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Exxon Obtains Reversal on Emotional Distress Damages

ExxonMobil Corp. v. Ford
No. 1804 (Md. Ct. Spec. App. February 9, 2012)

by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (

In a per curium opinion, the Court of Special Appeals struck down a significant portion of the judgment against ExxonMobil (“Exxon”), which arose out of an underground gasoline leak in Baltimore County. While the Judges disagreed as to whether Maryland law permits recovery for emotional distress related to reasonable fear of cancer, a majority of the Judges agreed that there was insufficient evidence of emotional distress for Plaintiffs. As such, the Court of Special Appeals reversed the emotional distress aspect of the damages.

In the Circuit Court for Baltimore County, a jury found for Plaintiffs and awarded damages which totaled over $147 million for the entire class of injured Plaintiffs. Plaintiffs claimed that Exxon was responsible for contaminating groundwater in their community with gasoline. Specifically, a Jacksonville Exxon gas station discharged over 700 gallons of gasoline per day for 37 days in 2007. The jury also awarded Plaintiffs damages for emotional distress in the amount of approximately $1 million per household.

One of the most significant issues on appeal was whether the Court erred when it denied a motion for JNOV on the issue of non-economic damages. Judge Zarnoch, joined by three (3) other members of the Court of Special Appeals, considered: (1) Whether a fear of cancer can lead to recovery for emotional distress; and (2) When a fear of cancer is reasonable. The Court found that Maryland law clearly permits recovery for the fear of cancer. It found the question of whether Plaintiffs’ fear of cancer was reasonable to be more difficult. Judge Zarnoch’s opinion held that Plaintiffs did not have to show that it was more likely than not that they would develop cancer, but found that Plaintiffs were required to offer sufficient evidence of emotional distress so that the injury was capable of objective determination. Judge Zarnoch found that Plaintiffs failed to offer sufficient evidence.

Judge Eyler, joined by Judge Hotten also held that recovery for emotional distress required some sort of evidence that was indicative of a mental state. Judge Eyler, however, held that Plaintiffs were required to show some evidence that he or she was actually exposed to the disease causing substance. Judge Eyler also differed from Judge Zarnoch in that Judge Eyler found that Maryland law does not support a claim for emotional distress for a fear of cancer, but Judge Eyler concurred with Judge Zarnoch in finding that Plaintiffs did not show sufficient evidence that they experienced emotional distress. Judge Eyler did not find a sufficient physical manifestation of emotional distress to support such an award in the record.

Though Judge Eyler and Judge Zarnoch’s opinions disagreed on whether Maryland law permitted recovery for a fear of cancer, they agreed that Plaintiffs did not introduce sufficient evidence at trial of emotional distress. Therefore, since four other judges joined their opinions, a majority of the Court held that Plaintiff did not introduce sufficient evidence of emotional distress at trial. Therefore, the Court of Special Appeals reversed the award of damages for emotional distress.