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II. Background

The tort of emotional distress underlies and supports the attendant legal principles of
AIDSphobia cases. As a result, an AIDSphobia claim, as with other phobia claims, is simply an outgrowth of an emotional distress claim. Unlike a general emotional distress claim, however, an AIDSphobia claim raises considerations unique to the disease itself.

This section provides the necessary background for understanding "phobia" litigation generally and AIDSphobia litigation specifically. Highlighting one category of distress that results from fear of developing a future disease, this section discusses the torts of intentional and negligent infliction of emotional distress in this context. This section also briefly explores the circumstances giving rise to cancerphobia litigation and its general acceptance among courts.

A. The Emotional Distress Torts

1. Elements of an Emotional Distress Claim

Tort law recognizes two types of emotional distress-based claims: intentional infliction of
emotional distress and negligent infliction of emotional distress. To establish a prima facie case for intentional infliction of emotional distress, the plaintiff must prove: (1) the defendant's conduct was "extreme and outrageous;" 20 (2) the defendant intended to cause severe emotional distress to the plaintiff; 21 (3) the defendant's extreme and outrageous conduct caused the plaintiff to suffer emotional distress; 22 and (4) the plaintiff's emotional distress was severe. 23
To establish a prima facie case for negligent infliction of emotional distress, the plaintiff must
prove the requisite elements of a standard negligence claim: (1) the defendant owed a duty to
the plaintiff; (2) the defendant breached this duty; (3) the defendant's breach of duty caused the plaintiff harm; and (4) the plaintiff has suffered injury. 24 The nature of a negligent infliction of emotional distress claim has presented plaintiffs with obstacles in proving a prima facie case.
For example, the issue of whether a plaintiff has alleged physical injury that was either caused or accompanied by severe emotional distress continues to trouble many courts, as well as plaintiffs. 25

Additional policy considerations also make establishing a prima facie case of negligent infliction of emotional distress more difficult. One such policy consideration concerns the danger of fraudulent claims. 26 A further concern is that permitting such claims may open the "floodgates" to significant amounts of litigation that many courts are ill-equipped to handle. 27

2.Proving Emotional Distress Claims

The obstacles encountered in proving traditional emotional distress claims resemble those encountered by plaintiffs instituting AIDSphobia cases. A historical overview of the proof issues troubling courts that consider emotional distress claims, therefore, aids understanding these same problems in phobia cases. Although acknowledging emotional harm merits compensation equal to that awarded for physical harm, courts were initially hesitant to recognize emotional distress as compensable injury, especially in negligence actions. 28 The policy underlying this reluctance aims chiefly at preventing adjudication of fraudulent or frivolous claims. 29 In order to assure the validity of alleged emotional injury, courts required a demonstration of some physical injury either accompanying or resulting from the emotional upset. 30 Courts in some jurisdictions modified this physical injury requirement by demanding the plaintiff demonstrate physical impact to his or her person. 31 In a majority of jurisdictions today, however, courts do not require a showing of physical impact if a plaintiff can establish that he or she was within the zone of danger of a defendant's negligent act. 32 Conversely, in a minority of jurisdictions, courts still require plaintiffs, even those within the zone of danger, to manifest physical injury resulting from his or her emotional distress. 33

Nevertheless, in most jurisdictions, even with these prerequisites to recovery, emotional distress torts have evolved from strictly "parasitic" torts to independent causes of action. 34 For example, in the most "liberal" jurisdictions, courts recognize negligent infliction of emotional distress as a completely independent cause of action. 35 Other courts take a more "moderate" view, dictating that in order to recover damages for emotional distress unaccompanied by physical injury, the plaintiff must show emotional injury to be both "serious and reasonably foreseeable." 36 Generally speaking, serious emotional distress is described as "both severe and debilitating." 37 In determining whether emotional injury was reasonably foreseeable, courts will look to a variety of factors. 38 Finally, some courts remain skeptical of negligent infliction of emotional distress as an independent tort and continue to require some physical manifestation of distress. 39

3. Recovery for Emotional Distress Due to the Fear of a Future Disease or

In response to increased judicial acceptance of independent emotional distress claims, many plaintiffs continue to push the boundaries of emotional distress recovery. 40 This trend has resulted in substantial awards for mental distress that are only remotely, if at all, related to physical harm suffered. 41 Consequently, the expansion of recovery for emotional distress has led to an attendant expansion in the types of emotional distress claims alleged.

A commonly litigated emotional distress claim arises from the anxiety allegedly suffered by a person who harbors fear of contracting or succumbing to a future disease or other debilitating condition. 42 In courts that recognize this type of emotional distress, the claim is generally characterized as judicially-approved relief for the plaintiff's current emotional pain associated with a possible future condition. 43 These courts hold that a plaintiff's fear of contracting a future disease constitutes a proper element of damages, even when the alleged fear proves to be mistaken. 44

Claims based on fear of contracting cancer exemplify this type of emotional distress. The term "cancerphobia" was first used in the 1958 case of Ferrara v. Galluchio. 45 Today, fear of cancer has been litigated so frequently that many courts now recognize cancerphobia as a specific and identifiable type of emotional distress. 46 In Ferrara, New York's highest state court granted recovery to the plaintiff for her fear of developing cancer after exposure to extreme amounts of radiation from unnecessary x-rays. 47 The court's reasons for allowing recovery included the inherent authenticity of the claim and the common knowledge among lay people that the wounds suffered by the plaintiff frequently resulted in cancer. 48

Since Ferrara was decided, claims for cancerphobia have arisen most frequently in
diethylstilbestrol (DES), asbestosis and medical malpractice litigation. 49 In most jurisdictions, plaintiffs have successfully brought claims based on a fear of contracting cancer. 50
Notwithstanding judicial fear of fraud in traditional emotional distress claims, many courts have held that a plaintiff may recover for fear of contracting cancer without proving that a future cancer will likely or probably result. 51 Instead, courts usually decide to award damages for a plaintiff's cancerphobia based upon the "reasonableness" of the fear alleged. 52 Unfortunately, the tests for determining "reasonable" fears vary tremendously among jurisdictions. 53

Judicial acceptance of cancerphobia emotional distress claims has spawned a variety of disease-related emotional distress claims, including claims on the fear of contracting AIDS.
While "AIDSphobia" is of recent import, courts approach such claims with an eye trained to both general emotional distress and cancerphobia issues. Nevertheless, due to the unique nature of AIDS, courts struggle to determine proper standards of proof. The next section of this Comment seeks to survey the types of adjudicated AIDSphobia claims, as well as analyze the conceptual concerns surrounding AIDSphobia cases.


12, at 60 (5th ed. 1984) (stating rule that emerged in which there is liability for "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind"). In addition, the extreme and outrageous character of the conduct "may arise not so much from what is done as from abuse by the defendant of some relation or position which gives the defendant actual or apparent power to damage the plaintiff's interests." Id. at 61; see, e.g., Boyle v. Wenck, 392 N.E.2d 1053 (Mass. 1979) (holding that defendant's conduct of making repeated, harassing phone calls to plaintiff after being told that plaintiff recently returned from hospital as extreme and outrageous conduct); Fletcher v. Western Nat'l Life Ins. Co., 10 Cal. App. 3d 376 (Ct. App. 1970) (holding insurance company's refusal to pay benefits owed to plaintiff in order to force plaintiff to settle claim for less was outrageous conduct). But see Burgess v. Perdue, 721 P.2d 239, 243 (Kan. 1986) (holding that physician's conduct of informing mother of deceased patient that he kept son's brain in jar for autopsy purposes was not extreme and outrageous conduct); Munley v. ISC Fin. House, Inc., 584 P.2d 1336, 1340 (Okla. 1978) (holding that leaving collection agency cards on plaintiff's door and contacting plaintiff's neighbors, former employer and apartment manager did not amount to extreme and outrageous conduct).

The Restatement (Second) of Torts defines "extreme and outrageous conduct" as conduct that exceeds "all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." RESTATEMENT (SECOND) OF TORTS  46 cmt. d (1965).

21 Womack v. Eldridge, 210 S.E.2d 145, 147-48 (Va. 1974). To satisfy this element, the plaintiff may prove that the defendant's conduct was only reckless--that is, that the defendant acted in deliberate disregard of the high probability that his or her actions would cause emotional distress. Id. at 148. A showing of intent, where the defendant "had the specific purpose of inflicting emotional distress," also satisfies this element. Id. If the plaintiff is particularly susceptible to emotional distress, and the defendant is aware of the plaintiff's sensitivity, intent or recklessness may be inferred from his or her conduct. Hanke v. Global Van Lines, Inc., 533 F.2d 396, 400-01 (8th Cir. 1976).

22 Womack, 210 S.E.2d at 148. The causation element has evolved over the history of the emotional distress tort. For a discussion of how this evolution provided the impetus for the birth of phobia claims, see infra notes 40-53 and accompanying text.

23 Harris v. Jones, 380 A.2d 611, 616 (Md. 1977). Under this element, the plaintiff must prove that the emotional distress caused by the defendant is more than a "reasonable man in a civilized society should be expected to endure." Id. at 617 (quoting Fletcher v. Western Nat'l Life Ins. Co., 10 Cal. App. 3d 376, 397 (Ct. App. 1970)).

24 See KEETON ET AL., supra note 20, at  30 (discussing traditional formula for cause of action based on negligence).

25 See generally Michele A. Scott, Proving Beyond a Reasonable Doubt: The Negligent Infliction of Emotional Distress, 11 CARDOZO L. REV. 235 (1989) (discussing evolution of emotional distress claim, focusing on proof of injury required by courts). Supporting the view that some physical injury must be alleged before a defendant may be held liable for the infliction of emotional distress is the language used by the Restatement (Second) of Torts: If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional
disturbance." RESTATEMENT (SECOND) OF TORTS  436A (1965) (emphasis added). For a further discussion of the physical injury requirement in emotional distress cases, see infra notes 28-33 and accompanying text.

26 See generally KEETON ET AL., supra note 20,  54, at 361-65. Emotional distress claims that are unaccompanied by any physical manifestation of the mental disturbance, which raise concerns of fraud, may be described in the following manner:

The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the intentional tort context are lacking.
Id. at 361 (citation omitted).

27 See id. at 360, 361 (noting that one of the primary concerns that continues to "foster judicial caution and doctrinal limitations on recovery for emotional distress . . . [is] the problem of permitting legal redress for harm that is often temporary and relatively trivial").

28 See generally Fournier J. Gale III & James L. Goyer III, Recovery for Cancerphobia and Increased Risk of Cancer, 15 CUMB. L. REV. 723, 725 (1985). The reasons courts frequently gave to justify their reluctance to award emotional distress damages included protection of the judicial system from "litigation in the field of trivialities and mere bad manners" and the fear of frivolous claims. Id. (citing Spade v. Lynn & Bros. R.R., 47 N.E. 88, 89 (Mass. 1897)).
Therefore, courts limited recovery by "promoting the `underlying policy . . . of compensating plaintiffs with clearly recognizable serious injuries, while not burdening either the judicial system or individual defendants' with injuries that are `trivial, evanescent, feigned or imagined.'
" Id. (citing Payton v. Abbott Labs, 437 N.E.2d 171, 179 (Mass. 1982); see also Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 WASH. L. REV. 1,
3 (1992) (noting that while most courts acknowledge that negligently inflicted emotional injury may merit compensation, intangible character of emotional harm reinforced courts' shared conviction that recovery must be limited); Corey Scott Cramin, Comment, Emotional Distress Damages for Cancerphobia: A Case for the DES Daughter, 14 PAC. L.J. 1215, 1226 (1983) (noting that "[e]arly decisions demonstrated reluctance to award damages for emotional harm").
See generally KEETON ET AL., supra note 20,  54, at 359-67 (noting that courts have been hesitant to recognize negligently caused emotional distress because of: (1) problem of permitting legal redress for "temporary or relatively trivial" harm; (2) danger of falsification or imagination of claims for mental harm; and (3) "perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences which appear remote from the `wrongful' act").

29 See Cramin, Comment, supra note 28, at 1226 (noting courts' "overriding policy concern[ ] focus[ing] on the dual desire of the courts to hear only genuine claims and to prevent a flood of litigation").

30 See e.g., Payton v. Abbott Labs., 437 N.E.2d 171, 178-79 (Mass. 1982) (giving reasons for not recognizing emotional distress without physical injury, including fact that emotional distress is not serious enough; that allowing such recovery is likely to overburden judicial system; that physical harm lends element of genuineness to claim; and that unless defendant's conduct is intentional, he should not be held liable for "purely mental disturbance").

31 Gale & Goyer, supra note 28, at 726-27. Many states adopted this modification. Id.; see KEETON ET AL., supra note 20,  54, at 363 (noting that physical impact is not immediate physical harm, but result of plaintiff's emotional distress over negligently caused event--such as miscarriage or heart attack). However, this rule has been much criticized and virtually abandoned in all but a few jurisdictions. Gale & Goyer, supra note 28, at 726-27.

The physical injury and impact rules limiting recovery for emotional distress served two basic policy objectives: To ensure that a defendant's liability for his negligence would not be disproportionate to his fault, and to "prevent litigation of trivial and/or fraudulent cases." Davies, supra note 28, at 3. Issues of fairness and resource allocation drive both of these policies. Id. For a further discussion of the physical injury requirement, as well as the tests that courts employ to determine whether the plaintiff has met this requirement, see supra notes
25-30 and accompanying text.

32 Cramin, Comment, supra note 28, at 1227 & n.108.

33 See Gottshall v. Consolidated Rail Corp., 988 F.2d 355, 360 (3d Cir. 1993), rev'd 114 S.
Ct. 2396 (1994). The Gottshall court stated that a minority of courts employ the "physical impact" rule, which "requires a contemporaneous physical injury or impact to recover for negligent infliction of emotional distress." Id.; see RESTATEMENT (SECOND) OF TORTS 
436A (1965) (noting that negligent actor is not liable when actor's conduct results in emotional disturbance only, without physical harm or other compensable damage).

34 See Cramin, Comment, supra note 28, at 1226 (stating that "courts have rapidly evolved in recent years in the recognition of a person's mental health as a protectable interest").

35 See Mary Ann Galante, When the Mind Is Hurt: Courts Around U.S. Permitting More Payments for Psychic Harm, NAT'L L.J., May 28, 1984, at 1, 28 (noting that at least eight states recognize negligent infliction of emotional distress as independent cause of action). Five states (Alabama, Connecticut, Louisiana, Missouri and Washington) require the plaintiff to demonstrate some objective symptoms of the emotional injury allegedly suffered, "largely to eliminate fake claims." Id. Three other states (California, Hawaii and Maine) require only that the jury find that the plaintiff "reacted reasonably under the circumstances." Id.

36 Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983) (holding that cause of action may be stated for negligent infliction of emotional distress without manifestation of physical injury, although proof of physical injury is admissible as evidence of degree of emotional distress

37 Id.

38 Id. at 766. These factors include whether the plaintiff was "located near the scene" of the accident; whether the shock resulted from "a direct emotional impact upon the plaintiff from sensory and contemporaneous observance" of the accident; and whether the plaintiff and victim were "closely related." Id.

39 Galante, supra note 35, at 28 (using Supreme Judicial Court of Massachusetts as example of court that refused to award damages to group of "DES daughters" who could not demonstrate evidence of physical harm that accompanied their fear of cancer (citing Payton v. Abbott Labs, 437 N.E.2d 171 (Mass. 1982))).

40 Id. at 1.

41 Id. The results among courts have been mixed. However, some impressive emotional distress victories in which physical injury has been "scant" include the following: Arceneaux v. Johns-Manville, LASC No. 260808 (1981) (plaintiff received $105,000 as compensation for fear of contracting asbestosis-related disease, where only physical symptom was shortness of breath, even though plaintiff was longtime smoker); Directo v. Johns-Mansville, LASC No. 259023 (1981) (71-year-old nonsmoker with only minimal findings of asbestosis awarded
$265,000 for shortness of breath); Zeller v. American Safety Razor, 443 N.E.2d 1349 (Mass. App. Ct. 1982) (plaintiff received $1.2 million for fear that tips of two surgical blades that broke off during surgery might puncture blood vessel), petition for review denied, 447 N.E.2d 670 (Mass. 1983); and De La Garza v. South Pac. Transp., Civ. 80-139 TUC ACM (1990) (awarding plaintiff $133,000 from railroad for fear that eyesight might become damaged where only physical complaint was dry eyes caused by exposure to chlorine gas). Galante, supra note 35, at 1, 28.

Some experts believe that the trend towards recovery for emotional distress without
accompanying physical injury began with the California Supreme Court's decision in Dillon v. Legg, 441 P.2d 912 (Cal. 1968), which established the standard for recovery by a third party who witnessed the negligent injury of another. Galante, supra note 35, at 28. This decision, in addition to that in Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980), established the California Supreme Court as a trendsetter in this area of recovery. For a discussion of Dillon and Molien and the state of recovery for emotional distress damages in California, see Cramin, Comment, supra note 28, at 1227-30.

Another pacesetting court in the area of recovery for emotional distress is the Hawaii Supreme Court. See Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981) (awarding family damages for serious emotional distress resulting from death of dog caused by defendant's negligence without witnessing defendant's tortious conduct); Leong v. Takasaki, 520 P.2d 758 (Haw. 1974) (considering boy's claim that he suffered emotional distress after witnessing death of step-grandmother but without incurring physical harm); Rodrigues v. State, 472 P.2d 509 (Haw. 1970) (permitting homeowner to sue highway department for negligence, including mental distress, for flood damage to home).

High courts in Massachusetts and Ohio, like those in California and Hawaii, have adopted a liberal approach to emotional distress recovery. Although these courts constitute what is still a minority position, the trend is toward recognizing additional and different theories of recovery for emotional distress. Galante, supra note 35, at 28. This expansion invites greater attorney creativity in devising theories that will support recovery. Id.

42 See generally David Carl Minneman, Annotation, Future Disease or Condition, or Anxiety Relating Thereto, as Element of Recovery, 50 A.L.R.4TH 13 (1986). For example, actions for fear of the following diseases or conditions have been litigated: cancer; brain, muscle and nervous system disorders, such as epilepsy or paralysis; bone and joint diseases; heart and blood circulatory diseases; and reproductive organ diseases. Id. at 68-95. In addition, complaints alleging fear of a more general health condition, rather than a specific disease, have been successfully litigated. Id. at 65-68. Examples of these nonspecific claims include fear of the consequences of foreign objects lodged in the body, of drinking contaminated water and of body parts injured in automobile accidents. Id.

43 Gale & Goyer, supra note 28, at 729.

44 Id. at 730. As one court explained:

That the fear regarded a possibility rather than a probability would not alter the reality of the mental suffering, unless the jury found the fear so fantastic as to make them believe that it was not in fact entertained. Whether the one entertaining the fear has done all he reasonably could to control his apprehension may be inquired into on the principle of mitigation of damages.

Id. (quoting Smith v. Boston & Me. R.R., 177 A. 729, 738 (N.H. 1935)).

45 152 N.E.2d 249 (N.Y. 1958).

46 Gale & Goyer, supra note 28, at 724 ("The term `cancerphobia' has been used by courts and commentators to describe emotional distress caused by the fear of developing cancer.") (citation omitted). Cancerphobia has been described as "a phobic reaction or apprehension that was experienced by the plaintiff, due to her fear of contracting cancer in the future. The medical definition of a phobic reaction, however, is the recurrent experience of dread of a specific event or object in the absence of objective danger." Id. (quoting Corey Scott Cramin,
Comment, Emotional Distress Damages for Cancerphobia: A Case for the DES Daughter, 14 PAC. L.J. 1215, 1215 n.1 (1983) (emphasis added) (citing PHILIP SOLOMON & VERNON D. PATCH, HANDBOOK OF PSYCHIATRY 77 (3d ed. 1974)).

As in the Comment by Cramin and the article by Gale and Goyer, cancerphobia and
AIDSphobia in this Comment refers to an anxiety, rather than a true phobia. An "anxiety is defined as a normal response to threats towards one's body, possessions, way of life, loved ones, or cherished values." Gale & Goyer, supra note 28, at 724-25 & n.7 (emphasis added).

47 Ferrara, 152 N.E.2d at 251-52.

48 Id. at 252-53. Ferrara's physician also testified that he had told the plaintiff that her radiation burns might be cancerous and recommended that they be examined regularly. Id.

49 Gale & Goyer, supra note 28, at 730. DES was a drug "marketed . . . as a preventative for miscarriages, and was widely prescribed by physicians." Id. at 730 n.42 (quoting Payton v. Abbott Labs., 437 N.E.2d 171, 173 (Mass. 1982)). "Asbestosis is a disease linked to exposure to asbestos, which was frequently used in insulation products." Id. at 730 n.43.

50 Id. at 730-31. One court that denied recovery in this case based its decision on the lack of physical injury to the plaintiff. See Payton v. Abbott Labs., 437 N.E.2d 171, 175 (Mass. 1982).
Another court denied recovery based on the remoteness of the damages alleged. See Howard v. Mt. Sinai Hosp., 217 N.W.2d 383, 385 (Wis.), reh'g, 219 N.W.2d 576 (Wis. 1974). Still another court denied recovery in a case in which the fear was claimed by a wife whose husband was at risk for cancer. Amader v. Johns-Mansville Corp., 514 F. Supp. 1031, 1033 (E.D. Pa. 1981). Notably, these courts have not based their decisions to deny the relief sought "on the noncompensability of cancerphobia." Gale & Goyer, supra note 28, at 731.

51 Gale & Goyer, supra note 28, at 732; see Flood v. Smith, 13 A.2d 677 (Conn. 1940)
(permitting recovery for fear of recurrence of breast cancer without discussion or consideration of whether such recurrence was likely probable or possible); Walsh v. Brody, 286 A.2d 666 (Pa. Super. 1971) (allowing recovery after physician testified that plaintiff's breast was in a "precancerous" condition, although he could not say whether or not cancer would develop); Kimbell v. Noel, 228 S.W.2d 980 (Tex. Ct. App. 1950) (same). These courts viewed the compensable injury not as the condition that is feared, but rather as the mental anxiety with which the plaintiff lives every day as a result of his fear. Smith v. A.C. & S., Inc., 843 F.2d 854, 858 (5th Cir. 1988). However, not all judges share this view. See id. at 859 (noting "misgivings about the wisdom of allowing recovery for cancerphobia when medical evidence will not support a conclusion that the plaintiff has a probability of developing cancer") (Jolly, J., specially concurring).

An important distinction must be drawn between claims for fear of contracting cancer
(cancerphobia claims) and those for fear of a perceived increased risk of contracting cancer. As previously stated, a plaintiff who seeks damages for his fear of contracting cancer need not prove that his exposure to the disease will more probably than not lead to cancer. However, this proof is required if the plaintiff seeks to recover for his increased risk of contracting cancer. This Comment will not consider cases involving claims for an increased risk of cancer.
In order to more closely parallel AIDSphobia cases, this Comment will consider only those cases in which the plaintiff alleges a fear of contracting cancer (cancerphobia).

52 Unfortunately for some plaintiffs, courts often disagree on what standard of proof satisfies the "reasonableness" test. See Gale & Goyer, supra note 28, at 733-34. For example, in Heider v. Employers Mutual Liability Insurance, the Louisiana Court of Appeals allowed the plaintiff to recover for the mental anxiety associated with her fear of becoming an epileptic following an automobile accident, although medical experts testified that there was only a 2-5% chance of her experiencing future epileptic seizures. 231 So. 2d 438 (La. Ct. App. 1970). In contrast, the New Jersey Supreme Court, in Ayers v. Township of Jackson, denied plaintiffs' claims for
emotional distress caused by polluted and contaminated groundwater negligently generated by a municipal landfill. 525 A.2d 287 (N.J. 1987). The court held that "pain and suffering" occasioned by the emotional distress was not compensable under the New Jersey Tort Claims Act. Id. at 297.

53 For a further discussion of the standards of "reasonableness" used by courts, see infra notes 148-54 and accompanying text.

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