Pichowicz v. Hoyt

2000 DNH 040

• Court: District Court, D. New Hampshire
• Decided: February 11, 2000
• Docket: CV-92-388-M
• Status: Published

Opinion

Pichowicz v. Hoyt CV-92-388-M 02/11/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nicholas and Joan Pichowicz, Plaintiffs

v. Civil No. 92-388-M Opinion No. 2000 DNH 040 Pearl M. H o y t , Defendant

O R D E R

Plaintiffs move to amend the judgment or for new trial on

several grounds, but basically because they believe the court

erred in not awarding damages for severe emotional distress and

in failing to credit the medical causation testimony of their

expert. Dr. Robert Feldman.

In its previous order (document no. 173) the court ruled

that plaintiffs had met their burden of establishing, by a

preponderance of the evidence, that their property was damaged by

the migration of volatile organic compounds from defendant's

property, and awarded damages in the amount of Two Hundred Five

Thousand Three Hundred Eleven Dollars ($205,311.00). However, the court also determined that plaintiffs failed to

meet their burden of persuasion regarding causation as related to

claimed personal injuries (various medical conditions and ills

including depression, neurological abnormalities, headaches,

memory loss, tremors, numbness, lack of balance, s l e e p lessness).

Essentially, the court found Dr. Laura Green's expert testimony

to be credible and Dr. Robert Feldman's expert testimony neither

persuasive nor credible. Accordingly, the court found that

plaintiffs' ingestion of low levels of volatile organic compound

(VOC) contaminants prior to 1984 did not cause or substantially

contribute to cause their asserted medical difficulties, since

the contaminants at issue were not shown by a preponderance to

have neurotoxic effects, and were not shown by a preponderance to

be causally linked to any of plaintiffs' claimed difficulties.

Severe Emotional Distress Claim

In their motion to amend the judgment, plaintiffs argue that

even if they did not establish a medical causal link between the

comparatively small amounts of ingested VOCs and their claimed

2 medical and psychological problems, they did demonstrate a

psychological c o n n ection. That is, they say that learning that

the well was contaminated, even at low levels, and realizing they

drank from it, combined to evoke a natural reaction of severe

emotional distress, rising to the level of clinically diagnosed

depression, with accompanying physical manifestations (i.e., the

alleged tremors, sleeplessness, memory loss, lost motivation,

physical imbalance, etc.). So, they argue, under applicable New

Hampshire law, they are at least entitled to recover damages for

severe emotional distress.

Plaintiffs did not bring an action for negligent or

intentional infliction of emotional distress against Defendant

Hoyt. Rather, they brought a straight negligence claim (Count

III). But, in Thorpe v. State of New Hampshire Department of

Corrections, et a l ., 133 N.H. 299 (1990), New Hampshire's Supreme

Court applied the Corso v. M e r r i l l , 119 N.H. 647 (1979) standard

for negligent infliction of emotional distress recovery to

negligence actions:

3 Therefore, we conclude that before a plaintiff can recover damages for emotional distress pursuant to a negligence cause of action, he or she must prove that physical injury resulted therefrom.

T h o r p e , 133 N.H. at 304. And, the court held that "when damages

for impact are not sought [in a negligence case], expert

testimony is required to prove that the plaintiff experienced

physical symptoms from the alleged emotional distress." I d ., at

305. Damages for "impact" are not sought by plaintiffs.

Plaintiffs rely on the testimony of Dr. Ronald J. Kulich, a

psychologist, to establish their psychological injury and a

causal link to the contamination. Dr. Kulich testified that

there was no question in his mind that Mr. Pichowicz suffered

from severe depression "precipitated by his reaction to

discovering that there was toxic waste on his land" and his fear

of its effect on his spouse, children, and grandchildren. But,

Dr. Kulich also described Mr. Pichowicz's depression as being

"secondary to neurological deficits and major life stressors and

persistent pain and related disabilities," none of which were

actually caused by his ingestion of the comparatively small

4 amounts of VOCs at issue in this case (at most 20 to 100 parts

per billion over a limited time p e r i o d ) .

Dr. Kulich opined that Mrs. Pichowicz suffered from "major

depression precipitated by the discovery of her toxic exposure."

But, he also observed that the strain generated by coping with

Mr. Pichowicz also caused her major stress, and, as discussed in

the earlier order (document no. 173), other explanations and

causes existed that would more plainly explain Mrs. Pichowicz's

depression.

Dr. Thomas, plaintiffs' treating physician, also testified

about the plaintiffs' depression and possibly related physical

symptoms, but offered no persuasive opinions regarding medical

causation relative to low level VOC ingestion, or even whether

their physical symptoms could be tied to the depression (i.e.,

emotional distress caused depression which in turn caused

physical m a n i f e s t a t i o n s ) .

Assuming, without deciding, that there is enough in this

record to satisfy the Corso and Thorpe predicates to recovery of

5 emotional distress damages (and that is arguable ) , nevertheless.

plaintiffs still failed to meet their burden of persuasion.

In New Hampshire, as elsewhere, "the specific circumstances

under which a plaintiff may recover damages for emotional

distress are limited by the doctrine of foreseeability." Corso,

199 N.H. at 651-52. So, not only must a plaintiff suffer

physical harm caused by the emotional distress alleged, but the

physical harm must also be manifested by objective symptomatology

and confirmed by expert medical testimony. And, critical here,

the emotional distress for which compensation is sought must be reasonably foreseeable: unless a plaintiff proves that the defendant knew or should have known of special factors affecting that plaintiff's response to the circumstances of the case, the plaintiff can recover only for that degree of emotional distress which a reasonable person, normally constituted, would have experienced under those circumstances. Whether the emotional distress which a plaintiff is alleged to have experienced is reasonable, is to be determined by the finder of fact.

Payton v. Abbott Labs, et al., 386 Mass. 540, 557, 437 N.E.2d

171, 181 (1982); see a l s o , Kelley v. Schlumberqer Technology

C o r p ., 849 F.2d 41, 44 (1st Cir. 1988) (jury instructions

6 correctly advised that plaintiff can only recover for emotional

distress if it was foreseeable and "a reasonable person in the

plaintiff's position would have been seriously distressed" under

the c irc u m s t a n c e s ) . See generally Orono Karate, Inc. v. Fred

Villari Studio of Self Defense, Inc., 77 6 F.Supp. 47, 50 (D.N.H.,

1991) (there is no material conflict as to recovery for emotional

distress among the jurisdictions of New Hampshire, Maine, and

Massachusetts); Morancv v. M o r a n c v , 134 N.H. 493 (1991) (the law

only intervenes when the distress inflicted is so severe that no

reasonable person could be expected to endure i t ) .

In this case plaintiffs cannot recover for two basic

reasons. First, their claimed severe emotional distress

(diagnosed depression) was not reasonably foreseeable because a

reasonable person, normally constituted, would not have

experienced severe emotional distress under the circumstances of

this case. To be sure, a reasonable person, normally

constituted, who learned that measurable migration of VOCs

contaminated their property, and found its way into his or her

well at levels of 20 - 100 ppb (comparatively small q u antities),

7 and he or she ingested that water for a period of time years

earlier, would no doubt be anxious, even angry and upset. But,

it does not follow that any and every exposure to or ingestion of

low levels of VOCs in drinking water warrants imposition of

emotional distress damages, simply because the particular

plaintiff in fact suffered severe emotional distress.

Both the entitlement to emotional distress damages and the

measure of such damages are limited by the tort concept of

reasonable foreseeability - i.e., would a reasonable, normally

constituted, person suffer severe emotional distress under these

circumstances, and if so, to what degree? Thus, plaintiffs bore

the burden of demonstrating that their asserted injuries were

reasonably foreseeable. They failed to carry that burden.

Consequently, I find that a reasonable, normally constituted

person would not suffer compensable severe emotional distress

under the circumstances of this case. A reasonable person would

understand that the well contamination levels were relatively

minor, and ingestion of water from the well at low levels would

probably not cause any discernable or long term or debilitating neurotoxic effects, and, although the contaminants exceeded EPA

safe drinking water standards, the risk of actual injury to

health was statistically increased only slightly, if at all.

Certainly, no persuasive evidence was presented suggesting

otherwise, (and no persuasive evidence or argument was presented

showing that a reasonable person either would or should react to

these circumstances with justifiable alarm or severe emotional

distress). While there was passing reference to the character of

the contaminants as carcinogens, plaintiffs did not (and do not)

complain of an increased risk of, or fear of, developing cancer.

They did not introduce persuasive evidence of or argue the

probabilities of increased risk of cancer, or whether such

apprehensions, if they actually harbored them, were reasonable or

even realistic.

Plaintiffs fairly straightforwardly pursued the theory that

the contaminants themselves caused their neurological complaints

and depression. To the extent they also argue that their

depression was caused by their perception or fear of diffuse

health risks or injuries, I find that the circumstances of this

9 case would not give rise to severe emotional distress or serious

depression in a reasonable, normally constituted person.

Plaintiffs claim they nevertheless did suffer severe

emotional distress, but that is not dispositive here, because,

even if they are not substantially exaggerating their subjective

complaints, the defendant is only liable to the extent a

reasonable person would suffer severe emotional distress under

the circumstances. The degree to which a reasonable person would

suffer emotional distress under these circumstances (assuming

that he or she could be expected to suffer severe emotional

distress) would at best be minimal, warranting only nominal

damages. "Absent specific knowledge of plaintiff's unusual

sensitivity, there should be no recovery for hypersensitive

mental disturbance where a normal individual would not be

affected under the circumstances." Daley v. LaCroix, 179 N.W. 2d

390, 396 (Mich. 1970) (citations omitted).

Plaintiffs' emotional distress damages claims fail, then,

for several discrete reasons. A reasonable person would not

suffer severe emotional distress under the circumstances of this

10 case. Even if reasonable people could (legally) suffer severe

emotional distress under the factual circumstances of this case,

the degree and duration would be minimal, warranting only nominal

damages. Plaintiffs did not prove by a preponderance of the

evidence that low level contaminants in their well cause

neurotoxic effects, and their claimed distress based on that fear

is not reasonable. Plaintiffs failed to offer evidence to

support (and did not claim) that they suffered severe emotional

distress based upon other concerns - like the potentially

carcinogenic nature of the contaminants (i.e., nature and degree

of an elevated risk of disease, and fear of developing such

disease). And, the court is persuaded that plaintiffs' diagnosed

depression, a rather extreme reaction under these circumstances,

was not a foreseeable result of the low level contamination, and

was not substantially caused or contributed to by the

contamination, given the other plausible causes and evidence of

basically normal physical examinations (i.e., Mr. Pichowicz'

neurological e x a m i n a t i o n ) .

11 Post-Hearing Submissions

Plaintiffs also take issue with the court's failure to

accept Dr. Feldman's medical causation testimony as either

persuasive or scientifically reliable, beyond perhaps suggesting

a basis for further scientific inquiry into a possible causal

connection between low level exposure to VOCs (like TCE) in

drinking water for a defined period of years and neurological

injuries of various sorts. Plaintiffs also suggest that p o s t ­

hearing literature submitted at the court's invitation support

their position and might have been overlooked. To the contrary,

the literature submitted by Dr. Feldman tends to support Dr.

Green's expert opinion testimony. An exhaustive dissection is

unnecessary, but the articles and related material submitted by

Dr. Feldman (document no. 169) generally do not establish the

neurotoxicity of low level exposure to VOCs (like TCE) in

drinking water over defined periods of time, and in fact are

replete with scientific disclaimers. S e e , e . g . . Exhibit A-l.

"This indicated a possibility of an association of contaminated

water with the manifestation of symptoms. It is hypothesized

12 that the increased rate of symptoms observed in the exposed

group, when compared to the control group, may have been caused

by one or more of the following factors: (1) effect of TCE at a

threshold level higher than 28 ppb [about the levels involved in

this case], (2) effect of a single chemical entity other than

TCE, and (3) additive or synergistic effects of several

chemicals. Tt i_s also possible that there are factors other than

water contaminants associated with the recorded symptoms, e.g.

stress, that may have had an important influence in the exposed

group but not in the control group." (emphasis added) And:

"The data indicate that there were no observable adverse health

effects in the exposed aroup of residents, compared with the

control aroup, which could be ascribed to lona-term. low-level

exposure to trichloroethvlene (TCE) and other volatile oraanic

c o m p o u n d s ." (emphasis a d d e d ) ); see also Exhibits A-3 (open debate

about the real mechanism of TCE neurotoxicity); A-5 (no

significant difference between exposed and control group, but

subjective complaints in exposed group "warrant further

attention"); A - 9 ("Also misleading is the sentence that 'TCE is n e u r o t o x i c ; B-6 (clear evidence of alterations in the nervous

system from TCE exposure are few, except after exposure to very

high d o s e s ) ; D-4 (recent article of Feldman, et a l ., recommends

an electrodiagnostic test for a nonexistent disorder; TCE does

not cause cranial n e u r o p a t h y ) .

Certainly further scientific inquiry into the matter may be

warranted, but as to medical causation of plaintiffs' complaints

of physical injury, the court accepted Dr. Green's testimony,

rejected Dr. Feldman's testimony, and found that plaintiffs

failed to meet their burden of proof on that issue. Plaintiffs

have asserted no grounds warranting reexamination of those

findings, and no damages are awarded for plaintiffs' claimed

medical/neurological injuries because they failed to establish

causation. No damages are awarded for severe emotional distress

for the reasons discussed.

Conclusion

14 Plaintiffs' Motion for New Trial and/or to Amend Judgment

(document no. 175) and Supplemental Motion for New Trial and/or

to Amend Judgment (document no. 17 6) are denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 11, 2000

cc: Linda J. Argenti, Esq. Joseph G. Abromovitz, Esq. M. Ellen LaBrecque, Esq. Peter S. Wright, Jr., Esq. Thomas H. Richards, Esq.