Payton v. Abbott Labs

386 Mass. 540 v. Abbott Labs. Payton others1 vs. Brenda & Abbott Labs & others.2

Suffolk. 1981. 1982. 22, September June Present: & C.J., Hennessey, Wilkins, Liacos, Abrams, Nolan, Lynch, O’Connor, JJ. distress, manufacturer, Negligence, Identity Pharmaceutical Emotional Distress, of manufacturer. Increased likelihood of future Emotional harm. Retroactivity Holding. Actionable Tort. Judicial Infant. Evidence, Identity of manufacturer. Tortfeasors, Contribution. Joint In a class action had against corporations several which manufactured

drug diethylstilbestrol, by plaintiffs exposed who had been to allegedly the drug sought recovery negli- in útero and who for the defendants’ gence marketing diethylstilbestrol preventative miscarriages in as a it, an in- adequately testing thereby subjecting plaintiffs before disease, court, responding questions creased risk of serious court, by State law certified to it a Federal concluded that Massachu- resulting setts not of action for emotional distress recognize right does harm, where negligence of a defendant in the absence of such emotional is caused an increased statistical likelihood distress that the will in the plaintiffs suffer serious disease future. [544-557] J., dissenting, with whom Liacos JJ., joined, Wilkins, Abrams, practice required observed that since it was medical alleged good life of at periodic examinations which would interfere with normal of the plaintiffs, least some of the the facts would warrant submission and reasonableness of the emotional condition genuineness issue of at certain to the trier of fact. least [578-581] risk alleged they In a class action who faced an increased diethylstil- to the exposure drug as a result of in útero serious disease

bestrol, preventative the defendants as a mis- product marketed 4,000 women plaintiff represents approximately 1The named a class of diethylstilbestrol “1) exposed all women who were which includes Massachusetts; útero; 3) who 2) exposure whose occurred (“DES”) Massachusetts; domiciled in Massachusetts 4) were born in who [were] action; 5) and who have not devel they notice of when receive[d] [the] v. Abbott supplied). Payton (emphasis uterine or cancer” oped vaginal Labs, 1979). (D. 83 F.R.D. Co., Inc., Merck & Lilly Company, are Eli 2The other defendants Inc., Sons, Company. & and Upjohn E. R. Drug Company, Squibb Rexall Payton Abbott Labs. recovery be barred from for

carriages, plaintiff a would particular inges- as a of the mother’s physical or emotional distress suffered result plaintiff that would tion of the if the trier of fact concluded that drug her the ingestion have had it been for mother’s of not been born not Hennessey, C.J., dissenting. drug. [557-560] in útero as a result of her injury A that she suffered plaintiff alleges who negligence, but for a defendant’s drug mother’s of a ingestion a upon states claim ingested drug, her mother would not have law. which be under Massachusetts granted relief can [560-564] damages injury that a recover In a rule announcing which, but for ingestion drug as a of her mother’s of útero result her court ingested, mother would not have negligence, defendant’s de- by neither on former Massachusetts law determined that reliance develop- possibility discouraging their insurers nor the fendants and the giving pro- rule drugs ment of and more efficacious warranted new only. spective application [564-570] in a a Federal court class ac- response In to a law certified diethylstilbestrol, the against drug tion several manufacturers of a result their injuries wherein in útero as plaintiffs alleged the the mothers’ of the this court was unable to state on ingestion drug, basis of the before it the named defendants can be held record whether plaintiffs the plaintiffs’ liable to members of class where neither product nor the can manufacturer’s was in- identify defendants which all gested by which mothers and where the named defendants are not mothers; drug ingested by plaintiffs’ manufacturers of the indicated, however, permitted this court might of their partici- those defendants shown to be the extent negligent, market, pation diethylstilbestrol even can- though in- diethylstilbestrol not that their mothers identify source gested. [570-574] of law to the questions Supreme Judicial Certification Court the United District Court for District States Massachusetts. & A. Fine, Clever don Stephanie

David Baker J. Jeanne with for the Rosenberg them) plaintiffs. (David G. W. Robert Marshall Simonds Rosenberg, (David Milstein, Bone, Cohen, A. Mary Morrissey Kenneth Joan & the defendants. Sullivan with Leghorn him) Joseph J. the court on certifica- This case before comes Lynch, J. the District of Court for tion from the United States District of four several subsidiary ques- Massachusetts principal Payton tions Massachusetts tort law. See Rule involving S.J.C. 1:03, amended, as 382 Mass. 700 (1981). § in the civil action in which these questions are certified seek redress for caused injuries allegedly prescription drug diethylstilbestrol (DES). They brought suit in the Federal District Court in 1976. April, July, 1979, a of the Federal District Court judge conditionally certified the class under Fed. R. Civ. P. 23 (c)(4)(A) resolution of thirteen class-wide issues. permit specific Labs, v. Abbott 83 F.R.D. (D. factual; Several of these the four issues are 1979). questions here certified involve of the issues Massachusetts law which believed be determinative of various of judge “may aspects this case and as to it which . . . that there is no con- appears in the decisions of this court. trolling precedent” The are the in the context of questions presented by judge dismiss, a motion to based the upon plaintiffs’ allegations. summarized those as follows: judge allegations “The are all females whose mothers plaintiffs ingested called . . . the while with drug diethylstilbestrol pregnant DES was marketed the defendants as a plaintiffs. by pre- ventative for and was miscarriages, widely prescribed fetus, the has been DES is transmitted to and physicians. identified but as one cause of a rare relatively extremely cancer called clear-cell adenocarcinoma which malignant the children of attacks the female reproductive organs been identi- mothers who have DES. DES has also ingested fied as one of the causes of more common changes benign one of which is the female children’s organs, reproductive for clear-cell ade- as adenosis. The corrective known radiation; if treat- radical nocarcinoma timely surgery to be the disease is fatal. ment is not successful likely of these no have symptoms any “Many plaintiffs DES, As a result of their mothers’ conditions. ingestion one of more to suffer these are statistically likely the than is abnormalities of reproductive organ several more likely and are to lesser degree general population ] adenocarcinoma.[ contract clear-cell * are anxious They and these Some of emotionally upset by possibilities. on the advice of their are plaintiffs, physicians, submitting medical of the cervix and so examinations periodic vagina adenosis, abnormalities, other or clear- symptoms cell adenocarcinoma will detected as as be early possible, thus the chance of treatment. These successful increasing examinations and traumatic. may expensive the various theories of asserted “Among liability is that the defendants were negligent marketing DES as a without miscarriage preventative adequate testing and without appropriate warnings.

“DES was manufactured according substantially same formula all defendants and was marketed by some defendants under its generic description. prod- ucts of the various defendants were interchangeable were sold a fact which the interchangeably by pharmacists, defendants knew or should have known. Most plain- tiffs are unable to identify manufacturer of the specific DES their mothers. ingested by Pharmaceutical companies other than the named defendants also manufactured and marketed DES under its have generic description, some of the DES supplied mothers. ingested by plaintiffs’ cases, most neither the nor the defendants will be able to whose identify was which product ingested by Furthermore, mothers. different defendants marketed DES at different times and under different circumstances which bear on their negligence. have

“Plaintiffs two bases for all alleged recovery against the defendants all the plaintiffs: (1) conspiracy joint and ‘alternative ‘Alternative enterprise, liabil- liability.’ is a term used to ity’ describe a in theory recovery adopted some tort, is, where there is not a jurisdictions joint where the tort was committed one of several by only pos- tortfeasors, sible but there is no to determine which way [*]“Said to be of the maximum ex- per level of 1.4 women thousand posed” in (footnote original).

Payton v. Abbott Labs. one.[**] Different have different ver jurisdictions developed sions of this with allocation theory liability respect all tort-feasors damages, necessity possible joining defendants, as the burden to a defendant of proof shifting establish the of that defendant’s impossibility responsibility, of contribution defendants and right among against tort-feasors who are not As far as the possible parties. determine, can Court has [judge] [Supreme Judicial] a kind not addressed claim this form. While such any has never been it has never been theory recognized, reject ed a Massachusetts court.

“While the claim that DES was not efficacious claim that it the defendants preventing miscarriages, was. If the evidence the defendants’ claim the tri- supports er that a of fact be warranted in might concluding particu- lar would not have been born had it not plaintiff probably been for her of DES. mother’s ingestion in this

“The and the diversity parties [judge] agree action the law of Massachusetts is the law.” controlling

If the and the defendants’ plaintiffs prevail, liability established, there must be individual trials for members of other class on issue of damages perhaps issues as well. One

Question of action for emo- “Does Massachusetts recognize right of a de- tional distress and caused negligence anxiety harm, fendant, evidence of in the absence of any an are the result of where such emotional stress and anxiety will suffer increased statistical likelihood [that] answer, the future?” No. serious disease in We [ **] lia theory ‘enterprise sometimes referred to as “A variant of this the defendants had dele employing In the case this term bility.’ leading safety (footnote to a trade association” the formulation of standards gated original). 545 540 386 Mass. Payton v. AbbottLabs.

Discussion nor the issue of note that neither negligence We initially The certified that of causation is before us. question the defendants were assumes both that negligent, emotional distress. their caused the negligence plaintiffs’ a case has concluded that No Massachusetts yet of a defendant’s who that she was a direct victim alleges conduct, suf- but who does not that she has allege negligent harm, fered can recover for emotional resulting physical context, distress. In the absence factual specific held court has declined to decide this issue.3 This court has who not within the zone dan- was of physical parent created the defendant’s recover for ger negligence substantial sustained as a result of emo- physical injuries distress, tional inflicted injuries resulting negligently Babineau, child. Dziokonski v. 555, on her Mass. Here, however, are assumed to be direct victims without since certified physical injuries, assumes that were threatened with question harm the defendants’ conduct. physical We negligent must decide whether this distinction should affect the result in this case.

Physical Requirement Harm Both common law and considerations lead us to policy answer certified one in the There is am negative. in the common law of this for a ple support country negative answer. for emotional dis allowing Jurisdictions tress without harm4 in cases are proof negligence Babineau, 555, 3See 375 Mass. 561 n.7 McDon (1978); Dziokonski Whalen, Co., ough v. Marsh (1974); George Jordan 255 (1971). 4The (Second) (1965) Restatement of Torts and Comment e dis § tinguishes “physical “bodily between harm” and harm”: the former de “physical impairment body,

546 v. Abbott Labs.

Payton 5 in the The most common clearly minority. justification for emotional distress in cases denying recovery negligence absent harm is that that rule is physical to necessary prevent fraud and vexatious lawsuits. Those seeking apply more liberal rule that a are jury capable argue distinguish therefore, real from and mat ing feigned injuries Restatement, term is used in the purely and in contrast with mental harm. We use the two terms interchangeably opinion to denote harm to of the plaintiffs. bodies 5Many jurisdictions specifically harm a require showing as precondition recovery for emotional distress. See M.B.M. Co. v. Counce, Jackson, 268 Ark. (1980) (dicta); 269 Keck v. 122 Ariz. 114 R.R., banc); v. (1979) (en Pennsylvania Robb 58 Del. 454 Ac cord, Faraone, 1090, (Del. Super. 1977); McClain v. 369 A.2d 1095 Concord, Inc., Gilper 1973); v. Kiamesha 302 A.2d 740 (D.C. App. Ct. N.W., v. Max & (1980); Rouse Sons 100 Idaho 840 Charlie Hatfield Stuart Oldsmobile, Smith, App. Inc. v. 171 Ind. 315 vacated in (1976), Atchison, part, 175 1 & App. (1977); Ry., Ind. Clemm v. T S.F. 126 LaCroix, 4,12 Kan. 181 (1928); Daley (1970) (“definite v. 384 Mich. and McConnell, Accord, objective physical injury”). v. 45 Mich. App. Toms 647, (1973) case) 657 reaction” (bystander (“severe depressive traumatic constitutes “definite and v. objective physical injury”); Okrina Sears, b Corp., (1969); Midwestern 282 Minn. 400 Roebuck Co. v. Co., Young, 384 So. 2d 69 (Miss. 1980); Fournell v. Usher Pest Control Busch, 208 Neb. 684 v. 45 559 (1981); (1965) (substantial Falzone N.J. Allan, Accord, 421, bodily injury sickness). or v. 80 433 Berman N.J. Scott, Umbaugh v. 58 Ohio 2d (1979); Bldg. (1979); Pole Co. St. 282 Norman, Allen, (Okla. 1960); v. 351 P.2d 1048 Melton v. 282 Or. fines States, 731 D’Ambra v. 114 R.I. 643 (1978); (1975) (bystander United Co., case); Padgett (1958); v. Colonial Distrib. 232 S.C. 593 Wholesale Behrens, 1979]); (1979) (283 Chisum v. S.D. N.W. 2d 235 [S.D. Barrows, App. (1965); Trent v. 55 Tenn. 182 Farmers & Merchants Ferguson, (Tex. 1981) (dicta); Hughes State Bank v. 617 S.W.2d 918 v. Vt., Moore, Hosp. 214 Va. v. (1973); 27 Vaillancourt Medical Center Inc., Giard, (en 2d 424 (1980); Hunsley (1976) 139 Vt. 138 87 Wash. v. banc). physi- other distress to be jurisdictions require The courts of emotional Anderson, 195 cally compensable. manifested order to be See Towns v. illness); mental (1978) (en banc) (physical Colo. 517 manifestations or Davis, case); v. 104 Vicnire (Iowa 1981) (bystander Barnhill 300 N.W.2d Co., 148, 1979) bodily v. 401 A.2d or (Me. (illness Ford Motor Credit 155 Vance by objective symptomatology”); harm “substantial manifested Vance, determination”); (1979) (“capable objective v. 286 Md. Merrill, case) (physical (1979) (bystander Corso v. 119 N.H. determina- objective . . . form of medical symptoms susceptible some witnesses”). tion and medical See also McDow- proved through qualified Davis, (physical impact physical injury). 33 N.C. App. ell Labs. Abbott be This has response appeal be left to the jury. ter should not for an for the appellate cause in it is jury, general are real are and which court, determine which injuries contrived. a has suffered of whether plaintiff

The task determining not fall conven- distress, however, does emotional purely the the responsi- into traditional categories separating iently A those of jury. plaintiff bilities of judge that a defendant’s be convinced though wrongly, genuinely, If has her to suffer emotional distress. caused negligence re- believed, is and there is no such a testimony plaintiff’s dis- of corroboration of emotional quirement objective a would held liable tress defendant unjustifiably. alleged, the tricks the human mind can play It is in that recognition itself, as that are much as people capa- upon deception we another, ble one that continue to rely upon perpetrating harm evidence traditional indicia of objective upon provide a has suffered emotional distress. that plaintiff actually emotional court has allowed for Although recovery harm, done so distress absent it has where physical defendant’s conduct was extreme and and was outrageous, Solomon, v. 385 either intentional or reckless. See Simon 91, Co., 95 v. 371 Mass. Howard Agis (1982); Johnson v. Co., Mass. 140 Marsh 359 Mass. (1976); George Jordan 244 and reckless or intentional (1971). outrageous a that nature of defendant’s conduct to infer jury permits suffered In the emotional distress. genuine these that absence of indicia of we require genuineness plain sub tiffs infliction of emotional distress alleging negligent recover, stantiate their order to claims by demonstrating, suffered harm. they physical addition, func- noted, It should be retributive liability recovery tion tort served imposing allowing harm, distress, for emotional without proof physical reck- where a conduct was either intentional or defendant’s not was his fault is less. Where defendant only negligent, for a as to him to so compensate great require mental disturbance. purely

1. Historical Since this area development. of tort law is in a state of a brief review of change, history recovery for infliction of emotional distress is appropriate.

a. Parasitic emotional distress. recovery Where plain- for tiffs have suffered inflicted as a directly personal injuries result of a defendant’s courts have not been negligence, reluctant distress, allow for emotional recovery occurring with those as an contemporaneously addi- personal injuries, tional element of damages. Magenis, Barney 268, 273 Driscoll v. (1922). Mass. Gaffey, Homans Boston Elevated (1910). Ry., cases, In these emotional distress was allowed claim as a to the “host” claim “parasitic” damages inflicted See negligently injuries. Babineau, Dziokonski v. at 559. supra b. The rule. Massachusetts and other impact industrial States for limited many inflic years recovery negligent tion of emotional distress to cases where could that a had defendant’s caused a prove negligence physical of some kind to the The impact plaintiff’s person. leading case, Massachusetts courts of cited other frequently by juris dictions, R.R., v. & was Boston 168 Mass. 285 Spade Lynn “ The court conceded that (1897). Spade physical injury [a] be traceable to so be may caused directly fright, therefore, it. We cannot that such say, consequences may and, not flow if unintentional proximately negligence, be recovered for a compensation damages may physical it caused, so is hard on there injury principle say why should not also be for mere mental recovery suffering when not by any directly-caused] accompanied perceptible [ court, effects.” Id. at 288. while The physical admitting that the rule rested considerations ease mainly upon administration, that be held there could no recovery emotional distress “where there is no to the injury person from without.” Id. at 290. led courts to stretch. arbitrariness rule impact term in order to allow recov- boundaries of the “impact” See, Co., v. 218 238 United

ery. Conley Drug e.g., 549 faint follow- to floor in after falling bruised (1914) (plaintiff Elevated v. Boston Ry., Steverman ing explosion); to smoldering). clothing Mass. 508 set plaintiff’s (1910) (fire has its rule, inception, commentators since assailed minority all a small abandoned but been ed. Prosser, 1971). Torts 332 See (4th W. jurisdictions.6 c. emotional distress. English Intentional infliction of infliction for intentional courts to allow recovery began harm, about distress, emotional without physical resulting See, Downtown, Wilkinson the turn of the century. e.g., ^[1897] Q.B. 57. The commentators almost universally Mental and favored of such claims. Magruder, recognition Torts, 49 L. in the Law of Harv. Emotional Disturbance Prosser, Intentional Infliction of 1033, Rev. 1058 (1936). Tort, Mich. L. Rev. 874 A New Mental Suffering: an court first allowed In American (1939). harm. State Rubbish

for emotional absent distress 38 Cal. 2d Collectors Ass’n Siliznoff, the exist- of Torts Restatement (Second) acknowledged emo- ence severe tort conduct “outrageous causing distress,” tional Restatement of Torts (Second) § law intervenes (emphasis adding supplied), “[t]he reasonable man could where the distress so severe no endure it.” Id. at Comment j. expected rule in An made extensive intrusion was upon impact 46 of adopted essence) Massachusetts when this court (in § v. 1971. the of Torts in George Restatement (Second) Jor- Co., 244, The George dan 255 (1971). Marsh however, decision, intentionally allowed recovery “with harm result- bodily inflicted severe emotional distress reserved such Id. court distress.” ing expressly on the would be allowed “allega- whether question recovery 6 impact the rule. Gilliam apparently still adhere to See jurisdictions Five Rhoads, Stewart, 1974); v. 291 2d Carlinville Nat'l Bank v. (Fla. So. 593 case, 502, dicta); 503 Indiana Motor (1978) (bystander 63 Ill. 3d App. Hudson, (1980) (399 N.E.2d 775 v. Ind. cycle App. Ass’n [Ind. Schein, 1980); v. (Ky. 597 S.W.2d 141 Williams App. 1980]); Deutsch v. 256, 1969). (Mo. 266 Springfield, School S.W.2d Dist. of

tions of distress without bodily Id. Five resulting injury.”7 later, the years court answered the reserved in Co., George. Howard Agis Johnson the court overruled the (1976), allowance of a motion dis- to miss a in which the complaint that she had plaintiff alleged suffered severe distress, inflicted, emotional intentionally in no more than “mental and resulting weeping, anguish, loss of and Id. 141. at em- earnings wages.” plaintiff’s dismissed her after ployer his intention fire announcing order employees until theft losses alphabetical ceased. d. emotional the Negligent distress: “zone infliction of of 1965, rule. when the danger” American Law Institute By the Restatement published 436, Torts (Second) § of American courts had “strong majority” ameliorated harshness rule and impact plaintiffs permitted distress, recover for inflicted, emotional if those negligently were within the “zone of created danger” by defendant’s conduct. Restatement negligent (Second) 436, 313, Torts 436A Notes. (1965), Reporter’s §§ Courts to this rule do not adhering require that defendants have inflicted traumatic allege prove See physical them. injuries directly Fournell Usher upon Co., Pest Control Neb. 686-687 (1981). e. re- emotional distress: Negligent bystander infliction of the most cases for abolition of covery. Perhaps persuasive limitation on for emotional distress imposed by “zone of rule involved who suffered severe danger” parents distress, emotional manifested serious usually physical as a result of their children symptoms, being witnessing struck first defendants’ vehicles. The Restatement Torts contained a caveat on issue whether such plaintiffs should be to recover. Restatement of Torts permitted § however, at 851 The Restatement allowed (Second), within the zone of created danger or at defendant’s act to recover “shock negligent fright harm to a member immediate peril plaintiff’s] [the in his Restatement family occurring presence.” (Second) 7 attack, George as a plaintiff allegedly suffered heart result practices. defendant’s debt-collection 551 Abbott Labs. v. recov- See id. at 313 Torts 436 (2) (denying (3) (1965). § § zone of dan- not within the to who were such ery plaintiffs no expressed . The drafters of Restatement (Second) ger) where should be allowed whether recovery opinion family not an immediate harmed or was imperiled person in the while member, pres- or was not harmed or imperiled Restatement (Second) ence of the imperiled person. Torts, 436 caveat (1965). § soon went beyond

The California Court Supreme allowed a and set forth in the Restatement boundaries the zone of dan- who, not within mother to recover while in a motor vehi- her minor death witnessed ger, daughter’s conduct. cle accident caused the defendant’s negligent nervous result- suffered a shock to her system plaintiff 68 Cal. 2d Dillon v. in mental suffering. Legg, ing pain have allowed bystander 728 Other courts similarly (1968). in- to recover who suffered substantial physical See, for ex- but were not within zone of danger. juries Davis, v. 300 104 1981); Barnhill N.W.2d ample, (Iowa v. 84 Merrill, 119 647 Tortee Jaffee, Corso v. N.H. (1979); Burd, 486 Pa. 146 D’Ambra Sinn v. (1979); (1980); N.J. States, 114 The Court of v. United R.I. (1975). Appeals hand, that for York, of New on the other public determined no should be allowed bystanders reasons policy harm or for harm suffered as a result of witnessing peril Grossman, another. N.Y.2d Tobin for the law is to limit the consequences legal (“The problem ... It is to a controllable enough degree. wrongs of those directly establishes in favor liability law harmed”). intentionally and held the issue in 1978

This court considered law, a bystander plaintiff recovery by under Massachusetts was allowed, whether would be regardless the usual elements on within the “zone of proof danger,” on foreseeability) claim emphasis of a (with negligence in- suffered a “substantial physical that the proof Accord, Babineau, 568. Fer- at supra Dziokonski jury.” 507, 517-518 Sons, v. Daniel O’Connell’s riter died, Dziokonski allegedly One of 552

Payton aas result of the shock she suffered of the ac- upon learning cident which her child: there could be no injured that the was “substantial.” plaintiff’s injury

f. emotional distress: Negligent recovery infliction of without harm. The Restatement proof physical (Second) of Torts 436A sets forth what is still the rule ad- § hered to of American courts: “If the actor’s majority conduct is as an unreasonable risk of negligent creating either harm or emotional disturbance to an- causing bodily other, and alone, it results in such emotional disturbance without harm or other the ac- bodily compensable damage, tor is not liable for such emotional disturbance.” cases hold that harm is but accord- generally physical required (in ance with the Restatement of Torts [Second] § 436[2] trauma; the harm need not be [1965]), caused or by impact harm from emotional stress is sufficient. physical resulting there is still Although general agreement distress, caused, emotional will not be allowed negligently Prosser, absent harm Torts, W. proof (see supra at courts, decisions, in recent have con- 54), minority § cluded otherwise. See Center, Medical Taylor Baptist Inc., 400 So.2d 369 Molien v. Kaiser Founda- (Ala. 1981); State, tion 27 Cal. 3d 916 Hosps., Rodrigues (1980); Burd, Haw. 156 Sinn v. 486 Pa. 146 (1970); (1979) (by- stander See also Montinieri v. case). Southern New Eng- Co., land Tel. 175 Conn. liable (1978) (defendant if it “should have realized that its conduct involved an un- reasonable risk of emotional distress and that that causing distress, caused, if it were result in or illness might bodily harm” whether illness or did harm bodily regardless result). are,

2. for the reasons rule at Analysis. majority least, three. One is that emotional disturbance which is not so severe or as serious to have is likely physical consequences to be “so harm- so evanescent and so temporary, relatively less” that the task of for it would bur- unduly compensating den defendants and the courts. The second is in the absence result- guarantee genuineness provided by harm, can such emotional disturbance be too eas- bodily ing The third is that where the defend- ily feigned imagined. v. Abbott Labs. element without any conduct has been merely negligent, ant’s that he fault not so should harm, his great of intent Re- mental disturbance. make purely required good 436A, b. Torts, Comment at supra statement (Second) § in this We find merit reasoning. troubled for by problem

Courts have been many years dis- for emotional deal with claims for damages how to be distress can that emotional tress. have They recognized trivial, situations, evan- while both real and serious in some meth- escent, others. The various or in feigned, imagined in the ods of such claims preceding treating (summarized to formu- have been system section) attempts by judicial the latter. The late a means of the former from separating to be that of in most seems underlying policy jurisdictions in- with serious clearly recognizable compensating plaintiffs or in- system while not either judicial juries, burdening of claim. dividual defendants with the latter type claims a rule means of which Instead formulating differentiated, be emotional distress could damages claims, left to the fact courts could have all such rejected claims. The first finder task of insubstantial eliminating who have suffered resolution would be unfair to plaintiffs while the latter would burden defendants serious injuries, and the with the task of with myriad courts dealing have claims that never to have been Courts ought brought. these to find a middle between options, ground sought course. we believe that still remains the advisable at the de- rule was the first attempt The making impact out, crit- this rule was sired distinction. As we have pointed its Where icised and modified almost from inception. have indi- abandoned, writers rule has been leading impact be, of some lieu there must necessity, cated of impact and, further, there of satisfactory requirement proof not a normal individual would be no where should recovery Prosser, the circumstances. W. have been affected under Torts, 332. at supra to de- an

The cases recovery represent attempt parasitic as a contem- element of satisfactory proof fine the required of this inflicted logic injury. poraneously is difficult approach defend where the personal injury and the emotional distress are not related. alleged causally More courts have found that recently, met the re- quirement when, did satisfactory proof not although they suffer direct physical were within the “zone of injuries, they created danger” defendant’s See, conduct. negligent Mandella, Colla v. e.g., Wis. 2d 594 When a has been to the risk of serious subjected bodily harm from an automobile or other directed toward his object person conduct of defendant, emotional negligent result, damage and the expected requirement some additional element of has been met. satisfactory proof cases are bystander an extension zone of danger allowed, has been principle: whether the regardless plaintiff was the zone of when emotional danger, injuries resulted from the shock suffered on of serious learning physi- cal to a close injuries member of the Dillon plaintiff’s family. 68 Cal. 2d Legg, This court has permitted situations, however, bystander when the only by- stander has suffered substantial as well as physical injuries emotional distress. Babineau, Dziokonski v. at 568. supra of an Again, requirement additional element of satisfac- is satisfied tory proof by proof serious ato physical injury member, close and family serious resulting physical injury Prosser, See W. plaintiff. Torts, at 330. supra That additional element also can be found when the emo- tional distress has been or intentionally inflicted. recklessly Howard Agisv. Co., 371 143-145 (1976). Johnson the court Agis, that administrative recognized difficulties do not denial of relief justify when serious invasions of men- tal and emotional occurred, have tranquility concluded that of the greater proof mental plaintiff’s is found suffering in the defendant’s conduct it about than in designed bring physical which or injury not have resulted from may may that conduct. The court was to hold that no unwilling cause of action for emotional distress without physical inju- ries exists because merely of difficulties of but it proof, the door to opened recovery cautiously by requiring plain- u. Abbott Labs. to in- intended the defendant not (1) tiff to prove have known distress, or knew or should flict emotional conduct, but of his result was likely emotional distress and outra- extreme conduct was the defendant’s also (2) and utterly bounds of decency, all beyond possible geous, of the the actions community, in a civilized (3) intolerable distress, and defendant were the cause plaintiff’s severe was suffered the emotional distress be ex- could nature that no reasonable person and of such a it. Id. at 145. to endure pected negligent, conclude that when recovery sought

We emotional reckless, infliction of intentional or rather than has that the distress, evidence must be introduced like those set This harm. requirement, suffered physical and those in limit frivolous suits forth in will serve to Agis, involved, are bad manners or mere hurt feelings which only claims. false and will a reasonable safeguard against provide such limitations. We see no reason abandoning the emotional distress cases arise in which Although may or harm not be slight, absent temporary that most such claims are not before us indicates nothing therefore, that character. We are impose unwilling, the bur- defendants upon system potential judicial den for emotional distress with claims damages dealing trivial, evanescent, that are imag- temporary, feigned, more ined, claims of a in order to ensure that occasional receive resolution. serious nature judicial dis- with emotional A careful cases analysis dealing for an additional reason denying recovery tress discloses and no there has been conduct physical when only negligent that, stated Professor Prosser has to injury plaintiff. be abandoned, there should rule has been where impact se- would have suffered no unless a normal recovery person the circumstances. W. Pros- vere emotional distress under to is related ser, Torts, at 332. This concept supra closely be law to compensa- the traditional rule negligence de- the conduct of a ble, resulting injuries plaintiff Hill v. foreseeable. See fendant must have been reasonably Winsor, Where has been allowed for harm, emotional distress absent physical the element of reasonable exists. Cer foreseeability usually that is true when a defendant or reck tainly intentionally inflicts emotional distress v. lessly Howard (Agis Johnson Co., as well as when has been supra), plaintiff subjected Mandella, threat of harm serious bodily (Colla or has witnessed the infliction of serious harm supra), bodily on a close member of the plaintiff’s family (Dziokonski Babineau, supra). believe, further,

We that emotional distress is reasonably foreseeable when there is a causal between the relationship suffered and the emotional distress physical injuries alleged. cases can on the basis of Many explained impact the reasonable emotional dis- foreseeability plaintiff’s See, tress after an when that distress occurred impact. the U.S. as Owner the U.S. Petition Coast example, Guard Vessel CG 418 F.2d Cir. This 1969). (1st breaks down with to those cases where analysis respect suffered was of such a nature that no emotional impact result, could be and those cases where injuries expected suffered were unrelated to the emotion- physical injuries al distress for which was allowed to recover. of cases is not a sufficient basis for That these classes exist absent some additional element of satis- recovery, allowing emotional which is not a distress factory reasonably proof, conduct. foreseeable result of a defendant’s merely negligent conclude, on the basis of the We therefore preceding in order for of these to recover analysis, any distress, inflicted emotional she must allege for negligently harm a result of the con- she suffered as prove answer, fur- caused the emotional distress. We duct which ther, harm either cause or be that a must plaintiff’s physical that the caused the emotional distress physi- alleged, cal harm be manifested must symptomatology objective medical Finally, and substantiated testimony. by expert the emotional distress for which compensation sought unless a proves must be foreseeable: reasonably v. Abbott Labs. fac- have known special or should knew that defendant to circumstances that plaintiff’s response tors affecting for that case, recover degree can the plaintiff con- normally which reasonable person, emotional distress circum- under those stituted, have would experienced is which a the emotional distress plaintiff stances. Whether reasonable, be deter- is to to have experienced alleged finder of fact. mined to recover that a in order we hold plaintiff summary, distress must prove inflicted emotional negligently distress; causa- emotional (3)

following: negligence; (2) (1) tion; harm manifested by objective symptoma- (4) have that a would suffered reasonable tology; person the case.8 under the emotional distress circumstances one, we need Due our negative response question not one-A and one-B. address questions Two

Question “If the trier of fact concludes that a would prob- not been for the mother’s have born ably except ingestion DES, is that barred from because recovery phys- the mother’s ical or suffered as a result of emotional damage answer, of DES?” We Yes.9 ingestion

Discussion most defendants assert the instant case closely those in which resembles the life” cases: severely “wrongful “the defective infants sue physician physicians, alleging failed to inform possi- child’s negligently parents only, harm We note this suit emotional seeking for later- problem involving compensation have created a any adequately harm not be dealt with occurring physical which Bank, Co-op. they award of receive. See Plain damages Boyd Jamaica Ct. 166-167 App. two, need not address response Due to our affirmative we 2A of the part question.

558 386 Mass. 540 v. Abbott Labs.

Payton of their bility a bearing child, defective severely thereby a preventing choice to parental avoid the child’s birth” (citation v. omitted). States, United Phillips 508 F. Supp. 537, n.1 538 The (D.S.C. of the 1980). infant gravamen plaintiff’s in such that, cases is complaint because of his de fect, “he would be better off not to have been born.” Gleit man v. 22, 49 Cosgrove, 63 (1967) (Weintraub, C.J., N.J. overruled in dissenting part), Allan, Berman v. part, 80 421 Those courts which have (1979). entertained claims N.J. of this nature almost have denied invariably rea recovery, that “life is more soning non-life,” than 429, id. at precious and that the is judicial system dam incapable assessing in a ages case when that negligence assessment must be based upon relative comparison values of monetary existence and nonexistence. 427; See id. at v. Unit Phillips States, 543; ed at Schwartz, Becker v. supra 401, 46 N.Y.2d 411-412 Sortini, But see 31 Cal.3d (1978). Turpin (1982). hand, on other plaintiffs, that this is case argue

most to the “Good Samaritan” cases in analogous which would-be rescuers have been held to a to exer subject duty cise reasonable care in their efforts to save or protect York, lives of others. See H.R.R., Black New N.H. & Mass. 448 States, Indian Co. v. United (1907); Towing U.S. 61 Restatement 323, of Torts (1955); (Second) §§ When the rescuer’s act was not (1965). gratuitous, insist that Massachusetts law an plaintiffs even imposes care, stricter Mello, see Motta v. duty 172-173 and that the defendants have failed to meet (1958), that duty.

Neither of these is The case before analogies compelling. us differs from the life” cases in at least one im- “wrongful here portant do not assert that particular: plaintiffs would born, be better off not to have been nor they does certified make that Sa- “Good assumption. maritan” also breaks down when examined analogy closely. The rationale for of reasonable care on one duty imposing a rescue is if the rescue not ef- undertaking attempt manner, fected assist- in a reasonable receiving person rescuer ance in a worse than if the be placed position had Torts not intervened. See Restatement (Second) case, if Comment c alterna- § tive to the defendants’ “rescue” is that would born, not have been we cannot how the perceive would been if have better off the defendants had acted. not

We the of the find life” cases more “wrongful reasoning however. hold that persuasive, we if the trier Accordingly, of fact that a finds the credible of evidence preponderance the conclusion that a supports would not particular plaintiff have been DES, born for her mother’s of except ingestion the is barred In case, that plaintiff assess- recovery.10 ment of for harm suffered damages as a result of the defend- ants’ would a require of the relative negligence comparison values of existence and nonexistence. monetary We agree that an to make such a attempt would be- comparison yond competence of the judicial system.

The Chief that, takes view where is there Justice a that a would have probability not been born but for her mother’s of DES, the ingestion manufacturer of the be liable. The drug may circumstances assumed in the sec- ond do not involve question situations in which it was prob- able that a result could have been achieved perfect without the defendants’ case, involvement. a de- negligent involvement, fendant’s even is assumed though negligent, be the cause of the likely plaintiffs’ Thus, existence. very we find those on which the Chief distinguishable examples a relies. No doubt dentist could be found who Justice would not throat, a tooth a negligently down drop patient’s or a volunteer rescuer would use who reasonable care not to further of the rescue. An tent imperil subject oxygen Here, contained no defect could have been provided. however, two assumes the any unavailability We “probably” assume the word in the using ques certified tion, the judge proof intended to indicate that the degree required evidence, that proposition to be is a preponderance established usual a standard in civil case. u. Abbott Labs.

other means a would have been which plaintiff probably not that a would born: it is more than probable defend- not have been born but for the involvement a ant means of or defendants. provider probable not for unavoida- existence should be liable plaintiff’s very ble, the use of that means. collateral consequences however, the defense

The result of this ruling, It available to the defendants is narrow indeed. requires a the evi- that the defendants establish by preponderance suf- dence that the mothers of the would have (1) instance, fered, each absent medical inter- miscarriage vention; means, method, no or substance was other (2) fact, did, DES available to prevent miscarriage; to be born. and cause prevent miscarriage Three

Question Massachusetts a of action for right injury “Does recognize of to a in a drug by útero resulting ingestion answer, her mother?” We Yes.

Discussion law an area of the tort This certified involves in recent which has considerable years, undergone change sum- both Massachusetts and in other We in jurisdictions. with cases before marize the relevant Massachusetts dealing issue raised question. by Massa- 1884, 1. In this court construed the Background. then in force as chusetts death statute precluding wrongful of an infant the administrator the estate recovery by re- after birth death almost immediately allegedly whose mother, be- the infant’s sulted from suffered when injuries fell on a and the defendant’s slipped cause of negligence, Dietrich v. Northampton, defective roadway. court, Holmes, denied for the speaking

(1884). Justice of a lack of precedent relief on the grounds requested at child mother the unborn was part “as 386 Mass. 540

time of the it to which was not too re- injury, any damage mote to be recovered for at all was recoverable her.” Id. at 17. Dietrich was cited courts other jurisdictions as with “dispositive for controlling” respect recovery prenatal almost See injuries Bonbrest v. century. Kotz, 138, 65 F. 139 & n.3 Supp. (D.D.C. 1946).

This court reaffirmed 1950, the Dietrich rule in and again Passanesi, 1952. Bliss 326 Mass. 461 Cava- (1950). v. First Nat’l naugh Inc., Stores Both (1952). decisions noted the existence of a of law from body growing other jurisdictions results to that reached reaching contrary in Dietrich. Bliss v. Passanesi, at 462. supra Cavanaugh Inc., First Nat’l Stores at supra 180-181. The court re- convinced, mained however, that the created problems allowing recovery, including “practical reli- difficulty able causation, proof’ Passanesi, Bliss v. 463, at supra tipped balance in favor of the rule retaining re- against covery prenatal injuries. however, in light “growing body prece

dent in favor of and the [allowing recovery] made progress science,” medical the administratrix of the estate of an in fant who died from suffered in injuries utero was permitted to seek in a death action. wrongful v. Con Keyes Serv., Inc., struction The Diet rich decision was on the distinguished that there the ground — intestate plaintiff’s was before injured viable becoming — able to live outside the mother’s while the body plaintiff’s intestate in could have died of Keyes sustained injuries after viable. Id. at becoming 637. later,

Seven in years Co., Watertown Torigian News the administrator of the estate of (1967), an infant alive, who was born but died several hours later of in- sustained juries while not viable, was yet to reach permitted with a death claim. jury The defendant’s wrongful that no cause of argument action should be allowed because the harm was too uncertain and alleged was dis- speculative missed: “The which have been grounds most frequently urged are . . . against allowing the avoidance of v. Abbott Labs. ficti- and the or conjecture, encouragement

speculation science . . . The advancement of medical tious claims. The element of these should take care of most arguments. in the to extent than is not any greater speculation present is offered and the claim, where medical evidence usual tort care. . . . The must be with great issue of causation weighed the courts claims can be faced for fraudulent opportunity 448-449. Id. at as in other of cases.” omitted.) types (Citation denied, the ad- was In death recovery wrongful stillborn, in who was the estate of an infant ministrator of Serv., in v. Construction reliance a statement Keyes upon the child was still- Inc., 637, to the effect that at supra “[i]f Leccese have no of action.” born the would right was That decision 361 Mass. v. McDonough, Lines, later. Mone Greyhound overruled three years Mone, court In Inc., reempha- 368 Mass. 354 (1975). more likely were no sized that awards speculative damage cases, and stated than in other tort cases prenatal injury the meas- renders that stillbirth that it was “not persuaded cal- less precise ure of recoverable any capable damages Id. at 360. than in cases of live birth.” culation in útero a plaintiff 2. sustained injuries Recovery for mother. a drug by plaintiff’s resulting ingestion follow- three, we make the certified question answering find questions which we implicit ing assumptions, Court: the Federal District (a) certified by judge which are compensa- have suffered legally injuries conduct was inflicted; the defendants’ ble if (b) wrongfully the cause of conduct was the defendants’ negligent; (c) we con- Given those assumptions, the plaintiffs’ injuries. inflict- injuries, negligently clude that recovery personal case. of this the circumstances ed, allowed under should be which of a law, drug ingestion Under Massachusetts Diaz for a tort claim. the basis can constitute causes injury Co., fungi & (1973) (exposure v. Eli Lilly us, in before the case see no reason distinguish . We cide) from cases the drug, mothers ingested which the plaintiffs’ and suf directly a drug themselves ingest in which plaintiffs fer as result. injury e. Abbott Labs.

The defendants that should not be recovery argue allowed because of causa- difficulty practical proving tion and the of fictitious claims. In an- consequent danger one, certified we relied in on the have question part swering of and causation the existence extent difficulty proving of as a for emotional distress reason purely recovery denying of for emotional distress in the absence some ob- damages we evidence of harm. As demonstrated ear- jective lier, the risk of and fictitious claims is exacerbat- speculation ed, distress, in the area of emotional the absence purely by medical test or of evidence that other veri- any objective fies the existence extent of the Where plaintiff’s injury. circumstances of emotional do not special purely injuries exist, however, this court has a similar as rejected argument for reason to a denying recovery fetus injuries (Mone Lines, Inc., at We remain con- Greyhound supra 359-360). vinced that the of fictitious claims and possibilities recovery on based should not damages speculation bar plain- tiffs’ action for can that be demonstrated to exist injuries evidence, and medical for all harm the is plaintiffs naturally related to reasonably those The cer- injuries. tified assumes that the can prove negli- and causation. “If the gence tortious conduct and the legal established, causation of the harm can be there satisfactorily at time any after injury occurring any Restatement Torts Com- conception.” (Second) § ment d We believe that element specula- “[t]he tion not present extent than in the any greater [here] usual Co., tort claim.” v. Watertown News Torigian supra at 448-449. see we no reason Accordingly, why particu- lar means which the were inflicted injuries allegedly this case should “to require life car- go through the seal of another’s fault. . . without rying any compensa- tion therefor.” Montreal Tramways Leveille, ^[1933] D.L.R. 345. further,

The defendants in this argue, any change area tort law should be made This Legislature. Co., court dealt with that issue in Diaz v. Eli & supra Lilly 386 Mass. 540 Payton AbbottLabs. v. Lines, Inc., and in Mone v. at supra 166-167, at Greyhound that, 358-359, in both cases since proposed concluding “drastic . . . and were not or radical changes incursion[s] interest, would not an disappoint seriously impair existing reliance,” defeat a action was ap an or expectation, judicial Co., v. Eli & supra Id. Diaz at 359. at Lilly propriate. view the in Massachusetts 167. We do not wrought change three law, tort if our to certified to answer any, by question and, below, be a one as discussed reli any drastic or radical not be rea based law would ance upon prior expectation sonable. action of Massachu to clarify aspect Judicial in case. setts tort is therefore the instant law appropriate that she we hold that a who alleges summary, plaintiff a her suffered in útero as result of mother’s injury ingestion her but the defendants’ drug negligence, a claim mother not have has stated drug, would ingested which relief can be under Massachusetts law. upon granted Three-A

Question affirmative, “If the to 3 is is such right answer question mother of action available to a whose ingested Torigian Honorable Court’s decision in drug prior your Co., Inc., Watertown News Mass. 446 assuming (1967), fetus was viable that it is established that the not probably answer, at the time We Yes. injury?” Three-B Question affirmative, is such “If the 3 is right answer to a under circumstances action available any Honorable your whose mother ingested drug prior Services, Inc., Construction Keyes Court’s decision answer, Yes. Mass. 633 We (1960)?”

Discussion three-B whether three-A and Certified inquire questions retroactively the rule have stated above applies we whether, therefore, the in the instant case can take of that The issues raised these two rule. advantage ques- identical, tions are and we consider them virtually together. is in Since rule favor of retroactive general application law, Badoian, of a decisional Tucker v. change Kuhn 918-919 v. Fair- J., concurring), (1978) (Kaplan, Co., Coal mont 215 U.S. dissent- J., (Holmes, decisions have had ing) (“Judicial retrospective operation near a thousand we would have to be satisfied that years”), exist to circumstances limit our answer here to special only No such application. circumstances prospective special have been demonstrated exist in this case. because of concern for

Primarily others who litigants on have relied in Mas existing precedents, judicial changes contract been sachusetts law have property given only Controls, Bowes, effect.11 Inc. v. 381 prospective Johnson Mass. 278 v. (1980) (insurance contracts). Rosenberg Lip nick, 377 Mass. 666 (1979) (antenuptial contracts). Plaza, Kotseas, Whitinsville v. Inc. 378 Mass. 85 (1979) in not to deeds and Cf. (covenants leases). Tucker compete Badoian, v. at 918-919 J., supra (Kaplan, concurring) rule enemy” (“common property law).12 law, however, In the area of tort reliance a much plays smaller v. Church, See Dalton St. Luke’s Catholic part.13 11 areWe not here with the application concerned retroactive of over decisions in the ruling field of criminal law. Mass., Inc., McIntyre 12See v. Fin. Associates Servs. Co. 367 Mass. 708, court, (1975), 713 where the after the effect considering of retroac Shevin, tive of the due decision v. application process of Fuentes 407 U.S. acquired 67 on had relied (1972), property rights by parties prior who on Massachusetts prejudgment procedures, attachment decided that Fuentes rule be applied prospectively. should 13Indeed, some argue commentators that considerations of reliance play part, judicial should no and that all decisions tort affecting law given Seavey, Cogitations should be retroactive effect. W. on Torts 69 Vadis, Traynor, A (1954). Quo Prospective Overruling: Question Ju 533, Responsibility, Hastings dicial 28 (1977). 545-546 Former L.J. Court, Traynor Chief Supreme of the California believes that Justice judges “most would agree Benjamin] ‘My impres with Cardozo: [Justice sion is that honest reliance and genuine disappointment instances of 540

566 Abbott v. Labs. 26 22, law, 27 Tort that dealing (1958). especially N.J. deci with not concern itself with business does negligence, sions same and contract law: it in the as does property way to assert tortfeasors would be unreasonable that potential on often reflect tort before upon possible liability embarking conduct, course or that are they negligent frequently See deterred from conduct the rules tort law. negligent Hicks, Inc., 571, 578 Meissner v. & 38 Wis. 2d Fitzgerald Schulze, 1, Note, Bielski v. 16 2d 18 Wis. (1962); (1968); and Retroactive Prospective Application Overruling Courts, 907, 71 Federal Yale 945-946 (1962). L.J. that features most prominently reliance interest liabil cases involves insurance tort against personal injury 42 See Keeton, to Do R. ity. Venturing Justice 302, Dist. No. Ill. Molitor v. Kaneland Unit 18 Community Parker 11, denied, 362 2d cert. U.S. (1959), (1960); Balts, Balts Port Huron Hosp., 361 Mich. (1960); Hicks, & v. Meissner Fitzgerald Minn. (1966); Inc., Vadis, A supra; Traynor, Prospective Overruling: Quo 533, 28 Question Responsibility, Hastings L.J. Judicial 545-546 the tortfea (hereinafter Traynor) (“Neither (1977) sor nor the victim takes account normally expanding the rules of in liability tort except tangentially contracting The such course of routinely against liability”). insuring in this base their retroac defendants case against arguments on tive rule we enunciate above the largely application exist law, as it the relied on Massachusetts they ground the oc ed at the the time acts complained lia amount of tort curred, in determining appropriate assert insurance obtain. regardless bility They it would be inequita whether their conduct was negligent, in excess of ble to them to tort liability possible subject to obtain. insurance choose liability they amount of be those who exalt commonly supposed are they are rarer than Cardozo, York New certainty.’ Address stability virtues of Justice Association, 22, 1932, 295 Rep. in St. B. 55 N.Y. Ass’n State Bar Jan. (1932).” Id. at 542 n.17. 567 out, the court has correctly, The defendants point into insurance taken account problems involving coverage in whether decisions tort changes determining effecting law should be Our review of only applied prospectively. however, decisions, these reveals that where dis- carded rule from suit to a afforded immunity large complete class of defendants has the court indicated that prospective of a new rule be See would warranted. Whit- application Worcester, v. 373 208 Mass. immuni- ney (1977) (municipal Univ., Ricker v. Northeastern 361 169 Mass. ty); cases, In these the court assumed (charitable immunity).14 that the institutions involved have relied reasonably might on their immunity choice not to obtain making liability insurance. Other have courts made same assumption. See cases in Note, collected of Minnesota Retroactivity Decisions, Court Personal Supreme Injury Wm. Mitchell 179, 546; L. Rev. 186-187 n.34 at (1980); Traynor, supra Keeton, R. to Do Venturing Justice, supra. hand,

On other in tort cases not concerned with the issues of or charitable governmental this court immunity, has decided of the against only new prospective application tort rules on the that “the rule to be ground discarded may not have determined reasonably the conduct supposed to, with other litigants” obtain respect among things, Lilly insurance ing Diaz Eli against liability imposed. Co., n.46, & Cardozo, quoting B. Nature Process that wife (1921) (holding Judicial can maintain action for loss consortium against party who inflicted on See negligently injury Pevoski husband). Pevoski, inter- (1976) (abolishing in motor vehicle accident spousal immunity Bou cases); 45, chard v. 368 Mass. 49 DeGagne, (1975) (retroactively 14 cases, substitute, Legislature In both the acted to for these common immunities, law statutes some in tort the allowing against insti 1978, 512, formerly protected by tutions the St. (mu immunities. c. 15§ 1971, nicipal immunity). (charitable St. c. 785 immunity). court instance, required, was not actually apply judicial in either to a in change prospectively. tort law 540

568 o. Abbott Labs. reasonable care to rule that landlord owes duty applying all lawful visitors).15 immune lia-

The defendants here are not from absolutely a fetus conduct to in útero: for bility negligent causing injury 1884, since it been clear that a mother could recover has her in her to child in útero as an element injuries damages own tortfeasor. Dietrich v. North- suit against negligent the defend- Mass. ampton, Accordingly, (1884). to obtain liability ants do not claim that decided not they in their immunity insurance reliance upon complete rather, to claim, that it would be inequitable suit. Their ex- to in them the risk a recovery by subject have chosen cess of the insurance coverage they liability re- addition, In obtain. defendants assert allowing insurers, their have set here would be unfair to who covery on their rates in reliance existing precedents.

We find neither of these reliance convincing. arguments cited case new rule defendants have no which tort was effect because law given only prospective parties had rule relied the old in determining appropriate upon obtain, our coverage amount of insurance liability that, in has none. The defendants admit research revealed 1950’s, was com- 1940’s when DES most early late used, less and multi- suits were filed far frequently monly were unknown. We infer million dollar tort recoveries law, facts, tort these and not Massachusetts then-existing be to have determined reasonably may supposed insurance the de- obtained amount of coverage liability not event, In have advanced fendants. the defendants any re- us to limit sufficient prompt reasons of public policy of their insurance liability in this case to amount covery Sorensen, v. 369 Mass. 350 Cf. Sorensen coverage. Sorensen, (1975), in which See also Sorensen immunity, recovery to court, tort limited abolishing parent-child New coverage. Hampshire But see the defendant’s insurance extent of suggests that (1982), which Fahey, Ins. Co. case, the defendants any availability of insurance irrelevant. recovery. on the plaintiffs’ here no such limitation argued have 386 540 569

With to reliance the defendants’ insur- regard possible ers on tort it Massachusetts law as existed at time of conduct, do defendants’ we not believe allegedly negligent that such reliance be to oc- have may reasonably supposed curred. have we no basis for in Certainly assuming, case, such Further, reliance occurred. we with agree Keeton that Judge “general acceptance argument] [of would in effect disable from courts creative decisions Keeton, accident law.” R. Justice, Do Venturing supra. See Lewis, 619, Lewis v. 370 Mass. 630 n.4 Pevoski (1976); Pevoski, v. at 363 supra (Quirico, J., concurring). we conclude that

Although reliance on former Massa any chusetts law that have existed on the de part fendants and their insurers does not that the rule require allowing recovery prenatal injuries given only pro effect, spective we do not believe that should inquiry end there. We to examine whether the proceed purposes will rule be served retroactive both application, and in general case before us. See v. McIntyre Associ the. ates Fin. Servs. Mass., Inc., Co. 367 Mass. 712 Note, (1975); Prospective Retroactive Overruling Ap in the plication Courts, 939, 942; Federal Yale 71 Tray L.J. nor, at 561. Since the is supra the rule purpose protect a child’s right commence life unhampered unimpaired by damage caused to the mind negligently or an body other, Gobeille, 101 R.I. retroactive Sylvia (1966), should follow unless application strong equity policy reasons dictate otherwise.

The defendants’ strongest argument against retroactivity, it, as we see allow that to retroactive dis application may an which society views as desirable: courage activity of new and more efficacious The de development drugs. fendants, us to Ducharme Merrill-Nat’l Lab referring oratories, 1307,1310-1311 denied, 574 F.2d cert. (5th Cir.), U.S. where the court noted that the “col (1978), of the commercial insurance market” for in lapse liability surance tort liabilities out of the against arising development of swine flu vaccine kept companies drug entering v. Abbott Labs.

Payton field the Federal intervened limit their until government that results follow a assert similar will retroactive liability, in this case. decision us, the the

We are not on basis of record before prepared, the claims in this On that rec- debate defendants’ regard. ord, can find no rational we justification distinguishing those between tort victims before and after injured injured If, contend, our in as the defendants decision this case. sound that limitations be placed dictates policy upon public as a result of their útero plaintiffs recovery by injured im- we believe that those limitations should be negligence, answer, Yes, to we posed Legislature. Accordingly, certified three-A and three-B. questions Four

Question warrant a conclu- that the evidence does not “Assuming sion that defendants conspired together, engaged action, concerted or established standards safety through manufacturers, association, who trade the defendant the mothers some of DES ingested probably supplied class, held liable to members of the of the be plain- can nor defendants tiff class when neither DES was which which manufacturer’s ingested by identify mothers?” One in the form stated.

We answer the cannot question of the the form of the difficulties presented by question one, does not explicitly unlike question establish the will be able to negli- assume that defendants. We of these particular suggest gence a defendant as party whether a can “identify” from the distinct ques- who the harm is question caused In an effort to be of tion whether was party negligent. views. In so however, set forth our assistance, we general have shown to assume that the defendants will we doing, DES dur- in the market actively been negligent, (b) (a) time in period a substantial relevant all or ing part DES. mothers which the plaintiffs ingested 386 Mass. 540

Discussion Identification of party responsible causing injury to another is a ato successful longstanding prerequisite neg- Co., action. See Smith v. Ariens ligence caused (plaintiff alleging injury by negligent design of snowmobile must defendant manufactured prove same). This serves two it requirement purposes: separates wrong- actors, doers from innocent and also ensures that wrongdo- ers are held liable for the harm that have caused. they

The seek to avoid the identification plaintiffs require- ment, in its stead a “market share” of recov- positing theory We believe that the ery. market share plaintiffs’ fails theory either of the adequately interests served protect the by identification It would be requirement. inappropriate, therefore, to allow under this theory.

The advanced the theory would by plaintiffs require them to that each named prove only: defendant acted (1) DES; negligently each in- was marketing (2) plaintiff and the extent of that jured, DES caused the injury; plaintiffs’ assert if are injuries. plaintiffs suc- they cessful in their should be making proof, they allowed to re- cover 100% their losses from the six named defendants: would have us assume that these six defend- ants were for all DES distributed in the responsible market, “relevant” DES defined as total sales in Massa- chusetts of DES for use in for pregnancy. Liability any award under this damage would be theory apportioned named defendants in among to each named de- proportion fendant’s share of the DES distributed all named defend- ants. The also would have us prohibit exculpatory is, defendants that the proof, DES proof particular marketed could not have been they whatever ingested, reason, aby mother. To the defend- particular plaintiff’s ants’ that other manufacturers than those named argument are the DES at least responsible marketing ingested by some mothers, that this plaintiffs’ plaintiffs reply prob- lem can be solved the named defendants to seek by allowing marketers of DES. This

contribution from unnamed bear the risk means, course, that the defendants would marketer of DES to mother plaintiff’s particular or otherwise immune from would turn out to insolvent contribution. the re is based in theory large part upon plaintiffs’ Laboratories,

cent case of Sindell Abbott 26 Cal. 3d where, denied, cert. 449 U.S. 912 a four-to-three (1980), decision, the California Court a form of Supreme adopted and that market share Both liability.16 plaintiffs’ theory can be traced to the devel of the California court principles Tice, In Sum in Summers 2d 33 Cal. oped mers, each was when two hunters neg injured was direction. shot in his Although ligently had fired the shot unable which of the two hunters to prove him, the were held severally that struck hunters jointly liable for the entire loss. to Summers is not wholly compel-

The plaintiffs’ analogy Summers, were tortfeasors all of possible ling. contrast, Here, and all had acted joined, negligently. number of six of what be a very potential only large make a The quan- tortfeasors have been plaintiffs joined. market of Summers to their tum the from leap principles in Summers was re- recover, To the share theory. plaintiff of all of the actors who might the to quired prove negligence theory, Under their market share have caused his injury. allowing a decision recently affirmed Appeals The New York Court of of recover, as the source identifying the defendant without mother, [among a “concerted action on plaintiff’s DES the ingested Co., & 55 N.Y.2d Lilly Bichler Eli theory. manufacturers]” ask to the respect little with provides guidance That case (1982). will not us, plaintiffs assumes that the Question four ed of however. Fur concerted action. here in engaged that the defendants prove able to because ther, primarily to recover permitted in Bichler was The Court trial instructions. object judge’s failed to to the the defendant law of the case became the held that the instructions Appeals instructions, verdict. The proper reached a jury of those light of the substantive the merits thus did not discuss Appeals Court of advanced, grounds decision on affirmed the trial court’s but arguments in nature. essentially procedural need to only negligence the DES would prove to sue. have chosen Acceptance of those six actors they the risk of would create holding theory proof more harm than for named defendants liable negligence share does not market theory caused. plaintiffs’ they their from exceeding responsibil- tortfeasors liability protect identi- of the and therefore disserves one purposes ity, fication requirement. take account also fails theory adequately plaintiffs’ the identification

of the second requirement: purpose actors. tortfeasors from innocent By prohibiting separate — that it could not a defendant proof proof by exculpatory — have been for to a injury particular plaintiff responsible inno- ensure that defendants would practically be held cent to a would particular plaintiff wrongdoing liable to her. theories. Public

We cannot policy accept plaintiff’s ef- of new and more favors the and marketing development The Restatement of Torts recog- ficacious (Second) drugs. in favor of nizes this strict liability negli- policy by rejecting for Restatement related gence (Second) drug injuries. k 402A, Torts Comment Under plaintiffs’ § market share defend- each theory potential drug-marketing liable, held not ant would risk injuries being resulted its own but also for result- negligence, injuries and even from the of other marketers ing negligence others. marketed caused by drugs nonnegligently injuries have a deleterious of such broad could Imposition liability of new drugs,17 effect on the and marketing development Sub Before the Hearing 1976: Program, Cf. Polio Immunization Comm, Welfare, Labor and Public the Senate on committee on Health of 23,1976) Surgeon of Assistant (Sept. (statement 94th 2d Cong., Sess. dramatizing opinions of court Sencer): “Largely General because David of disability, patterns vaccine-associated the inherent risks of vaccines and vacci agencies local health immunization State and programming being are modified. medical practices private professionals nation poten alarm likely in vaccines are Called-for of inherent risks warnings program immunization and result in diminished recipients tial vaccine disability, vaccine-associated liability effectiveness. Manufacturer those marketed

especially genetically.18 In their both brief and in oral reply argument, plain- tiffs that if of their market share suggest particular aspects difficulties, create we theory excise, reformulate, should and rewrite to create a under which theory could re- they cover without the identification meeting requirement. of the case and posture record, state of the consequent of our magnitude ramifications decision with respect to this certified and our view of the question, judicial proc- ess combine to convince us that a such course of action is im- at this time. prudent

That is not to that on an say record this court adequate would not some relaxation of the traditional iden- recognize tification circumstances so as to requirement appropriate allow a defendant of that recovery against negligent portion of a which is that defend- plaintiff’s damages represented by ant’s contribution of DES to the market in the relevant peri- time. od of

Summary therefore, we answer that absent summary, (1) physi- harm, cal Massachusetts does not a of action recognize right for emotional from in- distress to have resulted an alleged creased statistical likelihood that the will suffer a future, serious in the disease if the trier of fact concludes that a would not have been born probably except DES, for the mother’s is barred ingestion of her moth- suffered as result damages er’s Massachusetts does ingestion drug, (3) recognize — courts, regularly assigned by predictable supply threatens a vaccine — signifi- oral vaccine and diminishes the chances especially polio development independent manufacturer-sponsored cant research and biologies” (emphasis supplied). new 18Indeed, develop if a cure for clear-cell adenocarcinoma lies in the liability market drug, imposing ment and manufacture of some new share marketing very threatening of a cure for the cancer might prevent plaintiffs.

386 Mass. 540 u. Abbott Labs. Payton útero, in to a resulting of action injury plaintiff, right of action a mother and that from of a drug by right ingestion un- we are is not limited to prospective application, this record whether the able to a definitive answer on give manufacturers of DES named as defendants (who probably the of the DES the mothers of some supplied ingested by can or cannot be held liable to the members of the plaintiffs) neither the nor the defend- class when plaintiffs’ ants can which manufacturers’ DES was identify ingested which mothers and where the named defendants are some of the of DES the manufacturers ingested by indicated, however, mothers of the We have plaintiffs. view that we from those defendants might permit recovery shown to be to the extent of their in negligent participation market, the DES even cannot though identify source of DES their which mothers particular ingested. of Decisions and the clerk of this court are Reporter to follow the set out in Hein-Werner procedures Corp. Indus., 530-531 for furnish- (1974), Jackson of this them. ing copies opinion transmitting

So ordered. as to the answer (dissenting question C.J. Hennessey, I dissent answer to two. two). majority’s question outset, At the several should be made about the points scope two. The asks whether a is question question plaintiff barred from suffered as a result of the “damage mother’s of DES” if the “would ingestion probably not have been born for the mother’s except ingestion DES.” This is not limited to cases in which question negli- warn, consists of failure to and the action is it- gence present self based on as well as allegations negligence testing limited to cases in Nor two which warning. to reach the beneficial re- was alleged necessary negligence sult; words, in other would to cases which not have been born but for the manner in which particular defendants tested and manufactured drug. two, into account the full breadth of the

Taking question affirmative answer a manu- majority’s provides negligent facturer of a life with an excuse from sustaining product whenever it can show that its liability product probably saved a life. plaintiff’s effect, harm, a tortfeasor who causes but the same by benefit,

stroke confers a need not answer for the harm. Such a rule from of tort One departs ordinary principles liability. would not for that a doctor expect, example, guilty negli- could to harm he have averted gent malpractice point may as for It is the doctor’s business grounds escaping liability. to a beneficial service. He was provide engaged paid the that he would a expectation remedy prevent problem, and the successful should accomplishment purpose not affect the for caused his doctor’s liability injury by negli- See, Bianchi, the service. Malone gence providing e.g., teeth tooth (1945) (dentist extracting dropped down the defendants’ patient’s throat). Similarly, product lives, was to save and marketed for that expected purpose. that it did intended fact what it was to do has no place in the caused question liability injury by negligence. a That of the between a aspect relationship For defendant on an plane. belongs independent purposes claim, the should be viewed as negligence who have suffered living persons injury.1 rescuer, services often Even a whose are gratui- negligent tous, his is liable for caused negligence, despite injury by that he have averted some form of harm possibility may Auth., Transit See Michon plaintiff. Metropolitan 50, 51 the res- 345 Mass. distinguishes majority in the Restatement cuer to a comment (Second) by pointing the effect that a rescu- of Torts Comment c (1965), § rescue, because, er is liable for by undertaking negligence Yet that he risks the other’s justification increasing peril. reiterate, course, must in prove 1Here I that the by negli the emotional caused the defendants’ jury suffering induced one, a view majority’s in accordance with the answer to gence, Wilkins, Liacos and Abrams. not shared Justices increased, not that the might arises from the risk peril Under be increased. that it might probability seem that any it would taken majority, approach proba- rescuer could show time a negligent actions, for the rescuer’s have survived but would not bly that the Moreover, the be denied. danger should important rescuer worsen plaintiff’s predicament on one care as a for imposing duty justification act. Once this duty under no duty who is otherwise that a rescuer arises, prevented negligent possibility not affect his other disaster should liability injuries manufacturer, case of a caused his In the by negligence. be affected the of care to those to likely by underlying duty If, the an is well established. example, oxygen product made, the tent that saved a life was pa- patient’s negligently tient, the the would to law as stated by majority, according if the manufactur- unable to recover for injuries resulting er could that at the time of its the manu- prove usage, only the life. facturer’s tent could have saved oxygen patient’s the There is no sound reason why life-sustaining properties should an excuse from liability. product provide that the in the the facts victims Finally, despite deceptive harm cases before us were unborn when the was first inflict- the benefit the defendants’ ed and that assumed product life, the of the so called was reasoning preservation birth” cases are not determinative. “wrongful — case, In a birth the harm is life itself wrongful alleged words, life, as to no life. The other compared impaired in such a case is that the defendant has ob- advanced theory a life that structed decision plaintiff’s parents against have otherwise have made. Courts denied recovery might it calls for an as- on this unusual because impossible theory of life and no life. sessment of the relative values Damages, allowed, if would be a estimate of monetary allegedly value of never been born. greater having If the form of contemplated by question only negligence warn, were birth” cases pro- two failure might “wrongful such vide “harm” connected to causally only analogy. would be the mother’s negligence decision to take the drug, thereby If, about the life. bring however, plaintiff’s is one of problem when inadequate testing, testing have revealed a might remediable defect or led to safe- harm, guards none of against calculations metaphysical involved in a birth wrongful are In analysis such necessary. a case life is caused not the drug, negligence. harm life, complained is not but suffering by living per- son, from flowing conduct toward a negligent life. potential These are familiar and do not concepts, require compari- — sons between and no-life unless the de- life-with-injury are fendants to introduce permitted of life and questions death under the rule adopted by majority.

Wilkins, J., Abrams, whom Liacos and (with JJ., join, as to the answer to dissenting question one). answer to the first giving negative certified question,

and thus any who did not sustain a barring injury emotional distress caused recovering one or more defendants, of the court has failed to majority to the give adequate factual recognition circumstances lying behind that been question. Perhaps has re- majority strained the form of the which adverts question, emotional distress from “an resulting increased statistical likelihood the will suffer serious disease in the fu- view, ture.” In my should be answered question rec- certain ognizing allegations summarized complaint the District Court It is said that judge. many plaintiffs are anxious and that emotionally upset by possibility will suffer one they of several abnormalities of their repro- ductive or will contract clear-cell organs adenocarcinoma, which conditions are more than the they likely develop On the general advice of population. some physicians, are medical examinations submitting periodic so as to detection of These examina- permit early problems. tions and traumatic. may expensive

I think it is medical significant accepted practice calls for the examinations of at least conducting periodic one A answer to certain of the negative plaintiffs. a defendant who relieves from negli- liability improperly a a emotional distress and created caused gently plaintiff’s and traumatic examinations situation in which expensive concerns are not fanci- should be conducted. plaintiffs’ is indi- ful. Interference with the lives medically plaintiffs’ in the cated. These circumstances words of present, it, do not an majority, although they perceive “objective corroboration of the at emotional distress Supra alleged.” 547. the view that has reasoning supported negligent- distress, harm, caused emotional without does not

ly bodily warrant who caused recovery against person negligently that distress has relied on three Restate- assumptions. (See 436A, ment of Torts b Comment [1965]): (1) [Second] § emotional distress which does not manifest itself physically trivial; is harm normally (2) physical guarantees gen- claim; uineness of the defendant’s fault its (i.e., is not so as to negligence) great require making good purely mental disturbance.

As of emotional triviality distress which has no manifestation, it seems physical clear that much reasonably trivial, emotional it, distress and the law should ignore However, alone. when there been standing has in- physical we allow jury, distress, for emotional even minor emotional distress Mass. (see Magenis, Barney and even emotional distress unrelated [1922]) to the Homans v. Boston Elevated injury (see Ry., More emotional dis- [1902]). significantly, tress is not trivial. It be founded on always concerns may reasonably, medical sci- perhaps universally, expressed by ence. It arise from the to and may anxiety submitting the results of medical examinations and tests. It awaiting be the of a reasonable concern about one’s in- product disease, creased of a fatal which prospect contracting may be treatable radical or radiation. It only by surgery may the result of concern over the to be in- expenses, reasonably curred, While, to medical examinations. on submitting

the facts us, I cannot given declare with certainty each considered in one recover question may of her consequences distress, emotional it that at appears least some of the be able to demonstrate emo- tional distress more than a trivial nature.

On the assertion that harm guarantees gen- claim, uineness we have rejected possibility fraudulent or claims as a deceptive basis for all denying claims character. particular See Dziokonski v. Babi- neau, 375 and cases cited. (1978), We have consistently stated recent at least until the years, answer given by one in majority case, that the question fraudulent or claims is one phoney to be resolved Id. The adversary process. backs majority away from our recent pronouncements to triers of fact granting the role of real from contrived sifting claims. The majority worries not about but also deception about “tricks that the human mind can itself.” at 547. play upon These Supra are jury questions. it is Surely, not or trick of deception mind, human on us, the facts certified to as a result of the defendant’s some of the moth- negligence, plaintiffs’ ers consumed manufactured one drugs or more of the de- fendants and that the are distressed emotionally because of the threat of medical problems, clearly recog- nized medical science and calling periodic, expensive, and traumatic examinations. We accept majority’s view that actionable distress, emotional in the absence of must be based on a physical injury, reasonable response.1 But at least as to certain surely, plaintiffs (and perhaps all), the facts warrant submission of the and reason- genuineness ableness their emotional distress to the trier of fact. The intentional or reckless and conduct of a outrageous not, defendant does as the at majority suggests {supra 547), indicia of the provide of a any emo- genuineness plaintiff’s however, We reject, 555) the statement at {supra that the reasonable ness of a plaintiff’s closely response related to the reasonable foreseeabil ity of the injury. emotional 386 Mass. Labs. Abbott no fault bears the defendant’s of distress. degree

tional on based a claim for damages of relation to the genuineness reck- Intentional or emotional distress. caused negligently be- warrants recovery infliction of emotional distress less has to This all of the defendant’s extreme behavior. cause of in the Restatement with the third reason do only given b, 436A, for denying recovery Torts Comment (Second) § — of the caused emotional distress degree for negligently and the conduct is outrageous fault. Where defendant’s the we have either intentional or reckless as to plaintiff, per- the defend- for emotional distress caused by mitted recovery Solomon, See Simon 91, 95 ant’s conduct. Where, here, the and cited. as defendant’s cases (1982), conduct, for tort conduct is only negligent justification is, course, of emotional distress not as recovery strong. However, is on even where the claim founded negli- of the emotional distress level reasonableness gence, us, fact must be assessed. In case before we are not in are with “mere” distress. We involved emotional dealing with circumstances in which medical practice good requires at some interference the normal life of least with plaintiffs. tests time devoted medical affects plaintiff’s affects their earning power, testing expense can be or None this product pocketbooks. imaginary with It is not trivial. We are not deception. dealing bad or and to manners mere hurt “only feelings” say is the distress all “temporary slight” just case, I In this believe supra at wrong 555). plain (see liable defendant its consequences negli- without injury. gence proof allow The fact that most would not jurisdictions devel- situation, true, if it is should not inhibit the in such a law of Commonwealth. The inertia of the tort opment view” results from reliance on a “majority guarantees which the law. glacial development notes of the human ... or of land or chat tels,” body. while the latter is restricted to The certi impairment of fied question “physical “bodily uses harm” in the sense of harm” as that

Case Details

Case Name: Payton v. Abbott Labs

Court Name: Massachusetts Supreme Judicial Court

Date Published: Jun 22, 1982

Citation: 437 N.E.2d 171

Court Abbreviation: Mass.