# Exxon Mobil Corp. v. Ford

> Court of Special Appeals of Maryland · February 9, 2012 · 204 Md. App. 1

URL: https://www.frixlaw.com/law-library/cases/7927112

## Case

- **Full name:** EXXON MOBIL CORPORATION v. Paul D. FORD
- **Court:** Court of Special Appeals of Maryland
- **Decided:** February 9, 2012
- **Citations:** 204 Md. App. 1; 40 A.3d 514; 42 Envtl. L. Rep. (Envtl. Law Inst.) 20049; 2012 Md. App. LEXIS 16; 2012 WL 426748
- **Precedential status:** Published
- **Opinion:** Concurring in part by Eylerjames
- **Judges:** Deborah, Eyler, Graeff, James, Watts
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

EYLER, JAMES R., J.,
concurring and dissenting, in which HOTTEN, J., joins.
These consolidated cases arise from the leakage of gasoline from a gasoline service station, located at the corner of Jarrettsville Pike and Paper Mill Road in the Jacksonville area of Baltimore County. The station was owned by Exxon-Mobil Corporation, appellant. The leak occurred, on January 13, 2006, when a contractor accidentally drilled a hole in an underground gas line leading from a storage tank to the dispensing pump. An electronic leak detector sounded an alarm. The contractor who responded to the alarm erroneously determined that a pump motor was the problem, and replaced it. As a result of the replacement, the leak detection system had to be recalibrated. This was done, but incorrectly. Consequently, the leak detection system did not detect the continuing leak. The problem was discovered on February 16, 2006, when the franchisee/service station operator reported an inventory discrepancy. The service station immediately was shut down. The existence of the leak was confirmed on February 17. Appellant immediately notified the Maryland Department of the Environment (MDE), and remediation efforts began. In the period between January 13 and February 16 or 17, approximately 700 gallons of gasoline per day leaked from the punctured underground line.
Appellees, residents of the Jacksonville area, filed lawsuits against appellant in the Circuit Court for Baltimore County alleging that their properties had decreased in value and their health was threatened because chemicals found in gasoline, specifically, methyl tertiary-butyl ether (“MTBE”), a possible carcinogen, and benzene, a known carcinogen, contaminated their properties. The bulk of the evidence related to MTBE because there was virtually no evidence that any appellee was exposed to benzene. The properties were serviced by potable wells; there was no public water system. As part of the remediation effort, appellant constructed monitoring and/or recovery wells, used to monitor and recover contaminants. None of the appellees used water from the monitoring and recovery wells. All references to use of water by appellees *74 are to the appellees’ potable wells. None of the appellees claimed a physical injury in the traditional sense. None claimed sickness or disease or symptoms of a sickness or disease, caused by the leak. Appellees’ emotional distress claims were based primarily on fear of contracting a latent disease. We note briefly and will explain in greater detail below that federal and state governments have set levels of maximum exposure to these chemicals. The evidence was uncontradicted that all people in this country are exposed to some amount of MTBE and benzene in their daily lives. These chemicals may enter a person’s body through ingestion, dermal contact, or inhalation of vapors.
At some point prior to trial, appellees’ suits were consolidated. Appellant admitted liability for compensatory damages on causes of action other than fraud, and the cases were tried on liability for fraud and punitive damages, and the amount of compensatory damages. By the time a jury returned a verdict, there were 302 1 appellee plaintiffs who owned and/or resided on 88 properties. Ninety five of the appellees were minors at the time of the leak. The jury found in favor of appellant with respect to the fraud and punitive damage claims and awarded compensatory damages totaling over 147 million dollars to the appellees. This damage award consisted of (1) the full pre-leak value of every property to the property’s owner(s), (2) the present value of the future costs of medical monitoring to 300 appellees who made that claim, and (3) damages for emotional distress, which included fear of cancer or other latent disease, to 180 appellees who made that claim. Even though the evidence demonstrated substantial differences in the claims, the awards were remarkably the same for each property owner, each adult claiming damages for emotional distress and medical monitoring, and each minor claiming damages for emotional distress and medical monitoring.
*75 The cases were hotly contested, and not surprisingly, the parties filed numerous pre-trial motions, including motions in limine and motions for summary judgment. The trial lasted approximately five months, during which many motions and legal arguments were advanced, including motions for judgment by appellant. Post trial, appellant filed several motions. Pertinent to this appeal are appellant’s motion for judgment notwithstanding the verdict (“JNOV”) with respect to the emotional distress and medical monitoring claims and appellant’s motion for new trial or remittitur with respect to the damage to appellees’ properties.
The circuit court denied the motions except that (1) it reduced the non-economic damages awards of four appellees to the statutory cap, pursuant to Maryland Code (2006 Repl. Vol.), § 11-108 of the Courts and Judicial Proceedings Article (CJP), 2 and (2) as to the owners of four properties who sold their homes post leak, granted a remittitur lowering the jury’s award of pre-leak value to an amount equal to the pre-leak value adjusted for the passage of time less the actual sales price. 3
On appeal, appellant contends the court erred in permitting appellees’ property damage expert to testify and in denying its motions. We conclude that the court did not err in permitting the expert to testify, but with the exceptions noted below, and as explained below, the court erred in denying the motions.
Preliminarily, we note that damages were awarded to three appellees who did not make claims. The jury awarded Andrea and Veronica Greco the pre-leak value of their property even though they sold their home post-leak for an amount in excess of the pre-leak value and, presumably as a result of the sale, withdrew their diminution in value claim prior to verdict. In addition, the jury awarded $50,000 to Luke DeKoomen and *76 $50,000 to Seth DeKoomen, minors, for emotional distress, even though they withdrew their emotional distress claims prior to verdict. The circuit court erred in not granting appellant’s JNOY motion with respect to these claims by these appellees.
With respect to the remaining claims, clearly, the jury did not perform individualized assessments of the claims, based on the evidence. While a jury cannot commit reversible error, a judge can do so, and in some instances, the circuit court erred in not applying the correct legal standard and by not granting the motion for JNOV. In addition, the trial judge erred in not performing an individualized assessment of the verdicts in ruling on the motion for new trial or remittitur. Notwithstanding that the cases were consolidated, each claim in each case had to be analyzed as if tried separately. The parties do not dispute that that is the law. The jury was so instructed, and no exceptions were taken to that instruction. 4
Before proceeding to a more detailed analysis, we note that these cases illustrate the danger of trying all issues in numerous disparate cases in a consolidated manner, presumably for judicial efficiency. The phenomenon is unprecedented in this State. The largest mass tort litigation in this State was and is asbestos exposure litigation. With respect to the thousands of asbestos cases in this State, common issues were tried in large consolidated trials, but plaintiff specific issues were and are being tried in small groups, with grouping determined by similarity of claims. Each plaintiff has to prove his or her own case.
In the cases before us, the propriety of the consolidation is not before us. Nevertheless, the mere size of the undertaking and the length of time consumed in arriving at judgments cannot be the basis for treating these cases as if they were a class action and ignoring reversible error. If, by virtue of *77 massive consolidation of cases and claims, the consolidated cases have become too big to reverse, our system has failed.
For ease of reference, this opinion is divided into the following sections.
I. Overview of claims
II. Summary of contentions/arguments on appeal
III. Summary of evidence at trial
A. Appellees’ experts
B. The appellees
C. Appellees’ liability witnesses
D. Appellant’s evidence
IV. Waiver
V. Admissibility of Acks testimony
VI. The law relating to emotional distress
A. Personal injury versus property damage and compen-sable elements of each
B. Emotional distress generally—physical manifestation requirement
C. Fear of cancer or other latent disease
VII. Application of law of emotional distress to facts of each case
A. Withdrawn claims and unchallenged claims
B. No evidence of actual exposure or probable future exposure
C. Emotional distress—no evidence of physical manifestation related to leak, assuming fear of a future disease is compensable
D. Emotional distress—minimal evidence and clearly legally insufficient to show physical manifestation related to leak, assuming fear of future disease is compensable
E. Emotional distress—some evidence of physical manifestation related to leak but legally insufficient, assuming fear of future disease is compensable
F. Fear of cancer or other latent disease
VIII. Law relating to medical monitoring
*78 IX. Application of law of medical monitoring to facts of each case
A. No evidence of actual exposure or probable future exposure
B. No evidence of physical manifestation
C. All medical monitoring judgments
X. Law relating to property damage
A. Owner testimony as to value of contaminated property
B. Diminution in market value as a measure of property damage
1. Permanent vs. temporary property damage under Maryland law
2. Permanent vs. temporary property damage in other jurisdictions
XI. Application of property damage law to facts of each case
A. Withdrawn claims and unchallenged claims
B. Properties with owner testimony that property was worthless
C. All properties
XII. Law applicable to new trials
XIII. Appendix
I. Overview of claims
There is some conflict in the evidence as to when the residents of Jacksonville first learned of the leak. Most of the appellees testified that they received notice via newscasts on February 20 or 21, 2006, but there is some testimony that a representative of MDE notified some residents earlier. In any event, the residents thereafter held meetings to discuss the developing situation, including meetings with representatives of MDE and appellant. At some point in 2006, counsel began representing some or all of the appellees. In the fall of 2006, appellees filed their complaints. The record extract contains one complaint as a representative complaint only. *79 That complaint was filed on October 17, 2006. We have not determined the dates of the other filings.
In their complaints, appellees alleged fraudulent concealment, intentional infliction of emotional distress, strict liability, trespass, private nuisance, and negligence. They sought compensatory and punitive damages. The fraud counts were based on allegations that (1) the line leak detection system at the station was antiquated and unreliable, that appellant had concerns about the system, and that appellant failed to disclose those facts to the Jacksonville residents, and (2) appellant failed to immediately notify the residents when the leak was discovered and thereafter failed to keep them fully informed.
Eventually, appellees dismissed the intentional infliction of mental distress counts as to all appellees and dismissed the trespass counts as to some of the appellees. Appellant admitted conduct giving rise to liability for trespass, private nuisance, negligence, and strict liability, denied liability for fraud and punitive damages, and asserted that the compensatory damages claimed were, in large part, unavailable as a matter of law.
Trial began in October, 2008. On March 12, 2009, the jury returned completed verdict sheets, one for each of the 88 households. The occupants of each household were listed on the verdict sheet. The jury found in favor of appellant with respect to the fraudulent concealment and punitive damage claims. The jury returned a verdict for all appellees with respect to all other claims. The verdict sheets were in the same format, in essence, asking (A) do you find fraud by concealment? (B) do you find that appellant’s admitted liability caused any injuries and damages? and (C) if the answer to (A) or (B) is yes, how much compensatory damages do you award? That question was followed by:
Economic Damages
Damages to Property Owner [name of property owner]
Diminution in Property Value $_
Medical Monitoring
*80 [names of plaintiffs] $-
Non-Economic Loss (Emotional Distress)
[names of plaintiffs] $-
D. Punitive Damages
If you answered to [question (1) ], should the plaintiffs be awarded punitive damages?
[names of plaintiffs] YES_NO_
(Emphasis in original).
The properties in question were located at varying distances from the source of the leak. The presence of contamination and the extent of contamination, if found, between February 17, 2006 and the date of trial varied from property to property. Appellees’ expert testimony as to likelihood of contamination in the future, or lack thereof, varied from property to property. The measures employed by residents and by others to protect residents from exposure to possibly contaminated well water varied from property to property. The remediation activities also varied by location. Much of the testimony turned on whether a property had ever been contaminated, and if so, its location vis a vis the dispersal area of the gasoline, known as the “plume” or “strike zone,” and the extent of any contamination.
Each property owner received an award for the full pre-leak value of the property, i.e., the jury found that each property was worthless. Each appellee received an award for medical monitoring. With rare exceptions, each adult received an award in the amount of $500,000 for emotional distress, and each minor received an award of $50,000 for the same. In households with children, generally speaking, the awards for the adults were reduced by the amount of the awards for the minors.
Before summarizing the positions of the parties, a review of additional basic information may be helpful. MTBE and benzene are two volatile organic compounds found in gasoline. MTBE is commonly added to gasoline to reduce emissions of air pollutants from exhaust systems. MTBE is water soluble. *81 MTBE is a possible carcinogen, but there are no human studies linking it to cancer. Because it was not used as a gasoline additive until 1979, there are few studies in existence, other than with respect to the effect of exposure on animals. The Environmental Protection Agency (“EPA”) has classified MTBE as a potential human carcinogen at large doses, but not at low exposure levels. Because of the absence of a consensus on whether MTBE is a carcinogen, the EPA has not set a maximum contaminant level (“MCL”) for it. Based on MTBE’s bad taste and odor, the EPA has set a maximum MTBE level at 20-40 parts per billion (“ppb”). The MDE has set an “action level,” a concept used interchangeably with MCL, at 20 ppb for MTBE and has taken the position that the standard is “protective of human health and safety.”
The EPA classifies benzene as a carcinogen and has set the MCL at 5 ppb. The MDE uses the same standard for benzene.
The EPA standard for each chemical is the level at which a person could be exposed to the chemical every day for 70 years with only a negligible increased risk of cancer. Other states have adopted different standards for each chemical, and some are lower than those set by the EPA and MDE.
The remediation effort as a result of the leak included drilling monitoring wells at various locations and at various depths to determine the extent of the plume. These wells were used for periodic monitoring and, when contamination was found, for recovery of the gasoline and residuals.
II. Summary of contentions/arguments on appeal
On appeal, appellant contends; (1) the finding that each property was worthless was formulaic in nature without individualized determination and was contrary to all of the evidence; (2) the court erred in admitting the testimony of Kenneth Acks, appellees’ real estate expert, because he failed to use a generally accepted method of valuation and he ignored the post-leak sales; (3) as to fear of cancer or other latent disease, the awards were formulaic, the standard for *82 recovery for fear of cancer or other latent disease was incorrect, and in any event, the evidence was legally insufficient; (4) as to emotional distress generally, the awards were formulaic, appellees did not prove a physical injury sufficient to permit recovery, and in any event, the evidence was legally insufficient; and (5) medical monitoring is not a recognized tort or compensable type of damage, but if recognized, the standard employed was incorrect, and regardless, the evidence was legally insufficient to support an award.
Appellant observes the following. Forty-two appellees, from 12 households, did not testify. The 12 households are identified as the Acchione, Barnett, Butler, DiGalbo, Fulco, Gollihue, Greenblatt/Robertson, Hahn/Tamberino, Kropfelder, Pertee, Simms, and Sipes families. With the exception of Mildred Hahn, who dismissed her claim for medical monitoring, all 42 appellees who did not testify received medical monitoring awards and those who were owners received the full pre-leak value of their properties. Appellant asserts, based on sampling, that
of the 88 properties involved in this appeal, 22 never had any contamination from the leak. By the time of trial, a total of 49 properties were without contamination. Benzene above the MCL was never found in any potable well and only two potable wells were ever found to have MTBE above Maryland’s action level. Only eight properties ever had either a potable well or a monitoring well test for MTBE or Benzene at a level above the applicable action level or MCL.
The vast majority of Plaintiffs’ properties (66 of 88) were not within the strike zone. Only a small minority of Plaintiffs’ properties (14 of 88) ever had a monitoring well or other remediation activity. As to certain of these households, the remediation process was and will continue to be a significant intrusion.
(Footnotes and references to record extract omitted.)
After and as a result of the leak, one appellee, Mae DeLeo, moved out of her house and into a condominium in Towson. *83 The remaining appellees continued to occupy their homes, except for those who sold them. The owners of 8 properties attempted to sell their homes after the leak; two were unsuccessful (Barone and Gregory families), and 6 were successful (Brady, Csicsek, Murray, Simms, Roeterings, and Williams families). 5 The owners of 10 other properties refinanced their homes after the leak. A total of 49 homes in the Jacksonville neighborhood were sold after the leak, at substantial prices.
Appellant contends that the court erroneously admitted the testimony of Kenneth Acks, who testified as an expert on the impact of the leak on the value of appellees’s properties. Mr. Acks testified that each property had sustained a percentage loss in value, in varying amounts, primarily dependent upon its location and extent of contamination, if any. Appellant argues that Mr. Acks did not use a generally accepted methodology in formulating his opinions and ignored the 49 sales in the neighborhood.
During the course of the litigation, and prior to trial, appellees’ counsel arranged for any appellee who wished to do so to consult with Abdul Malik, M.D., a psychiatrist. Eighty-seven appellees accepted the offer. Thirteen sought follow up treatment in Dr. Malik’s office. According to appellant, “[ejmotional distress awards were ... entered in favor of 47 non-testifying Plaintiffs.” Appellant asserts that the “overwhelming majority of Plaintiffs either provided no evidence of any physical manifestations of their alleged distress and/or insufficient information about their pre-leak emotional health to allow for a before and after comparison.”
With respect to medical monitoring, appellant observes:
With only a few variations, [damages for medical monitoring] also followed a formula. Each member of a household whose potable well ever had a MTBE reading above 0.5 ppb, received 100% of their claimed costs for future medical monitoring. Each member of a household whose potable *84 well ever had an MTBE reading of less than 0.5 ppb, received 50% of their claimed costs for future medical monitoring. Each member of a household whose potable well never tested positively for MTBE, received 25% of their claimed future medical monitoring costs.
(Extract references omitted.)
Thus, appellant argues:
(1) The jury’s finding that each property was worthless was not supported by any evidence and was contrary to all the evidence. Appellant points to Mr. Acks’ testimony that the decrease in value ranged from 30 to 60%; the post-leak sales for substantial prices; the refinancings and corresponding appraisals; the lack of restrictions on use of most properties; and the evidence that a certain number of properties—appellant says 13—were never contaminated and, according to appellees’ expert, were not likely to become contaminated. Additionally, appellant acknowledges that a certain number of owners, (appellant says 7, appellees say 22), opined as lay witnesses that their properties were worthless, but appellant argues that the evidence had no probative value, or if it did, it was limited to the homes of those owners.
(2) Mr. Acks should not have been permitted to testify.
(3) Fear of cancer or other serious latent disease is not compensable absent evidence of exposure and evidence that the person has a reasonable probability of contracting such a disease. Not all appellees proved exposure. Moreover, while the testimony by appellees’s expert was that an exposure increases the risk of cancer, there was no evidence that the risk was substantial or significant.
(4) With respect to emotional distress generally, in addition to the above, almost all appellees failed to prove any physical injury necessary to support a recovery.
(5) A medical monitoring claim is not recognized in Maryland, and for reasons similar to the emotional distress claims, the evidence was legally insufficient.
*85 (6) The awards were formulaic, and the jury did not make individualized assessments.
Appellees observe:
The Plaintiffs all shared in the destruction of their property values, the disfigurement of the surrounding land, the noise, inconvenience and unsightliness of the equipment, the stadium lighting, the influx of hoards of remediation crews working 24/7, the exposure to gasoline and its constituents from their drinking water, and the emotional distress, anxiety and fear that results from having life as they knew it turned completely upside down.
Appellees also observe that Kenneth Rudo, Ph.D, a toxicologist who testified as an expert witness on their behalf, testified that MTBE is a mutagen that causes changes in DNA, and therefore, there is no safe level of exposure.
Appellees contend:
(1) Appellant waived all issues raised on appeal, by affirmative representation, acquiescence, consent, and concession. Appellees explain that appellant’s counsel tried the cases by telling the jury that it would accept their decision on compensatory damages in exchange for not ruling against it on fraud and punitive damages.
(2) The evidence supported the jury’s determination that the properties were worthless. Appellees assert that 22 ap-pellees testified that their properties were worthless, there was substantial interference with the use of the properties, the well water was not drinkable, there was a stigma in the neighborhood, and there was noise, lighting, and other remediation efforts.
(3) Mr. Acks’ testimony was properly admitted. He explained his methodology, and he took the post-leak sales into account.
(4) With respect to the non-economic damages, appellees support the instructions given and assert that the evidence was legally sufficient to support the awards. There was evidence of increased risk of cancer, of cellular mutation, and *86 of physical manifestations of distress. Appellees suffered intangible consequences such as inconvenience and embarrassment from the interference with the use of their properties in addition to the emotional distress, and that both was included in the non-economic loss awards.
(5) The awards were not formulaic, and the fact that the awards were similar was supported by the evidence.
(6) Damages for medical monitoring should be permitted in Maryland, and the evidence was sufficient to support the awards.
III. Summary of evidence at trial
A. Appellees’ experts
As mentioned above, some appellees consulted Dr. Malik, who was associated with Psych Associates of Maryland. At the beginning of trial, the parties stipulated, as to 57 appel-lees, that if a witness from Psych Associates were called to testify, the witness would testify that each appellee was diagnosed with a disorder, as identified in an attached exhibit, that was caused by, or exacerbated by, the leak. The stipulation (hereinafter “the Stipulation”) included a recitation that appellant disagreed with the expected testimony and asserted that none of the appellees “have suffered permanent psychological injuries or long term emotional distress.”
The evaluation by Psych Associates for each appellee consisted of an interview that lasted 45 minutes to an hour. The information that the evaluator had was the self-reported information by appellees. The evaluator did not have medical records for the appellees, that pre-existed February, 2006, and did not speak to any personal physicians of the appellees.
Eight of the appellees covered by the Stipulation had a preexisting psychological condition that, at some point, had required psychotherapy, counseling, or medication. With respect to appellees covered by the Stipulation, Dr. Malik did not recommend therapy or counseling for 36 appellees; recommended treatment for 21 appellees with no prior history of *87 treatment for emotional distress; and advised 4 appellees with preexisting conditions to continue therapy.
The Stipulation included the following.
(A) Anxiety Disorders—Anxiety disorders are described in the DSM [Diagnostic and Statistical Manual of Mental Disorders] and categorized by the severity of symptoms and length of time the symptoms are experienced by the patient. Acute Stress Disorder is characterized by symptoms similar to those of Post Traumatic Stress Disorder that occur immediately in the aftermath of an extremely traumatic event. Generalized Anxiety Disorder is characterized by at least 6 months of persistent and excessive anxiety and worry. “Anxiety Disorder, Not Otherwise Specified (NOS)” is included for coding disorders with prominent anxiety or phobic avoidance that do not meet criteria for any of the specific Anxiety Disorders defined in this section (or anxiety symptoms about which there is inadequate or contradictory information). This Diagnosis is used to describe individuals who experienced temporary anxiety with symptoms which subsided in less than six (6) months.
(B) Adjustment Disorder
An adjustment disorder is a psychological response to a stress that results in emotional or behavioral symptoms. Adjustment disorders can be Acute (less than 6 months) or Chronic (greater than 6 months). The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioral symptoms in response to an identifiable psychosocial stressor or stressors. The symptoms must develop within 3 months after the onset of the stressor(s) (Criterion A). The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor, or by significant impairment in social or occupational (academic) functioning (Criterion B). The stressor may be a single event (e.g., termination of a romantic relationship), or there may be multiple stressors (e.g., marked business difficulties and marital problems). *88 Stressors may be recurrent (e.g., associated with seasonal business crises) or continuous (e.g., living in a crime-ridden neighborhood). Stressors may affect a single individual, an entire family, or a larger group or community (e.g., as in a natural disaster). Some stressors may accompany specific developmental events (e.g., going to school, leaving the parental home, getting married, becoming a parent, failing to attain occupational goals, retirement).
(C) Mood Disorder
Depression disorders are described in DSM under the heading of “Mood Disorders” and are categorized by the severity of symptoms and the length of time the symptoms are experienced by the patient. Major Depressive Disorder is characterized by one or more Major Depressive Episodes (i.e., at least 2 weeks of depressed mood or loss if interest accompanied by at least four additional symptoms of depression). Dysthymic Disorder is characterized by at least 2 years of depressed mood or more days than not, accompanied by additional depressive symptoms that do not meet criteria for a Major Depressive Episode. When a patient’s symptoms of depression do not persist for two (2) weeks or more they are diagnosed with “Depression,” “Depressive Disorder” or “Depressive Disorder Not Otherwise Specified (NOS).”
Dr. Malik testified at trial with respect to certain appellees who were not the subject of the Stipulation. We will include Dr. Malik’s diagnoses when we discuss each appellee, below (appendix).
The parties entered into a similar stipulation with respect to the testimony of Nachman Brautbar, M.D. 6 The parties agreed that, if called to testify, Dr. Brautbar would state that all appellees require medical monitoring. The stipulation provided: “[biased on the opinions of Kenneth Rudo and my understanding of the nature and extent of Plaintiffs’ exposure to *89 MTBE, I believe the following tests for examinations should be performed as part of an annual medical monitoring protocol.” Dr. Brautbar recommended annual tests for testicular cancer, kidney cancer, liver cancer, and hematolymphatic cancers. He estimated the cost as $2,000 per appellee, per year.
The test results for both potable and monitoring wells for the time period post-leak and prior to trial were admitted into evidence. A chart showing the maximum detection levels for all wells was admitted into evidence.
Harvey Cohen, a geologist with a specialty in hydrogeology, testified as an expert for the appellees. In essence, he testified about the movement of ground water generally, the function of potable wells, his mapping of test results, and his opinion about future contamination. Through the use of exhibits, he described the location of appellees’ properties and the wells. He opined that, at any given point in time post-leak through April, 2007, 66 properties had a detectable amount of MTBE, and 5 had a detectable amount of benzene. He also described the levels of contaminants found in monitoring wells in the same time period. His exhibits displayed the maximum concentrations, whenever recorded. They did not purport to depict the situation at a given point in time. Mr. Cohen testified that the plume, or area of contamination, is ever-changing because of the movement of ground water. He identified 24 properties with no detected contamination, and another 30 wells with a chemical detection level under 0.5 ppb. He described the potential for contamination in the 24 potable wells not previously contaminated. Two were described as having high potential, 5 as having medium potential, and 17 as having low potential. Mr. Cohen could not predict which well or wells might become contaminated in the future or when; he opined only as to probability.
The witness testified that no wells had been abandoned and none had been condemned. He acknowledged that MTBE and benzene degrade over time. He did not evaluate the remediation effort and did not assess its efficacy. Twenty-two potable wells were located inside the plume. Mr. Cohen *90 expressed no opinion as to whether chemical containing vapors were present in any of the homes.
Edward Sullivan, a geologist with a specialty in hydrogeolo-gy, employed by the Whitman Companies, also testified as an expert for the appellees. He described underground fractures, aquifers, and the movement of ground water generally. He testified that the chemicals in question are soluble, therefore, when the liquid gasoline is all gone, dissolved chemicals remain that can migrate in the ground water, through fractures in the rock formations. He opined that the detected levels of chemicals on the 66 properties mentioned above were likely caused by the leak. He opined that the Baigs’ and Libertinis’ potable wells likely would be contaminated in the future. He stated that the remediation effort was being conducted under the supervision of the MDE, but offered no opinion as to the amount of contamination being captured by the effort. He stated, however, that contamination forced down into the deeper bedrock would likely not be recovered, and it would be difficult to determine its movement.
Kenneth Rudo, a toxicologist, also testified as an expert witness for the appellees. Mr. Rudo was employed by the State of North Carolina. He stated there is a relatively small body of knowledge in existence relating to MTBE because it has been used in gasoline for only about 20 to 30 years. He opined that MTBE is a probable human carcinogen and a probable human mutagen. He explained that MTBE exposure can occur through ingestion, bathing or other skin contact, or breathing vapor containing MTBE. He stated that exposure produces an increased risk of cancer. The witness testified that he could not state that any of the appellees would, more likely than not, get cancer as a result of the leak.
On direct examination of Dr. Rudo, the following colloquy occurred:
Q. And now specifically, and I don’t want to spend a lot of time on this, the jury will have and they have elaborate records of the levels of MTBE that the various plaintiffs were exposed to. There is a list of 66 plaintiffs, 66 families *91 comprising approximately two hundred or two hundred and fifty of our plaintiffs, but 66 families on Exhibit 8 and 8A and I’m not going to waste your time to show it to you, I would just remind the jury, that they have had contamination in their drinking water?
A. This is true.
Q. And while not yet in evidence because the expert hasn’t testified yet, I will just mark it for identification as Plaintiffs Exhibit 88, you are aware of the fact that we have asked Dr. Whitman, an environmental engineer, to opine as to whether or not my clients were exposed to contamination in their drinking water before they knew about the spill. In other words, during the period of time when the leak occurred on January 13th, until it was publicly acknowledged on February 17th, February 18th, they would have gone about their life drinking the water, cooking, bathing, whatever, not knowing that there was this 26,000 gallon leak?
A. Yes.
Q. And those 40 people—I’m not going—it is 39. Those 39 people are identified and it will be explained in detail by Dr. Whitman later in the case, but those 39 people that would have been going about their life during those 37 days and consuming the water on Plaintiffs Exhibit Number 88, so the record is clear of what I’m talking about, you would agree that the exposures to the various plaintiffs vary from plaintiff to plaintiff?
A. Yes.
Q. And the amount of contamination in their wells varies not only from plaintiff to plaintiff but from test to test?
A. Yes, sir.
Q. Now, with that in mind, can you state to a reasonable degree of probability in your field as a toxicologist that each of the plaintiffs that I have just described is in fact at an increased risk for developing these cancers in the future?
A. Yes, they are.
*92 Q. And what is it about the exposure of any kind? Because they do vary from levels that are below one part per billion to levels that I think the highest level, 47.7 parts per billion, explain to the jury the—how you parse through the levels of exposure, the levels of contamination that they were exposed to and how you were able to conclude that even at these low levels in some of the plaintiffs’ wells they were exposed to a level that will likely put them at increased risks for cancers in the future?
A. Well, Number one, they were most certainly exposed. They had the positive [well] tests, you know, had exposure to a chemical that we consider more likely than not to be carcinogenic. Because we also consider it to be more likely than not a mutagenic chemical that can change DNA, that that implies that in essence there is no safe level; there is no safe level in terms of exposure time and there is no safe level in terms of the amount of chemical that is there. So in essence, the safe level would be considered zero. Anything over and above that would increase the risk.
(Emphasis added). Dr. Rudo did not offer opinion testimony as to increased risk of any specific appellee other than the 39 appellees referenced in the emphasized question.
Later, in Dr. Rudo’s direct examination, the following occurred:
Q. So the exposure to MTBE causes mutations of the human cells?
A. Yes.
Q. Can you state to a reasonable—I know you couldn’t state to a reasonable degree of scientific certainty that any one client was going to get cancer, so I want to juxtapose that with can you state to a reasonable degree of scientific certainty that the plaintiffs that have been exposed to contamination have in fact had mutations of their cells?
A. Yes, more likely than not they have.
Dr. Rudo also opined that all persons exposed to the chemicals in question should have medical monitoring. He was asked if he knew that appellant had provided five families *93 with point of entry carbon treatment systems for their wells. He replied in the affirmative and opined that all plaintiff families should be provided with a point of entry carbon treatment system. He stated that, to be effective, the system must be regularly maintained. He testified that the cost of such a system is approximately $7,000. 7
On cross-examination, Dr. Rudo acknowledged that Americans routinely are exposed to MTBE and benzene in their everyday lives. The chemicals are in the ambient air. In addition, when a person operates and refuels a vehicle, he or she is exposed to these chemicals. Dr. Rudo acknowledged that in North Carolina the safety standard for MTBE was higher than the one he had just advocated as safe. He also acknowledged that he had proposed lowering the North Carolina standard to 11.6 ppb for MTBE, a standard that was not adopted and was also higher than what he opined was safe.
Dr. Rudo did not interview any of the appellees with respect to whether and to what extent they used potable well water. He did not conduct air sampling. He did not calculate how much chemical or for what period of time a chemical was in a well. He did not test appellees for evidence of exposure. He had no exposure information about any particular appellee and had no information about any symptoms experienced by any appellee. He could not quantify any appellee’s exposure to either MTBE or benzene and he could not quantify any increased risk of cancer. He had no information about any exposure by any appellee to soil contamination, or to contaminated vapors, and no information about exposure to any contamination in monitoring wells.
Kenneth Acks testified for the appellees as an expert in “environmental economics” and real estate appraisal. The parties stipulated to the pre-leak value of each property. Relying on that stipulation and information prepared by other appellees’ experts, Mr. Acks rendered an opinion as to the *94 diminished value of each property involved. He utilized information which showed well readings taken after the leak and before trial on the various properties, and an exhibit prepared by Mr. Sullivan, reflecting Mr. Sullivan’s opinion as to whether properties with no contamination had a low, medium, or high probability of becoming contaminated in the future. Mr. Acks concluded that properties with evidence of contamination had decreased in value by 60%; properties with a high chance of future contamination had decreased in value by 50%; properties with a medium chance of future contamination had decreased in value by 45%; and properties with a low chance of future contamination had decreased in value by 30%.
On cross-examination the following occurred:
Q. And in your analysis, you didn’t conclude that any of the homes had been diminished in value 100 percent, am I correct?
A. Correct. But once again, the prior qualification I had if this assumes a willing buyer and willing seller, if the seller is not willing to sell a contaminated property, then one could argue that the value is zero.
Q. And with respect to this case, as I understand it, you haven’t actually quantified the diminution in any of the Plaintiffs’ property values caused by stigma in this particular case?
A. Not separately, but effectively it’s been included in my calculations.
Q. But you didn’t quantify stigma and set it out and say to people here’s what the lasting effect of contamination will be because of this incident?
A I didn’t see any need to.
Mr. Acks stated there is a recognized phenomena sometimes referred to as the “life cycle of the effect of contamination on property values.” He testified that the maximum effect “occurs immediately after the incident but before cleanup takes place,” and the impact decreases over time during *95 remediation and after the completion of remediation. The impact also lessens the farther the property is from the source of the contamination. He added that, because of “stigma” in a particular situation, the property value “doesn’t necessarily come all the way back.” Mr. Acks opinion estimating property values in these cases was as of February 16, 2006. He stated he was not hired to do an analysis of fluctuations in property values after that date or the effect of any lingering stigma. He did not do an individual analysis of value for any particular property. Rather, he performed an “estimate overall, and it’s an expected probability.”
On redirect, Mr. Acks testified that, if appellant is unable to remove all of the contamination from the ground, that would have a “very significant” effect on property values. He also stated that, after he finished his report, more properties showed evidence of contamination than existed when he was preparing his report. Thus, with respect to the life cycle, he stated:
Well, it was implicitly—as I say, I did this preliminary estimate and then certain facts came to light that would have lowered the estimate, but more facts came to light that would have raised the estimate. So there were several factors considered and that was—that was—it counter-balanced the other life cycle effects talked about earlier.
Dr. Ira Whitman, Ph.D, a civil engineer, testified for the appellees as an expert in environmental engineering. He worked with Mr. Sullivan and Mr. Cohen, describing himself as the quarterback. He discussed exhibits showing the area of contamination and the readings. He noted that, as of the date of his report, 50 homes had shown some contamination at some point in time, and that number later rose to 66 homes. The exhibits showed the highest concentrations of a contaminant at the point in time when it was the highest, up until April, 2007. One of the exhibits reflected his opinion as to which potable wells likely were contaminated between January 13, 2006 and February 17, 2006, a total of 38 or 39. That opinion was based on estimates of time, distance, speed of travel of the contaminants, and other probability factors. *96 With respect to the remediation effort, Dr. Whitman stated that “they used appropriate method and appropriate equipment and so on,” but because of the complexity of the geology, they could not know where all of the contaminants are, therefore, “they’re never gonna get everything out....”
Dr. Whitman did not speak to any of the appellees prior to trial. His company performed air sampling in four homes but did not further pursue air sampling. He did not do a time series mapping of the effect of remediation activities. He acknowledged that gasoline attenuates naturally but stated that not all of it does. He did not conduct an attenuation study in these cases.
Jerold Jaynes, Ph.D, an economist, opined about the present value of the cost of future medical monitoring for the appel-lees. He multiplied the remaining years of life expectancy for each appellee by $2,000 per year, increased the cost per year assuming an inflation rate of 3.74%, and then reduced the total to present value, assuming an interest rate of 5.2%.
B. The appellees
The questioning of most of the appellees who testified followed a similar format. Although all topics were not covered with each appellee, and not in the same depth, the subjects included: the nature, extent, and impact of remediation activities on a particular property; the extent to which residents’ outside and/or inside activities were limited; the nature and extent of MTBE and/or benzene contamination on a property as reflected by well readings; whether harmful chemicals not attributable to gasoline were found in wells; the location of each property vis a vis the strike line; the nature and extent of use of well water; the impact of the leak on the value of each property; employment and other financial concerns of appellees; matters related to emotional distress; and appellees’ perceived need for medical monitoring.
We have not included a recitation of the results of testing for the presence of MTBE or benzene on each property and have not included a detailed summary of remediation activities *97 on each property because the detailed information is unnecessary for the resolution of the issues before us. We have concentrated on testimony relating to the claims for emotional distress and diminution in property value, contained in the attached appendix.
All, or almost all, appellees testified that they bought their homes because the homes were in an attractive area and they bought them in reliance on the belief that appellant had a safe leak detection system at the station in question. The testimony revealed that the effect of remediation activities ranged from substantial impact to minor impact, depending on the property’s location. The impact consisted of the location of monitoring wells, piping, and other equipment on certain properties, and the presence of noise, lighting, traffic, and workmen in the neighborhood. Some appellees used only bottled water for drinking prior to the leak, and some did not. Most appellees stopped using well water for drinking after the leak, and a few did not. Some appellees used well water for cooking after the leak, and some did not. Most, but not all, appellees used well water for bathing after the leak. None of the appellees had their well water tested at the faucet and none had water vapors tested inside of their houses. Some appellees testified that they would like to move if they could. Most appellees stated they did not intend to move. Most appellees testified that there was a “stigma” to the neighborhood. As noted above, several appellees testified that the impact of the leak caused their homes to have no value. Most appellees stated they experienced employment and other financial concerns. After the leak, some appellees installed whole house carbon filter systems, but most did not. All testifying appellees opined that they needed annual medical monitoring.
With respect to emotional distress, almost all appellees expressed fear of cancer, fear of other latent disease, fear of the unknown, and the litigation itself. It is necessary, because of the nature of the issues relating to legal sufficiency, to set forth appellees’ testimony in some detail. We have a duty to *98 apply the law to each case and each party. We set forth the detail in the appendix.
At this point, we shall merely briefly summarize the nature of the complaints. Some appellees testified to none of the following complaints, and others testified to one or more of the following complaints. They were anxiety, sleeplessness, anger, worry about health and finances, headaches anxiousness, stress, frustration, embarrassment, depression, upset stomach, and panic attacks. Some appellees consulted with Dr. Malik, and others did not. Some appellees sought treatment, and others did not. The nature and extent of the distress varied. Some appellees testified that they experienced emotional/psychological issues prior to the leak and some had sought treatment. Some appellees testified to issues relating to their marriage or other relationships, concerns about their health or health of family members unrelated to the leak
C. Appellees’ liability witnesses
Appellees called several witnesses to testify with respect to the fraud claim, relating to appellant’s failure to detect the leak prior to February 16, 2006 and alleged concealment of information before and after the leak. We will not summarize that testimony because it is not necessary for the resolution of the issues before us. 8
D. Appellant’s evidence
Because of the nature of the issues before us, it is unnecessary to review in detail the testimony of the defense witnesses, particularly those who testified about the leak detection equipment at the service station and its maintenance. We will briefly comment on some of the testimony relating generally to health and property issues.
*99 Gary Krieger, M.D., testified that all people in this country are exposed to carcinogens and mutagens every day, including in food and water that is consumed. That includes MTBE and benzene. He emphasized that the dose is the issue, Le., mere exposure does not cause cancer. He described the government standards for MTBE and benzene and observed that even the persons with the highest potable well readings, assuming exposure during the entire time period before trial, were exposed at levels well below even the lowest, ie., most stringent, government standards, such as those in California. He opined that the risk of disease the appellees faced was no different than the risk of disease for the general population.
Ronald Lipman, a real estate appraiser, testified that, in 2007 and 2008, there was a general downturn in the real estate market everywhere. He opined that the effect of the leak on property values ranged from 0% to 15%, depending on the property. 9
Gregory Martin described the remediation efforts conducted pursuant to a consent order entered into between appellant and MDE. Pursuant to that order, appellant filed a corrective action plan and intends to continue efforts until the remediation goals are met.
Herbert Meade, administrator for the oil control program in MDE, defended the State standard for MTBE as protective of human health. He noted that MTBE is the most frequently found contaminant in ground water in the State. With respect to the properties in these cases, he stated that some needed filter systems and others should have them as a precautionary matter, but that the potable well water is safe to drink. He acknowledged that, because of the lack of human studies, he did not know the long term effects of exposure to MTBE.
*100 Thomas Maguire discussed the nature of a leak and how gasoline and its contaminants are dispersed, removed, or naturally attenuated. He described the life cycle of a plume as initially expanding, then reaching equilibrium, which occurs when the rate at which the contaminants are dissolving equals the rate of attenuation. He opined that the plume for this leak had stabilized, meaning the residual contaminants were trapped and immobile. He acknowledged there likely was still some residual contamination which, in the future, would be removed as part of the remediation efforts, or would be naturally attenuated.
IV. Waiver
Appellees contend that appellant waived its right to appeal by agreeing to acquiesce in the jury’s verdict for compensatory damages if the jury did not award punitive damages. We agree with the discussion in the section labeled “DISCUSSION I. Waiver” of J. Zarnoch’s opinion.
V. Admissibility of Mr. Acks’ testimony
Appellant contends that the circuit court erred in admitting the opinion testimony of Mr. Acks because it lacked a sufficient factual basis and did not employ a recognized methodology. We agree with the discussion in the section labeled “DISCUSSION II. Admissibility of Expert Testimony” of Judge Zarnoch’s opinion.
VI. The law relating to emotional distress
A. Personal injury versus property damage and compensable elements of each
Appellees sued on several causes of action, claiming essentially the same damages as to each. At trial, they sought to recover damages for the diminution in value of their properties; the loss of use and enjoyment of their properties; intangible negatives such as annoyance, embarrassment, inability to use their yards, noise, dust, unusual traffic, and the like; worry and concern about the loss in value in their properties; emotional distress in the form of fear of cancer or other latent *101 disease; and the costs of medical monitoring for cancer or other latent disease. 10
In analyzing the issues in this appeal, and in particular the issues relating to emotional distress, we must distinguish between what is recoverable as damages in an action for personal injury and what is recoverable as damages in an action for property damage. Maryland does not recognize the tort of negligent infliction of emotional distress. In other words, in this State, a person does not owe a duty in tort to exercise care to protect other people from experiencing emotional distress. However, in personal injury actions based on recognized torts, emotional distress damages sometimes are recoverable. For instance, when tortious conduct causes a physical injury, the injured person may recover damages for emotional distress attendant to the physical injury. Also, in some circumstances, emotional distress damages may be recovered for fright or for fear for human health or safety. See VI. B.
Generally speaking, emotional distress attendant to property damage is not compensable. Thus, the distress a property owner may experience over injury to his or her property— including the fear of financial difficulty due to a loss in value of the damaged property—is not compensable. H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49 , 338 A.2d 48 (1975), abrogated on other grounds by Owens-Illinois v. Zenobia, 325 Md. 420, 448-49 , 601 A.2d 633 (1992) (stating that “Maryland decisions have generally denied compensation for mental anguish resulting from damage to property”); State, use of Aronoff v. Baltimore Transit Co., 197 Md. 528, 539 , 80 A.2d 13 (1951) (explaining that “all the authorities seem to hold that a plaintiff cannot recover for injuries resulting from fear or shock at the injury to his personal property!,]” as opposed to injury to the person). An exception to the rule exists when *102 “the act occasioning the injury to the property is inspired by fraud, malice, or like motives.” Zeigler v. F. Street Corp., 248 Md. 228, 226 , 235 A.2d 703 (1967) (citations omitted). Given the verdict in favor of appellant on the fraud claim and on punitive damages, the exception does not apply in this case.
When an action is premised on injury to property, damages may be recovered for loss of value and for infringement upon the owner’s use and enjoyment of his property. The latter may include compensation for annoyance, embarrassment, and similar intangible negatives. Although damages of that sort implicate human emotions, they are not damages for personal injury; they are damages recoverable as attendant to the inability to use one’s property in the same manner as before the damage.
The general prohibition against recovery of damages for emotional distress resulting from injury to property applies not only to claims brought by a property owner in negligence, trespass, and strict liability but also to a claim brought by a property owner in nuisance. Maryland courts have adopted the definition of private nuisance set forth in Section 821D of the Restatement (Second) of Torts: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” See Rosenblatt v. Exxon, 335 Md. 58, 79 , 642 A.2d 180 (1994); Echard v. Kraft, 159 Md.App. 110, 116 , 858 A.2d 1018 (2004); and Exxon v. Yarema, 69 Md.App. 124, 147 , 516 A.2d 990 (1986). Comment (a) to that section explains that, under old English law, an action would lie for interference with possession of property, i.e., trespass, but not for a non-possessory interference with property. The concept of nuisance was developed to secure free enjoyment of property, as well as its possession.
Comment (b) of section 821D explains:
‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his or freedom *103 from detrimental change in the physical condition of the land itself. This interest in freedom from annoyance and discomfort in the use of land is to be distinguished from the interest in freedom from emotional distress. (See § 46)[ 11 ] The latter is purely an interest of personality and receives limited legal protection, whereas the former is essentially an interest in the usability of land and, although it involves an element of personal tastes and sensibilities, it receives much greater legal protection.
In other words, a property owner cannot circumvent the prohibition against recovery of emotional distress damages for injury to property by arguing that fear he or she is experiencing due to injury to property has negatively affected his or her use and enjoyment of the property. See Hall v. Lovell Regency Homes, 121 Md.App. 1, 26 , 708 A.2d 344 (1998) (holding that the trial court property instructed the jury that it could not award damages for “loss of use and enjoyment” of homeowners’ properties where: “[w]hen pared to their essence, the ‘loss of use and enjoyment’ damages that the homeowners sought were damages for mental distress attendant to their claimed pecuniary injuries”; the trial court ruled that “the homeowners could not recover damages for mental distress”; and “that ruling [was] not challenged on appeal”). Indeed, in Maryland nuisance cases, when recovery for emotional distress was permitted under a “loss of use and enjoyment” theory, the distress arose from fear for human health or safety. See, e.g., Gorman v. Sabo, 210 Md. 155, 161, 163 , 122 A.2d 475 (1956) (permitting recovery when the defendant intentionally, maliciously, and constantly blared radio music towards a married couple’s home, for the wife’s “deterioration in physical and nervous condition,” and the husband’s “irritable and nervous” condition, which resulted in part from watching his wife deteriorate); Green v. Shoemaker, 111 Md. 69, 77-80 , 73 A. 688 (1909) (allowing recovery for “fright and nervousness” when the defendant’s blasting activities over a several *104 month period caused rocks to fall on plaintiffs house, putting plaintiff “in continual fear and jeopardy of her life,” and causing her “nervous prostration”).
Emotional distress damages for perceived and potential harm to human safety only may be recovered if the evidence satisfies causation and physical manifestation requirements. It is recoverable as an injury to the person, not to property; thus the distress must result from the threat to human safety.
In addition, stress attributable to litigation is not compensa-ble. The jury was so instructed when these cases were tried (“emotional distress whether resulting from the testimony they heard or the general rigors of the litigation process is not compensatory”). There was no exception taken to the instruction, and presumably, that issue is not in dispute.
Although some of the evidence in these cases was inadmissible, we are not addressing admissibility of evidence issues because none are before us. What is before us are sufficiency of evidence issues. In that regard, as is clear below, admitted evidence, even if inadmissible if challenged, does not mean the evidence is legally sufficient.
Similarly, while we do not agree with all of the court’s instructions to the jury relating to damages, the instructions are not before us because there were no exceptions relevant to the issues. The instructions did not clearly differentiate between negatives attributable to damage to property versus emotional distress, ie., distress resulting from perceived danger to the person, resulting in physical manifestations. Nevertheless, the instructions drew a distinction between claims for property damage and claims for personal injury. They properly treated emotional distress as a claim of harm to the person. The verdict sheets reflected the property damage claims as “diminution in value” and “medical monitoring” and the personal injury claim as “emotional distress” (the non-economic portion).
Regardless of whether the jury fully understood the difference between the intangible negatives of a loss of use and enjoyment claim, which properly may be recoverable in a *105 property damage claim, and emotional distress related to a threat to human safety that produces physical manifestations, which properly may be recoverable in a personal injury claim, we are able to address the sufficiency of evidence issues related to emotional distress for the following reasons. One issue is whether the evidence was legally sufficient to satisfy the exposure requirement, the physical manifestation requirement, and the causation requirement, i.e., whether emotional distress was caused by a perceived threat to human safety occasioned by the leak. The issue of legal sufficiency is not affected by whether the jury considered annoyance, embarrassment, or other intangible negatives as part of the emotional distress claim. The other legal sufficiency issue is whether the evidence was legally sufficient to support the claim for fear of contracting a future latent disease. Again, the issue is not affected by whether the jury considered annoyance, embarrassment, or other intangible negatives as part of the emotional distress claim.
As explained below, appellees who presented legally sufficient evidence of exposure and physical manifestation of emotional distress will be remanded for new trials, but without claims based on fear of future latent disease.
We shall proceed to a discussion of Maryland law as it relates to emotional distress claims generally.
It. Emotional distress generally—physical manifestation requirement
Recovery may be had for emotional distress arising out of otherwise tortious conduct, as an element of damage, not as an independent tort. Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 62-63 , 502 A.2d 1057 (1986). In other words, as noted above, Maryland does not recognize the tort of negligent infliction of mental distress as distinguished from the tort of intentional infliction of mental distress.
Traditionally, recovery for emotional distress as an element of damage required a physical injury or, in some instances, a physical impact. Vance v. Vance, 286 Md. 490, 496-97 , 408 *106 A.2d 728 (1979). In Bowman v. Williams, 164 Md. 397 , 165 A. 182 (1933), the plaintiff claimed emotional distress caused when the defendant’s negligently operated truck crashed into the plaintiffs house. Prior to the impact, the plaintiff observed the truck coming towards his house and feared for the safety of his sons, who were in the basement. When the truck crashed through the foundation of the house, the plaintiffs nervous system went into shock, causing him to fall to the floor. He remained bed-ridden for several weeks and was unable to work for six months. He had not been hit by the truck or physically injured by it in some way.
In the plaintiffs negligence action against the truck driver, the Court of Appeals held, nevertheless, that “a plaintiff can sustain an action for damages for nervous shock or injury caused, without physical impact, by fright arising directly from defendant’s negligent act or omission, and resulting in some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Id. at 404 , 165 A. 182 .
In Vance, supra, Muriel Vance, the plaintiff, sought and obtained a decree awarding her alimony and child support after her husband of eighteen years, Dr. Arnold Vance, left her and their two children for another woman. Id. at 492 , 408 A.2d 728 . Dr. Vance immediately filed a motion to strike the decree and annul the marriage on the ground that it was void because Dr. Vance was not divorced from his first wife when he purported to marry Muriel. Although Dr. Vance had believed his divorce was final at the time he married Muriel, he learned nearly a month after the marriage that his divorce decree had become final several weeks after his purported marriage to Muriel. Id. Dr. Vance, however, never disclosed this fact to Muriel prior to filing his motion to strike. Thereafter, Muriel sued Dr. Vance, for, inter alia, compensatory damages for emotional distress that she claimed to have suffered as a result of Dr. Vance’s negligent misrepresentation over their eighteen years of marriage, concerning his marital *107 status at the time of their ostensible marriage. Id. at 492-93 , 408 A.2d 728 .
Interpreting Bowman , the Vance Court noted several means by which the requisite “physical injury” resulting from emotional distress may be proved. The first few categories, according to the Court, “pertain to manifestations of a physical injury through evidence of an external condition or by symptoms of a pathological or physiological state.” Id. at 500 , 408 A.2d 728 . Importantly, the Court stated that a physical injury can be proven “by evidence indicative of a mental state.... In the context of the Bowman rule, therefore, the term ‘physical’ is not used in its ordinary dictionary sense ... [, but is instead used] to represent that the injury for which recovery is sought is capable of objective determination.” Id. (emphasis added).
Then, turning to the facts of the case, the Vance Court cited evidence that upon learning that her marriage was invalid Muriel (1) went into a state of shock, (2) engaged in spontaneous crying and seemed detached and unaware of her own presence, (3) was unable to function normally, sleep, or socialize, (4) experienced symptoms of an ulcer, and (5) suffered an emotional collapse and depression, which manifested itself through unkept hair, sunken cheeks, and dark eyes. Applying the “capable of objective determination” standard, the Court concluded that Muriel had suffered a compensable injury. Specifically, the court held that the evidence supported a jury finding that Dr. Vance’s negligent misrepresentation had caused a “physical” injury to Muriel in the form of an objectively manifested nervous disorder that was sufficient to satisfy the “physical injury” requirement, as adopted in Bowman. Id.
The Court revisited this issue, in 1993, in Belcher v. T. Rowe Price Found., Inc., 329 Md. 709 , 621 A.2d 872 , where Carol Belcher, a secretarial employee of the defendant, sought compensation under the Workers’ Compensation Act (the “Act”) for, inter alia, emotional distress she suffered following a construction accident in her workplace. On April 11, 1991, Ms. Belcher was at her desk when a three-ton beam broke *108 loose from a nearby construction crane and crashed, without warning, through the concrete roof above her head, ultimately landing five feet from her desk. Id. at 713 , 621 A.2d 872 . The Court explained the nature of the accident: “The sound was deafening; it was as if a bomb had exploded. The lights in the office went out; pipes and wires were ripped apart; debris sifted over her and her surroundings; concrete dust went down her throat.” Id. Despite immediate trauma counseling provided by her employer, Ms. Belcher “suffered sleep disturbances, nightmares, heart palpitations, chest pain, and headaches.” Id.
The primary issue before the Court in Belcher was whether “injury,” as used in the Act, encompassed psychological, emotional, or mental injuries, as distinguished from injuries that are purely physiological in nature, and clearly are encompassed within the Act. Id. at 719 , 621 A.2d 872 . To address that issue, the Court set out to determine how Maryland law has treated non-physiological, emotional injuries. In its discussion, the Court citedva number of cases, including Bowman , ultimately concluding that the Vance holding that damages may be recovered for emotional distress capable of objective determination was the correct legal standard. Id. at 733-34, 621 A.2d 872 . According to the Court, “the Vance-Bowman standard went far to dispel the fear that the right to damages for emotional distress would open the floodgates to feigned claims,” id. at 734 , 621 A.2d 872 , a concern shared by courts addressing the compensability vel non of emotional distress due to fear of future disease. See VI. C. As the Belcher Court stated, “Vance adequately answered the troubling basic policy issues surrounding [claims for damages stemming from] negligently inflicted emotional harm by requiring that such harm be capable of objective determination.” Id. at 735 , 621 A.2d 872 . As a result, the Court ultimately concluded that Ms. Belcher was entitled to pursue her emotional distress claim under the Act.
More recently, in Hunt v. Mercy Med. Ctr., 121 Md.App. 516, 520 , 710 A.2d 362 (1998), this Court had occasion to consider “whether emotional distress from being misdiagnosed *109 with cancer is compensable within [Maryland’s] physical injury rule.” In Hunt , a patient brought a medical malpractice action before what was then the Maryland Health Claims Arbitration Office, after he was misdiagnosed with prostate cancer and had undergone fifteen unnecessary radiation treatments as a result. Id. One of the patient’s claims for damages related to his alleged emotional distress regarding whether he had cancer. Prior to the arbitration hearing, the patient died, and Carol Sue Hunt, the personal representative of his estate, was substituted in his place. Id. at 520-21 , 710 A.2d 362 . The arbitration panel found that the health care providers were not liable. Id. Soon thereafter, Ms. Hunt filed a complaint in circuit court and the defendants filed motions for summary judgment, which were granted without explanation. Id. at 523 , 710 A.2d 362 .
On appeal to this Court, the defendants argued, inter alia, that the patient had not suffered a cognizable physical injury under Maryland law. Id. at 523-24 , 710 A.2d 362 . Citing Vance , we disagreed, stating:
A compensable ‘physical injury may be demonstrated simply by evidence of a distressed mental state. Therefore, although we may casually characterize a purported injury as being either physical or emotional in nature ..., the distinction is merely descriptive and not of legal significance. The doctrinally correct position is that an emotional injury (such as mental anguish or emotional distress) may come within the ambit of the ‘physical injury’ rule by virtue of its outward manifestations. The only limitation on recovery for an emotional injury, imposed to guard against feigned claims, is that the injury must be ‘capable of objective determination.’
Id. at 524-25 , 710 A.2d 362 (footnotes and citations omitted).
Although we offered no precise definition in Hunt of the type or degree of physical manifestation of emotional distress that must be shown, we did state that an emotional injury need not result in a “dearly apparent and substantial physical injury” to be compensable. Id. at 525, n. 4 , 710 A.2d 362 *110 (commenting that this language is traceable to Bowman , but did not survive Vance and, further, that “we have applied the ‘capable of objective determination’ standard exclusively in our post-Belcher cases”). In addition, we discussed three relevant generalizations: (1) “in order for an injury to be capable of objective determination, the evidence must contain more than mere eonclusory statements, ... [and] must be detailed enough to give the jury a basis upon which to quantify the injury;” (2) “a claim for emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury;” and (3) “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,” as “[t]here is no severity prong of the Vance test.” Id. at 531 , 710 A.2d 362 .
Turning to the facts of the Hunt case, we evaluated the three sources of the patient’s emotional distress. First, the deposition of testimony of Dr. Schirmer, whom the patient visited after learning of the erroneous cancer diagnosis, revealed only that the patient “was emotionally upset and he was very skeptical.” Id. at 532 , 710 A.2d 362 . We concluded that that alone did not satisfy the Vance test. The second source of evidence was the patient’s deposition testimony, during which he provided “short, eonclusory statements of his basic emotional state[, which] tended to lack the detail required to render that emotional state capable of objective determination.” Id. at 533 , 710 A.2d 362 . For example, the deposition included somewhat generic statements about the patient’s emotional state, such as “I’m worried,” “I’m concerned,” “I’m scared,” and “I think about what could have happened or what’s going to happen.” Id. at 533-34 , 710 A.2d 362 . The patient also described “frustration,” “stress,” and “aggravation,” and stated “I don’t sleep at night,” and said “I thought I was going to die.” Id. While these statements were considered deficient, the patient made other more meaningful statements in which he described more specific manifestations of his emotional distress, such as “fatigue, sleeplessness, and *111 constipation” that prevented him from conducting normal activities Id. at 533-34 , 710 A.2d 362 . It was not necessary for us to decide whether those statements alone would have been sufficient proof because the third source of evidence—Ms. Hunt’s testimony before the arbitration panel—proved more forceful. She testified that the patient “was extremely tired and extremely upset,” “became more irritable,” “didn’t walk as much,” “couldn’t sleep,” turned down social invitations, and “had a few bowel problems [and] eating problems.” Id. at 536-37 , 710 A.2d 362 . She further stated that the patient was up “every night, walking around” and “was extremely quiet.” Together, the patient’s deposition testimony and Ms. Hunt’s testimony were deemed sufficient to render the patient’s emotional injury capable of objective determination. Id. at 537 , 710 A.2d 362 .
C. Fear of cancer or other latent disease
We begin this discussion by observing that Maryland has steadfastly adhered to traditional notions of causation. For example, Maryland has not applied theories of alternative liability, market share liability, concert of action or enterprise liability. Lee v. Baxter Healthcare Corp., 721 F.Supp. 89 (D.Md.1989). In litigation in which a plaintiff claims to have contracted a latent disease as a result of prior exposure to a substance, the plaintiff must establish that the nature and extent of the exposure was a substantial factor in causing the disease. Eagle-Picher Industries v. Balbos, 326 Md. 179, 210-11 , 604 A.2d 445 (1992) (a plaintiff must show frequency and regularity of exposure); Reiter v. ACandS, Inc., 179 Md.App. 645, 661-662 , 947 A.2d 570 (2008) (must be evidence of exposure on a regular basis over an extended period of time). See also Philip Morris, Inc., v. Angeletti, 358 Md. 689, 755 , 752 A.2d 200 (2000) (in denying class action certification to current and former users of tobacco products, Court stated causation is not subject to general proof; the question is not whether cigarettes are capable of causing a disease; it is whether cigarettes caused a particular plaintiffs disease) (citations omitted).
*112 In Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (1993), the most frequently cited fear of future disease case, the Supreme Court of California decided the proper standard to apply in assessing claims for fear of cancer. In Potter , a toxic exposure case, four plaintiffs who lived adjacent to a landfill alleged that they were subjected to prolonged exposure to various carcinogens that leaked into their water supply after the defendant allegedly illegally disposed of toxic waste. When their negligence suit against the defendant was filed, none of the plaintiffs had contracted any cancerous or precancerous condition, but each faced an enhanced (although unquantified) risk of contracting cancer in the future as a result of their exposure. The plaintiffs sought damages for, inter alia, fear of contracting cancer in the future.
In deciding what standard of proof should be applied in fear of cancer cases, the Supreme Court of California outlined several concerns, including (1) that a low standard of proof could result in a potentially unlimited class of plaintiffs; (2) that allowing recovery by plaintiffs without physical injuries or symptoms likely would harm those plaintiffs with actual and present injuries by reducing the resources of defendants' through increased litigation; and (3) that it is important to maintain judicial economy by creating a definite and predictable threshold for recovery that limits the number of complaints. Ultimately, the Potter Court held that California would allow recovery in tort for fear of cancer due to toxic exposure if the plaintiff already had contracted a physical injury or illness from the exposure or, if not, if the plaintiff proved (1) exposure to a toxic substance which threatens cancer, and (2) that the “fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop cancer in the future due to the toxic exposure.” Id., 25 Cal.Rptr.2d 550 , 863 P.2d at 816 . (emphasis added).
A number of states have declined to allow recovery for fear of cancer absent a present physical injury, such as diagnosis of a disease or manifest physical symptoms thereof. See Brzos- *113 ka v. Olson, 668 A.2d 1355, 1362 (Del.1995) (citing Mergenthaler v. Asbestos Corp. of America, Del.Supr., 480 A.2d 647, 651 (1984)) (noting that “damages for claims of emotional distress or mental anguish (which would include fear of contracting a disease) are recoverable only if the underlying physical injury is shown”); Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky.1994) (stating that under Kentucky law, a physical injury is required as “mere ingestion of a toxic substance does not constitute sufficient physical harm upon which to base a claim for damages”; a plaintiff must prove “some harmful result from the exposure, albeit he need not prove he is already suffering from cancer”); Curran v. Mass. Turnpike Auth. 2 Mass. L. Rep. 260, 1994 WL 879685 at *5, 1994 Mass.Super. LEXIS 546 at *15-16 (1994) (stating that “Massachusetts does not allow recovery for emotional distress damages for fear of future injury,” and that a plaintiff may only recover for mental anguish and fear of developing cancer in the future when there exists a present physical injury); Daley v. A.W. Chesterton, Inc., 2009 PA Super 71 , 971 A.2d 1258, 1264 (2009) (citing Marinari v. Asbestos Corp., 417 Pa.Super. 440 , 612 A.2d 1021 (1992), and Dempsey v. Pacor, Inc., 429 Pa.Super. 404 , 632 A.2d 919 (1993) for the proposition that Pennsylvania’s adoption of the separate disease rule, which allows for plaintiffs to file separate actions for separately diagnosed asbestos-related pathologies, “abolished recovery of damages for fear and increased risk of cancer in cases where cancer had not yet developed”); Sorenson v. Raymark Indus., 51 Wash.App. 954 , 756 P.2d 740, 742 (1988) (indicating that Washington state law requires physical injury or disease and evidence of a significant increased risk as a prerequisite for fear of future disease claim); Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 89 (Tex.1999) (stating that Texas law does not permit recovery for fear of asbestos-related disease where plaintiffs are disease and symptom free); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 528-29 (Fla.Dist.Ct.App.1985) (holding that Florida plaintiffs may recover for fear of claims only where they demonstrate both impact and physical injury). When considered in light of the *114 number of jurisdictions that absent evidence of a present physical disease/injury, wholly refuse to allow recovery for a plaintiffs present fear of contracting a latent disease in the future, the Potter standard, which does not require proof of a present physical disease/injury, is more lenient.
Of those jurisdictions that permit recovery of damages for the present fear of contracting a latent disease in the future, absent evidence of a present physical injury, the standards of proof developed by the courts vary. At the most lenient end of the spectrum is Wetherill v. Univ. of Chicago, 565 F.Supp. 1553, 1559-60 (1983), in which a federal district court applying Illinois law required evidence only of “a reasonable fear, not a high degree of likelihood, that the feared contingency be likely to occur,” along with “a causal link between the fear of future injury and the physical impact (as distinct from injury) of defendant’s tortious conduct.” Id.; see also In re Mooreno-vich, 634 F.Supp. 634 (D.Me.1986) (requiring only proof of causation and that the plaintiffs anxiety be “reasonable”). In Wetherill , the court concluded that the plaintiffs’ prenatal exposure to DES, by itself, satisfied Illinois’s “physical impact” requirement. Id. at 1560 . Having also decided that the plaintiffs’ fear of contracting cancer was reasonable, the court denied the defendant’s motion in limine to exclude all cancer-related testimony on the basis that the plaintiffs’ anxiety was not compensable under Illinois law.
Louisiana also applies a lenient standard in fear of cancer cases. In Maurer v. Heyer-Schulte Corp., a federal district court applying Louisiana law, stated that in order to recover for fear of cancer in Louisiana, a plaintiff must show that his fear is both reasonable and causally related to the defendant’s negligence. 2002 WL 31819160 , at *2-3, 2002 U.S. Dist. LEXIS 24259 , at *8-9 (E.D.La.2002), CCH Prod. Liab. Rep. P16, 473 (citations omitted). Continuing, the court indicated that in order to demonstrate “reasonableness,” a “[pjlaintiff need only show that there is any possibility of acquiring a disease, no matter how remote.” Id. (citations omitted). Despite this standard, the court granted the defendant’s summary judgment motion as the defendant demonstrated that *115 there was no causal link between polyurethane foam-coated breast implants and cancer, and thereby proved that the plaintiffs fear was unreasonable. Id. at *3-4, 2002 U.S. Disk LEXIS 24259 at *12.
A similar standard was applied in Thomas v. FAG Bearings Corp., where the federal district court, applying Missouri law, stated that “a claim for fear of contracting cancer in the future is subject to the same standard of proof as mental anguish,” 846 F.Supp. 1400, 1408 (1994) (citing Bennett v. Mallinckrodt, 698 S.W.2d 854, 866-67 (Mo.Ct.App.1985)), and requires plaintiffs to prove “that the distress resulting from their fear of cancer is medically diagnosable and sufficiently severe to be medically significant.” Id. The court defined “medically significant” as a condition that “is severe enough to require medical attention.” Id. at 1406. Ultimately, the court rejected the plaintiffs’ fear of cancer claims, citing the fact that none of the plaintiffs had been treated by a health care professional for their supposed emotional distress until directed to do so by their attorneys shortly before summary judgment motions were filed. Id. at 1407.
In Day v. NLO, plaintiff workers and visitors at a nuclear weapons plant brought an action against the manufacturer alleging exposure to radiation and claiming emotional distress over their fear of contracting cancer. 851 F.Supp. 869 , 874-75 (S.D.Ohio 1994). Applying Ohio law, the federal district court stated that exposure to a “sufficiently high does of radiation” would itself constitute a physical injury. Id. at 878. Additionally, even absent such a high degree of exposure, the court stated that plaintiffs can recover for fear of cancer if they can demonstrate “exposure to high degrees of radiation ... [and] that their apprehensions of developing cancer are reasonable.” Id. The court, however, did not articulate with specificity any particular factors that would render an apprehension of developing cancer more or less reasonable.
In two cases from the mid-1990s, separate divisions of New York’s appellate court set forth similar, but somewhat competing standards. First, in Doner v. Ed Adams Contracting Inc., *116 the court found unreasonable a plaintiffs claim for fear of cancer based solely upon his exposure to asbestos fibers in the workplace as the plaintiff had suffered no asbestos-related physical injury prior to the action. 208 A.D.2d 1072 , 617 N.Y.S.2d 565 (N.Y.App.Div.1994). In discussing the standard for recovery for fear of future disease, the court stated that “negligent infliction of purely mental suffering” is only permitted where there are assurances of the genuineness of the claim, and “only if the alleged emotional distress is reasonable.” Id. The court further stated that “[mjental anxiety occasioned by the fear of developing a disease is not considered reasonable unless there is, at the very least, some evidence substantiating both actual exposure to the disease causing agent, and a likelihood of contracting the disease as a result.” Id. (internal quotations and citations omitted). As there was no physical injury and no medical testimony or other evidence suggesting it was likely that the plaintiff would develop an asbestos-related disease in the future, his alleged fear and accompanying distress were deemed unreasonable.
Less than one year later, a different division of New York’s intermediate appellate court discussed New York’s standard. In Wolff v. A-One Oil, Inc., 216 A.D.2d 291, 292 , 627 N.Y.S.2d 788 (N.Y.App.Div.1995), the court reiterated its requirement that a plaintiff establish exposure to a disease-causing agent. Rather than requiring the plaintiff to demonstrate “a likelihood of contracting the disease,” Doner, 208 A.D.2d at 1072 , 617 N.Y.S.2d 565 , however, the court stated that a plaintiff must establish a “rational basis” for his fear of developing the disease. Wolff, 216 A.D.2d at 292 , 627 N.Y.S.2d 788 . The court then noted that “[tjhis rational basis has been construed to mean the clinically demonstrable presence of asbestos fibers in the plaintiffs body, or some indication of asbestos-induced disease (i.e. some physical manifestation of asbestos contamination).” Id. at 292 , 627 N.Y.S.2d 788 . Because plaintiffs had not met that test, their fear of cancer claims were dismissed. Id.
Of note, New York courts have consistently cited the Wolff standard, requiring proof of presence of asbestos fibers in the *117 plaintiffs body or proof of asbestos-induced disease, in the years following the two cases cited above. See, e.g., Clearly v. Wallace Oil Co., Inc., 55 A.D.3d 773, 775 , 865 N.Y.S.2d 663 (N.Y.App.Div.2008) (rejecting plaintiffs’ fear claim when there was minimal evidence of exposure and no evidence of physical manifestation of contamination); DiStefano v. Nabisco, Inc., 2 A.D.3d 484, 485 , 767 N.Y.S.2d 891 (N.Y.App.Div.2003) (citing Wolff standard); Prato v. Vigliotta, 253 A.D.2d 746, 748 , 677 N.Y.S.2d 386 (N.Y.App.Div.1998) (same).
In Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648 (Miss.1995), the Mississippi Supreme Court stated that, in the absence of an illness or substantial proof of exposure and medical evidence of possible or probable future disease, claims for fear of future disease would not be allowed. Id. at 658 ; see also South Cent. Regional Med. Ctr. v. Pickering, 749 So.2d 95, 98 (Miss.1999) (same); Donald v. Amoco Prod. Co., 735 So.2d 161, 179 (1999) (same). The plaintiffs in Ferguson had asserted that the defendants were producing a toxic byproduct, dioxin, and releasing it into a river that ran past the plaintiffs’ homes, nearly one hundred miles away from the defendant’s mill, thereby exposing them to an increased risk of developing cancer. The plaintiffs had relied on tests of wildlife in the area to support their fear claims.
Iowa also allows recovery for fear of future disease absent a present physical injury. In Slaymaker v. Archer-Daniels-Midland Co., 540 N.W.2d 459, 460 (Iowa Ct.App.1995), plaintiffs, demolition workers, sued their employer and the owner of a demolished building, alleging injuries resulting from asbestos exposure during the demolition process. None of the plaintiffs produced evidence that they suffered any significant injury as a result of their exposure. Citing Kosmacek v. Farm Service Co-op. of Persia, 485 N.W.2d 99, 105 (Iowa App.1992), the court stated that
[t]o recover for fear of future injury, plaintiffs must show (1) they are aware they possess an increased statistical likelihood of physical injury and (2) from that knowledge there exists a reasonable apprehension which manifests itself in mental distress. The emotional distress must be so severe *118 that a reasonable man or woman must not be expected to endure it.
Id. Thus, although the court did not explain how the degree to which the statistical likelihood of physical injury must increase, it required a showing of severe emotional distress, as opposed to more mundane symptoms of emotional distress. Applying its rule to the facts of that case, the court determined that plaintiffs failed to satisfy each factor of the test.
Utah has similarly adopted a standard that requires proof of severe emotional distress. In Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 975 (Utah 1993), the Supreme Court of Utah concluded that a plaintiff can recover for emotional distress, absent physical injury, resulting from a defendant’s negligence, provided that the emotional distress is so severe that “a reasonable person, normally constituted, would be unable to adequately cope with the [resulting] mental stress.” Id. Further, in those cases “which deal with emotional distress resulting from fear of developing a disease in the future, the fact finder should also consider the likelihood that the disease will actually occur in determining the reasonableness of the fear,” as well as the “duration and nature of the exposure to the toxic substance” in order to ensure that courts receive only those cases involving serious emotional distress. Id. (citations omitted). The court held that the plaintiffs in that case failed to meet these requirements as a matter of law, as they alleged mere “transitory anxiety and sleeplessness,” the types of symptoms and stresses that “do not amount to the type of emotional distress with which a reasonable person, normally constituted, would be unable to cope.” Id.
Several of the above-cited cases were referenced in Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 , 117 S.Ct. 2113 , 138 L.Ed.2d 560 (1997), in which the Supreme Court denied a railroad worker’s negligence claim in which he sought damages for emotional distress following his exposure to asbestos. Buckley, who was disease and symptom free at the time, argued that under the Federal Employers’ Liability Act (“FELA”), the railroad company, his employer, was liable for *119 his emotional distress in the form of fear of cancer after having exposed him to asbestos in the workplace during a three-year period in the late 1980s. The Court disagreed. Analyzing the case in light of CONRAIL v. Gottshall, 512 U.S. 532 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 (1994) (adopting the zone of danger test, which limits recovery for emotional injury to those plaintiffs who either sustain a physical impact as a result of the defendant’s negligence or are placed in immediate risk of physical impact by that negligence, for use in evaluating claims for negligent infliction of emotional distress), cited a number of state court decisions to support its position, noting that “with only a few exceptions, common law courts have denied recovery to those who, like Buckley, are disease and symptom free.” 521 U.S. at 432 , 117 S.Ct. 2113 (citing, inter alia, Mergenlhaler, Eagle-Picher, Capital Holding Corp., and Potter). 12 The Court, much like the Potter Court, cited several reasons that militate against an expansive definition of physical impact: (1) the difficulties judges and juries will have in separating valid, important claims from those that are invalid or trivial; (2) the threat of unlimited and unpredictable *120 liability; and (3) the potential for a flood of trivial claims. Id. at 433, 117 S.Ct. 2113 . In discussing the difficulties associated with separating valid from invalid emotional distress claims, the Court also noted that “contacts, even extensive contacts, with serious carcinogens are common.” Id. at 434 , 117 S.Ct. 2113 . In light of that, the Court emphasized the difficulty in determining “whether, or when, a claimed strong emotional reaction to an increased mortality risk ... is reasonable and genuine, rather than overstated____” Id. at 435 , 117 S.Ct. 2113 . Ultimately, as stated, the Court found that these reasons necessitated a holding that a plaintiff, like Buckley, should not be permitted to recover damages for fear of cancer absent disease or physical symptoms.
In 2003, in Norfolk & Western Ry. v. Ayers, 538 U.S. 135 , 123 S.Ct. 1210 , 155 L.Ed.2d 261 (2003), the Supreme Court revisited its holdings in Gottshall and Metro-North. According to the Ayers Court, Gottshall and Metro-North “describe two categories of claims for emotional distress damages: [sjtand-alone emotional distress claims not provoked by any physical injury, for which recovery is sharply circumscribed by the common law zone-of-danger test; and emotional distress claims brought on by a physical injury, for which pain and suffering recovery is permitted.” Id. The plaintiff in Ayers , unlike the plaintiff in Metro-North, suffered from asbestosis, and the case was therefore placed in the latter category, thereby enabling the plaintiff to recover for fear of cancer as an element of his asbestosis-related pain and suffering damages. The plaintiff, like any plaintiff whose claim falls within this category, was required to prove that his alleged fear was genuine and serious, id. at 157-58 , 123 S.Ct. 1210 , a fact that was not properly before the Court (and therefore was assumed by the Court) in light of Norfolk’s defense at trial and the scope of review granted by the Court. See id. (citing cases for the proposition that general concern for one’s future health is insufficient to support recovery for asbestosis-sufferer’s fear of developing cancer in the future).
*121 VII. Application of law of emotional distress to facts of each case
A. Withdrawn claims and unchallenged claims
Even though Luke and Seth DeKoomen withdrew their claims for emotional distress, the jury awarded them damages for emotional distress. The circuit court erred in denying appellant’s motion for JNOV with respect to those claims. We would reverse those judgments and enter judgment in favor of appellant.
In addition, with respect to the emotional distress claims, appellant does not challenge the sufficiency of the evidence to support a finding that the following appellees experienced a physical manifestation of emotional distress that satisfies the Hunt rule: Andrea Batton, Sally DePasquale, Hilton Dobb, Yvonne Lanting, Janice Martin, Edward McLewee, Michael Oberlin, Curtis Pfeiffer, Brenda Pfeiffer, Jennifer Quinn, and Lori Vogler. Appellant argues, however, that the awards in favor of these appellees for emotional distress must be reversed, and the claims remanded for a new trial, because their claims for fear of cancer or other latent disease should not have been permitted.
B. No evidence of actual exposure or probable future exposure
There are 17 properties for which there was no evidence that the potable wells on those properties ever were contaminated by the leak or likely would become contaminated in the future, because of the movement of underground water. Appellees’ experts testified that the chance of future contamination for these properties was “low,” which they defined as unlikely to occur.
In order to sustain an emotional distress claim, a person has to show some evidence that he or she was exposed to the disease causing substance. We note that, in assessing evidence of actual contamination, only evidence of contamination in potable wells, as distinguished from monitoring wells or a hypothetical ground contamination, is relevant because there *122 is no evidence that exposure could occur other than through using water from potable wells. There are no air sampling or vapor studies in evidence to show that breathing vapors could cause exposure, even in the case of a potable well with contamination. Nevertheless, if we assume possible exposure in that situation, there is no evidence that exposure could occur absent contamination in a potable well. Absent such contamination, under the evidence in these cases, there can be no ingestion and no skin contact. With respect to possible exposure from breathing vapors, the only exposure by an occupant on any property without any past or likely future contamination is to the ambient air. As noted above, there is no evidence of the presence of chemicals in water vapor in any of appellees’ houses, even those using potable well water for bathing. Obviously, potential exposure because there might be ground contamination at some point in the future, albeit not in the well water, is even more remote.
Most of the occupants of the 17 properties with no evidence of present or likely future potable well water contamination dismissed their claims for emotional distress damages, but those who did not received awards notwithstanding the absence of proof of contamination. Those appellees receiving awards are Thomas and Lisa Benney, Bartlett and Patricia Colgan, Elaine Lindsay, Tresia Parks, Walter Merski, Anthony and Valerie Montone, Leon Nickel, and Theresa Nickel. The court erred in not granting appellant’s motion for JNOV with respect to those emotional distress claims. We would reverse the judgments and enter judgment in favor of appellant.
The appellees named in this section may also be named in other sections, and in our view, judgments in their favor would be reversed or remanded for other reasons.
The occupants of properties other than the 17 with no exposure include 39 appellees who may have been exposed through ingestion before February 17, 2006 (the subject of Dr. Rudo’s testimony quoted above). The remaining occupants’ exposure, if any, was from bathing after February 17. Many *123 of the properties had non-detect readings in that time frame and the rest had only trace amounts of contamination at some point in time. For purposes of the issues before us, we shall assume that a fact finder could find that (1) occupants of properties on which at least trace amounts of MTBE or benzene were found at any time, and (2) occupants of properties which, according to appellees’s experts, have a moderate to high chance of future contamination, were or will be exposed, on one or more occasions, to one of the chemicals, at some point in time. We make this assumption without regard to whether a particular appellee uses well water and, if so, for what purpose, and whether the home contains a whole house carbon filtration system.
C. Emotional distress—no evidence of physical manifestation related to leak, assuming fear of a future disease is compensable
The following appellees did not testify, and no evidence was admitted to show that they experienced emotional distress: Ricci DePasquale, Jr., Joseph DePasquale, Alicia DePasquale, Wyatt Dobb, David Fritz, Jr., Brendan Fritz, Aidan Fritz, Melodie Heggie, Robert Libertini, Jr., Nicholas Libertini, Michelle Shindledecker, Zachary Vacovsky, Brook Vacovsky, Christopher Vogler, Carli Vogler, and Steven Stelmack. The court erred in denying appellant’s motion for JNOV with respect to the emotional distress awards entered in their favor. We would reverse those judgments and enter judgment in favor of appellant.
D. Emotional distress—minimal evidence and clearly legally insufficient to show physical manifestation related to leak, assuming fear of future disease is compensable
The following appellees were discussed at some point in the testimony, but there was minimal to no evidence of emotional distress: Amtul Baig, Joseph Bateman, Thomas Benney, Lisa Benney, Dennis Berlin, Alexis Blair, Spencer Blair, Allison Carroll, Stephanie Carroll, Jason Carroll, John DePasquale, Madison Dobb, Emily Faber, Alexander Faber, Katherine *124 Libertini, David Mahoney, Rosemarie Mahoney, Lauren McLewee, Linda Oberlin, Amy Peters, Leslie Rush, Maria Chavez, Evan Tizard, Emma Tizard, Marlena Wittelsberger, and Lauren Wittelsberger. We would reverse those judgments and enter judgment in favor of appellant.
E. Emotional distress-some evidence of physical manifestation related to leak but legally insufficient, assuming fear of future disease is compensable
There was some evidence of physical manifestation of emotional distress as to the following appellees, but the evidence is legally insufficient because of (1) lack of sufficient physical manifestation, (2) lack of adequate proof that any distress was caused by concern for human safety as a result of the leak, or (3) affirmative proof that the stress was due to concern about property rather than human health/safety, was caused by the loss of use and enjoyment of property on a day to day basis which did not involve a threat to the person, was due to preexisting conditions, or was due to the litigation. In most instances, there was no medical testimony.
Bartlett Colgan (concern about property value, and insufficient physical manifestation caused by leak), Patricia Col-gan (insufficient physical manifestation caused by leak), Elaine Lindsay (concern about property value, prior condition, and insufficient physical manifestation caused by leak), Tresia Parks (prior condition and insufficient physical manifestation caused by leak), Walter Merski (concern about property value, prior condition and lack of sufficient physical manifestation caused by leak), Lisa DeKoomen (prior condition and attributed stress symptoms to litigation), Andrea and Veronica Greco (stress related to moving residence, new job, and financial concerns), Linda Berlin (insufficient physical manifestation caused by leak), Gary Flora (insufficient physical manifestation caused by leak), Michael and Susan Cremen (insufficient physical manifestation caused by leak), Robert Peters (insufficient physical manifestation caused by leak), Franz and Delores Wittelsberger (insufficient physical manifestation caused by leak), Michael and Gail Osmeyer *125 (unrelated conditions), Margaret McDevitt and Christopher Shultz (unrelated conditions), Jeffrey Jenkins and Nicole Ripken (insufficient physical manifestation caused by leak and prior condition), Anthony Tirocchi and Lillian Tirocchi (insufficient physical manifestation caused by leak), Sharon Bateman (insufficient physical manifestation caused by leak), Allan Gottschalk and Barbara Gottschalk (insufficient physical manifestation caused by leak), Robert Babcock (prior condition), Katie Babcock and Audrey Babcock (insufficient physical manifestation caused by leak), John Lanting (insufficient physical manifestation), Anthony Montone and Valerie Montone (insufficient physical manifestation caused by leak), Jeffrey Alban and Marsha Alban (insufficient physical manifestation caused by leak), John Coffay and Gina Coffay (insufficient physical manifestation caused by leak), Mirza Baig and Zain Baig (insufficient physical manifestation caused by leak), John Quinn (financial concerns), William Bieber (prior condition), Robert Twardzik (insufficient physical manifestation caused by leak), David Fritz and Stacy Fritz (insufficient physical manifestation caused by leak), Ricci DePasq-uale (insufficient physical manifestation caused by leak), Thomas DeBolt and Liza DeBolt (unrelated conditions), Carol Copeland (insufficient physical manifestation caused by leak and unrelated conditions), Christopher Wiedey (insufficient physical manifestation caused by leak), Michael Vogler (insufficient physical manifestation caused by leak), Martin Blair (unrelated conditions), Joyce Blair (insufficient physical manifestation caused by leak), Thomas Carroll (insufficient physical manifestation caused by leak), Alex Schech (prior condition), Andrew Schech (insufficient physical manifestation caused by leak), Michael Schech and Sheryl Schech (unrelated conditions), Carolyn Heggie and Walter Heggie (insufficient physical manifestation caused by leak), David Gregory and Lisa Gregory (unrelated conditions), Frank Mucha and Jennifer Mucha (prior conditions), Terry Martin (insufficient physical manifestation caused by leak), Kenneth Thompson and Mary Thompson (unrelated conditions and insufficient physical manifestation caused by leak), Kurt Va- *126 covsky (insufficient physical manifestation caused by leak), Jai Dixon and Jane Elkinton (insufficient physical manifestation caused by leak), Mark Alan Lamos and Mary Christine Sinelle-Lamos (insufficient physical manifestation caused by leak), Martin Brady and Cassandra Brady (insufficient physical manifestation caused by leak), Robert Libertini and Suzanne Libertini (insufficient physical manifestation caused by leak), Amy Shimp (insufficient physical manifestation caused by leak), Joseph Barone and Palma Barone (insufficient physical manifestation caused by leak), Herman Hannan and Láveme Hannan (unrelated conditions), Susan Faber (insufficient physical manifestation caused by leak), Joyce Rush (insufficient physical manifestation caused by leak), John Csicsek and Martha Csicsek (insufficient physical manifestation caused by leak), Ronald Diedeman and Joan Diedeman (insufficient physical manifestation caused by leak), Matthew Fox (insufficient physical manifestation caused by leak), James Hourihan and Janet Hourihan (insufficient physical manifestation caused by leak), Thomas Anderson and Stacey Curtiss (insufficient physical manifestation caused by leak), Leon Nickel and Theresa Nickel (insufficient physical manifestation caused by leak), Mae DeDeo (insufficient physical manifestation caused by leak), David and Joyce Albert (insufficient physical manifestation caused by leak), Scott Bat-ton (insufficient physical manifestation), David and Jennifer Cadigan (insufficient physical manifestation), Thomas Howe (insufficient physical manifestation and unrelated condition), Hope Kukucka (insufficient physical manifestation), and Sara Tolle (unrelated condition). We would reverse those judgments and enter judgment in favor of appellant.
F. Fear of cancer or other latent disease
As noted above, appellees claimed a fear of contracting cancer or other latent disease. They did not claim fright associated with a current condition. See, e.g., Bowman v. Williams, 164 Md. at 404 , 165 A. 182 . The claim was fear of a future condition. The evidence at trial was not legally suffi *127 cient evidence to support any appellee’s claim for fear of contracting cancer or other latent disease in the future.
Virtually all appellees who testified stated that they were fearful of developing cancer or some other latent disease, or clearly implied that they were experiencing such fear. Based on the law as we have discussed above, none of the judgments for emotional distress can be affirmed. Given our conclusion that the applicable law did not permit a claim for fear of future disease by any appellee, we need not discuss individual claims, as our analysis rests on the proper standard of proof. Nevertheless, we note that, at some point, a person who uses water with “knowledge” of the potential ramification that gives rise to the claimed fear cannot have a “reasonable” basis for fear, even under a reasonable basis standard. We also note that fear that arises two years after the leak as a result of hearing testimony in a courtroom by appellees’ experts and which causes an appellee to fear a future disease because of his or her use of water over the preceding two years cannot form the basis for a compensable fear claim against an entity that has no control over the dissemination of that information. Finally, we note that Dr. Rudo’s opinion testimony, that exposure caused an increased risk of cancer and cell mutation, was limited to 39 appellees who, according to the evidence, probably were exposed during the period after the leak and prior to February 16, 2006. Nevertheless, we shall treat Dr. Rudo’s testimony, viewed as a whole, as expressing the same opinion as to all appellees who, according to appellees’ evidence, probably were exposed or probably will be exposed at some point in time, i.e., occupants of all but the 17 properties discussed above.
We conclude that under Maryland law a plaintiff cannot recover for fear of future disease that has a long latency period unless the plaintiff produces evidence that (1) the plaintiff presently has the same or a similar disease, or that symptoms of such a disease are present, or (2) the plaintiff will probably contract the feared disease, and that exposure to a toxic chemical attributable to the defendant is a cause, ie., a substantial factor in causing that disease. Otherwise there is *128 no restriction on a claim of fear, which presumably lasts a lifetime. All rational persons fear contracting cancer or some other disease.
Dr. Rudo did not quantify any increased risk of developing cancer or some other latent disease as a consequence of their exposure to MTBE or benzene. He did not testify that any increased risk of contracting such a disease was significant, much less probable. When the air and surroundings contain carcinogens and other possibly harmful substances, and the toxic effect of a substance is determined by a dose response relationship, a mere exposure cannot be enough to sustain a recovery. In this country, virtually everyone is exposed to many different presently known carcinogens on a daily basis, in the ambient air and otherwise, e.g., cigarette smoke and asbestos fibers. 13 We are exposed, on a daily basis, to substances that are known to be human carcinogens, substances that are reasonably anticipated to be human carcinogens, and substances that, based on research, may be classified in the future as possible or known carcinogens. For example, styrene recently was added to the list. 14 A tort recovery based on evidence that someday some substance may be deemed to be harmful is a recovery based on speculation only. In Maryland, recovery of damages in tort always has required proof of probability.
People who pump their own gasoline are exposed to MTBE and benzene, by contact with or by breathing vapors. People who drive many miles and fill their tanks often are more *129 exposed than those who drive less. People who keep gasoline in their homes for use in generators, lawn mowers, or other engines, have greater exposure than those who do not. In order to have a valid tort claim, a claimant must be different from the general population.
Maryland has a well-developed body of tort law involving latent diseases caused by exposures to toxins, especially to asbestos. Appellees assert that, based on Dr. Rudo’s opinion that exposure to MTBE likely produced cell changes, they sustained an “injury.” Of course, that would not apply to appellees who did not prove exposure. More important, and determinative as to all appellees, under Maryland law, such a cellular change without symptoms of a disease or actual impairment is not a compensable “injury.” E.g., Wright v. Eagle-Picher Ind., 80 Md.App. 606 , 565 A.2d 377 (1989); Anchor Packing v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 (1997); Owens Corning v. Bauman, 125 Md.App. 454 , 726 A.2d 745 (1999); and Hollingsworth & Vose v. Connor, 136 Md.App. 91 , 764 A.2d 318 (2000) (pleural plaques or thickening caused by asbestos exposure is not a compensable injury). Notably, any appellee who does not presently meet the standard to sustain an award for emotional distress for present fear of developing cancer or other latent disease or to obtain costs of medical monitoring, but who later develops cancer or other latent disease can recover, if he or she can prove that exposure to a substance attributable to appellant was a substantial factor in producing the injury, Bathos, 326 Md. at 210-211 , 604 A.2d 445 . In that circumstance, limitations would not be a bar, as the limitations period would not begin to run until the cancer or other latent disease developed. See Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 668 , 464 A.2d 1020 (1983).
In our view, a lower standard of proof than actual present symptoms or probability that the cancer or other latent disease will develop, for recovery of fear damages would result in proof of mere exposure being sufficient to support recovery. This would produce an anomalous and illogical result: proof of the low standard of mere exposure would be sufficient to allow *130 recovery for a plaintiff with no symptoms of disease, but proof of probability of causation, a stricter standard, would be necessary for recovery for a plaintiff actually suffering from cancer or other latent disease. This is because the fear in cases such as these is of a nonspecific future latent disease, and in the case of cancer, a nonspecific cancer. There are countless causes of cancers and latent diseases generally. Appellees do not claim fear of a particular type of cancer or other disease which, based on current knowledge, is closely associated with a particular substance. If there is to be any difference in the standard for proving causation of an existing disease and for proving present fear of contracting a future disease as a result of exposure, the standard should be higher for fear-based claims, not lower, because of the paucity of physical evidence.
Appellees rely on Faya v. Almaraz, 829 Md. 435 , 620 A.2d 327 (1993), to support their position that emotional distress damages for fear of cancer or other latent disease are recoverable. In Faya, several patients sued a surgeon who had performed operations on them. The defendant knew in 1986 that he was infected with HIV, the virus that causes AIDS. He performed operations thereafter, was diagnosed with AIDS in 1990, performed at least one operation thereafter, and died on November 16, 1990. Id. at 440-41, 620 A.2d 327 . The plaintiffs learned about the defendant’s death, and its cause (AIDS), in the newspaper. The plaintiffs filed suit, alleging that the defendant had failed to disclose his health status (HIV positive, and later, suffering from AIDS) prior to their surgeries and that he probably had nicked himself during the surgeries, as often happens, and his blood probably was placed in their bloodstream. Id. The plaintiffs were tested for HIV and within a few weeks received results showing they were not infected with that virus. It was undisputed that virtually all people infected with HIV would manifest a positive HIV test within six months of exposure. HIV is an infection—not a latent disease—and AIDS is the end-stage of the infection. The plaintiffs sought damages for emotional distress for fearing they had contracted AIDS. Ultimately, the Court of Ap *131 peals held that the plaintiffs could recover damages for emotional distress, for fear of contracting AIDS, for the period of time between when a plaintiff first feared he or she might have contracted AIDS and when he or she received a negative HIV test. Id. at 455-56, 459 , 620 A.2d 327 .
The Faya case involved a physical touching by a person infected with HIV. Importantly, the medical knowledge at that time was that most people infected with HIV would progress to AIDS, and die; that HIV was the only cause of AIDS; and that blood to blood was a means to transmit HIV from one person to another. Id. at 446, 620 A.2d 327 . The cases before us are entirely different from the Faya case. As noted, neither HIV nor AIDS is a latent disease; they are various stages of an infection with a virus (HIV). The patients in the Faya case were experiencing fear that they had been infected, by blood-to-blood transmission, with what was then a universally deadly virus. In that circumstance, the Court allowed recovery for fear for the brief period of time in which the patients awaited the results of the blood tests for HIV. In the cases before us, the fear for which appellees sought compensation was for developing an unspecified latent disease, at an unspecified time in the future, when there was no likelihood of developing a disease and there was no quantified risk of contracting a disease and no latency period. Presumably, the latency period in these cases was the lifetime of each appellee. Faya does not support appellees’ contentions.
Buck v. Brady, 110 Md. 568 , 73 A. 277 (1909), a case not cited by appellees, recognized that a plaintiff could recover for fear of contracting rabies from a dog bite. This, too, involved a virus that caused a specific disease with a known latency period. The case also involved a physical injury, in the traditional sense. Historically, emotional distress associated with a physical injury, as distinguished from physiological manifestations of an emotional injury, has been recoverable. The viral disease (rabies) was treatable before any symptoms appeared.
*132 Thus, we would reverse the judgments in favor of all appellees for emotional distress on the ground that the claim for fear of cancer or other future disease should not have been permitted. With respect to emotional distress judgments of appellees not identified in VII B., C, D., and E., and excluding the withdrawn claims referenced in VII A., we would remand for a new trial, consistent with the law as set forth in this opinion. There are 35 such appellees, as follows: Andrea Batton, Karen Carroll, Olivia Cremen, Michael Davis, Bobbie Davis, Ian Davis, Sally DePasquale, Hilton Dobb, Amy Dobb, Barry Faber, Thomas Facinoli, LaGina Facinoli, Tracey Flora, Paul Ford, Judith Ford, Jodi Howe, Glenn Kukucka, Yvonne Lantin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7927112. Public record. Not legal advice.