1 Keepnews, Robert L., Internal Investigations and Infliction of Emotional Distress, 3 Conn. Employment L. Letter, March 1998.Google Scholar

2 Id.

3 Pediatrician and Hospital Found Liable for Improper IV in Infant, 12 Verdicts, Settlements & Tactics, Dec. 1992, at 421-422.

4 See id.

5 See Wilcox v. Richmond & D.R. Co., 52 F. 264, 267 (4th Cir. 1892) (holding there can be no cause of action when negligence only causes mental pain, not physical pain); Butner v. Western Union Tel. Co., 37 P. 1087, 1089-90 (Okla. 1894) (holding that damages for mental pain only cannot be recovered from a negligent telegraph company).

6 See generally Scott D. Mars, Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and "Fear of Disease Cases", 28 Tort & Ins. L.J. 1 (1992) (discussing the differing requirements to recover for N.I.E.D. by looking at case law from all 50 states).

7 See id.

8 See id. at 1.

9 See id.

10 See id.

11 See id.

12 See id. Cf. Edmund C. Baird, III,No Pain, No Gain: The Third Circuit's "Sufficient Indicia of Genuineness" Approach to Claims of Negligent Infliction of Emotional Distress under the Federal Employers' Liability Act, 71 Wash. U. L.Q. 1255 (1993) (discussing the positions of the federal courts).

13 See Mars,supra note 6, at 1.

14 See Butner v. Western Union Tel. Co., 37 P. 1087, 1088 (Okla. 1894).

15 Id.

16 See id. (describing the willful, wrong or malicious intent requirement).

17 See Wilcox v. Richmond & D.R. Co., 52 F. 264, 267 (4th Cir. 1892) (noting that other courts have not sustained an action based solely on suffering from mental pain). "8Id.

18 Id.

19 See id. (holding that damages for mental suffering resulting from breach of contract are not recoverable unless other damages are alleged).

20 This doctrine is known as the "physical impact" requirement.See Payton v. Abbott Labs, 437 N.E.2d 171, 176 (Mass. 1982).

21 This is the "zone of danger" standard.See id. at 177 (describing how the "zone of danger" rule is used).

22 See Wilcox, 52 F. at 266-67 (stating various interpretations of N.I.E.D.).

23 See id. at 267.

24 441 P.2d 912 (Cal. 1968).

25 Id. at 914.

26 See Nolan, Virginia E. & Ursin, Edmund, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hastings L.J. 583, 584 (1982)Google Scholar (discussingDillon's holding that a person who suffers physically from the shock of witnessing an accident can recover damages even if he was not personally in danger).

27 See id.

28 See James M. Fischer, Understanding Remedies 129 (1999).

29 See generally Ward v. West Jersey & Seashore R.R. Co., 47 A. 561 (N.J. 1900) (holding that people are responsible for the proximate results of their negligent acts and that injuries from fright alone are not sufficient results to cause liability).

30 See id. at 562.

31 See generally Appleberry, J. Mark, Negligent Infliction of Emotional Distress: A Focus on Relationships, 21 Am. J.L. Med. 301 (1995)Google Scholar (arguing that the physical manifestation requirement for a negligent infliction of emotional distress claim is defective in so far as physical distress does not always result from emotional distress).

32 See Restatement (Second) Of Torts § 436A cmt. a (1965).

33 See id. § 436A cmt. c.

34 See Muchow v. Lindblad, 435 N.W.2d 918, 922 (N.D. 1989) (considering whether the plaintiff's claim of emotional distress was properly dismissed on summary judgment in part because it did not fall within the "well recognized exceptions relating to conduct concerning the next of kin of a seriously ill or recently deceased person").

35 See id.

36 See id. at 922-23.

37 See id. at 922.

38 See id.

39 See, e.g., Spaulding v. Cameron, 274 P.2d 177 (Cal. Dist. Ct. App. 1954) (allowing recovery for mental distress where loose dirt was allowed to wash onto neighbor's property); French v. Ralph E. Moore, Inc., 661 P.2d 844 (Mont. 1983) (allowing recovery for mental anguish against a service station whose gasoline, because of the negligent installation of tanks, had leaked and contaminated plaintiffs home and restaurant).

40 See Speck v. Finegold, 439 A.2d 110, 115-16 (1981) (allowing parents' claim for mental distress caused by the birth of an unplanned, genetically defective child to proceed in the face of defendant's motion to dismiss).

41 See Heldreth v. Marrs, 188 W. Va. 481, 493 (1992) (allowing a cause of action for negligent infliction of emotional distress based upon plaintiff witnessing a closely-related person suffer critical injury or death as a result of defendant's negligent conduct).

42 See Saunders v. Nemati, 580 A.2d 660, 661 (D.C. 1990) (citing W. Keeton et.al, Prosser & Keeton on Torts § 12, at 57 (5th ed. 1984)).

43 See Mars,supra note 6, at 1.

44 See Restatement (Second) of Torts § 436A (1965) (suggesting that physical symptoms are necessary to find liability for negligent infliction of emotional distress).

45 See Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass. 1982) (holding that plaintiff must show substantial physical symptoms caused by emotional distress).

46 Restatement (Second) of Torts § 436A (1965).

47 See, e.g., Allen v. Otis Elevator Co., 563 N.E.2d 826, 833 (111. App. Ct. 1990) (holding that recurring physical phenomena or substantial mental disturbance is required to prove negligent infliction of emotional distress).

48 See, e.g., Quill v. Trans World Airlines, Inc., 361 N.W.2d 438, 443 (Minn. Ct. App. 1985) (holding that plaintiff experienced sufficient physical symptoms during an extremely disturbing experience for the court to conclude the claims were legitimate).

49 See id.

50 See Soucek v. Banham, 503 N.W.2d 153, 164 (Minn. Ct. App. 1993) (holding that physical manifestation of emotional distress is necessary to sustain a cause of action for negligent infliction of emotional distress).

51 See Burns v. Jaquays Mining Corp., 752 P.2d 28, 31 (Ariz. Ct. App. 1987) (holding that fear of disease is not sufficient to prove negligent infliction of emotional distress and that substantial physical manifestation of emotional distress is required).

52 See Mars,supra note 6, at 1.

53 See Hancock v. Northcutt, 808 P.2d 251, 257-59 (Alaska 1991) (reversing a jury award of $175,000 for emotional distress because mental distress did not have physical manifestations).

54 See Burns, 752P.2dat31.

55 See Wood v. Nat'l Computer Systems, Inc., 814 F.2d 544, 546 (8th Cir. 1987) (applying Arkansas law and noting that the Supreme Court of Arkansas has "never recognized a cause of action for the merely negligent infliction of emotional distress absent some accompanying physical injury").

56 See Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978) (abolishing the physical impact requirement and adopting the Restatement standard in section 436A, which requires a plaintiffs emotional disturbance to have physical or mental manifestations).

57 See Garrison v. Medical Ctr. of Del., 581 A.2d 288, 293 (Del. 1989) (recognizing that it is "settled law in Delaware that, in a negligence action, for a claim of mental anguish to lie, an essential ingredient is present and demonstrable physical injury to the plaintiff).

58 See Doe v. Southeastern University, 732 F. Supp. 7, 10 (D.D.C. 1990) (stating that the law of the District of Columbia does not recognize claims for negligent infliction of emotional distress absent some physical injury).

59 See Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, 526-28 (Fla. Dist. Ct. App. 1985) (holding that the physical injury requirement for a mental distress claim does not apply to fear of cancer claims).

60 See OB-GYN Assocs. of Albany v. Littleton, 386 S.E.2d 146, 149 (Ga. 1989) (clarifying Georgia's impact rule and holding "that the impact which will support a claim for damages for emotional distress must result in physical injury").

61 See Black Canyon Racquetball Club, Inc. v. Idaho First Nat'l Bank, 804 P.2d 900, 906 (Idaho 1991) (refusing to award damages where plaintiff only alleged credit rating and reputation damage and humiliation as a result of defendant's actions).

62 See Allen v. Otis Elevator Co., 563 N.E.2d 826, 831 (111. App. 1990) (holding that a plaintiff that has suffered a contemporaneous physical injury or impact may recover damages for physical injuries resulting from emotional distress caused by the defendant's negligence).

63 See Ross v. Cheema, 716 N.E.2d 435, 436 (Ind. 1999) (holding that a plaintiff may recover for emotional trauma that is "serious in nature and of a kind and extent normally expected to occur in a reasonable person" without the presence of physical injury).

64 See Mills v. Guthrie County Rural Elec, 454 N.W.2d 846, 852 (Iowa 1990) (noting that physical injury is necessary for a plaintiff to collect damages for emotional distress except when the plaintiff is a bystander that has witnessed the serious injury or death of a close relative or in certain healthcare provider situations).

65 See Humes v. Clinton, 792 P.2d 1032, 1038 (Kan. 1990) (reaffirming long tradition of no recovery for emotional distress caused by the negligence of another unless physical injury is present).

66 See Wilhoite v. Cobb, 761 S.W.2d 625, 626 (Ky. Ct. App. 1988) (refusing to award plaintiff-mother damages for any "fright, shock, or mental anguish" that resulted from witnessing the victim-daughter's death where plaintiff-mother received no physical contact or injury herself).

67 See Adams v. Johns-Manville Sales Corp., 783 F.2d 589, 592-93 (5th Cir. 1986) (holding that physical injury must be present to collect damages for mental anguish due to the injury and fear of developing a future complication as a result of the injury).

68 See Beynon v. Montgomery Cablevision Ltd. Partnership, 718 A.2d 1161, 1163 (Md. 1998) (noting that "in the absence of physical impact or injury directly resulting in harm, mental and emotional injuries .. . are not compensable unless there are objective manifestations of such injury").

69 See Payton v. Abbott Labs, 437 N.E.2d 171, 174 (Mass. 1982) (asserting that "[n]o Massachusetts case has yet concluded that a plaintiff who alleges that she was a direct victim of a defendant's negligence conduct, but who does not allege that she has suffered resulting physical harm, can recover for emotional distress").

70 See Stites v. Sundstrand Heat Transfer, Inc., 660 F. Supp. 1516, 1526 (W.D. Mich. 1987) (noting that it must be shown that the emotional distress results in a "definite and objective" physical injury).

71 See State by Woyke v. Tonka Corp., 420 N.W.2d 624, 627 (Minn. Ct. App. 1988) (recognizing that damages may be awarded if the plaintiff demonstrates physical manifestations of emotional distress and was in the zone of danger of the negligent act).

72 See Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 414 (5th Cir. 1986) (recognizing that under Mississippi law damages are awarded for emotional distress when accompanied by physical injury).

73 See Hutton v. Gen'l Motors Corp., 775 F. Supp. 1373, 1381 (D. Nev. 1991) (holding that "unless plaintiff is a witness to defendant inflicting injury on a close relative of plaintiff and suffers physical injury as a result of the incident, plaintiff may not recover" for negligent infliction of emotional distress).

74 See Thorpe v. State Department of Corrections, 575 A.2d 351, 353 (N.H. 1990) (noting that a plaintiff must prove physical manifestations of his emotional distress).

75 See Holler v. United States, 724 F.2d 104, 105 (10th Cir. 1983) (reaffirming that under New Mexico law, failing to assert a physical injury claim precludes recovery for emotional distress).

76 See Puthe v. Exxon Shipping Co., 802 F. Supp. 819, 828 (E.D.N.Y. 1992) (holding that in order to succeed on a claim for emotional injuries, plaintiff must demonstrate that defendant's actions amounted to an "unconscionable abuse" of the plaintiff, causing "severe emotional distress" resulting in some physical manifestation of the harm).

77 See Muchow v. Lindblad, 435 N.W.2d 918, 921 (N.D. 1989) (holding that damages for negligent infliction of mental or emotional distress can only be recovered if accompanied by bodily injury).

78 See Ellington v. Coca-Cola Bottling Co. of Tulsa, 717 P.2d 109, 111 (Okla. 1986) (holding that a plaintiff may recover for mental anguish that inflicts physical suffering or is caused by physical suffering).

79 See Houston v. Texaco, Inc., 538 A.2d 502, 505 (Pa. Super. Ct. 1988) (holding that there is no recovery for negligent infliction of mental or emotional distress without attendant physical injury).

80 See Reilly v. United States, 547 A.2d 894, 894-99 (R.I. 1988) (stating that damages for negligent infliction of mental or emotional distress can be awarded if there is attendant physical injury).

81 See Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (adopting the Dillon standard and holding that South Carolina recognizes a cause of action in tort for emotional distress which requires, in part, that the distress manifest itself through physical symptoms capable of objective diagnosis).

82 See Wright v. Coca-Cola Bottling Co., 414 N.W.2d 608, 609 (S.D. 1987) (finding that in order to have a claim for negligent infliction of mental or emotional distress there must be accompanying bodily injury).

83 See Laxton v. Orkin Exterminating Co., Inc., 639 S.W.2d 431, 434 (Tenn. 1982) (stating that in most cases of negligent infliction of mental or emotional distress there must be accompanying bodily injury).

84 See Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 70 (Utah 1998) (holding that plaintiffs claim for negligent infliction of emotional distress could not withstand summary judgment absent a showing of physical injury resulting from mental distress).

85 See Fitzgerald v. Congleton, 583 A.2d 595, 599 (Vt. 1990) (holding that without physical impact a claimant must show physical injury in order to recover for the negligent infliction of emotional distress).

86 See Hughes v. Moore, 197 S.E.2d 214, 219 (Va. 1973) (requiring clear and convincing proof that negligent action caused physical injury).

87 See Allen v. Smith, 368 S.E.2d 924, 927 (W. Va. 1988) (disallowing recovery for emotional distress in a contract action without showing physical or economic loss).

88 See Meracle v. Children's Serv. Soc'y Wis., 437 N.W.2d 532, 535 (Wis. 1989) (holding that physical injury is necessary to recover for negligent infliction of emotional distress).

89 See Gates v. Richardson, 719 P.2d 193, 200 (Wyo. 1986) (noting that plaintiffs damages should not be limited by "objectively determinable" factors).

90 See Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970) (adopting a "reasonable man" standard to determine a finding of serious mental stress).

91 See id.

92 See Mars,supra note 6, at 1.

93 See Taylor v. Baptist Med. Ctr, Inc., 400 So. 2d 369, 374 (Ala. 1981) (allowing the possibility for patient to recover on a claim of mental anguish caused by the negligent actions of her physician without any evidence of physical injury).

94 See Molien v. Kaiser Found. Hosp., 616 P.2d 813, 820 (Cal. 1980) (holding that plaintiff was not barred from recovering for negligent infliction of emotional distress even though he suffered no physical injury);see also Potter v. Firestone Tire and Rubber Co., 863 P.2d 795, 810 (Cal. 1993) (discarding the physical injury requirement for claims of negligent infliction of emotional distress and regarding it as a hopelessly imprecise screening device for such claims).

95 See Montinieri v. S. New England Telephone Co., 398 A.2d 1180, 1184 (Conn. 1978) (holding that recovery for unintentionally caused emotional distress does not depend on proof of physical injury).

96 See Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1283 (Me. 1987) (allowing recovery for negligent infliction of emotional distress without injury in cases involving the mishandling of a corpse);see also Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 436 (Me. 1982) (holding that a foreseeability standard is the better rule for determining recovery under a claim for negligent infliction of emotional distress).

97 See Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. 1983) (allowing recovery for negligent infliction of emotional distress where there was no physical impact or zone of danger element).

98 See Johnson v. Supersave Mkts., Inc., 686 P.2d 209, 212-13 (Mont. 1984) (allowing recovery for negligent infliction of emotional distress without proof of physical injury).

99 See James v. Lieb & Watts Trucking Serv., 375 N.W.2d 109, 114 (Neb. 1985) (advocating a foreseeability of harm test to determine liability for negligent infliction of emotional distress cases).

100 See Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248, 1250 (N.J. Super. App. Div. 1990) (holding that a claim for emotional distress could not be based merely on the fear that residents may some day become ill from previous exposure to toxins; rather, evidence of serious mental illness is required).

101 See Johnson v. Ruark Obstetrics & Gynecology Ass'n., P.A., 395 S.E.2d 85, 97-98 (N.C. 1990) (holding that reasonable fear of future physical harm is insufficient to sustain a claim of negligent infliction of emotional distress).

102 See Lavelle v. Owens-Corning Fiberglas Corp., 507 N.E.2d 476, 480 (Ohio Com.Pl. 1987) (recognizing the modern tort rule allowing a cause of action for serious emotional distress without a contemporaneous physical injury).

103 See Harris v. Kissling, 721 P.2d 838, 840 (Or. App. 1986) (finding that the patient, as a direct victim of the hospital's negligence, was entitled to plead a claim for emotional distress that directly flowed from hospital's conduct).

104 See St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 650 (Tex. 1987) (holding that proof of physical injury is no longer required to recover for negligent infliction of mental anguish),rev'd on other grounds, Boyles v. Kerr, 855 S.W.2d 593, 595 (Tex. 1993).

105 See Wilson v. Key Tronic Corp., 701 P.2d 518, 524 (Wash. App. 1985).

106 Mars,supra note 6, at 1.

107 See Payton v. Abbott Labs, 437 N.E.2d 171, 178 (Mass. 1982) (noting that emotional injury is easy to exaggerate or fabricate).

108 See Keck v. Jackson, 593 P.2d 668, 669 (Ariz. 1979) (discussing the necessity for a showing of injury by plaintiff to recover on a negligence claim in order to protect defendant from unlimited liability and fraudulent claims); Hatfield v. Max Rouse & Sons Northwest, 606 P.2d 944, 953 (Idaho 1980) (reasoning that the absence of physical injury in emotional distress claims leads to more fraudulent claims).

109 437 N.E.2d 171 (Mass. 1982).

110 See id. at 174.

111 See id.

112 See id. at 176-78.

113 See id. at 174-78 (defining "parasitic recovery for emotional distress," "the impact rule," "standard for recovery in Intentional Infliction of Emotional Distress," "the zone of danger rule," and "the bystander recovery rule").

114 ,See id. at 178,citing Restatement (Second) of Torts § 436A cmt. b (1965) (stating that absent bodily harm or other compensable damage, an actor's negligent^conduct is not sufficient for an award for emotional distress). '·5Id.

115 Id.

116 Id. at 179.

117 See Lexington 360 Assocs. v. First Union Nafl Bank of N.C., 651 N.Y.S.2d 490, 492 (N.Y. App. Div. 1996) (holding that when a plaintiff fails to introduce evidence sufficient to demonstrate damages, or relies on speculative theories, the claim should be dismissed).

118 See Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979) (stating that "measuring pain and suffering in dollars is inescapably subjective").

119 See id. (concluding that having a jury specify the basis of a damage award for pain and suffering with residual effects is unnecessary).

120 See Kaczkowski v. Bolubasz, 421 A.2d 1027, 1032 (Penn. 1980) ("Ideally, a damage award computation should achieve the tripartite goals of accuracy, efficiency, and predictability").

121 See Jackson v. Travelers Ins. Co., 26 F. Supp.2d 1153, 1164 (S.D. Iowa 1998) (emphasizing that compensation and corrective justice are two of the fundamental goals of the tort law system).

122 437 N.E.2d 171 (Mass. 1982).

123 See id. at 181.

124 See id.

125 See Stites v. Sundstrand Heat Transfer, Inc., 660 F. Supp. 1516, 1526 (W.D. Mich. 1987).

126 See id.

127 See, e.g., Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 155 (Me. 1970) (requiring a plaintiff to prove that the physical illness or bodily harm was manifested by objective symptomatology); Vance v. Vance, 408 A.2d 728, 733 (Md. 1979) (requiring the physical harm to be capable of objective determination).

128 See Pnyfo/i, 437 N.E.2d at 181.

129 See, e.g., Hughes v. Moore, 197 S.E.2d 214, 219 (Va. 1973) (holding that "clear and convincing evidence" is the standard of proof).

130 See id.

131 See id.

132 See Champion v. Gray, 478 So. 2d 17, 19 (Fla. Dist. Ct. App. 1985) (allowing recovery by a plaintiff as long as the physical requirement accompanies or occurs within a short time of the psychic injury).

133 See id; see also Bodine v. Federal Kemper Life Assurance Co., 912 F.2d 1373, 1378 (11th Cir. 1990) (applying discernable physical injuries rule as stated inChampion).

134 See Champion, 478 So. 2d at 19.

135 See Moresi v. Department of Wildlife & Fisheries_s 567 So. 2d 1081, 1096 (La. 1990) (holding that plaintiffs mental disturbance, unrelated to physical injury or property damage, was not a sufficient basis to award damages).

136 See generally Stites v. Sundstrand Health Transfer, Inc., 660 F. Supp. 1516, 1527 (W.D. Mich. 1987) (finding that nervousness can be considered sufficient evidence for a jury to determine whether the plaintiff presents the requisite physical injury); Towns v. Anderson, 579 P.2d 1163, 1164-

137 (Colo. 1978) (ruling that either physical manifestation or mental illness would be sufficient to establish a case for negligent infliction of emotional distress); Toms v. McConnell, 207 N.W.2d 140, 146 (Mich. 1973) (holding that severe traumatic depressive reaction could constitute a definite and objective physical injury for the purpose of recovering for negligent infliction of emotional distress). But see Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986) (finding that depression, anger, fear and bitterness are insufficient symptoms to satisfy the physical manifestation requirement).

138 See Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 155 (Me. 1970) (holding that emotional distress must be "substantial and manifested by objective symptomatology").

139 See id.

140 See Burns v. Jaquays Mining Corp., 752 P.2d 28, 31 (Ariz. Ct. App. 1987) (holding that plaintiffs mental distress and fear of an enhanced risk of cancer is not sufficient to establish a claim for infliction of emotional distress).

141 See Mars,supra note 6, at 1.

142 See James v. Lieb & Watts Trucking Serv., 375 N.W.2d 109, 116 (Neb. 1985) (finding that requiring physical manifestation "is overinclusive since it could possibly lead to recovery for trivial claims of mental distress accompanied by physical symptoms," and that "[i]t is underinclusive, since serious distress is arbitrarily deemed not compensable if not accompanied by physical symptoms").

143 See Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 437 (Me. 1982) (finding that the physical manifestation requirement is overinclusive because "it permits recovery for demonstrably trivial mental distress claims accompanied by physical symptoms," and it is underinclusive because "serious distress is arbitrarily deemed not compensable if not accompanied by physical symptoms").

144 Douglas B. Marlowe,Negligent Infliction of Emotional Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of Distress, 33 Vill. L. Rev. 781, 802 (1988).

145 Id.

146 See. e.g., Cook v. General Cable Corp., 728 F. Supp. 38, 41 (D. Me. 1989) (holding that a claim for emotional distress will be subject to dismissal under Fed. R. ClV. P. 12(b)(6) "only if [the] conclusion were compelled that it is not reasonably foreseeable by a tortfeasor that an ordinarily sensitive person might suffer serious or severe emotional distress as a proximate result of the circumstances" giving rise to the claim); Molien v. Kaiser Found. Hosp., 616 P.2d 831, 821 (Cal. 1980) (allowing recovery for negligent infliction of mental distress regardless of whether the plaintiff is a direct or indirect victim, provided that the injury meets some threshold of seriousness); Vosburg v. Cenex-Land O'Lakes Agronomy, Co., 513 N.W.2d 870, 871 (Neb. 1994) (holding that among the factors to be considered in determining whether a plaintiff may recover under a claim of negligent infliction of emotional distress is whether the emotional distress is "so severe that no person could be expected to endure it").

147 472 p,2d 509, 519 (Haw. 1970) (finding that the present scheme for protecting victims from negligent infliction of emotional distress, in which "courts have been reluctant to award damages for emotional distress unless it is accompanied by physical injury," is uneven and inconsistent).

148 See id. at 520 (adopting a standard based on whether or not "a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case").

149 See id. at 519 (identifying that freedom from negligently inflicted emotional distress has historically been protected when the danger of undue liability and fraudulent claims is outweighed by the genuineness and seriousness of the mental distress, and that these principles should be drawn out of the exceptions and applied to a more general standard).

150 See id.

151 See id.

152 734 F. Supp. 1563 (D. Haw. 1990) (applying Hawaii law).

153 See id.

154 See id. at 1570.

155 See id. at 1568-70.

156 Id. at 1568.

157 See Molien v. Kaiser Found. Hosp., 616 P.2d 813, 820 (Cal. 1980) (holding that a cause of action for negligently inflicted emotional distress may arise despite plaintiffs lack of physical harm).

158 See id. at 821.

159 See Potter v. Firestone, 863 P.2d 795, 800 (Cal. 1993) (holding that in the absence of physical injury, plaintiff must plead and prove that fear of illness is reasonable and can be corroborated by medical evidence to recover damages for emotional distress).

160 See id. at 810.

161 See id. at 800.

162 See Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1285 (Me. 1987).

163 See Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 438 (Me. 1982).

164 Johnson v. Ruark Obstetrics & Gynecology Ass'n, P.A., 395 S.E.2d 85, 97 (N.C. 1990) (holding that a plaintiff must prove that emotional distress was proximate and foreseeable as a result of defendant's conduct, but physical harm or injury is not necessary).

165 See id.

166 See id.

167 See id.

168 See Schultz v. Barberton Glass Co., 447 N.E.2d 109, 112 (Ohio 1983).

169 See Lavelle v. Owens-Corning Fiberglas Corp., 507 N.E.2d 476, 481 (Ohio Com.Pl. 1987).

170 See id.

171 646 S.W.2d 765 (Mo. 1983).

172 See id. at 772.

173 See id.

174 See W. at 772-73.

175 See Johnson v. Supersave Mkts., Inc., 686 P.2d 209, 212 (Mont. 1984) (finding that mental distress damages resulting from shock caused by contemporaneous observance are recoverable).

176 See id.

177 See Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248, 1249 (NJ. Super. App. Div. 1990) (holding that people who sustain physical injury from exposure to toxic chemicals may recover damages for emotional distress).

178 See id.

179 730 S.W.2d 649, 654 (Tex. 1987) (holding that proof of physical injury is not required to recover for negligent infliction of mental anguish)rev'd on other grounds, Boyles v. Kerr, 855 S.W.2d 593, 595 (Tex. 1993) (holding that damages for negligent infliction of emotional distress should be awarded only in connection with defendant's breach of some other duty).

180 See id.

181 See id.

182 Id.

183 See Boyles, 855 S.W.2d at 595-96 (overruling language ofGerrard to the extent that it recognizes an independent right for negligently inflicted emotional distress).

184 See id.

185 See Wilson v. Key Tronic Corp., 701 P.2d 518, 524 (Wash. Ct. App. 1985) (holding that the threat of toxic chemical ingestion by family members satisfied the standard).

186 Id.

187 See In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1570 (D. Haw. 1990) (applying Hawaii law and defining the term "serious" mental distress based on the objective standard of a reasonable person);see also Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 810 (Cal. 1993) (requiring a plaintiff to prove that the seriousness of the alleged mental distress meets the objective standard of reasonableness); Johnson v. Ruark Obstetrics&Gynecology Ass'n, P.A., 395 S.E.2d 85, 97 (N.C. 1990) (requiring a plaintiff to establish that the alleged mental distress was reasonably foreseeable in the circumstances of the case).

188 See Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 438 (Me. 1982) (granting relief to a person who suffers serious mental distress foreseeably resulting from witnessing another person harmed by the tortfeasor's negligent act).

189 See Johnson v. Ruark Obstetrics&Gynecology Ass'n, P.A., 395 S.E.2d 85, 97 (N.C. 1990) (holding that a claim for negligent infliction of emotional distress must show the conduct caused severe emotional distress).

190 See Matter of Wolfe v. Sibley, Lindsay&Curr Co., 330 N.E.2d 603, 606 (N.Y. 1975) (recognizing that different people may react differently to a given situation).

191 See In re Hawaii Federal Asbestos Cases, 734 F. Supp. at 1568 (holding that, in accordance with court procedure, a plaintiff must show serious emotional distress in order to recover).

192 Id.

193 See Potter v. Firestone Tire&Rubber Co., 863 P.2d 795, 810 (Cal. 1993) (holding that a plaintiff must establish that his or her fear is serious).

194 Id.

195 See Johnson v. Supersave Mkts., Inc., 686 P.2d 209, 213 (Mont. 1984) (holding that damages for emotional distress may be recovered absent a showing of physical harm when a substantial invasion of a legally protected interest causes a significant impact on the plaintiff)-196

196 See Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Corp., 578A.2d 1248, 1249 (N.J. Super. App. Div. 1990) (holding that fears based on the knowledge and belief of a previous chemical exposure are not compensated).

197 See generally Dirk H. Hellhammer&Stephen Wade, Endocrine Correlates of Stress Vulnerability, 60 Psychotherapy&Psychosomatics 8 (1993) (discussing intrinsic factors affecting an individual's mental state); Seymour Levine, The Influence of Social Factors on the Response to Stress, 60 Psychotherapy&Psychosomatics 33 (1993) (discussing extrinsic factors affecting an individual's mental state).

198 See Ironbound Health Rights Advisory Comm 'n, 578 A.2d at 1249.

199 See Johnson v. Ruark Obstetrics&Gynecology Ass'n, P.A., 395 S.E.2d 85, 97 (N.C. 1990) (holding that plaintiff may recover for severe emotional distress if plaintiff can prove that he or she has suffered severe emotional distress as a proximate and foreseeable result of defendant's negligence).

200 See Johnson v. Supersave Mkts., Inc., 686 P.2d at 212.

201 See Ironbound Health Rights Advisory Comm 'n, 578 A.2d at 1249.

202 See Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo. 1983) (holding that instead of the old impact rule, plaintiff will be permitted to recover for emotional distress, provided the emotional distress is of sufficient severity to be medically significant).

203 See id.

204 See Jeffrey v. Chicago Transit Auth., 185 N.E.2d 384, 388 (111. Ct. App. 1962) (holding that in negligence cases, the damages should specifically be for the harm suffered by the plaintiff).

205 See State v. Taylor, 491 P.2d 877, 885 (Mont. 1972) (stating that it is impossible to predict future human behavior or reaction to unknown circumstances).

206 Since an individual's behavior and reactions depend on several mental, psychological, physiological and environmental factors, a person may respond to a single situation differently at various times.

207 See Lexington 360 Assoc, v. First Union Nat'l Bank of N.C , 651 N.Y.S.2d 490, 494 (N.Y. App. Div. 1996) (ruling that a plaintiff must introduce evidence sufficient to show damages and that absent a showing of specific damages, plaintiff cannot recover).

208 See Wilson v. Key Tronic Corp., 701 P.2d 518, 524 (Wash. Ct. App. 1985) (holding that plaintiff must show that his or her reaction was that of a reasonable person and was manifested by objective symptoms).

209 See Matter of Wolfe v. Sibley, Lindsay&Curr Co., 330 N.E.2d 603, 606 (N.Y. 1975) (noting that in a given situation, one person may be susceptible to a heart attack while another may suffer a depressive reaction).

210 See Johnson v. Ruark Obstetrics&Gynecology Ass'n, P.A., 395 S.E.2d 85, 97 (N.C. 1990) (noting that failure of plaintiff to prove that emotional distress was a foreseeable result of defendant's negligence precludes recovery).

211 See Barnard v. Char, 903 P.2d 667, 675 (Haw. 1995) (noting that the primary benefits of an objective reasonable person standard are uniformity and ease of application); Powers v. Canyon County, 703 P.2d 1342, 1353 (Idaho 1985) (declaring that objective written standards enhance reliability).

212 See Powers, 703 P.2d at 1353.

213 See Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979) (noting that measuring pain and suffering is "indispensably" subjective).

214 See, e.g., Lavanant v. General Accident Insurance Co. of America, 595 N.E.2d 819, 822 (N.Y. 1992) (noting that the type of trauma suffered depends on the individual).

215 730 S.W.2d 649 (Tex. 1987).

216 See id. at 654.

217 855 S.W.2d 593, 595-96 (Tex. 1993).

218 See id. at 613 (Doggett, J., dissenting).

219 Id.

220 °Id.

221 See. e.g., Batalla v. State, 176 N.E.2d 729, 732 (N.Y. 1961) (asserting that in difficult cases, the legitimacy of plaintiffs claim for emotional distress will be judged by the quality and genuiness of the proof, including but not limited to "the contemporary sophistication of the medical profession"); Ferrara v. Galluchio, 152 N.E.2d 249, 252-53 (N.Y. 1958) (affirming judgment for mental anguish with respect to cancerphobia insofar as the medical proof supplied an adequate "guarantee of genuiness" of the fear); Kinard v. Augusta Sash&Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (adopting the Dillon standard and holding that South Carolina recognizes a cause of action in tort for emotional distress which requires, in part, that the distress manifest itself through physical symptoms capable of objective diagnosis).

222 See, e.g., Saunderlin v. E. I. DuPont Co., 508 A.2d 1095, 1099 (N.J. 1986) (holding that fear of cancer attributable to exposure to workplace asbestos can, under certain circumstances, provide a basis for a claim of emotional distress where injury is demonstrable by objective medical evidence).

223 See, e.g., Guaram v. DeLuca, 521 A.2d 1343, 1349 (N.J. 1987) (holding that an award for emotional distress is impermissible absent "medical evidence establishing substantial bodily injury or severe demonstrable psychiatric sequelae proximately casued by tortfeasor's misconduct").

224 See Rodrigues v. State, 472 P.2d 509, 519 (Haw. 1970).

225 See id. at 520.

226 Id. at 511.

227 See Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo. 1983) (abandoning the old impact rule and replacing it with a two-prong rule).

228 See id. at 772-73.

229 See id.

230 See id.

231 ' 646 S.W.2d 765 (Mo. 1983).

232 See id. at 772.

233 See id.

234 See Schultz v. Barberton Glass Co., 447 N.E.2d 109, 112 (Ohio 1983).

235 See id. at 113.

236 See Lavelle v. Owens-Corning Fiberglas Corp., 507 N.E.2d 476,480 (Ohio Com.Pl. 1987).

237 Id.

238 P.T.S.D. may also be called "shell shock," "battle fatigue," "accident neurosis" or "post rape syndrome."

239 See Textbook of Psychiatry 479-82 (John A. Talbott et.al eds., 1988) (citing DSM-III-R, diagnostic criteria for post-traumatic stress disorder).

240 See id. at 479.

241 See id. at 479-82.

242 See Johnson v. Supersave Mkts., Inc., 686 P.2d 209, 213 (Mont. 1984) (requiring factual analysis of each case to determine whether conduct results in a substantial invasion of legally protected interests and causes a significant impact on the plaintiff).

243 See id. at 213-14.

244 734 F. Supp. 1563 (D. Haw. 1990).

245 See id. at 1570 (applying Hawaii law and requiring "compensable harm" rather than a "physical manifestation of emotional distress").

246 See id.

247 See id.

248 See id.

249 See Potter v. Firestone Tire&Rubber Co., 863 P.2d 795, 810 (Cal. 1993) (asserting that the general standard of proof required to support a claim of mental distress is some guarantee of genuineness in the circumstances of the case).

250 See Textbook of Psychiatry,supra note 239, at 479-82.

251 See id.

252 See Ghazi Asaad, M.D., Psychsomatic Disorders: Theoretical and Clinical Aspects 129 (1996).

253 See id. Franz Alexander (1891-1964) led the psychosomatic movement and made significant contributions to the field of psychosomatic medicine.See id.

254 See id. (observing that the branches of psychosomatic medicine currently include "psychoimmunology" (relating conditions like allergy and diseases like cancer to changes in mental state) and "psychoneurobiology" (explaining basic functions of the nervous system based on mental conditions)).

255 See generally id. (discussing psychosomatic disorders).

256 See id. at 129-31.

257 See id. at 66-78.

258 See id.

259 See id.

260 The two most frequently used systems of classification of psychiatric conditions are the International Classification of Diseases (ICD) produced by the World Health Organization and the Diagnostic and Statistical Manual of Mental Disorders (DSM) produced by the American Psychiatric Association. ICD-X is the tenth revision of the ICD and is widely used in Western Europe and other parts of the world for epidemiological and administrative purposes. The DSM-IV, published in 1994, is the most recent version of the DSM.

261 Unfortunately, courts mistakenly utilize the term "psychosomatic" as any unreal and fabricated condition. Even the Supreme Court of the United States has referred to the term "psychosomatic" with an improper meaning. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 119S.Ct. 662, 673 (1999) (using the term "psychosomatic" in cases where the plaintiff has not suffered true "bodily injuries"). In a 1998 decision, the United States Court of Appeals for the 3rd Circuit also used the term "psychosomatic" incorrectly. See Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 111 (3rd Cir. 1998) (citing the psychosomatic-bodily injury distinction articulated in El Al Israel Airlines, Ltd. to determine that the plaintiff had not suffered the "requisite bodily injury").

262 See Linda Gannon, The Psychophysiology of Psychosomatic Disorders, in Psychosomatic Disorders: A Psychophysiological Approach to Etiology and Treatment 1, l (Stephen N. Haynes&Linda Gannon eds., 1981) (defining psychosomatic disorders as "those disorders which are accompanied by observable or self-reported change, are exacerbated by psychological states or environmental stress, [and] are chronic").

263 See Textbook of Psychiatry, supra note 239, at 483-84 (differentiating post-traumatic stress disorder from other maladies such as organic mental disorders and affective and anxiety disorders).

264 See Steven E. Hyman, Acute Psychosis and Catatonia, in Manual of Psychiatric Emergencies 143,150 (3d ed. 1994).

265 "Malingering" is the conscious and voluntary production of symptoms (physical or psychological) by the patient to achieve secondary goals. Usually these goals are to avoid work, avoid criminal prosecution, obtain drugs or obtain financial compensation. See id. "Fictitious Illness Syndrome," also known as "Munchausen's Syndrome," is a condition where the patient produces, simulates or complains about physical or psychological symptoms in order to assume the patient role and not to achieve other secondary goals, as in malingering. This condition is distinguished from malingering based on the patient's primary motivation. Also, in Fictitious Illness Syndrome, the general pattern of the production of symptoms appears to be compulsive. See id.

266 See Theodore A. Stern, Malingering, Fictitious and Somatization, in Manual of Psychiatric Emergencies, supra note 264, at 266-68.

267 See id.

268 This disorder was previously designated as Briquet's Syndrome; its essential features consist of multiple, recurrent physical complaints made over many years and starting in young adult life or adolescence. The sufferer demands medical attention, but no organic/cause is found. The symptoms invariably occur in many different bodily systems (e.g., back pains, painful menstruation, dizziness, indigestion, difficulty with vision, and partial paralysis) and may follow health concerns fashionable amongst the public. The condition is relatively common and occurs in about one percent of adult women. It is very unusual to see this disorder in males. There are no clear etiological factors. See id. at 267.

269 This disorder was traditionally labeled Hysteria. Its symptoms are a loss of or alteration in physical functioning, typically a paralysis suggesting neurological disease. The physical symptoms occur in the absence of organic pathology and are instead apparently the expression of an underlying emotional conflict. The characteristic motor symptoms of hysteria include paralysis of the voluntary muscles of an arm or leg, tremors, tics and other disorders of movement or gait. The neurological symptoms may be widely distributed and may not conform with medical knowledge of physical nerve distribution. Blindness, deafness, loss of sensation in arms or legs, the feeling of "pins and needles," an increased sensitivity to pain in a limb and many other symptoms have been described. Hysterical symptoms usually occur in a setting of extreme psychological stress and appear suddenly. The course of the condition is variable, with recovery often occurring in a few days, but with symptoms persisting for years or decades in chronic cases that remain untreated. The cause of hysteria has been linked with fixations, based on arrested stages in the individual's early psychosexual development. See id. at 267.

270 Hypochondriasis is a preoccupation with physical signs or symptoms that the patient unrealistically interprets as abnormal, leading to the fear or belief that he is seriously ill. There may be fears about the development of physical or mental symptoms without any such existing, a belief that actual but minor symptoms are of dire consequence, or an experience of normal bodily sensations as threatening symptoms. A thorough physical examination may find no organic cause for the physical signs the patient is concerned about, but the examination will fail to relieve the patient's unrealistic fears about having a serious disease. The symptoms of hypochondriasis may occur with mental illnesses other than neuroses; for instance, depression or schizophrenia. Hypochondriacal neurosis occurs in both sexes. The onset may be associated with precipitating factors, such as an actual organic disease with physical and psychological aftereffects; for example, coronary thrombosis in a previously fit man. It often begins during the fourth and fifth decades of life but is also common at other times; for example, during pregnancy. See id. at 268.

271 In Psychogenic Pain Disorder, the main feature is the persistent complaint of pain in the absence of organic disease and with evidence of a psychological cause. The pattern of pain may not conform to the known anatomic distribution of the nervous system. Psychogenic pain may occur as part of hypochondriasis or as a symptom of a depressive disorder. See id. at 267.

272 See id. at 265

273 See Troy L. Thomson, Psychosomatic Disorders, in Textbook of Psychiatry,supra note 239, at 493.

274 See id.

275 See id.

276 See id.

277 The human nervous system has two sections, the central nervous system ("C.N.S.") and the peripheral nervous system ("P.N.S."). The brain and the spinal cord form the C.N.S., and are the integrating centers of the human nervous functions. The P.N.S. is composed of 12 pairs of cranial nerves (nerves connecting the brain to several parts of the body) and 31 pairs of spinal nerves (nerves providing communication between the spinal cord and various parts of the body). See Arthur C. Guyton&John E. Hall, Textbook of Medical Physiology 569 (9th ed. 1996).

278 See id.

279 See id. at 752.

280 See id.

281 See id.

282 Certain parts of the human central and peripheral nervous systems participate of the formation of the autonomic nervous system. This system has two components, sympathetic and parasympathetic and controls the involuntary regulation of the internal systems of the human body. See id.

283 The major human body systems are the skin, cardiovascular system (heart and blood vessels), respiratory system (lungs and airways), urinary system (kidneys, urinary bladder and ducts), gastrointestinal system (the digestive tract and the related glands) and the reproductive system (gonads or sex glands, ducts and external genitalia). See id.

284 See id.

285 See id.

286 See id.

287 See Thomson,supra note 273, at 493.

288 The pulse rate is determined by the number of heart beats per minute.

289 The respiratory rate is determined by the number of inhalation-exhalation cycles per minute.

290 See Thomson, supra note 273, at 493. *

291 See generally ASAAD, supra note 252 (cataloguing the many ways in which psychosomatic disorders are manifested).

292 Peptic ulcers are tissue-structural damage to the stomach and the early parts of the small intestine due to weakening of the natural shielding layer protecting those organs from the hydrochloric acid released in the stomach. Though the actual cause of peptic ulcers is not clear, they can be complicated or even initiated by mental distress, including chronic stress, anxiety, unresolved guilt or fear. Mental stress, which speeds up the digestion process, causes the stomach to produce more acid. This increase in gastric juices and acid can cause irritations in the stomach lining that lead to peptic ulcers.

293 Irritable Bowel Syndrome is a condition where the bowel habit of a patient is severely disturbed. Such a patient would suffer from chronic diarrhea or constipation. Similar to peptic ulcer etiology, this condition may occur due to increased intestinal stimulation after undergoing mental distress.

294 Tension headaches are thought to be caused by vascular changes in the brain. These changes, triggered by stress and anxiety, cause acute, severe pain on one or both sides of the head and are often precipitated by visual disturbances and dizziness. Often tension headaches are set off by noise, stress, fear or anxiety. Though these are not the only causes or triggers for tension headaches, it is known that these environmental conditions may play a role in their onset.

295 Hypertension is an abnormal increase of the arterial blood pressure.

296 Asthma is a chronic illness which is not primarily caused by anxiety or stress; asthma attacks, however, are frequently brought on by stress or fear. This may be due to a number of physiological changes occurring in the body during mental disturbance. With asthma, the lungs tighten and make the person more anxious, which further increases the symptoms.

297 See ASAAD, supra note 252, at 130-31.

298 See id.

299 See Bodine v. Federal Kemper Life Assurance Co., 912 F.2d 1373, 1377 (11th Cir. 1990) (explaining the requirements that must accompany psychic injury under Florida law).

300 See id.

301 See ASAAD,supra note 252, at 129-31.

302 See Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo. 1983) (holding that "logic and practicality argue in favor of avoiding any requirement that 'physical injury' result from emotional distress").

303 See id.

304 See. e.g., Artcraft of New Hampshire, Inc. v. Lumberman's Mut. Cas. Co., 497 A.2d 1195, 1196 (N.H. 1985) (holding that the term "bodily injury . . . limits coverage of harm to physical injury, sickness or disease and does not include non-physical harm to the person").

305 See Bass, 646 S.W.2d at 773.

306 See id.

307 Nolan&Ursin,supra note 26, at 618 n. 169.

308 See id.

309 See Sloane v. Southern California Ry. Co., 44 P. 320, 322 (Cal. 1896) (discussing that although nerves are part of the body's physical systems, they can be weakened and destroyed from causes that primarily affect the mind, such as shock and imminent peril).

310 Restatement (Second) of Torts § 15(1965).

311 See, e.g., Verbryke v. Owens-Corning Fiberglas Corp., 616 N.E.2d 1162, 1166-67 (Ohio Ct. App. 1992) (ruling that the thickening of pleura as a result of exposure is considered "bodily harm" even without any harm or injury related to asbestosis).

312 See Lavanant v. General Accident Ins. Co. of Am., 595 N.E.2d 819, 822 (N.Y. 1992) (holding that "bodily injury" in defendant-insurer's insurance policy was ambiguous and, therefore, must be resolved in favor of the insured and against the insurer).

313 Id.

314 See Richardson v. Liberty Mut. Fire Ins. Co., 716 N.E.2d 117,121 (Mass. App. Ct. 1999).

315 See id.

316 See id., citing Allstate Ins. Co. v. Diamant, 518 N.E.2d 1154, 1157 (Mass. 1988).

317 Id., citing Williams v. Nelson, 117 N.E. 189, 191 (Mass. 1917).

318 Restatement (Second) of Torts § 15 cmt. b (1965).

319 '9Id.

320 See Textbook of Psychiatry,supra note 239, at 479-82.

321 See id.

322 The classic physical signs of tachycardia (increased pulse rate), hyperventilation (increased respiration rate) and tremor (involuntary fine and rapid movement, usually in hands and fingers) are seen in a majority of patients. Yet the list of physical symptoms caused by anxiety is longer. Examples of anxiety symptoms include anorexia, feeling "butterflies in the stomach," chest pain, diaphoresis, diarrhea, dizziness, dyspnea, dry mouth, faintness, flushing, headache, lightheadedness, muscle tension, nausea, pallor, palpitation, presthesias, sexual dysfunction, shortness of breath, stomach pain, urinary frequency and vomiting. See id.

323 See id.

324 See id. at 107.

325 See id.

326 There are several methods and procedures for evaluating the mental condition of an individual and discovering any bodily changes that have occurred as a result thereof. This comment proposes a method that is a combination of a psychiatric evaluation, a complete neurological examination and the assessment of the autonomic nervous system. See id. at 3.

327 See supra note 277 and accompanying text.

328 A classic psychiatric examination has two stages. It first begins with an interview discussing a patient's present complaint, past history, history of alcohol or drugs, medical history, family history, and personal social history. After the initial stage, a psychiatrist proceeds with the mental status examination. In this stage, the psychiatrist examines the patient's level of consciousness, orientation, memory registration, attention and calculation, and language. In the second stage of a psychiatric evaluation, various tests and procedures are utilized for each examination. See Textbook of Psychiatry, supra note 239, at 4-5.

329 To assess the function of the central nervous system, a neurologist examines a patient's speech, gait, coordination of movements, physical balance and equilibrium, and reflex responses.

330 To examine the function of the peripheral nervous system, a neurologist tests a patient's sensory responses (visual, olfactory, auditory, gustatory and coetaneous), motor responses (strength, symmetry and range of movements) and cranial nerves.

331 An internal examination carefully evaluates the function of the several internal systems of the human body. During such an examination, the functions of the cardiovascular, respiratory, gastrointestinal, urinary and reproductive systems are examined.

332 See supra note 282 and accompanying text.

333 Generally, courts expect a plaintiff to prove the actuality or existence of the harm with reasonable certainty. See Brantner v. Jenson, 360 N.W.2d 529, 532 (Wis. 1985) (ruling that the burden on person claiming damages for mental distress is to convince the jury, by the greater weight of the credible evidence to a reasonable certainty, that he or she has sustained or will sustain mental distress and physical harm as a result of the tortfeasor's negligent conduct; thus, recovery may exist for reasonably certain injurious consequences of the tortfeasor's negligent conduct, but not for merely possible injurious consequences).

334 See id; see also Diesel Elec. Sales&Serv., Inc. v. Marco Marine San Diego, Inc., 16 Cal. App. 4th 202, 219 (Cal. Ct. App. 1993) (holding that a plaintiff seeking damages is required to establish with reasonable probability the existence of some causal connection between defendant's wrongful act and plaintiffs loss).

335 See generally Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977) (asserting that a guardian appointed to make decisions for a mentally incompetent person suffering with acute myeloblastic monocytic leukemia may even withhold chemotherapy if it is determined to be in that person's best interest).

336 See Friedland, Steven I., The Health Care Proxy and the Narrative of Death, 10 J.L.& Health 95, 100 (1995-1996)Google Scholar (noting that although all 50 states have adopted "advance directives" that allow people to maintain control over health decisions before becoming incompetent, the legal system has failed and consequently few people know about or use such directives).

337 See Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626, 627 (Mass. 1986) (discussing the implications of advances in medical technology that render mere adherence to legal doctrine inadequate and problematic).

338 See McNeil, R. Curtis, Note, Prenatal HIV Testing Under Ohio Revised Code Section 3701.242: The Doctors' Dilemma and the State's Shame, 22 U. Dayton L. Rev. 301, 307 (1997)Google Scholar (analyzing Ohio law and stating that "[w]hen section 3701.242 was passed in 1989, the medical community could not offer a pregnant woman infected with HIV any positive action to help herself or her baby").

339 Brophy, 497 N.E.2d at citing In re Conroy, 486 A.2d 1209, 1220 (N.J. 1985).

340 In re Conroy, 486 A.2d at 1220 (recognizing that various disciplines come into play when deciding whether life-sustaining treatment may be withheld or withdrawn from an incompetent).

341 See Bentley, Cintra D.,A Pregnant Pause: Are Women who Undergo Fertility Treatment to Achieve Pregnancy within the Scope of Title VII's Pregnancy Discrimination ActŒ., 73 Chi.-Kent L. Rev. 391, 422 (1998)Google Scholar (noting that "due to the significant medical advances . . . the legal system is faced with many new questions that our laws at times seem unable to address as written . . . [t]herefore, a court may attempt to analogize the issue presented to an existing body of law . . . [or] create a new law").

342 See Brophy, 497 N.E.2d at 627, citing Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334, 1344 (Del. 1980).

343 See Bentley,supra note 341, at 422 (noting that Minnesota, Louisiana and Illinois have amended their laws on homicide to include destroying or discarding embryos based on realities discovered 20 years after the creation of the law).

344 See State v. Guess, 715 A.2d 643, 649 (Conn. 1998) ("the National Conference of Commissioners on Uniform State Laws, in concert with the American Medical Association ("AMA") and the American Bar Association, drafted the Uniform Determination of Death Act, which created alternative standards for determining death. . . . Black's Law Dictionary also responded to the advances in medical science in 1979 when it included for the first time a definition of 'brain death' for the purpose of application of legal doctrines").

345 Id. at 649.

346 See Garcia, State v., 658 A.2d 947, 966-67 (Conn. 1995),aff'd on appeal after remand, 669A.2d 576 (1996)Google Scholar (holding that in light of modern advances in psychiatric treatments, an incompetent defendant may be involuntarily medicated where the state demonstrates that, to a reasonable degree of medical certainty, such involuntary medication will restore defendant to competency and is the least intrusive means of doing so).

347 See McConnell v. Beverly Enterprises-Connecticut, Inc., 553 A.2d 596, 603 (Conn. 1989) (relying on the AMA position that artificial nutrition and hydration of terminally ill patients constituted medical treatment, the court ruled that these treatments may be removed under some circumstances).

348 See State v. Guess, 715 A.2d at 649 (in determining "whether the term 'death,' as used in the Connecticut Penal Code, may be construed to embrace a determination, made according to accepted medical standards, that a person has suffered an irreversible cessation of all brain functions," the court ruled that determination of death shall be made in accordance with accepted medical standards).

349 See Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334, 1344 (Del. 1980) (determining the appropriateness of appointing a guardian to make medical decisions which may result in death for a person with irreversible brain damage).

350 See Morris, Caroline, Technology and the Legal Discourse of Fetal Autonomy, 8 UCLA Women'S L.J. 47, 74-79, 94-96 (1997)Google Scholar (examining the influences of medical advances on the construction of fetal personhood in legal discourses; and noting that the physical and visual separation of the fetus, as made possible by medical advances, has influenced the development of legal doctrine relating to the rights of the fetus).

351 See Burgess, Kristen, Protective Custody: Will It Eradicate Fetal Abuse and Lead to the Perfect WombŒ, 35 Hous. L. Rev. 227, 235 (1998)Google Scholar (discussing how medical advances in prenatal care shape the legal issues involved in the conflict between maternal and fetal rights).

352 See Commonwealth v. Booth, 729 A.2d 1187, 1190 (Pa. Super. Ct. 1999) (holding that, with the developments in medicine, a fetus need not be "born alive" to be considered a person).

353 See Matter of Baby M., 525 A.2d 1128, 1162 (N.J. Super. Ct. Ch. Div. 1987), modified, 537A.2d 1227 (N.J. 1988) (considering the implications of medical advances on surrogacy issues).

354 See McDonald v. McDonald, 680 N.Y.S.2d 477, 480 (N.Y. App. Div. 1994) (finding that the gestational mother, a recipient of egg donation, was the natural mother for custody determination purposes).

355 See R. Curtis McNeil,supra note 338, at 307 ("[W]hile medical knowledge in the area of HIV progressed, the legal system did not change in ways that would not allow doctors to act in the best interests of the pregnant woman, her child, and the community");see also Malloy, Suzanne M., Mandatory HIV Screening of Newborns: A Proposition whose Time has not yet Come, 45 Am. U. L. Rev. 1185, 1187 (1996)Google Scholar (noting that "[m]edical advances in HIV testing procedures and in treatment for HIV-infected individuals compel reevaluation of current legal standards").

356 State v. Guess, 715 A.2d 643, 648 (Conn. 1998).

357 See id. at 650.

358 See id. at 649 ("[I]n other analogous areas of the law, reasonable medical standards have, by and large, controlled our decisions").

359 See id. at 648.

360 See id. at 648-49 (showing that courts have adopted medically acceptable standards for defining death that are consistent with the Harvard Committee's definition of "brain death").

361 See, e.g., Brown v. Baker, 672 N.E.2d 69 (111. Ct. App. 1996) (stating that plaintiff in a personal injury case must present testimony of a medical expert to establish causation if the relationship between the claimed injury and the event in question requires special knowledge and training to establish; and defendant in a personal injury action seeking to establish that plaintiffs present injury is related to a prior injury must present testimony of a medical expert to establish a causal connection between the past and present injuries if the relationship between the injuries requires special knowledge and training to establish).

362 See Per Fink et.al, Somatization in Primary Care: Prevalence, Healthcare Utilization, and General Practitioner Recognition, 40 Psychosomatics 330, 335 (1999) (conducting a survey on primary care patients to determine the percentage of the patients suffering from psychosomatic conditions).See also Jean C. Beckham et.al, Health Status, Somatization, and Severity of Posttraumatic Stress Disorder in Vietnam Combat Veterans with Posttraumatic Stress Disorder, 155 Am. J. Of Psychiatry 1565, 1566 (1998) (conducting a study of the health problems of combat veterans with posttraumatic stress disorder based on psychosomatic disorders).

363 See Beckham, supra note 362, at 1568 (finding a correlation between incidents of posstraumatic stress disorder and greater health problems).

364 See Per Fink,supra note 362, at 336 (suggesting reform of diagnostic systems to account for somatic patients).

365 See Timothy E. Quill, Somatization Disorder: One of Medicine's Blind Spots, 254 JAMA 3075, 3078-79 (1985) (outlining treatment and diagnostic recommendations for patients presenting somatization disorder).

366 See, e.g., Kehm v. Procter&Gamble Mfg. Co., 724 F.2d 613 (8th Cir. 1983) (holding that scientific studies are admissible as factual findings).

367 See. e.g., Thomas v. Phone Directories Co., 996 F. Supp. 1364 (D. Utah 1998) (holding that plaintiff must show manifestation of physical symptoms to recover for negligent infliction of emotional distress).

368 See,e.g., Storjohn v. Fay, 519 N.W.2d 521 (Neb. 1994) (noting that unless the character of the injury is objective, there must be expert medical testimony in personal injury cases to establish causation and the extent and nature of injuries).

369 See James v. Lieb&Watts Trucking Serv., 375 N.W.2d 109, 116 (Neb. 1985) (holding that the requirement of a physical manifestation of the psychological injury may not be necessary given the current state of medical science and advances in psychology).

370 See id.

371 See Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 437 (Me. 1982) (holding that proof of physical manifestations of mental injury is not required as part of plaintiffs cause of action for negligently inflicted mental distress).

372 See, e.g., Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979) (noting that the measurement of pain and suffering is inherently subjective); Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999) (observing that courts, in the face of legitimate concerns about reliability with respect to claims of negligent or intentional infliction of emotional distress, place upon plaintiffs the burden of proving that the defendants' offending conduct was outrageous).

373 See Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d, 534, 535 (Minn. Ct. App. 1994) (holding that the physical manifestation requirement in N.I.E.D. cases is an important safeguard against fictitious, imagined or trivial claims).

374 See supra note 114 and accompanying text.