Exxon Mobil Corp. v. Ford

GRAEFF, J.,

concurring.

I concur in the judgment set forth in the per curiam opinion. I join Judge Zarnoch’s opinion, in part, and Judge James Eyler’s opinion, in part.

I join Parts I and II of Judge Zarnoch’s opinion, which: (1) reject appellees’ argument that Exxon waived its right to challenge the compensatory damages awarded; and (2) uphold the admission of the testimony of appellees’ expert witness, Kenneth Acks.

With respect to the issue whether there was sufficient evidence to uphold the jury’s verdict regarding diminution of the value of appellees’ properties, I agree with much of Judge James Eyler’s analysis regarding the appropriate method of proving diminution of a property’s value. I agree with Judge Zarnoch’s opinion, however, that the evidence admitted here, without objection, was sufficient to support the jury’s verdict that all of the appellees’ properties are worthless.

I agree with Judge Eyler’s opinion that, in cases involving the effect of environmental contamination on the value of property, the owner of the property generally does not have *242 sufficient expertise to testify regarding the effect of environmental contamination on the property’s value. See Hous. Auth. of City of New Brunswick v. Suydam Investors LLC, 355 N.J.Super. 530 , 810 A.2d 1137, 1150 (App.Div.2002) (“[T]he effect of environmental contamination upon a property’s value must be determined on the basis of expert appraisal evidence.”), aff 'd in part rev’d in part on other grounds, 177 N.J. 2 , 826 A.2d 673 (2003). Here, however, many of the homeowners testified, without objection, that their homes were worthless as a result of the spill, and Exxon does not argue on appeal that the court erred in admitting this evidence. 1 Rather, it argues that the evidence of value presented was insufficient to support the jury’s verdict that the property of every appellee was worthless.

As Judge Zarnoch points out, in reviewing whether the evidence supports a verdict, an appellate court reviews all of the unobjected to evidence admitted at trial. As the Court of Appeals has explained:

“If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetency under the exclusionary rules.”

Old v. Cooney Detective Agency, 215 Md. 517, 526 , 138 A.2d 889 (1958) (quoting McCormick, Handbook of the Law of Evidence § 54 at 126 (1st ed.1954)). Accord Robinson v. State, 17 Md.App. 451, 462-63 , 302 A.2d 659 (1973).

Thus, to the extent that homeowners testified, without objection, that their homes were worthless, this evidence was *243 “usable [by the jury] as proof to the extent of whatever rational persuasive power” it had. Old, 215 Md. at 526 , 138 A.2d 889 . 2 The jury obviously was persuaded by this unob-jected to testimony, and it was sufficient to support the jury’s verdict that the plaintiffs’ homes retained no value after the spill. I agree with Judge Zarnoch’s opinion that the property awards for the plaintiffs who “either explicitly or implicitly” testified that their homes were worthless should be affirmed.

With respect to the other homes, the decision is more difficult. Clearly, there was evidence of diminution of value after the leak. The appellees’ expert, Mr. Acks, testified to the decreased value of each home pursuant to a formula based on the current presence of contamination or the risk of future contamination. Judge Zarnoch lists other evidence showing a diminution of value of the property in the area. Diminution of value, however, does not equate to zero value.

As Exxon argues, there was evidence weighing against a finding that each of the appellees’ homes, even those with property that has not suffered any contamination, is worthless and cannot be sold for any price. The Court of Appeals has made clear, however, that it is “not the province of an appellate court to express an opinion regarding the weight of the evidence when reviewing a judgment on a jury verdict.” Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 521 , 682 A.2d 1143 (1996). Rather, our job is to determine if there is some evidence, however slight, viewed in the light most favorable to the plaintiff, that is sufficient to support the jury’s verdict in favor of the plaintiff. Houston v. Safeway Stores, 346 Md. 503, 521 , 697 A.2d 851 (1997).

Here, as noted in Judge Zarnoch’s opinion, in addition to the testimony of some homeowners that their houses were worthless after the leak, there was testimony regarding the inability to sell homes in the neighborhood. That evidence, to *244 the extent it came in without objection, along with the other evidence outlined in Judge Zarnoch’s opinion, was sufficient to support the jury’s view that none of the appellees’ homes could be sold, and it supported the jury’s verdict that all of the homes were worthless. I join Judge Zarnoch’s opinion affirming all of the judgments regarding damages for diminution of property value.

With respect to Part IV of Judge Zarnoch’s opinion, addressing emotional distress and fear of cancer, I join that opinion to the extent that it holds that Maryland law permits recovery for emotional distress related to a reasonable fear of cancer, and that the fear is reasonable if there is a substantial and medically verifiable possibility of contracting the disease. Additionally, however, there must be evidence of exposure to a toxic substance. See Leaf River Forest Prods. v. Ferguson, 662 So.2d 648, 650 (Miss.1995) (claim for fear of future disease allowed only if there is a showing of illness or substantial proof of exposure and medical evidence of possible or probable future disease); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 975 (Utah 1993) (in determining reasonableness of fear of developing disease, factfinder should consider likelihood that the disease will actually occur as well as the “duration and nature of the exposure to the toxic substance”).

I respectfully disagree with the conclusion in Judge Zamoeh’s opinion that the jury instruction in this case sufficiently conveyed that standard to the jury. The jury was instructed:

A Plaintiff may also recover non-economic damages for fear of contracting a particular disease such as cancer. To recover for such fear, however, the Plaintiff must demonstrate that the fear genuinely exists and that his or her fear of contracting the disease in question is objectively reasonable.

There can be no compensation for fear and anxiety that is objectively unreasonable. To be objectively reasonable, it is not enough that a ... Plaintiffs fear be genuine and sincere. There must be rehable medical or scientific evi *245 dence that it is more likely than not that the substance can cause cancer.

(Emphasis added).

This instruction did not advise the jury that it must find that there was proof of exposure as to each plaintiff, or that it must determine, with respect to each plaintiff, whether there was a substantial, medically verifiable possibility that each plaintiff would contract cancer. Thus, the jury could have found, pursuant to the instruction given, that it was more likely than not that the chemicals involved here could cause cancer, and therefore, plaintiffs could recover for damages for fear of contracting cancer, even if, given the circumstances of a particular plaintiffs exposure, it was unlikely that person would contract cancer. Accordingly, the instruction did not fairly cover the applicable law. In my opinion, the judgments regarding damages for emotional distress should be reversed on this ground.

Exxon contends, however, that most of the appellees are not entitled to a new trial because they failed to present sufficient evidence of compensable emotional distress. With the exception of 11 appellees, who Exxon concedes presented sufficient evidence of physical manifestations of emotional distress, 3 Exxon argues that the trial court erred in denying its motion for judgment notwithstanding the verdict. Exxon contends that the award in favor of these other appellees should be reversed without retrial because appellees failed to present “sufficient evidence of their prior emotional state or the physical manifestations of their alleged distress to render that distress capable of objective determination.”

In Maryland, as discussed in more detail in the opinions of Judge Zarnoch and Judge Eyler, emotional distress is a compensable injury if it has outward manifestations such that the injury is “capable of objective determination.” Hunt, v. *246 Mercy Med. Ctr., 121 Md.App. 516, 531 , 710 A.2d 362 (1998). This Court has explained that, “in order for an injury to be capable of objective determination, the evidence must contain more than mere conclusory statements.” Id. The Court of Appeals has stated that an injury capable of objective determination includes “such things as depression, inability to work or perform routine household chores, loss of appetite, insomnia, nightmares, loss of weight, extreme nervousness and irritability, withdrawal from socialization, fainting, chest pains, headaches, and upset stomachs.” Hoffman v. Stamper, 385 Md. 1, 34-35 , 867 A.2d 276 (2005).

In Hunt , this Court held that evidence consisting of mere statements that a plaintiff was emotionally upset was not sufficient to demonstrate an emotional injury because it gave no useful information to the jury to set a level of damages. Hunt, 121 Md.App. at 532 , 710 A.2d 362 . The Court held, however, that evidence of the plaintiffs sleeplessness, combined with testimony about problems with fatigue, constipation, and mood change, gave the jury information necessary to quantify the level of damages attributable to the plaintiffs mental injury. Id. at 534-38 , 710 A.2d 362 .

Here, many of the appellees testified to an inability to sleep, nightmares, depression, headaches or other physical manifestations of emotional distress following the injury. That is not true, however, of each appellee that was awarded damages for emotional distress.

In Part VII of Judge Eyler’s opinion, he categorizes appel-lees by level of proof regarding emotional distress. In Part VII A-D, he identifies the following categories of appellees, for whom the judgments for emotional distress should be reversed: (A) those who withdrew their claims for emotional distress; (B) those for whom there was no evidence of actual exposure or probable future exposure to contamination; (C) those who presented no evidence that they experienced emotional distress; and (D) those with minimal, but legally insufficient, evidence of emotional distress. I agree with Judge *247 Eyler’s opinion that the judgments for emotional distress in favor of these appellees should be reversed.

With respect to the other appellees, however, I agree with Judge Zarnoch’s opinion that sufficient evidence was introduced to permit a verdict of damages for emotional distress. These appellees are entitled to a new trial on damages for emotional distress, with a proper jury instruction regarding the fear of cancer claim.

With respect to medical monitoring, I join Part V of Judge Zarnoch’s opinion to the extent that it states that Maryland permits a plaintiff to recover damages for medical monitoring. I also agree with the test set forth in Judge Zarnoch’s opinion, that medical monitoring damages are permissible if: (1) the plaintiff shows significant exposure; (2) to a substance proven hazardous to humans; (3) because of the defendant’s negligence; (4) resulting in the plaintiff having a significant increase in risk, compared to the general population, of developing a serious latent disease; (5) for which there are medical tests making early detection possible; and (6) the tests are not medically necessary for the general population, but are medically necessary for the plaintiff due to the increased risk.

I respectfully disagree, however, that the evidence here met that standard. There was no evidence that appellees have a “significantly increased risk” of contracting cancer or other serious latent disease as a result of exposure to any substance due to the leak. I agree with Judge Eyler’s opinion that the judgments for medical monitoring should be reversed.

. Exxon does note in a footnote that "a number of courts have required expert testimony to support claims of diminution in value based on environmental contamination,” but it does not argue that the court erred in admitting the lay opinion testimony.

. It may be that Exxon had a tactical reason for not objecting to the lay testimony regarding value of the property. Regardless of the reason, it is part of the record on appeal that we review in determining the sufficiency of the jury’s verdict.

. These appellees include: Andrea Batton, Sally DePasquale, Hilton Dobb, Yvonne Lanting, Janice Martin, Edward McLewee, Michael Oberlin, Curtis Pfeiffer, Brenda Pfeiffer, Jennifer Quinn and Lori Vo-gler.