff who was exposed to asbestos in his line of work and diagnosed with asbestosis in 1973 and lung cancer in 1979. 296 Md. at 658, 464 A.2d 1020. Following the patient’s death in 1980, his widow filed survival and wrongful death actions against the asbestos manufacturer. [56]*56Id. at 661, 464 A.2d 1020. Applying the discovery rule, the Court held that because lung cancer and asbestosis were distinct and latent diseases, the plaintiffs claim for lung cancer did not accrue until he discovered, or reasonably should have discovered, the presence of the cancer. Id. at 667, 464 A.2d 1020. To hold otherwise, that the cause of action for the cancer accrued when he was diagnosed with asbestosis, would effectively nullify the plaintiffs right to recover for his lung cancer, because he could not have proved that it was more likely than not that he would develop lung cancer in the future. Id.
I have examined Pierce and Lohrmann in detail in order to illustrate why the more-likely-than-not standard was ignored by the Court in Faya and is equally inapplicable here: the plaintiffs’ alleged fear of cancer is a present harm, not a future one. Fear of cancer is a particularized type of emotional distress, not an attempt to circumvent the limitations on recovering for disease that may or may not develop in the future. Thus, while the fear must be reasonable, I do not think reasonableness requires the plaintiff to show that it is more likely than not that he or she will develop cancer. In other words, I would be unwilling to say that a plaintiffs emotional distress related to fear of cancer is unreasonable as a matter of law if the defendant’s tortious conduct has left them with only a 40% likelihood of developing cancer. A Federal District Court for the Northern District of Illinois rejected a similar argument that the feared disease must be “reasonably certain” to occur, observing that “such a stringent requirement would distort traditional notions of proximate cause. That concept’s touchstone—reasonable foreseeability of the claimed injury (in this case emotional distress)—merely demands a reasonable fear, not a high degree of likelihood, that the feared contingency be likely to occur.” Wetherill v. Univ. of Chicago, 565 F.Supp. 1553, 1559 (N.D.Ill.1983).55
[57]*57It is important to note that recovery for fear of cancer still requires the plaintiff to provide some objective evidence of his or her emotional distress; it is not enough to merely claim that the plaintiff is afraid of developing cancer, even if that fear is reasonable. See Vance v. Vance, 286 Md. 490, 501, 408 A.2d 728 (1979). It is enough that the fear be based on a substantial and medically verifiable possibility of contracting the disease. See Doe v. Northwestern University, 289 Ill. App.3d 39, 47, 224 Ill.Dec. 584, 682 N.E.2d 145 (1997) (plaintiffs must prove “that they knew facts that showed a substantial, medically verifiable possibility of contracting the feared disease”); Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992) (it is not necessary to show medical certainty or probability of developing disease; it is enough that there is a substantial, as opposed to slight, possibility); Leaf River Forest Prods. v. Ferguson, 662 So.2d 648, 658 (Miss.1995) (recovery for emotional distress based on fear of future illness requires “substantial proof of exposure and medical evidence that would indicate possible future illness”).
Employing this standard, I turn to the jury instructions in this case. Regarding fear of cancer, the jury was instructed:
A plaintiff may also recover non-economic damages for fear of contracting a particular disease such as cancer. To recover for such fear, however, the Plaintiff must demonstrate that the fear genuinely exists and that his or her fear of contracting the disease in question is objectively reasonable.
There can be no compensation for fear or anxiety that is objectively unreasonable. To be objectively reasonable, it is not enough that a [Plaintiffs] fear be genuine and sincere. There must be reliable medical or scientific evidence that it is more likely than not that the substance can cause cancer.
[58]*58I think these instructions fairly cover the applicable law, and the appellant has not met its burden of proving prejudicial error. See Univ. of Md. Med. Sys. Corp. v. Malory, 143 Md.App. at 337, 795 A.2d 107.
C. Sufficiency of the Evidence Supporting Non-Economic Damages
Appellant alleges that the trial court erred in denying its motion for JNOV or a new trial on the issue of non-economic damages. A party is entitled to judgment notwithstanding the verdict when the evidence presented at trial, even taken in the light most favorable to the nonmoving party, fails to support the verdict. See Bartholomee v. Casey, 103 Md.App. 34, 51, 651 A.2d 908 (1994). On appeal, a reviewing court must “assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the decision of the trial court.” Id. Review is highly deferential: “if the record discloses any legally relevant and competent evidence, however slight, from which the jury rationally could have found as it did, we must affirm the denial of [the motion for JNOV.]” Id. On the other hand, an appellate court must find that the trial court erred in denying the motion where “the evidence as a whole does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty.” Id. As discussed above, the court’s denial of appellant’s motion for a new trial is also reviewed for an abuse of discretion. See Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 58, 612 A.2d 1294 (1992).
Appellant argues that the jury did not have objective evidence to rely upon in calculating compensation of the plaintiffs’ mental distress, which should have been unique to each individual plaintiff. According to appellant, the lack of objective evidence resulted in formulaic awards.56 Appellees argue [59]*59that the non-economic damages award is supported by adequate evidence of: (1) emotional distress due to the leak, (2) related “discomfort, annoyance, and inconvenience,” and (3) the additional distress specifically attributable to the plaintiffs’ fear of cancer.57
Maryland long ago abandoned the physical impact requirement for recovery of emotional distress damages. Instead, the Court of Appeals adopted a more modern rule permitting recovery “if a physical injury resulted from the commission of the tort, regardless of impact.” Hoffman v. Stamper, 385 Md. 1, 34, 867 A.2d 276 (2005). In the classic case of Bowman v. Williams, the Court held that this physical injury can be proved by: (1) an external condition, (2) symptoms of a resulting pathological, (3) physiological, or (4) mental state. 164 Md. 397, 404, 165 A. 182 (1933). The purpose of these four methods of proving physical injury is to “requir[e] objective evidence to guard against feigned claims.” Vance v. Vance, 286 Md. 490, 500, 408 A.2d 728 (1979). Thus, the physical injury requirement does not rely on the dictionary definition of the term “physical.” Id. Instead, it contemplates only that the injury be “capable of objective determination.” Id.
The task here is therefore to determine whether the plaintiffs offered sufficient evidence of emotional distress so that the injury was capable of objective determination. See Hunt [60]*60v. Mercy Med. Ctr., 121 Md.App. 516, 531, 710 A.2d 362 (1998). In Hunt, this Court summarized three general principles from the case law:
First, in order for an injury to be capable of objective determination, the evidence must contain more than mere conclusory statements, such as, ‘He was afraid,’.... The evidence must be detailed enough to give the jury a basis upon which to quantify the injury. Second, a claim of emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury .... It need not be an absolute bar to recovery, however.... There is no reason why the victim’s own testimony may not be sufficient, as long as it otherwise provides the jury with enough information to render his or her injuries capable of objective determination. Third, although minor emotional injuries may be less likely to produce the kind of evidence that renders an injury capable of objective determination, that does not mean that an emotional injury must reach a certain threshold level of severity before it becomes compensable. There is no severity prong of the Vance test. Our focus thus is properly on the evidence of mental anguish produced and not on the nature of the act causing the injury, the foreseeability of mental anguish therefrom, nor on the likely severity of such foreseeable anguish.
121 Md.App. at 531, 710 A.2d 362 (emphasis added).
In Vance, for example, a plaintiff was permitted to recover based on evidence that she was depressed, unable to sleep, embarrassed to socialize and prone to spontaneous crying, and that she had developed symptoms of an ulcer as well as a tired appearance with “unkempt hair, sunken cheeks, and dark eyes.” 286 Md. at 493, 408 A.2d 728. Other cases have found compensable emotional distress where there was objective evidence of nausea, insomnia, and diarrhea. See New Summit Assoc. v. Nistle, 73 Md.App. 351, 362, 533 A.2d 1350 (1987). Similarly, the Faya Court held that the plaintiffs could recover damages for their “fear and mental and emotional distress [which] are accompanied by headache, sleeplessness, and the physical and financial sting of blood tests for the AIDS virus” [61]*61to the extent that they “can objectively demonstrate [the] existence” of these injuries. 329 Md. at 459, 620 A.2d 327. In contrast, this Court held in Roebuck v. Steuart that there was no compensable mental anguish where the plaintiffs sole evidence was her testimony that she went to see a psychiatrist six times. 76 Md.App. 298, 315, 544 A.2d 808 (1988). The psychiatrist never testified and there was no evidence of specific symptoms or treatment. Id.
Turning to this case, I find that the plaintiffs presented sufficient evidence to rationally support the non-economic damages awarded by the jury. A total of 180 individual plaintiffs, including 143 adults and 37 children, received awards for non-economic damages.58 Appellant concedes that 11 of those plaintiffs provided sufficient evidence of compensa-ble emotional distress. As for the remaining 167 plaintiffs, there was sufficient testimony from the plaintiffs themselves and/or an expert psychiatrist who had examined them all that they both (1) feared for their health and that of their families and suffered emotional distress due to the fear, and (2) suffered other symptoms of emotional distress, such as insomnia and irritability, related to their inability to use their water, fear of financial ruin, embarrassment, and a sense of invasion of the safety and sanctuary of their homes. In addition, the jury heard expert testimony that could support a finding that MTBE probably causes cancer, and benzene is a known carcinogen.59
[62]*62Finally, it is important to note that the jury did not itemize damages for fear of cancer. The jury award could have been premised on other elements of non-economic damages, such as the physical manifestations accompanying emotional distress, including sleeplessness, anxiety, etc.
I have examined the trial testimony, taken from months of trial and over 20 volumes of transcripts, and am satisfied that there was sufficient evidence presented as to all of the plaintiffs to permit the non-economic damages award. Explaining his decision to deny a new trial, the circuit court judge stated:
The fear generated by the prospect of cancer caused by the Defendantfs] admitted liability is potentially devastating where the stability, security and health of adult and children family members are at stake.
[S]erious non-economic consequences that threaten the stability, security, and health of the family [are] a world apart from the usual non-economic consequences that may result from a fender-bender auto accident or a slip and fall in a grocery store. While we were not privy to the deliberations, it is likely that the jury understood the difference.
In my view, the judge’s decision to deny the motions for judgment notwithstanding the verdict or a new trial did not amount to an abuse of discretion.
V. Medical Monitoring
Appellant also seeks reversal of the trial judge’s denial of its motion for JNOV regarding damages for medical monitoring. Maryland appellate courts have not yet recognized a plaintiffs right to recover for damages for medical monitoring. The question was raised, but not answered, by the Court of Appeals in Philip Morris v. Angeletti, 358 Md. 689, 780, 752 A.2d 200 (2000). The Court declined to decide the issue, but observed the following regarding the history and purpose of permitting such recovery:
This Court has never considered whether a demonstrated need for medical monitoring creates a valid cause of action [63]*63in Maryland or generates a permissible form of relief under this State’s more traditional tort actions, although several courts around the country more than a decade and a half ago began to consider this type of claim and permitted it to proceed. See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 241 U.S.App.D.C. 83, 746 F.2d 816 (D.C.Cir.1984); Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (N.Y.App.Div.1984); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn.1982). Over the intervening years, several state appellate courts have followed suit in recognizing medical monitoring as a legitimate cause of action or form of relief under their respective tort law. See, e.g., Burns v. Jaguays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (Ariz.Ct.App.1987); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 [25 Cal. Rptr.2d 550], 863 P.2d 795 (Cal.1993); Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (N.J.1987); Hansen, 858 P.2d 970 (Utah 1993). Nonetheless, the embrace of medical monitoring as a viable claim has not been universal. See, e.g., Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-440, 117 S.Ct. 2113, 2121-22, 138 L.Ed.2d 560 (1997) (rejecting particular plaintiffs medical monitoring claim because of lack of compensable injury under Federal Employers’ Liability Act and because intermediate court’s envisioned potential award of medical monitoring to asymptomatic plaintiff in form of lump sum damages went beyond bounds of “evolving common law” as it now stands); Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir.1991) (ruling that medical monitoring is not cognizable claim under tort law of Virginia or West Virginia absent manifestation of physical injury).
358 Md. at 779-780, 752 A.2d 200.
The Court added:
Medical monitoring has been defined as ‘one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances.’ [In re Paoli R. Yard PCB Litigation, 916 F.2d 829, 849 (3rd Cir.1990) (Paoli I).] [64]*64See also Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R.5th 327, § 3 (stating that courts have ‘defined a medical monitoring claim as a claim for the costs of periodic medical examinations to detect latent diseases or disorders caused by a defendant’s culpable conduct, the object of which is to facilitate early diagnosis and treatment of diseases or disorders’). In a claim for medical monitoring, the plaintiff seeks to recover only the quantifiable costs of periodic medical examinations necessary to monitor plaintiffs’ health and to facilitate early diagnosis and treatment of disease(s) caused by exposure to chemicals, or as in the instant case, tobacco. See Ayers, 525 A.2d at 308; see also Paoli I, 916 F.2d at 849 and 850. The theory underlying the recognition of this claim is that the diseases or injuries caused by various toxic substances are often latent, leading to ‘problems when the claims are analyzed under traditional common law tort doctrine because, traditionally, injury needed to be manifest before it could be compensable.’ Id. at 850. Thus, some courts have recognized medical monitoring claims that permit relief even in the absence of present manifestations of physical injury. See id. The injury in a medical monitoring case not being a physical one, it is instead construed as “the ‘costs of periodic medical examinations necessary to detect the onset of physical harm.’ ” Barnes v. American Tobacco Co., 161 F.3d 127, 139 (3rd Cir.1998) (quoting Redland Soccer Club v. Department of the Army, 548 Pa. 178, 696 A.2d 137, 144 (Pa.1997)); see also Hansen, 858 P.2d at 977.
Id. at 780-81, 752 A.2d 200.
The Supreme Court considered medical monitoring damages in Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997), a case brought under the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 et seq. In Buckley, the Court recognized policy reasons in favor of allowing such awards, as well as the concerns which had prevented many state courts from permitting medical monitoring recoveries. 521 U.S. at 442-43, 117 S.Ct. 2113. The [65]*65primary concern is the inability to limit the potentially expansive class of plaintiffs, although the Court also recognized that medical monitoring may actually present less of a problem in this area than other common law torts, namely emotional distress. Id. The Court ultimately concluded that federal common law at the time did not permit an asymptomatic plaintiff to recover lump sum damages for medical monitoring. Id. at 444, 117 S.Ct. 2113. But the Court emphasized that it was merely evaluating the state of the common law at that time, not attempting to balance the competing considerations and policies. Id. The Buckley Court also left open the possibility that it might approve a more “finely tailored” medical monitoring recovery than that sought by the plaintiff in that case, and it suggested that a limited remedy, like a court-supervised fund to administer payments for medical costs, may be the best way to balance competing interests. Id. at 443-44, 117 S.Ct. 2113.
Although Buckley is instructive, there are several important differences between that case and this one.60 Significantly, the Court noted that a federal statute, 29 C.F.R. § 1910.1001(1) (1996), already required employers to provide medical monitoring for workers who, like the Buckley plaintiff, had been exposed to asbestos. Id. at 443, 117 S.Ct. 2113. According to the Court, “where state and federal regulations already provide the relief that a plaintiff seeks, creating a fullblown tort remedy could entail systemic costs without corresponding benefits.” Id. The Court was troubled because a “traditional” tort remedy would allow the plaintiff to recover irrespective of collateral payment. Id. As far as I am aware, no Maryland statute would otherwise entitle appellees to receive medical monitoring provided by Exxon. Hence, a monitoring remedy here does not provide excessive relief. In addition, from a factual perspective, the Court also observed [66]*66that the Buckley plaintiffs claim for damages was amorphous and even his own medical expert was “equivocal” about whether he required extra medical monitoring above and beyond that recommended for the general population. Id. at 442. By contrast, the appellees here offered the testimony of a medical expert that a specific monitoring regime was necessary, as well as estimates of the specific costs of following the recommended program.
In the absence of further guidance from the Court of Appeals, I agree with the circuit court that Maryland common law permits a plaintiff to recover damages for the quantifiable costs associated with medical tests and examinations necessary to monitor the plaintiffs health and to facilitate early detection of future diseases made more likely by the defendant’s tortious conduct. This holding brings the law in line with contemporary scientific understanding of subcellular injuries and latent diseases. It also equitably imposes the costs of medical monitoring, which can help mitigate future disease, on the negligent defendant rather than the victim. See Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 442-43, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997) (acknowledging the public policy considerations in favor of medical monitoring awards, including that “it is inequitable to place the economic burden of such care on the negligently exposed plaintiff rather than the negligent defendant.”); Ayers v. Jackson, 106 N.J. 557, 609, 525 A.2d 287 (1987) (“mass exposure toxic-tort cases involve public interests not present in conventional tort litigation”); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1008, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993) (identifying the “important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment for many cancer patients”).
The trial judge gave the following instruction on the issue of medical monitoring damages:
[67]*67The Plaintiffs also seek a form of relief called medical monitoring. This form of relief represents the quantifiable cost of periodic medical tests or examinations necessary to monitor a Plaintiffs health and to facilitate early diagnosis and treatment of a latent disease caused by exposure to a chemical.
In this case, all of the Plaintiffs seek medical monitoring for alleged exposure to [MTBE]. A few of the Plaintiffs also seek medical monitoring for alleged exposures to benzene. To recover such damages, a Plaintiff must establish each of the following by a preponderance of the evidence.
First, that he or she compared to the general population has been significantly exposed to MTBE or benzene. Second, that MTBE or benzene is proven hazardous to humans. Third, that ExxonMobil caused the Plaintiffs’ exposure. Fourth, that as a result of the exposure, the Plaintiff has a significantly increased risk of contracting a serious latent disease.
Fifth, that diagnostic medical tests exist that make early detection of the disease possible. Sixth, that such medical monitoring procedures are different from those that would normally be recommended for persons who have not experienced Plaintiffs’ level of exposure.
And seventh, that the increased risk of disease makes the proposed procedures reasonably medically necessary. If the Plaintiff fails to prove one or more of these considerations by a preponderance of the evidence, he or she is not entitled to medical monitoring.
If you find that a Plaintiff is entitled to medical monitoring, you must indicate so in your verdict, and you must also indicate the reasonable cost of this medical monitoring reduced to present cash value.
I would find that these instructions fairly and accurately state the elements which must be established in order for a plaintiff to recover damages for medical monitoring. Appellant says that this Court should require plaintiffs to prove either the existence of a present physical injury or a substan[68]*68tial increased risk of harm before they may recover damages for medical monitoring. Reasons for declining this request are best illustrated by the following example, offered by the U.S. Court of Appeals for the D.C. Circuit:
To aid our analysis of whether tort law should encompass a cause of action for diagnostic examinations without proof of actual injury, it is useful to step back from the complex, multi-party setting of the present case and hypothesize a simple, everyday accident involving two individuals, whom we shall identify simply as Smith and Jones:
Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.
From our example, it is clear that even in the absence of physical injury Jones ought to be able to recover the cost for the various diagnostic examinations proximately caused by Smith’s negligent action. A cause of action allowing recovery for the expense of diagnostic examinations recommended by competent physicians will, in theory, deter misconduct, whether it be negligent motorbike riding or negligent aircraft manufacture. The cause of action also accords with commonly shared intuitions of normative justice which underlie the common law of tort. The motorbike rider, through his negligence, caused the plaintiff, in the opinion of medical experts, to need specific medical services—a cost that is neither inconsequential nor of a kind the community generally accepts as part of the wear and tear of daily life. Under these principles of tort law, the motorbiker should pay.
Friends for All Children v. Lockheed Aircraft Corp., 746 F.2d 816, 825 (D.C.Cir.1984) (emphasis added).
[69]*69For the reasons set forth by the D.C. Circuit, the rationale underlying medical monitoring damages is best reflected by the test formulated by the trial judge: (1) significant exposure to (2) a substance proven hazardous to humans (3) because of the defendant’s negligence, (4) resulting in the plaintiff having a “significant increase in risk,” compared to the general population, of a developing a serious latent disease for which (5) there are medical tests making early detection possible, and the tests (6) are not medically necessary for the general population, but (7) are medically necessary for the plaintiff due to the increased risk. To use an apt metaphor, the trial judge’s test uses a scalpel to carve out the class of plaintiffs who may recover for medical monitoring, while appellant’s proposed physical injury or substantial increased risk requirements would have us use a hatchet to lop off a class of plaintiffs, a method that is poorly designed and simultaneously over-and under-inclusive.
Turning now to the evidence presented by the appellees in support of medical monitoring damages, I note that the parties stipulated to the testimony of Dr. Brautbar, a physician, that all of the plaintiffs would require monitoring for testicular, kidney, liver, and blood/lymphatic cancers at an estimated cost of $2,000 per patient per year. Dr. Rudo, the plaintiffs’ toxicology expert, testified that he recommended that all of the plaintiffs follow Dr. Brautbar’s monitoring program with the goal of catching any developing cancer at an early stage. In my view, this and other testimony provides some basis for the conclusion that the Jacksonville residents have a significantly increased risk of contacting cancer or other latent disease as a result of exposure to MTBE or benzene. Dr. Jaynes, an economics expert, testified for the plaintiffs regarding the actual present value of the $2,000 per year medical monitoring costs, considering the life expectancy of the plaintiffs as well as economic factors such as inflation. Relying on his estimates, the plaintiffs requested medical monitoring damages ranging from $17,032 to $96,997.
Based on my review of the record, it appears that plaintiffs whose most recent well test results revealed the presence of [70]*70MTBE or benzene received the full amount of their requested medical monitoring damages. Plaintiffs received 50% of their claimed medical monitoring damages if their wells tested positive in the past, but had nondetectable levels of MTBE and benzene in most recent tests. Plaintiffs whose homes did not have any current contamination, but were at a “high risk” of future contamination, based on expert testimony, also received the full amount of the requested medical monitoring damages. The jury awarded only 25% of the requested medical monitoring costs to the remaining plaintiffs, those whose wells had never tested positive for MTBE or benzene and were classified as medium or low risk of future contamination. I cannot say that this result is wholly unsupported by the evidence, much less that the trial judge abused his wide discretion in denying the plaintiffs’ request for judgment notwithstanding the verdict or a new trial. See Bartholomee, supra, 103 Md.App. at 51, 651 A.2d 908.
VI. Similarity Of Awards To Different Plaintiffs
Finally, appellant argues that it is entitled to a new trial because the jury awarded damages formulaically, without regard to the individualized harms suffered by the plaintiffs. I have already discussed the economic and non-economic damages awards independently, finding both to be sufficiently supported by the evidence to justify denying appellant’s request for a new trial. Viewing them now collectively, I have not changed my mind.
There are undoubtedly formulaic aspects of the jury’s damages award, but that is not wholly unexpected in a trial of this size and complexity, where many of the plaintiffs suffered similar injuries. For example, the medical monitoring damages follow a certain general formula described above, with the award reflecting a certain percentage of the requested medical monitoring damages (which have already been adjusted to account for individual life expectancies), depending on the presence of current and/or past contamination and the risk of future contamination. These are relevant considerations, not arbitrary ones, and the resulting awards are in fact [71]*71individualized to each person’s life expectancy and estimated degree of exposure. I am not propounding this formula as the most legally correct method of awarding medical monitoring damages, but it is a reasonable method that led to reasonable awards based on the evidence presented.
The out-of-state cases cited by appellant differ from this litigation in several respects. In each cited case, the court found that the resulting awards were not supported by the evidence. For example, in Cain v. Armstrong World Indus., there were ten plaintiffs in an asbestos action whose cases were consolidated for trial. 785 F.Supp. 1448, 1452 (S.D.Ala. 1992). Seven of the plaintiffs proved medical monitoring expenses totaling $4,050 to $10,200 and no other future medical expenses. Id. They were nonetheless awarded $80,000 to $100,000 in future medical expenses, an amount equal to the damages proved by the remaining three plaintiffs. Id. The judge found that these awards, along with similarly excessive awards for fear of cancer and emotional distress, shocked the conscience and merited a new trial. Id. at 1454.
The most important thing about Cain, however, is that it is the decision of a trial court judge on the party’s motion for a new trial. Motions for a new trial are the province of the trial judge. Nowhere is this more true than in a trial such as this, which lasted five months and included testimony from 167 witnesses, including all manner of experts and countless plaintiffs. It is apparent from his written decision that the trial judge carefully considered the merit of the verdicts and considered them in light of the weight of the evidence, as he witnessed firsthand. Based on a distant review of the paper record, I cannot say that he abused his discretion.
In Buck v. Cam’s Broadloom Rugs, 328 Md. at 59-60, 612 A.2d 1294, the Court of Appeals quoted the following “salient observations” from the Superior Court of Pennsylvania regarding the deference owed by the appellate court to the trial judge and by the trial judge to the jury. I find it especially pertinent in this case:
[A] jury’s verdict should not be casually overturned. In our system of justice, the jury is sacrosanct and its importance [72]*72is unquestioned. The members of a jury see and hear the witnesses as they testify. They watch them as they sweat, stutter, or swagger under the pressure of cross-examination. This enables the jury to develop a feel for the case and its personal dynamics which cannot be conveyed by the cold printed page of a record reproduced for appellate review.... We must afford the judge great discretion in making this decision because he too is present in the courtroom as the evidence is presented. As does the jury, he develops a feel for the human pulse of the case. In short, our seemingly simple decision to uphold the grant of a new trial is actually the end result of a highly complex process involving the interaction of judge, jury, and attorneys. This process has developed over centuries and its complicated dynamics belie its surface simplicity. However, the greatest tribute to its success is probably the extent to which we take it for granted as the ultimate guarantor of justice.
Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504, 508 (1987).
This is an extremely unusual toxic tort case. Here, liability is generally conceded and potentially inadmissible, but unob-jected to evidence on key issues made its way to the jury. These factors undoubtedly affected the assessment of the damages in this case. But they also caution this Court to respect its limited role in gauging the jury’s verdict and to uphold that verdict even if there is the slightest evidentiary basis for doing so.
Because a majority of the in bane panel would uphold virtually all of the jury’s award for diminution in property value, I join the Court’s affirmance of that judgment. To the extent a majority of the panel would reverse the remaining damage award, I respectfully dissent.
I am authorized to say that Judges WOODWARD, MEREDITH and WRIGHT join this opinion in its entirety and the other members of the in banc panel join in this opinion in part, as explained in their opinions.
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Cite This Page — Counsel Stack
40 A.3d 514, 204 Md. App. 1, 42 Envtl. L. Rep. (Envtl. Law Inst.) 20049, 2012 WL 426748, 2012 Md. App. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exxon-mobil-corp-v-ford-mdctspecapp-2012.