Clark v. Nenna, ___ N.J. Super. ___ (App. Div. 2020). After plaintiff broke his femur during a physical therapy session, he had surgery that stabilized his bone using screws and washers. The screw heads caused him discomfort, so he had another surgery, performed by defendant, to remove the screws. Defendant did that successfully. But defendant could not remove the washers because they were “embedded in scar tissue that had developed around the hardware.” Defendant decided to leave the washers where they were because removing them would have required a larger incision and would have created a greater risk of post-operative infection. But he did not document about the decision to leave the washers in place. Nor did he discuss with plaintiff, either before or after the surgery, the idea of leaving the washers undisturbed.
Plaintiff did not learn until more than four years later that the washers were still in his body. At that time, he had x-rays in connection with other medical concerns. Plaintiff sued defendant and other defendants (who were later voluntarily dismissed), claiming emotional distress from having learned that there was hardware still in his body.
The Law Division granted defendant’s motion for summary judgment, based on plaintiff’s failure to show compensable damages. Plaintiff appealed, but today the Appellate Division, in an opinion by Judge Mitterhoff that applied de novo review, affirmed.
Judge Mitterhoff noted that only emotional distress that is “severe” or “genuine and substantial” is actionable. Citing Lascurain v. City of Newark, 349 N.J. Super. 251 (App. Div. 2002), she stated that “[b]ecause the severity of emotional distress raises questions of both law and fact, a court first decides whether, as a matter of law, such emotional distress can be found. If a court finds that it can, the jury then decides whether it has in fact been proven.”
“:Ordinarily,” Judge Mitterhoff said, “medical or expert proof is required to establish emotional distress damages.” There were, however, two exceptions. “The first exception applies in cases involving intentional torts such as racial or sexual discrimination.” That exception was not implicated here.
The second exception was “cases in which ‘[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims.’ In such ‘special circumstances,’ ‘an especial likelihood of genuine and serious mental distress . . . serves as a guarantee that the claim is not spurious” quoting Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 239 (App. Div. 2014)). Judge Mitterhoff cited cases exemplifying those “special circumstances,” including “cases where the plaintiff has suffered emotional distress from malicious use of process, Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003), and where a funeral home failed to ensure that orthodox ritual requirements were met, Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116 (App. Div. 2006).
In each of those circumstances, “any reasonable person [would have suffered] ‘severe’ or ‘genuine and substantial’ emotional distress. Conversely, where the circumstances do not create such a clear objective expectation of ‘severe’ or ‘genuine and substantial’ emotional distress, plaintiffs are required to support their claims for damages with medical or expert proof.”
Here, plaintiff did not “allege that defendant’s conduct was intentional or willful. Nor does the nature of plaintiff’s harm present an ‘especial likelihood of genuine and serious mental distress.’ As such, plaintiff was required to support his claim for emotional distress damages, as a matter of law, with medical or expert proof. He did not do so.” Accordingly, the Appellate Division affirmed the summary judgment against him.