Payton v. Abbott Labs
Citation | 437 N.E.2d 171,386 Mass. 540 |
Parties | Brenda PAYTON et al. 1 v. ABBOTT LABS et al. 2 |
Decision Date | 22 June 1982 |
Court | United States State Supreme Judicial Court of Massachusetts |
Marshall Simonds, Boston (David W. Rosenberg, Robert G. Bone, Kenneth A. Cohen, Joan Milstein, Mary Morrissey, Sullivan & Joseph J. Leghorn, Boston, with him), for defendants.
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ. LYNCH, Justice.
This case comes before the court on certification from the United States District Court for the District of Massachusetts of four principal and several subsidiary questions involving Massachusetts tort law. See S.J.C. Rule 1:03, § 1, as amended, --- Mass. --- (1981).
The plaintiffs in the civil action in which these questions are certified seek redress for injuries allegedly caused by the prescription drug diethylstilbestrol (DES). They brought suit in the Federal District Court in April, 1976. In July, 1979, a judge of the Federal District Court conditionally certified the plaintiff class under Fed.R.Civ.P. 23(c)(4)(A) to permit resolution of thirteen specific class-wide issues. Payton v. Abbott Labs, 83 F.R.D. 382, 386 (D.Mass.1979). Several of these issues are factual; the four questions here certified involve issues of Massachusetts law which the judge believed "may be determinative of various aspects of this case and as to which it appears ... that there is no controlling precedent" in the decisions of this court.
The questions are presented by the judge in the context of a motion to dismiss, based upon the plaintiffs' allegations. The judge summarized those allegations as follows:
theory of recovery adopted in some jurisdictions where there is not a joint tort, that is, where the tort was committed by only one of several possible tort feasors, but there is no way to determine which [386 Mass. 544] one. [**] Different jurisdictions have developed different versions of this theory of liability with respect to the allocation of damages, the necessity of joining all possible tort-feasors as defendants, shifting the burden of proof to a defendant to establish the impossibility of that defendant's responsibility, and right of contribution among defendants and against possible tort-feasors who are not parties. As far as the [judge] can determine, the [Supreme Judicial] Court has not addressed a claim of this kind in any form. While such a theory has never been recognized, it has never been rejected by a Massachusetts court.
"The parties and the [judge] agree that in this diversity action the law of Massachusetts is the controlling law."
If the plaintiffs prevail, and the defendants' liability is established, there must be individual trials for members of the plaintiff class on the issue of damages and perhaps other issues as well.
QUESTION ONE
"Does Massachusetts recognize a right of action for emotional distress and anxiety caused by the negligence of a defendant, in the absence of any evidence of physical harm, where such emotional stress and anxiety are the result of an increased statistical likelihood [that] the plaintiff will suffer serious disease in the future?" We answer, No.
DISCUSSION
We note initially that neither the issue of negligence nor that of causation is before us. The certified question assumes both that the defendants were negligent, and that their negligence caused the plaintiffs' emotional distress.
No Massachusetts case has yet concluded that a plaintiff who alleges that she was a direct victim of a defendant's negligent conduct, but who does not allege that she has suffered resulting physical harm, can recover for emotional distress. In the absence of a specific factual context, the court has declined to decide this issue. 3 This court has held that a parent who was not within the zone of physical danger created by the defendant's negligence may recover for substantial physical injuries sustained as a result of emotional distress, resulting from injuries negligently inflicted on her child. Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295 (1978). Here, however, the plaintiffs are assumed to be direct victims without physical injuries, since the certified question assumes that the plaintiffs were threatened with physical harm by the defendants' negligent conduct. We must decide whether this distinction should affect the result in this case.
PHYSICAL HARM REQUIREMENT
Both common law and policy considerations lead us to answer certified question one in the negative. There is ample support in the common law of this country for a negative answer. Jurisdictions allowing recovery for emotional distress without The task of determining whether a plaintiff has suffered purely emotional distress, however, does not fall conveniently into the traditional categories separating the responsibilities of the judge from those of the jury. A plaintiff may be genuinely, though wrongly, convinced that a defendant's negligence has caused her to suffer emotional distress. If such a plaintiff's testimony is believed, and there is no requirement of objective corroboration of the emotional distress alleged, a defendant would be held liable unjustifiably. It is in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating upon one another, that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress.
proof of physical harm 4 in negligence cases are [386 Mass. 546] clearly in the minority. 5 The most common justification for denying recovery for emotional distress in negligence cases absent physical harm is that that rule is necessary to prevent fraud and vexatious lawsuits. Those seeking to apply a more liberal rule argue that a jury is capable of distinguishing real from feigned injuries and that, therefore, the matter[386 Mass. 547] should be left to the jury. This response has appeal because in general it is for the jury, and not for an appellate court, to determine which injuries are real and which are contrived
Although this court has allowed recovery for emotional distress absent physical harm, it has done so only where the defendant's It should be noted, in addition, that the retributive function of imposing tort liability is served by allowing recovery for emotional distress, without proof of physical harm, where a defendant's conduct was either intentional or reckless. Where a defendant was only negligent, his fault is not so great as to require him to...
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