Historically, plaintiffs were limited in their ability to recover for the negligent infliction of emotional distress. Damages for mental distress were permitted only when the emotional injury was accompanied by, and occurred as a result of, a tangible physical injury. Decades ago legal scholars recognized the danger of permitting recovery for purely mental and emotional injury and warned of the likelihood of fraudulent personal injury claims. The solution was to limit claims of mental distress to those instances in which the mental injury was accompanied by "definite physical symptoms" so as to provide "some guarantee of genuineness in the circumstances of the case." The danger of permitting claims for pure emotional distress has been characterized as follows:

The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field. But the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case (emphasis added).

(Prosser on Torts, § 34, pp. 212-213.)

Today, an ebbing majority of jurisdictions still require some form of objective physical harm, consisting of physical injury, physical impact, or physical manifestation as an essential element to a claim for emotional distress even though "freedom from [mental] distress is ... a protected interest." See Ferrara v. Galluchio, 176 N.Y.S.2d 996 (N.Y. Ct. App. 1958) This requirement operates as a safeguard against fraudulent claims. Many jurisdictions are wary of abrogating this prerequisite given that declarations of mental distress are easily fabricated and damages for such claims are often the product of speculation and conjecture.

Approximately 37 jurisdictions adhere to the axiom that some form of physical injury must be present as a condition precedent to recover damages for the negligent infliction of emotional distress. Although many of these states have extended the concept of physical harm or designated specific exceptions to the rule, there are a few jurisdictions which follow this exacting position. See R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995); Heiner v. Moretuzzo, 73 Ohio St.3d 80; 652 N.E.2d 664 (1995).

While a majority of states follow some sort of physical injury rule, fourteen states have rejected this standard. For example, the Supreme Court of Connecticut has held that "recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or risk of harm form physical impact." Montinieri v. Southern New England Telephone Co., 398 A.2d 1180, 1184 (Conn. 1978). Further, the Court stated that "there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only." Id. Significantly, however, the Court noted that a defendant would not be liable unless the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress might result in illness or bodily harm.

Likewise, the Supreme Court of Maine has abolished the physical manifestation requirement. See Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 (Me. 1987). Emotional distress, on its own, constitutes a compensable injury. See Bolton v. Caine, 584 A.2d 615, 617 (Me. 1990); Purty v. Kennebec Valley Medical Center, 551 A.2d 858 (Me. 1988); Rowe v. Bennett, 514 A.2d 802 (Me. 1986). Similar to Connecticut, Maine also relies upon the tort principle of foreseeability in order to provide adequate protection against unduly burdensome liability claims for emotional distress.

Many of those jurisdictions which generally require some sort of physical injury in order to recover for emotional distress have carved out exceptions to the traditional standard. Several states permit recovery for mental distress damages where the plaintiff has either been placed in fear of physical harm or is a person in the "zone of danger" who witnesses the injury or death of an immediate family member. In the case of a plaintiff who claims that he has suffered mental anguish as a result of being placed in fear of physical harm, there must also exist circumstances to "guarantee the genuineness" of the claim. Mental distress which results from witnessing an accident involving another person is compensable if the plaintiff "contemporaneously" witnesses the injury or death of an "immediate member" of her family. In addition, the plaintiff must reasonably fear for his own safety by reason of being placed within the "zone of danger" which creates a threat of bodily harm to both the victim of the physical injury and the eyewitness.

Other exceptions to the physical injury rule include instances in which the particular circumstances provide a substantial guarantee that the mental distress is serious and genuine, such as the negligent mishandling of a corpse or negligent and false telegrams of serious illness or death. See Scott D. Marrs, MIND OVER BODY: TRENDS REGARDING THE PHYSICAL INJURY REQUIREMENT IN NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND "FEAR OF DISEASE" CASES, 28 Tort & Ins. L.J. 1 (1992). In cases such as these, it has been said that there is a "special kind of duty" owed by the defendant to the plaintiff. "The breach of such a duty directly and immediately results in mental harm under extenuating circumstances that guarantee the genuineness of the mental harm" (emphasis added). See Kreindler, Rodriguez, Beekman & Cook, NEW YORK LAW ON TORTS, Vol. 16, § 21.23 (West 1997).

With respect to "fear of disease" cases, a number of states have stretched the physical impact requirement in order to accommodate claims of emotional distress. In particular, fear of cancer due to toxic exposure and fear of contracting AIDS have generated a litany of decisions in which jurisdictions have justified recovery based upon numerous rationale. See e.g., Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988); Hagerty v. L&L Marine Services, Inc., 788 F.2d 315 (5th Cir. 1988); Stites v. Sunstrand Heat Transfer, Inc., 668 F.Supp 1660 (W.D. Mich. 1987); Anderson v. W.R. Grace & Co., 628 F.Supp 1219 (D. Mass 1986); Ordway v. County of Suffolk, 583 N.Y.S.2d 1014 (Suffolk County, New York 1992).

In New York, for example, in order to maintain an action to recover damages for AIDS-phobia for any period of time, a plaintiff must establish (a) the actual or probable presence of HIV when the alleged transmission occurred, and (b) that there was some injury, impact, or other plausible mode of transmission whereby HIV contamination could with reasonable likelihood enter the plaintiff's bloodstream. See Montalbano v. Tri-Mac Enterprises of Port Jefferson, Inc., 652 N.Y.S.2d 780, 781 (2nd Dept. 1997).

In Tennessee, it is the general rule that mental distress, which results from fear that an already existent injury will lead to the future onset of a yet unrealized disease, constitutes an element of recovery only where such distress is either foreseeable or is a natural consequence of, or reasonably expected to flow from the present injury. However, damages for fear arising from ingestion of a toxic substance are recoverable even though a demonstrable physical manifestation is lacking. See Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988). In Sterling, the Sixth Circuit held that the plaintiff's reasonable fear of contracting cancer, in and of itself, constituted a present injury, thus satisfying the physical injury rule.

In 1993, the Supreme Court of California tried to strike a balance for mental distress damages in fear of cancer cases in which there is no physical injury. See Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993). In California, recovery for the fear of cancer is allowed only if a plaintiff can prove that his fear flows from personal knowledge, corroborated by medical opinion, that he is more likely than not to develop cancer due to toxic exposure. The Court articulated several policy considerations supporting the more likely than not standard. The standard is aimed at controlling the flood of toxic tort litigation, ensuring adequate compensation for those who actually develop cancer, and defining a threshold for consistent rulings in fear of cancer cases. The preponderance standard is obviated when the toxic exposure results from the defendant's oppression, fraud, or malice.

New York, unlike many states, does not permit recovery for the fear of developing cancer without some concrete physical manifestation of the disease. Inhalation of asbestos fibers does not satisfy the physical injury rule. Rather, in order to maintain a cause of action for fear of developing cancer resulting from exposure to a toxic substance such as asbestos, a plaintiff must establish (1) that he was in fact exposed to the disease causing agent and (2) that there is a "rational basis" for his fear of contracting the disease.

The "rational basis" has been construed to mean some physical manifestation of asbestos contamination, such as the clinically demonstrable presence of asbestos fibers in the plaintiff's body or some indication of asbestos induced disease. See Wolff v. A-One Oil, Inc., 627 N.Y.S.2d 788 (N.Y.A.D. 2nd Dept. 1995). Thus, a plaintiff's claim will be dismissed where he has been exposed to a toxic substance but has failed to present any clinical evidence of contamination. See Rittenhouse v. St. Regis Hotel Joint Venture, 565 N.Y.S.2d 365 (N.Y. Sup. Ct. 1990).

Florida, like several other states, also requires physical manifestation of emotional distress. Although "common sense and medical reality compel the conclusion that the inhalation of asbestos fibers satisfies the physical impact rule," this alone does not permit recovery for the fear of developing cancer in the state of Florida. Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. App. 1985). In so holding the Florida Court of Appeals reasoned:

The physical injury requirement is consistent with Florida law, necessary, and fair. Millions of people have been exposed to asbestos. Permitting an action for fear of cancer where there has been no physical injury from the asbestos would likely devastate the court system as well as the defendant manufacturers. Imposing a requirement that there be a physical injury as a predicate to recovery for mental distress arising from a fear of cancer is not an arbitrary act.

Id. at 528.

The liberalizing trend toward permitting recovery for emotional distress absent some physical injury should be recognized by both the plaintiff and defense bar. Indeed, in those states which abrogate the physical injury standard, the burden has effectively shifted to the defendant to demonstrate that the plaintiff is feigning his or her emotional injuries or that the mental distress was not reasonably foreseeable. While those plaintiffs with true psychological injuries will be able to state a claim, the use of psychological experts will be critical to evaluate and, where appropriate, expose the baseless nature of fraudulent or exaggerated claims.