The following is a guest post from Reed Smith’s Rachel Weil. As always, she takes full responsibility for the content of the post.
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Dipping our toes into the blogosphere is intimidating, given the company in which we daily find ourselves. We can claim neither Bexis’s pinpoint command of all recorded jurisprudence nor McConnell’s encyclopedic recall of

A few weeks ago a regular reader, and occasional correspondent, Prof. Ralph Hall at the University of Minnesota Law School asked us if there had been any “meaningful cases” in the drug/device field on emotional distress.  We didn’t have much to offer him, but that struck us at the time as an interesting topic for a blog post.  Unfortunately, we were jammed up with our year-end lists at the time.  Then came those appellate preemption cases….

Anyway, now we’re finally getting around to it (sorry, Ralph).  After actually taking a look, here’s what we know.

First of all, there are two broad types of emotional distress claims.  There’s “intentional infliction of emotional distress” (“IIED”), which as the name indicates, requires “outrageous” conduct intended to cause emotional distress.  This cause of action was recognized by the ALI in Restatement (Second) of Torts §46 (1965).  The second claim is for “negligent infliction of emotional distress” (“NIED”), which – duh – doesn’t require intent.  NIED is typically (but not always) limited to specific types of situations out of concern that emotional distress, since it isn’t a physical injury, could be faked.  NIED wasn’t recognized in the Second Restatement, but it could well be in the Third Restatement (which is currently under consideration).

Intentional Infliction of Emotional Distress

There aren’t all that many intentional infliction cases in the prescription drug/medical device field.  One reason is that it’s hard to muster viable claims of “outrageous” conduct because of the life-saving nature of these products:

[I]f the enormity of the outrage carries conviction that there has been severe emotional distress, bodily harm is not required.  Whether intentional conduct or reckless conduct is involved, a requisite for liability to be imposed is knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct.  With these guidelines in mind . . . it is preposterous to suggest that a manufacturer of a product which is obviously intended to save lives deliberately engaged in conduct specifically calculated to cause emotional distress to some particular person.

Brinkman v. Shiley, Inc., 732 F. Supp. 33, 35 (M.D. Pa. 1989) (citation and quotation marks omitted), aff’d mem., 902 F.2d 1558 (3d Cir. 1989); accord Keath v. Shiley, Inc., 1991 WL 11242191, at *5 (N.D. Ohio Dec. 17, 1991); Lauterbach v. Shiley, Inc., 1991 WL 148137, at *4 (S.D. Tex. March 29, 1991).  IIED, after all, requires conduct “so extreme and outrageous that it exceeded all possible bounds of decency and was furthermore atrocious, and utterly intolerable in a civilized community.”  Jones v. Danek Medical, Inc., 1999 WL 1133272, at *6 (D.S.C. Oct. 12, 1999) (quoting Restatement §46; dismissing claim for failure of proof); cf. Kemp v. Pfizer, Inc., 851 F. Supp. 269, 275 (E.D. Mich. 1994) (not “outrageous’ for defendant to deny defect and causation), vacated on other grounds, 91 F.3d 143 (6th Cir. 1996); In re TMJ Implants Products Liability Litigation, 872 F. Supp. 1019, 1037 (D. Minn. 1995) (usual product liability allegations fail to establish outrageousness) (applying North Carolina law), aff’d, 97 F.3d 1050 (8th Cir. 1996).


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