February 26, 2013
EXXON MOBIL CORPORATION
THOMAS M. ALBRIGHT, ET AL.
Circuit Court for Baltimore County Case # 03-C-07-003809
The opinion of the court was delivered by: Harrell, J.
Exxon Mobil Corporation v. Albright, et al.,
No. 15, September Term 2012.
TORTS - FRAUD - DETRIMENTAL RELIANCE REQUIRED
Although a plaintiff may recover for fraud where the allegedly fraudulent statement was not made directly to the plaintiff, recovery is not permitted without a demonstration that the plaintiff relied, either directly or indirectly, on the relevant misrepresentation to his or her detriment. Maryland law does not permit a third party to recover damages for fraud purely on the basis of a false statement made to a governmental entity. Thus, where a plaintiff does not prove reliance on a personal basis or does not establish detriment arising from his or her reliance, he or she may not recover damages for fraud.
TORTS - DAMAGES - EMOTIONAL DISTRESS FOR FEAR OF DEVELOPING DISEASE
To recover emotional distress damages for fear of developing disease, a plaintiff must show that (1) he or she was exposed actually to a toxic substance due to the defendant's tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a disease; and, (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination.
TORTS - DAMAGES - MEDICAL MONITORING
A plaintiff may recover damages for medical monitoring costs, usually through the administration of an equitable fund, upon a showing of the following; (1) that the plaintiff was significantly exposed to a proven hazardous substance through the defendant's tortious conduct; (2) that as a proximate result of significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and, (4) that monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.
TORTS - DAMAGES - EMOTIONAL DISTRESS FOR FEAR OF INJURY TO REAL PROPERTY
A plaintiff may ordinarily recover emotional distress damages attendant to injury to real property only in the presence of fraud, malice, or like motives.
DAMAGES - INJURY TO REAL PROPERTY - DUPLICATIVE COMPENSATION PROHIBITED
Owners of real property are not precluded necessarily from recovering both permanent diminution in value and loss of use and enjoyment damages, provided that the injuries for which recovery is sought do not overlap, so as to result in duplicative compensation. Where an alleged loss of use and enjoyment is "not distinguishable from" and "subsumed in" a claim for diminution in value, the impaired market value of the real property presumably reflects the injury, and a plaintiff may not recover damages for both loss of use and enjoyment and diminution in value.
TORTS - INJURY TO REAL PROPERTY - NO PHYSICAL IMPACT TO LAND
In the absence of physical injury to real property resulting from a defendant's tortious actions, a plaintiff must demonstrate more than modest adjustments in his or her use of his or her real property in order to recover damages. Thus, a plaintiff who has not provided present proof of contamination must show more than a possibility of future contamination or mere annoyance in order to recover. Absent a substantial interference with a plaintiff's use and enjoyment of his or her land, any diminution in value suffered by a plaintiff is not compensable.
DAMAGES - INJURY TO REAL PROPERTY - LOSS OF USE AND ENJOYMENT
An award for compensatory damages must be anchored to a rational basis on which to ensure that the awards are not merely speculative. In the context of damages for loss of use and enjoyment of real property, we determine that loss of use and enjoyment of real property cannot exceed the fair market, unimpaired value of the property at issue.
EXPERT TESTIMONY - VALUATION OF REAL PROPERTY
Expert testimony is required ordinarily to establish diminution in property value resulting from environmental contamination. Although Maryland law does not require the use of comparable sales data, to the exclusion of all other methodologies, a real estate appraisal expert must proffer a reasonable justification for ignoring market data where it is available.
Bell, C.J. Harrell Battaglia Greene Barbera McDonald Eldridge, John C. (Retired, Specially Assigned), JJ.
Opinion by Harrell, J.
On 17 February 2006, Appellant, Exxon Mobil Corporation ("Exxon"), reported a leak of approximately 26,000 gallons of gasoline from the underground tanks at its fueling station located in Jacksonville, Maryland.*fn1 The seemingly cursed Jacksonville community, the unfortunate site of multiple gasoline leaks over the years, see, e.g., Exxon Corp. v. Yarema, 69 Md. App. 124, 516 A.2d 990 (1987) (noting that in the early 1980s, three gasoline stations located along Jarrettsville Pike in Jacksonville experienced underground gasoline tank leaks), is reliant largely on private wells, rather than municipal supply sources, for its potable water. Thus, following the 2006 release into the underground aquifer serving certain of those wells, 466 residents and business proprietors of Jacksonville (hereinafter referred to collectively as "Appellees") filed the present suit against Exxon for asserted damages stemming from the contamination of their water supply, other consequential effects, and alleged misrepresentations by Exxon. The result was a jury award of $496,210,570 in compensatory damages and $1,045,550,000 in punitive damages for Appellees. Exxon appealed both the compensatory and the punitive damages awards as to all recovering plaintiffs, which were based on claims sounding in fraud, emotional distress for fear of contracting cancer, medical monitoring, emotional distress for fear of loss of property value, diminution in value of real property, and loss of use and enjoyment of real property.
FACTS AND PROCEDURAL HISTORY
Exxon purchased the property located at 14258 Jarrettsville Pike in Phoenix, Maryland, in 1981 for the construction of a new gasoline fueling station ("the Jacksonville Exxon"). Exxon was granted initially a construction permit in 1981. It applied for an extension of the life of the construction permit in 1983. Upon its application for extension, however, the Baltimore County Health Department expressed its formal opposition due to pre-existing contamination of the underground water supply stemming from prior leaks in the surrounding area. As a result, the Baltimore County Office of Permits and Licenses denied Exxon's request.
Exxon appealed the denial to the Baltimore County Board of Appeals. At a 24 August 1983 hearing before the Board, an environmental engineering specialist for Exxon, Frederick M. Anderson, testified regarding, among other things, the ongoing remediation efforts for the three prior spills in the community. During his testimony, Anderson described the containment prevention features of the proposed underground fuel storage system at the new station, stating that Exxon was "planning to really take some extraordinary measures" in constructing the underground storage system. Specifically, he asserted that Exxon planned to construct secondary containment measures at the Jacksonville Exxon station, including (1) fiberglass tanks and fiberglass lines; (2) sloped concrete troughs under the product lines running from the dispensers back to the tank field; (3) a polymer-coated polyester lining under the entire tank field; and (4) an observation well that would extend nearly to the bottom of the tank field. In response to concerns regarding potential repeated contamination in the wake of the prior gasoline leaks, Anderson opined that the proposed Jacksonville design ensured that the station would not be a source of contamination. He also conceded, however, that "[a]nything is possible." The Board granted to Exxon the construction permit on 20 October 1983.
During the construction process, Exxon elected to depart from the containment design plans described by Anderson.*fn2 Rather than installing the tank field liner and single-walled tanks, Exxon installed instead newly-available, double-walled, fiberglass Buffhide tanks, fabric-lined product lines, and a plastic overliner. The Jacksonville Exxon station opened for business on or about 1 November 1984. The station was retrofitted with additional protective features in 1992, made in response to enactment of amendments in 1990 to the federal Clean Air Act.*fn3 Evidence was submitted at trial suggesting that, during the retrofitting construction, the plastic overliner containment system was destroyed and was not repaired subsequently. Nevertheless, the Jacksonville Exxon station was operated for its owner by Storto Enterprises, Inc. without a harmful incident for over twenty years.*fn4
On 13 January 2006, an employee from Crompco Corporation, an Exxon contractor, drilled unknowingly, while performing maintenance on the "super unleaded grade" containment sump, a hole in the underground fiberglass "regular grade" gasoline feed line leading from one of the gasoline storage tanks to the pumps.*fn5 This hole, approximately 3/16 inch in diameter, was detected duly by an electronic leak detection system,*fn6 which signaled an alarm inside the station and at the central monitoring service, Gilbarco Veeder-Root,*fn7 indicating a catastrophic line failure.*fn8 The leak detection system shut down automatically the regular unleaded gasoline product line. Contractors from Alger Electric, Inc. ("Alger") were sent to the Jacksonville Exxon station to investigate the cause of the alarm. They concluded (incorrectly) that no actual leak existed. Rather, the technicians concluded that the alarm resulted from a problem with a submersible pump motor. After replacing the motor, the Alger technicians recalibrated the leak detection system (incorrectly), such that the alarm system could no longer detect the actual leak when the fuel system was reactivated.
As a result of this confluence of events, the leak continued uninterrupted without activating the alarm system. Andrea Loiero, the station operator, noticed inventory discrepancies following the incident on January 13. Loeiro testified that, although she realized in January that she had an inventory problem, she did not know that the daily inventory variances resulted from a leak. On 16 February 2006, Loeiro reported the discrepancies in her gasoline inventory to Exxon employee Russ Bowen, at which time the fuel system was shut down and the station closed. A sign posted on the property stated, "Please excuse our appearance, we are working to serve you better. Fueling facilities are temporarily closed for upgrade."*fn9 Following a manual precision line test, which the regular gasoline line failed on February 17, Exxon reported the gasoline release to the Maryland
Department of the Environment ("MDE"), informing it of both the leak and the lost product amount. By then, over 26,000 gallons of gasoline were released into the underground environment by the Jacksonville Exxon station.
After notifying the MDE of the leak, Exxon held multiple public meetings in the Jacksonville community to inform residents of the situation, beginning with a previously- scheduled meeting of the Greater Jacksonville Neighborhood Association on February 21. The presentations, conducted by both Exxon and MDE officials, included information regarding the projected migration of the gasoline plume within the underground aquifer. Specifically, Exxon and the MDE predicted that, because of the hydrogeology of the area, the contamination would remain concentrated within a half-mile radius along a line running northeast and southwest from the station, which they termed the "strike line."*fn10 Baltimore County notified individuals residing or operating businesses within a half-mile radius of the station of the leak. The MDE maintained a website on which it posted information regarding the remediation efforts and all well test results. Some residents outside of the area predicted initially to be contaminated, however, ultimately suffered water contamination.
The MDE is responsible for supervising Exxon's remediation efforts, pursuant to a Consent Decree entered in September 2008.*fn11 The MDE will determine when Exxon has completed its remediation obligations under the Consent Decree. During the remediation process, the MDE directed Exxon's investigation of the severity and scope of the leak, as well as in drilling and sampling monitoring and recovery wells. Exxon also submitted weekly site status reports to the MDE. Exxon has installed over 225 monitoring and recovery wells in the Jacksonville area, and, as of the time of trial, spent over $46 million on remediation.
Additionally, in accordance with the MDE's directives, Exxon provided written updates to residents and government officials regarding the progress of the remediation efforts, including the amount of gasoline recovered. In March and April of 2006, Exxon distributed estimates of how much gasoline had been recovered to Jacksonville residents. After discovering an error in the recovery calculations, Exxon advised residents of the error in April 2006, and submitted corrected estimates to the MDE on 29 June 2006. Exxon and its contractors provided residents with test results from their individual potable wells (where applicable), along with information regarding the drinking water guidelines promulgated by the MDE, and installed POET systems*fn12 where it and the MDE deemed necessary. Exxon also delivered voluntarily, for a limited period of time, bottled water to those residents whose wells were being ordered tested by the MDE.
Appellees filed suit initially in the Circuit Court for Baltimore County on 5 April 2007*fn13 against a number of defendants*fn14 for negligence, strict liability for an abnormally dangerous activity, private nuisance, trespass to land, and fraudulent concealment. Appellees sought compensatory damages for diminution in value and loss of use and enjoyment of real property, emotional distress for fear of loss of property value, medical monitoring, emotional distress for fear of contracting cancer, and punitive damages. Understandably, the case endured a lengthy procedural travail. Appellees filed a total of nine complaints, with the ultimate Eighth Amended Complaint filed on 12 March 2010.*fn15 Prior to trial, Exxon filed multiple motions for summary judgment,*fn16 but ultimately, nearly all of Appellees' claims for damages were permitted to be tried.*fn17
At trial, which lasted from 3 January 2011 to 17 June 2011, Appellees maintained that Exxon perpetuated an ongoing fraud designed to deceive both public authorities and members of the community, beginning in 1983 with the construction of the containment system and continuing through the remediation efforts following the discovery of the leak. In support of their allegations, Appellees presented evidence regarding six specific instances of alleged fraud:*fn18 (1) Anderson's 1983 testimony before the Board of Appeals (construction fraud);*fn19 (2) failure to inform the MDE that the 1992 retrofitting of the station, pursuant to the Clean Air Act, would involve destruction of the overliner (1992 permit fraud); (3) the posting of a misleading sign outside of the Jacksonville Exxon following the discovery of the leak (sign fraud); (4) a 2001 statement by Exxon to the MDE representing that the underground piping at the Jacksonville Exxon was double-walled piping, when actually it was single-walled piping (2001 double-walled piping fraud);*fn20 (5) inaccuracies in remediation reports regarding the quantity of leaked product recovered and the alleged flow of the leak (remediation fraud); and (6) deception of the MDE during the remediation process.*fn21
Additionally, Appellees sought emotional distress damages for fear of contracting cancer, as well as relief in the form of medical monitoring costs, stemming from their alleged actual or future exposure to gasoline constituents, particularly benzene,*fn22 a known human carcinogen, and methyl tertiary-butyl ether ("MTBE"),*fn23 a metabolite of which is formaldehyde.*fn24 Although not classified as known human carcinogens, MTBE and formaldehyde are known to have mutagenic properties.*fn25 Monitoring performed by Exxon in accordance with the MDE's requirements revealed benzene contamination in only ten wells.*fn26 Because few potable wells contained detectable concentrations of benzene, and therefore few Appellees could support their claims for fear of contracting cancer or a need for medical monitoring on the basis of benzene exposure, Appellees' primary contention at trial was that any MTBE contamination detected in any Appellee's well was sufficient to support that Appellee's fear of cancer and medical monitoring claims. Specifically, Appellees contended, through their expert witnesses, that there is "no safe level" of MTBE, and that any exposure to MTBE increases an individual's risk of cancer and is therefore sufficient to support a claim for fear of contracting cancer and medical monitoring. Of
Appellees' potable wells, only eight recorded detections of MTBE above the MDE action level of twenty parts per billion ("ppb") for MTBE in drinking water.*fn27 On Appellees' claims for emotional distress for fear of contracting cancer and medical monitoring, the trial court instructed the jury as follows:
To recover for fear of disease, a Plaintiff need not offer definitive proof of actual exposure to the disease-causing agent where such proof is unavailable; it is sufficient in such a situation if the Plaintiff proves that the Defendant created circumstances making the Plaintiff's exposure a reasonable probability. The evidence is sufficient to establish a reasonable probability if it produces in your minds a belief that an outcome is more likely true than not true.
A Plaintiff's entitlement to damages for fear of disease must be confined to injury suffered during the Plaintiff's legitimate window of mental anxiety. The window of anxiety begins when the Plaintiff first learns of the potential exposure to [sic] diseasecausing agent and ends when satisfactory information becomes available that puts to rest the fear of disease.
Furthermore, a Plaintiff must show that all claimed emotional distresses are objectively ascertainable through evidence of physical manifestations. Physical manifestations of emotional distress may include, but are not limited to, any of the following: Depression, inability to work or perform routine household chores, loss of appetite, insomnia, nightmares, loss of weight, extreme nervousness and irritability.
The Plaintiffs seek a form of relief called medical monitoring. Medical monitoring is a form of relief that represents the cost of periodic medical tests or examinations, to a reasonable degree of medical certainty, that are necessary to monitor a Plaintiff's health and to facilitate early diagnosis and treatment of a disease caused by exposure to a chemical. To qualify for medical monitoring damages, a Plaintiff must prove by a preponderance of the evidence: Relative to the general population, the Plaintiff has been exposed to MTBE, benzene, toluene, or other gasoline constituents; MTBE, benzene, or toluene are disease-causing agents; the exposure was caused by the 2006 Jacksonville Exxon release of gasoline into the environment; the exposure created a significant increase of risk for contracting a serious disease when compared to the general nonexposed population; diagnostic or early detection tests exist for this increased risk of a serious disease and is reasonably beneficial in the treatment of serious disease; this testing would be prescribed by a qualified physician in accordance with contemporary scientific principles and would not be prescribed to the general population absent this exposure.
In support of their claims for fear of contracting cancer, and over the objection of Exxon's counsel, many Appellees testified regarding their opinions that they, members of their families, or their pets contracted disease as a result of the gasoline leak. At trial, however, no Appellee "assert[ed] a claim for sickness or death of any person or animal." The trial court instructed the jury that no claim could be asserted unless Appellees "offered appropriate expert testimony linking those illnesses or deaths to the level of exposure to gasoline, including any constituent that has caused sickness or death and to any person or animal."
In addition, Appellees sought compensatory damages for diminution in value and past loss of use and enjoyment of real property*fn28 as a remedy for their claims of nuisance, trespass, negligence, and strict liability for an abnormally dangerous activity.*fn29 Some Appellees sought additional recovery for emotional distress for fear of loss of property value. Appellees testified that they were reluctant to use portions of their properties, needed to purchase bottled drinking water, and were disturbed generally by the lights, noise, and smells produced by remediation activities, which reduced their enjoyment of their properties. Further, in support of their diminution in value allegations, Appellees introduced Dr. John Kilpatrick as an expert witness, who testified that each of the residential Appellees' properties had sustained a sixty percent diminution in value as of the day the leak was discovered.*fn30 Exxon countered with its expert witness, Richard Roddewig, who testified that, based on post-leak sales in the Jacksonville community, some properties had not sustained any diminution in value, while others sustained diminution up to 35% of their pre-leak value. At the close of trial, Judge Dugan granted Exxon's Motion for Judgment on Plaintiffs' Claims for Punitive Damages based on allegations of evil motive, ill will, or intent to injure, determining that Appellees' only viable basis for seeking recovery of punitive damages was fraud. Thus, the case went to the jury on causes of action for negligence, strict liability, trespass, nuisance, and fraud.*fn31 The jury returned verdicts for 466 plaintiffs on all causes of action on 28 June 2011, amounting to a total compensatory damages award of $496,210,570. Following presentation of evidence on the issue of punitive damages, the jury returned an award for punitive damages totaling $1,045,550,000.
Exxon filed motions for judgment notwithstanding the verdict and for a new trial and/or remittitur, which were denied on 19 July 2011. On 18 August 2011, Exxon noted timely an appeal to the Court of Special Appeals.*fn32 Before the intermediate appellate court could decide the appeal, Appellees filed a petition for writ of certiorari in this Court on 24 February 2012. Exxon opposed Appellees' petition, arguing that it was better for the case to proceed first through the Court of Special Appeals. We granted Appellees' petition for certiorari on 9 May 2012, 426 Md. 427, 44 A.3d 421 (2012), to consider the following issues,*fn33 rephrased and consolidated for brevity:*fn34
(1) Does Maryland recognize third party reliance in a fraud action?
(2) Was there sufficient evidence to support the jury's fraud awards?
(3) Where a Plaintiff alleges multiple instances of fraud, must the jury verdict sheet allocate compensatory damages among the various instances of fraud?
(4) Was the punitive damages award excessive?
(5) Was there sufficient evidence to support the jury's award of emotional distress damages for fear of cancer?
(6) Does Maryland recognize a claim for medical monitoring?
(7) Were the jury's property damages duplicative, excessive, and speculative?
(8) Is the release of a contaminant into an aquifer sufficient to establish trespass to land regardless of the level of detected contamination in an individual Plaintiff's well?
I. Sufficiency of Evidence for Fraud Verdict and Punitive Damages
Exxon challenges on multiple grounds the jury's fraud verdicts and resultant punitive damages awards. First, Exxon seeks to undermine the legal sufficiency of the jury's finding of fraud, contending that Appellees did not prove detrimental reliance as to any of the six alleged categories of alleged fraudulent conduct. Second, Exxon argues that the jury verdict sheets were faulty in that they failed to allocate compensatory and punitive damages among the separate categories of alleged fraud, such that an assumed finding of insufficiency by this Court on some, but not all, of the fraud claims mandates nonetheless a new trial. Third, Exxon contends that by failing to require Appellees to define what they meant by "remediation fraud" prior to the commencement of trial, the trial court permitted Appellees to shift their theory of liability during trial in violation of Exxon's due process rights. Lastly, Exxon asseverates that the punitive damages awards are constitutionally excessive. Because we conclude that Appellees' evidence in support of their fraud claims was legally insufficient, we need not decide Exxon's other contentions.
In reviewing a trial court's denial of a motion for judgment notwithstanding a verdict for fraud, we must determine whether "there is any evidence adduced, however slight . . . from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented." Hoffman v. Stamper, 385 Md. 1, 16, 867 A.2d 276, 285 (2005); see also Darcars v. Borzym, 379 Md. 249, 270, 841 A.2d 828, 840 (2004) (noting that a court "must account for and consider the appropriate burden of persuasion in deciding whether to allow the jury to decide an issue"). We review the trial court's decision to "determine whether it was legally correct, while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party." Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 17 A.3d 159, 163 (2011) (internal citations omitted). We will reverse the denial of a motion for judgment notwithstanding the verdict "only if the facts and circumstances permit but a single inference as relates to the appellate issue presented." Jones v. State, 425 Md. 1, 31, 38 A.3d 333, 350 (2012) (citing Scapa, 418 Md. at 503, 16 A.3d at 163). Thus, because fraud must be proven by clear and convincing evidence, Hoffman, 385 Md. at 16, 867 A.2d at 285 (citing VF Corp. v. Wrexham Aviation, 350 Md. 693, 704, 715 A.2d 188, 193 (1998)), reversal of the trial court's denial of the motion for judgment notwithstanding the verdict is only appropriate when, looking at the evidence in the light most favorable to Appellees, we determine that Appellees did not meet their burden of establishing fraud by clear and convincing evidence.
A. Third Party Reliance
At trial, Appellees alleged on Exxon's part a continuous course of fraudulent conduct continuing over approximately thirty years, based on six specific instances. Exxon challenges the legal sufficiency of the jury's verdict as to three of those instances - the 1983 construction fraud, 1992 permit fraud, and 2001 double-walled piping fraud - on the grounds that the jury relied improperly on a theory of third party reliance, which Exxon contends is not recognized under Maryland law. We determine that Appellees' theory of third party reliance fails to satisfy the requirement that Appellees demonstrate personal reliance, and thus, because they presented no competent evidence on this missing element, their proof is legally insufficient. Therefore, we reverse the judgment as to fraud.
To establish fraud, a plaintiff must prove by clear and convincing evidence that "(1) the defendant made a false representation to the plaintiff, (2) the falsity of the representation was either known to the defendant or the representation was made with reckless indifference to its truth, (3) the misrepresentation was made for the purpose of defrauding the plaintiff, (4) the plaintiff relied on the misrepresentation and had the right to rely on it, and (5) the plaintiff suffered compensable injury as a result of the misrepresentation." Hoffman, 385 Md. at 28, 867 A.2d at 292. Exxon takes issue with the trial court's jury instructions on reliance, which read, in relevant part, that, in order to recover damages for fraud, Plaintiffs need only prove that Exxon "intended the Plaintiffs or Baltimore County or the State of Maryland would act in reliance on [its false] statements" and that "the Plaintiff or Baltimore County or the State of Maryland did justifiably rely on the representations of the Defendant." (Emphasis added).
Ordinarily, a plaintiff seeking recovery for fraud must prove that "the defendant . . . made a false representation to the person defrauded." Gourdine v. Crews, 405 Md. 722, 759, 955 A.2d 769, 791 (2011) (citations omitted) (emphasis in original). Here, there is no dispute that (1) Exxon did not direct any of these three allegedly fraudulent representations to any of the Appellees; and (2) none of the Appellees relied personally on the three allegedly fraudulent misrepresentations. None of the Appellees contend that they were present at the 1983 meeting of the Baltimore County Board of Appeals at which Anderson testified, knew about the 1992 permit application, or saw, prior to the leak, the 2001 MDE document representing that the Exxon station employed double-walled piping. In the absence of personal reliance, however, Appellees assert an attenuated third-party reliance theory under which they claim that they need not show any evidence of actual, personal reliance in order to establish fraud. Rather, they claim, a cause of action for fraud may be successful under a theory of third-party reliance by demonstrating that Exxon made intentionally or recklessly a false statement to public officials (Baltimore County or the State of Maryland), which the public officials then relied on to the ultimate detriment of the Appellees - rather like fraud on the people's government constitutes fraud on the people. Exxon, by contrast, contends that Maryland law requires that "a plaintiff prove he had knowledge of, and relied upon, a misrepresentation" on a direct and personal basis.
In some circumstances, an individual may recover for fraud even when the allegedly fraudulent statement at issue was not made to him or her directly. See, e.g., Diamond Point Plaza Ltd. P'ship v. Wells Fargo Bank, N.A., 400 Md. 718, 741-42, 929 A.2d 932, 946 (2007) ("Liability [for fraud] is not defeated by the fact that Diamond Point's representations [in a commercial document] were not made directly to Wells Fargo."); Rhee v. Highland Development Corp., 182 Md. App. 516, 539-40, 958 A.2d 385, 389-90 (2008) (permitting a subsequent purchaser of real estate to proceed against the original seller for his or her alleged fraudulent concealment, even though the misrepresentation was not made directly to the subsequent purchaser); Restatement (Second) of Torts § 531 ("One who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation . . ."). But see Gourdine, 405 Md. at 759-60, 955 A.2d at 791-92 (declining to sustain a cause of action for fraud to a third party in part because the third party was not a party to the alleged misrepresentation).
Despite the instances where recovery for fraud has been sanctioned where the allegedly fraudulent statement was not made directly to the plaintiff, we have not permitted recovery without a demonstration that the plaintiff relied, either directly or indirectly, on the relevant misrepresentation. For example, in Diamond Point Plaza, the defendant, Diamond Point, made a fraudulent misrepresentation to two lenders, Pinnacle and PaineWebber, "for the purpose of inducing Pinnacle and PaineWebber to extend a loan, aware that PaineWebber likely would sell the loan in the secondary market." 400 Md. at 741, 929 A.2d at 946. Wells Fargo bought the loan in the secondary market. Thus, we reasoned that Diamond Point had "reason to expect that the loan documents, including [the fraudulent misrepresentation], would be presented to, would be considered by, and would influence the decision of prospective buyers in the secondary market." Id. at 741-42, 929 A.2d at 946. Therefore, not only did Pinnacle and PaineWebber, the parties to whom the actual misrepresentation was made, rely, but so too did Wells Fargo, the third party buyer in the secondary market. Id. Although Diamond Point's representations were not made directly to Wells Fargo, Wells Fargo, as the third party, established reliance and resultant harm.
Appellees contend that, because we have permitted previously recovery where the allegedly fraudulent statement was not made directly to the plaintiff, recovery by Appellees for the statements made to Baltimore County and the MDE is justified in the present case. Reliance by Baltimore County or the State of Maryland is simply February 22, 2013not enough, however.*fn35 Appellees, like Wells Fargo in Diamond Point, must also have relied personally, either directly or indirectly, on the allegedly false representations. Here, however, Appellees do not provide any evidence that they relied personally on Exxon's allegedly fraudulent statements,*fn36 nor do they provide any persuasive legal authority sufficient to support their contention that proof of reliance is excused. Cf. Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 n.29, 752 A.2d 200, 234 n.29 (2000) (denying class certification for a claim of fraud in part because reliance on a misrepresentation by a plaintiff, on an individual basis, is essential to a civil claim of fraud). Maryland law does not permit a third party to recover damages for fraud purely on the basis of a false statement made to a governmental entity.
Appellees argue that such an interpretation, in effect, immunizes corporate deceit to governmental officials. We disagree. Government is capable and empowered generally to take action in such instances to protect its interests and those of the public. Other parties meeting the elements of fraud may proceed properly on such an action if they so choose. Appellees, however, purely by virtue of being residents in the area, without more, cannot maintain an action for fraud based on false statements for which they have admitted no direct, indirect, or personal reliance. Thus, to the extent the jury verdict was dependent on the 1983 construction fraud, the 1992 permit fraud, and the 2001 double-walled piping fraud claims, it is unsupported.
B. Sign Fraud and Remediation Fraud
Exxon argues that Appellees failed to prove by clear and convincing evidence the remaining three instances of alleged fraud: (1) sign fraud; (2) remediation fraud; and (3) remediation fraud in allegedly misleading affirmatively the MDE. Specifically, Exxon contends that, of the approximately 125 Appellees who testified that they saw the misleading sign, most did not provide any testimony lending itself to establishment of any detrimental reliance or change in their water consumption habits. Additionally, although 459 Appellees received awards for remediation fraud either personally or on the basis of the MDE's reliance, Exxon argues that at least 300 of these Appellees did not offer any testimony mentioning the alleged remediation fraud in the first instance, no Appellee proved detrimental reliance, and Appellees provided insufficient evidence to demonstrate that the MDE relied on any false statements.
1. Sign Fraud
Exxon contends that the sign fraud verdicts should be reversed. One-hundred, eighty-six Appellees recovered damages for sign fraud, stemming from the placement of the "misleading" sign outside of the Jacksonville Exxon station from 17 February until 21 February 2006. Exxon claims that of the 186 recovering Appellees, most either provided no testimony regarding seeing the sign in the first instance or "offered no evidence of detrimental reliance or continued using their well water even after they discovered the sign was inaccurate." Moreover, Exxon argues, those demonstrating reliance did not offer any evidence of resulting injury or damage.
As noted above, a false statement by a defendant does not alone provide a sufficient basis to support a cause of action for fraud. Rather, the plaintiff must prove by clear and convincing evidence that he or she relied on the allegedly fraudulent statement to his or her detriment. See Hoffman, 385 Md. at 28, 867 A.2d at 292. Here, Appellees' failure to demonstrate detrimental reliance is fatal to their claims. As Exxon notes, very few Appellees testified that they continued to use their well water after seeing the sign because they presumed the sign was correct, that they altered their water consumption following the discovery that the sign was misleading, or that they would have altered immediately their water consumption had the content of the sign been accurate at its installation. For example, many Appellees who asserted that they saw the sign did not begin using bottled water or install POET systems until well after the leak was publicized and the sign removed, therefore negating any claim that their continued consumption of potentially contaminated water resulted from the sign's inaccuracy. Thus, even though 186 Appellees saw the sign, very few demonstrated reliance.*fn37
Of those Appellees that claimed to have relied on the misleading sign, none established that he or she suffered injury or damages as a result of his or her reliance. Appellees testifying as to reliance either did not have demonstrable contamination of their wells stemming from the Jacksonville Exxon leak until months after Appellees learned about the leak, or never had a positive well test for contamination. Thus, no Appellee proved by clear and convincing evidence any resulting injury from consuming contaminated water during the five-day period during which the sign was displayed. As a result, Appellees failed to establish a cause of action for fraud based on the posting of the "misleading" sign. The sign fraud verdicts as to all Appellees are therefore reversed.
2. Remediation Fraud
Exxon urges this Court to reverse the fraud verdicts for the 459 Appellees who recovered for remediation fraud, claiming that they failed to prove fraud by clear and convincing evidence. Exxon challenges additionally the remediation fraud verdicts based on the reliance by the MDE on Exxon's remediation expertise. Lastly, Exxon complains that even the concept of remediation fraud is a violation of Exxon's due process rights, claiming that Appellees' theory of remediation fraud remained undefined and ever-shifting throughout the course of the trial.
The concept of remediation fraud appears to encompass various subtheories premised mainly on actions taken by Exxon during the remediation process. Appellees point to a number of Exxon's representations, including recovery estimates of gasoline proclaimed by Exxon, which later proved to be incorrect and were amended by a subsequent recovery estimate; statements made by Exxon officials predicting that the contamination would migrate, and thus be contained generally, to a "strike line" within a half-mile radius of the station, which was proved incorrect later; representations concerning the safety of the state action level for MTBE contamination; Exxon's decision to deliver or discontinue the delivery of bottled water; and, the decision of where to drill monitoring wells and sample for contamination.
We need not consider whether the amorphous concept of remediation fraud violated Exxon's due process rights. Upon our review of Appellees' testimony,*fn38 we conclude that the Appellees' claims for remediation fraud suffer from various deficiencies of proof.
Specifically, some Appellees never established that the source of their impressions related to the remediation efforts was a representation made by Exxon Mobil,*fn39 nor that any statement allegedly relied upon was false,*fn40 let alone intentionally so. Others relied on opinions or predictions regarding where the contamination would flow in the aquifer to form the basis for their fraud claims,*fn41 which is an insufficient basis for fraud. See, e.g., Babb v. Bolyard, 194 Md. 603, 609, 72 A.2d 13, 16 (1950) (noting that, to form the basis for fraud, the statement "must be a statement of an alleged existing fact or facts, and not merely of some future or contingent event, or an expression of opinion as to the subject of the statement" (quoting Boulden v. Stilwell, 100 Md. 543, 551, 60 A. 609, 610 (1905))). Most claims, however, suffered in particular from an insufficient showing of detrimental reliance.
A mere false statement is insufficient to establish fraud. Even for those Appellees who could demonstrate the falsity of a statement, no Appellee proved by clear and convincing evidence detrimental reliance. Most Appellees did not demonstrate any change in behavior resulting from any of the allegedly false statements*fn42 - for example, few changed (or did not change, as applicable) their water consumption habits in response to the assumedly false statements or in response to their discovery of the assumed falsity of the gasoline recovery estimates. Moreover, many Appellees disclaimed expressly reliance on Exxon's statements, testifying that they knew immediately of the gasoline release or thought Exxon was understating the severity of the leak.*fn43 Additionally, many of the Appellees who recovered for remediation fraud never experienced a positive well test for contamination, thereby undercutting conclusively any contention that false representations regarding recovery estimates, predicted migration of contaminants, necessity for bottled water, safety of MTBE, and locations of monitoring wells caused any harm.*fn44 Further, most Appellees offered no evidence that their period of alleged reliance on Exxon's representations caused any damage,*fn45 and some did not switch to bottled water after discovering contamination in their water supply.*fn46 Bare contamination of a well or brief consumption of water containing contaminants at or below the MDE and EPA action levels is not, without more, sufficient to support detrimental reliance.
Additionally, Appellees attempt to anchor a claim for remediation fraud based on Exxon's alleged deception of the MDE. Even assuming such a claim by Appellees is permissible under Maryland law, no representative of the MDE testified that Exxon misled intentionally the MDE, or that the MDE relied on Exxon's assertions. Any claim that Appellees relied on Exxon's representations to the MDE fails necessarily for the same reasons that Appellees' personal remediation fraud claims fail on this record. Appellees failed to prove any intentionally misleading statement, by clear and convincing evidence, that resulted in detrimental reliance.
Appellees' proof, rather than proving fraud, demonstrates a general dissatisfaction with Exxon's remediation efforts. The shortcomings in Exxon's remediation efforts (and reporting) simply do not rise to the level of fraud, however. Not only was the decision of where and when to test or install monitoring wells directed by the MDE, but many of the allegedly fraudulent statements made by Exxon were statements of opinion and prediction reflecting the available knowledge at the time.
Appellees attempt to paint Exxon as attempting intentionally to deceive Jacksonville residents at every turn with a callous disregard for their health and safety, yet provide little but speculation as to Exxon's actual knowledge during the remediation process. Certainly, Exxon could have done a better job communicating with residents of the Jacksonville area, reduced errors, and described more clearly the investigatory process. That Exxon's efforts were imperfect, however, does not rise to fraud. Appellees did not prove by clear and convincing evidence that they relied justifiably, and to their detriment, on statements made with the intention to mislead by Exxon. In the absence of such proof, we reverse the jury's verdict for all Appellees as to the two asserted types of remediation fraud.
Because we reverse the verdicts as to each of the alleged instances of fraud submitted to the jury, the award to Appellees of punitive damages must be reversed as well. Punitive damages may be awarded only if a plaintiff proves at trial malice, ill will, or intent to injure. See, e.g., Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216, 228-29, 652 A.2d 1117, 1122-23 (1995) (noting that Maryland law restricts recovery of punitive damages to situations where the defendant acted wrongfully intentionally); Owens-Illinois Inc. v. Zenobia, 325 Md. 420, 460, 601 A.2d 633, 652 (1992) (noting that punitive damages may be awarded only where "the plaintiff has established that the defendant's conduct was characterized by evil motive, intent to injure, ill will, or fraud, i.e., 'actual malice'"). At the close of trial, Judge Dugan granted Exxon's Motion for Judgment on Plaintiffs' Claims for Punitive Damages based on Allegations of Evil Motive, Ill Will, or Intent to Injure. Appellees did not appeal that aspect of the court's decision. Because no basis for recovering punitive damages remains, we reverse the jury's award of punitive damages.
II. Emotional Distress Damages for Fear of Contracting Cancer
Exxon argues primarily that, because Appellees established neither the existence of present disease nor that they were more likely than not to contract cancer as a result of the 2006 Jacksonville Exxon leak, it was entitled to judgment as a matter of law on Appellees' emotional distress claims premised on fear of contracting cancer. In the alternative, Exxon contends that, because recovery for fear of cancer requires a showing of past or present exposure and objective, reasonable fear, the instructions submitted to the jury were erroneous, entitling it to a new trial. Lastly, Exxon argues that the trial court committed reversible error by permitting Appellees to testify regarding their opinions that they, members of their families, or their pets contracted various disorders as a result of the gasoline leak, in the absence of expert testimony sufficient to demonstrate causation. Thus, there are three central issues for our consideration: (1) whether Maryland permits recovery for emotional distress due to fear of contracting cancer; (2) if such recovery is permitted, what are the elements required to be established to permit recovery; and (3) whether the evidence in this record, viewed in a light most favorable to Appellees, is legally sufficient to justify recovery of emotional distress damages due to fear of contracting cancer.
We review the trial court's grant or denial of a motion for judgment notwithstanding the verdict to determine whether it was legally correct. Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) (quoting Scapa Dryer Fabrics, Inc. v. Saville, 190 Md. App. 331, 343, 988 A.2d 1059, 1065 (2010)). In so doing, we must "resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover." Smith v. Bernfeld, 226 Md. 400, 406, 174 A.2d 53, 55 (1961). If there is any competent evidence, "however slight, from which a rational mind could infer a fact in issue," then denial of a motion for judgment notwithstanding the verdict is appropriate. Impala Platinum v. Impala Sales, 283 Md. 296, 328, 389 A.2d 887, 905-06 (1978). Thus, if there is any evidence legally sufficient to generate a jury question, we must affirm the denial of a motion for judgment notwithstanding the verdict. Jones v. State, 425 Md. 1, 30-31, 38 A.3d 333, 350 (2012).
The decision whether to grant a motion for a new trial is "within the sound discretion of the trial court." Buck v. Cam's Broadloom Rugs, Inc., 328 Md. 51, 56, 612 A.2d 1294, 1296 (1992) (quoting Brinand v. Denzik, 226 Md. 287, 292, 173 A.2d 203, 206 (1961)). Thus, the trial court's denial of a motion for a new trial and/or remittitur will be reversed only upon a showing that the trial court abused its discretion in failing to order a new trial. Merritt v. State, 367 Md. 17, 28, 785 A.2d 756, 763 (2001).
A. The Law Relating to Emotional Distress Damages for Fear of a Latent Disease
In Maryland, recovery of damages for emotional distress must arise out of tortious conduct. Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 63, 502 A.2d 1057, 1066 (1986) ("Recovery may be had in a tort action for emotional distress arising out of negligent conduct. In such case, the emotional distress is an element of damage, not an independent tort."). The seminal case is Green v. T. A. Shoemaker & Co.,*fn47 where we adopted a rule allowing recovery for mental distress if physical injury resulted from the commission of a tort, regardless of impact. 111 Md. 69, 77-78, 73 A. 688, 691 (1909). After noting that mental distress alone cannot be an independent cause of action and that recovery cannot be obtained for mental distress without "physical impact," we expressed concern that emotional distress may be feigned easily. Id. at 77-79, 73 A. at 691-92. Although no fool-proof method to measure such suffering was imagined, we held that demonstrable emotional distress due to a physical impact would provide a "sufficient guarantee of genuineness that would otherwise be absent in a claim for mental distress alone." Vance v. Vance, 286 Md. 490, 498, 408 A.2d 728, 732 (1979) (discussing Green). Thus, as long as the emotional distress due to the tortious conduct is manifested objectively, the emotional distress is deemed genuine and compensable even though the tortious conduct did not cause bodily harm. Beynon v. Montgomery Cablevision Ltd. P'ship, 351 Md. 460, 506-07, 718 A.2d 1161, 1184-85 (1998).*fn48 A physical injury may operate, however, "as the yardstick by which a tort victim's emotional harm may be measured," and serves as an "objective determination [that] provides reasonable assurance that the claim is not spurious." Id. at 507, 718 A.2d at 1184 (quoting Belcher v. T. Rowe Price Found., 329 Md. 709, 735, 621 A.2d 872, 885 (1993)); see also Belcher, 329 Md. at 735, 745-46, 621 A.2d at 885, 890 (holding that a plaintiff may recover under the Worker's Compensation Act for Post Traumatic Stress Disorder sustained after a three-ton beam crashed through her office and landed several feet from her work desk, even in the absence of physical injury, as her mental distress was manifested through ample objective evidence).
With these concerns and principles in mind, the central issues to address in the present case are, first, whether recovery for emotional distress based on fear of contracting cancer that arose from a defendant's tortious act is permissible in Maryland;*fn49 and, if so, under what circumstances may a plaintiff recover for fear of cancer.
We hold that, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) he or she was exposed actually to a toxic substance due to the defendant's tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a disease; and (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination.
1. A Reasonable and Objective Fear of Disease
Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993),*fn50 a case involving a claim for emotional distress damages based on a fear of contracting the human immunodeficiency virus (HIV), determines the appropriate standard in this case. To constitute a "reasonable" fear, we held that the defendant's conduct must create circumstances that would cause a reasonable person to fear contracting HIV. Id. at 447-48, 620 A.2d at 333. Requiring the plaintiffs to prove actual transmission of the virus, we concluded, "would unfairly punish them for lacking the requisite information" to prove transmission at the time of their discovery, which produced their fears. Id. at 455, 620 A.2d at 336-37. The plaintiffs' actual exposure to the risk of contracting the virus (as the disease vector was understood at that time), however, was undisputed. Id. at 439-41, 620 A.2d at 329.
Because the Faya plaintiffs tested negative for HIV over one year after their surgeries, we held that their continued fear of contracting the virus after the negative test was unreasonable as a matter of law. Id. at 455-56 & n.9, 620 A.2d at 337 & n.9. The plaintiffs therefore recovered for their mental distress only within a reasonable window of time: the time period between learning of the surgeon's HIV-positive status and their subsequent negative blood test. Id. at 459, 620 A.2d at 337. In triangulating this window of time, we concluded that the time period for which the plaintiffs could recover was approximately six months because evidence at the time showed that there was a 95% certainty that an individual will test positive for HIV, if at all, within six months after exposure. Id. The plaintiffs' fear within that particular time period, based on actual exposure to the virus by means of their surgeon's HIV-positive status, created an objectively reasonable fear of contracting HIV. Id. Faya thus demonstrates that there may be a reasonable "window," or measure, of time for which to recover for fear of future disease. Beyond that window of time, the likelihood of contracting future disease becomes so remote that the fear of future disease becomes objectively unreasonable.
Exxon contends that the more stringent "reasonably certain" or "reasonably probable" standards to recover damages for fear of contracting future disease are applicable. See Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666-67, 464 A.2d 1020, 1026-27 (1983) (in a case decided before Faya, the Court adopted a reasonably certain ("greater than 50% chance") standard in holding that the plaintiff's cause of action for developing lung cancer as a result of asbestosis accrued when the presence of cancer was reasonably discovered in the cancer diagnosis, and not when he was diagnosed with asbestosis). See also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986) (interpreting Maryland law prior to Faya and holding that "recovery of damages based on future consequences of an injury" requires a reasonably probable standard, where the plaintiffs sought recovery for sustaining risks to cancer after being exposed to asbestos, and the district court excluded cancer testimony on the issue of damages). Lohrmann and Pierce, however, dealt with recovery of damages based on future consequences of an injury, namely, recovery for disease that may (or may not) develop in the future. By contrast, damages for fear of cancer are limited to recovery for present, particularized emotional distress based on an objective, reasonable fear as a matter of law. See Wetherill v. Univ. of Chicago, 565 F. Supp. 1553, 1559 (N.D. Ill. 1983) (where a federal district court rejected the "reasonably certain" standard for recovery of feared disease because "such a stringent requirement would distort traditional notions of proximate cause. That concept's touchstone - reasonable foreseeability of the claimed injury [emotional distress] - merely demands a reasonable fear, not a high degree of likelihood, that the feared contingency be likely to occur.").
While cancer caused by chemical carcinogens and the transmission of HIV are clearly distinct vectors of different diseases, a fear of contracting any disease has several common principles as a matter of law. Faya provides a template for analogous cases involving fear of future disease: namely, that recovering emotional distress damages for fear of future disease requires a rational basis, based on objective circumstances, that the disease may occur because of actual exposure caused by a defendant's tortious conduct. These principles are supported by our precedent. See Smith v. Borello, 370 Md. 227, 247-48, 804 A.2d 1151, 1163 (2002) (a pregnant woman who suffers personal injury and the loss of the fetus due to a defendant's tortious conduct may recover for any demonstrable psychic injury, rather than sorrow, that arose as a result of losing the fetus, including depression, anguish, and distress); Beynon, 351 Md. at 507-08, 718 A.2d at 1184-85 (where an automobile crash caused the decedent plaintiff's fatal injuries, "[d]amages for 'pre-impact fright' are recoverable when the decedent experiences it during the 'legitimate window of mental anxiety,'" which was the time period between the decedent's realization that he was in "imminent" danger and his subsequent death (quoting Faya, 329 Md. at 459, 620 A.2d at 338-39))). See Buck v. Brady, 110 Md. 568, 572-73, 73 A. 277, 279 (1909) (a plaintiff was permitted properly to testify about her continuing fear of developing rabies after having been bitten by a rabid dog, even though she did not have the disease currently and had received immediate preventive treatment for the disease).
Our sister jurisdictions that permit recovery for fear of contracting cancer developed an array of guidance by which a plaintiff may recover damages for fear of contracting cancer; however, most jurisdictions require a form of objectively reasonable fear. See, e.g., Atkins v. Ferro Corp., 534 F. Supp. 2d 662, 667 (M.D. La. 2008) (where plaintiffs presented no evidence that they were exposed actually to harmful levels of hydrochloric acid, their fear was not sufficiently reasonable as a matter of law); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., No. 1:00-1898, 2008 U.S. Dist. LEXIS 50255, at *20 (S.D.N.Y. July 1, 2008) (expert could not testify reliably that plaintiffs had reasonable fear of cancer because he did not analyze levels of plaintiffs' exposure to MTBE); Salazar v. American Sterilizer Co., 5 P.3d 357, 369 (Colo. App. 2000) (expert medical testimony that plaintiff's fear of cancer was reasonable because of the length of her exposure and because ethylene oxide is a known carcinogen provided a reasonable basis for admitting evidence regarding plaintiff's fear of cancer); Devlin v. Johns-Manville Corp., 495 A.2d 495 (N.J. Super. Ct. Law. Div. 1985).*fn51
These jurisdictions differ, however, on how a plaintiff must prove his or her objectively reasonable fear. While expressing concerns similar to those we voiced in Vance and Green regarding the difficulty of proving genuine fear and consequent mental anguish, see supra, most jurisdictions require actual exposure. See, e.g., Meyer v. Lockformer Co., No. 02-C-2672, 2005 U.S. Dist. LEXIS 15844, at *12 (N.D. Ill. Aug. 2, 2005) (no facts supported plaintiff's allegation of actual exposure to industrial solvent trichloroethylene (TCE)); Reynolds v. Highland Manor, Inc., 954 P.2d 11 (Kan. Ct. App. 1998) (examining several states' different requirements for exposure in fear of HIV claims and noting that Kansas requires actual exposure). Many jurisdictions also require that the fear be genuine and a foreseeable result of the defendant's tortious conduct. See Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 867 (Mo. Ct. App. 1985) (in a case involving a denial of recovery for "cancerphobia," the court emphasized that such fear must have been foreseeable reasonably by the defendant); Ferrara v. Galluchio, 152 N.E.2d 249, 252 (N.Y. 1958) (explaining that, for recovery for fear of cancer, "[i]t is entirely possible to allow recovery only upon satisfactory evidence . . . , or to look for some guarantee of genuineness in the circumstances of the case").
Our assessment of these cases leads us to conclude that a plaintiff must have a rational basis to recover for fear of cancer. Therefore, recovery for fear of disease is allowed if the plaintiff proves he or she was exposed actually to a toxic substance, which created an objective, reasonable fear that the plaintiff will contract an identified disease. Mere exposure to a toxic substance is insufficient; rather, the circumstances of actual exposure to a toxic substance must lead a reasonable person in the plaintiff's position to believe that contracting a disease is a real consequence of the defendant's tortious conduct.
2. Demonstrable Physical Injury is Required
Jurisdictions considering the question are divided on whether a plaintiff must sustain additionally a physical injury to recover for fear of cancer. In Maryland, however, a plaintiff may recover damages for emotional distress "if a physical injury resulted from the commission of the tort, regardless of impact." Hoffman, 385 Md. at 34, 867 A.2d at 295 (emphasis in original). See Green, 111 Md. at 77, 73 A. at 691 (determining that recovery for mental distress damages should be permitted "when it is shown that a material physical injury has resulted from fright caused by a wrongful act, and especially, as in this case, from a constant repetition of wrongful acts, in their nature calculated to cause constant alarm and terror" (emphasis in original)). For example, in Green, we approved the admission of evidence showing the plaintiff's nervous condition, even though there was no physical impact with or corporal injury to her person. Id. A defendant's tortious conduct does not have to produce necessarily a physical impact for a plaintiff to recover emotional distress damages. A plaintiff must prove, however, a "clearly apparent and substantial physical injury" in one of four ways: (1) an external condition; or (2) symptoms of a resulting pathological; (3) physiological; or (4) mental state. Bowman v. Williams, 164 Md. 397, 404, 165 A. 182, 184 (1933) (emphasis added).*fn52 See also H&R Block, Inc. v. Testerman, 275 Md. 36, 48, 338 A.2d 48, 55 (1975), abrogated on other grounds by Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) ("The cases have adhered to the Bowman rule . . . in requiring that there be clearly apparent and substantial physical injury, to guard against the possibility of feigned claims." (citations omitted)); Mahnke v. Moore, 197 Md. 61, 69, 77 A.2d 923, 927 (1951) (affirming Bowman).
In Vance v. Vance,*fn53 286 Md. 490, 408 A.2d 728 (1979), we addressed specifically the methods by which the traditional "physical injury" element may be proved. The first three methods echo the standards we expressed in Bowman, because they include evidence of an external condition that manifests physical injury or "symptoms of a pathological or physiological state." Id. at 500, 408 A.2d at 733. The fourth way to prove a physical injury that demonstrates emotional distress is by "evidence indicative of a 'mental state.'" Id. These four methods must each be "capable of objective determination" so as to "guard against feigned claims." Id. at 500, 408 A.2d at 733-34.
Three key principles are thus relevant to determine whether a physical injury is capable of objective determination:
First, . . . the evidence must contain more than mere conclusory statements, such as "He was afraid," . . . . The evidence must be detailed enough to give the jury a basis upon which to quantify the injury. Second, a claim of emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury . . . There is no reason why the victim's own testimony may not be sufficient, as long as it otherwise provides the jury with enough information to render his or her injuries capable of objective determination. Third, although minor emotional injuries may be less likely to produce the kind of evidence that renders an injury capable of objective determination, that does not mean that an emotional injury must reach a certain threshold level of severity before it becomes compensable. There is no severity prong of the Vance test. Our focus thus is properly on the evidence of mental anguish produced . . .
Hunt v. Mercy Med. Ctr., 121 Md. App. 516, 531, 710 A.2d 362, 369-70 (1998) (emphasis added).
The evidence in Vance of Muriel Vance's mental distress is a particularly effective example of an objective and demonstrable physical injury, as a matter of law:
The disclosure that her twenty-year marriage was void was shown to have had a devastating effect on Muriel. She went into a state of shock, engaged in spontaneous crying and for a period seemed detached and unaware of her own presence. She was unable to function normally, unable to sleep and too embarrassed to socialize. In addition to experiencing symptoms of an ulcer, Muriel suffered an emotional collapse and depression which manifested itself in her external condition, i.e., her significantly deteriorated physical appearance - unkempt hair, sunken cheeks and dark eyes.
286 Md. at 501, 408 A.2d at 734. We concluded that this evidence demonstrated an objectively demonstrable physical injury caused proximately by the defendant's negligence. Id. The requirement of an objective and demonstrable physical injury stands unchanged for claims of recovery for emotional distress. Compare New Summit Assocs. Ltd. P'ship v. Nistle, 73 Md. App. 351, 362-63, 533 A.2d 1350, 1355 (1987) (where the court found compensable emotional distress based on objective evidence of insomnia, diarrhea, and nausea, as a result of the tortious conduct), with Roebuck v. Steuart, 76 Md. App. 298, 315, 544 A.2d 808, 816 (1988) (where the court held there was no compensable emotional distress where the plaintiff's sole evidence of physical injury rested on testimony that she went to see a psychiatrist six times, but did not testify as to her own symptoms). See Belcher, Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341, 342-43, 658 A.2d 675, 675-76 (1995) (where, on two separate occasions, a water pipe of the defendant's broke and damaged the plaintiff's property, which plaintiff claimed caused her severe and permanent bodily injury and severe and "protracted shock" to her nervous system and mental anguish, this Court held that the plaintiff's alleged injuries were not caused proximately by the defendant's negligence); 329 Md. at 745-46, 621 A.2d at 890 (where the plaintiff provided ample and objective evidence that, as a result of defendant's tortious conduct, she suffered from nightmares, heart palpitations, headaches, and other mental anguish, and was diagnosed with Post Traumatic Stress Disorder, we held that she proved an objective and demonstrable physical injury);*fn54 Beynon, 351 Md. at 505, 718 A.2d at 1183 (noting that "the compensability of 'pre-impact fright' [in survival actions] is permissible [for the decedent's estate] when it is the proximate result of a wrongful act and it produces a physical injury or is manifested in some objective form"); Faya, 329 Md. at 456, 620 A.2d at 337 (noting that "nervous disturbances may constitute suffering of the body or of the mind"). An objective and demonstrable physical injury requirement achieves a primary purpose of emotional distress damages: to compensate plaintiffs for actual harm, rather than feigned or speculative injury. Green, 111 Md. at 81, 73 A. at 692 ("[A] nervous injury arising from actual physical impact is as likely to be imagined as one resulting from fright without physical impact, and that the former is as capable of simulation as the latter.").
In the context of physical injuries sustained as a result of exposure to toxic substances, subcellular change produced by exposure to toxic chemicals - without manifested symptoms of a disease or actual impairment - is not a compensable "injury" under Maryland law. See Hollingsworth & Vose Co. v. Connor, 136 Md. App. 91, 128, 764 A.2d 318, 338 (2000) (pleural plaques or thickening of blood or vessel walls caused by asbestos exposure is not a compensable injury). Likewise, most states decline to recognize subcellular or subclinical*fn55 injuries as an element of recovery of damages for fear of disease. Rainer v. Union Carbide Corp., 402 F.3d 608, 620-22 (6th Cir. 2005) (noting that Kentucky courts would be adverse to allowing a claim based upon subcellular damage); Burns v. Jaquays Mining Corp., 752 P.2d 28, 31 (Ariz. Ct. App. 1987) (rejecting subcellular injury as a basis for emotional distress damages); Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985) (subclinical injury resulting from exposure to asbestos is insufficient to constitute actual loss or damage).
With these standards in mind as to how a plaintiff must prove physical injury to recover damages for emotional distress in Maryland, we must determine how such standards apply to recovery of emotional distress damages for fear of contracting cancer. The majority of states allowing recovery for fear of cancer require that a plaintiff sustain a manifested and physical injury to prove an objective and reasonable fear of disease. See, e.g., Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky. 1994);*fn56 Cleary v. Wallace Oil Co., 865 N.Y.S.2d 663, 665-66 (N.Y. App. Div. 2008) (rejecting plaintiffs' fear of disease claim because there was insufficient evidence of exposure and no evidence of physical manifestation of contamination); Wolff v. A-One Oil, Inc., 627 N.Y.S.2d 788, 789-90 (N.Y. App. Div. 1995) (plaintiff must establish a "rational basis" for his fear of developing disease, which "has been construed to mean the clinically demonstrable presence" of the feared disease, specifically, a "physical manifestation" of an asbestos-induced disease);*fn57 Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky. 1995).*fn58
For these reasons, we hold that to recover emotional distress damages for fear of contracting a disease, a plaintiff must show that (1) he or she was exposed actually to a toxic substance due to the defendant's tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a disease; and (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination.
B. Appellees Cannot Recover Emotional Distress Damages for
Fear of Contracting Cancer
1. No Evidence of Actual Exposure Giving Rise to Objective Reasonable Fear
As explained above, recovery of emotional distress damages for fear of contracting cancer requires that a plaintiff demonstrate that he or she has been exposed actually to a toxic chemical as a result of the defendant's tortious conduct. Thus, Appellees who did not demonstrate actual exposure to benzene or MTBE stemming from the Jacksonville Exxon leak cannot recover damages for fear of cancer. Here, eighty-eight Appellees recovered damages for emotional distress for fear of contracting cancer, yet did not provide evidence of any detectable contamination in their potable wells, air, or water vapors.*fn59 In the absence of demonstrable contamination, these Appellees have provided no evidence of actual exposure to toxic chemicals stemming from Exxon's conduct.*fn60 As a result, these Appellees cannot recover damages for fear of cancer.
2. Insufficient Evidence of Actual Exposure Giving Rise to an Objectively Reasonable Fear
In addition to actual exposure, Appellees must demonstrate an objective, reasonable fear of developing cancer in order to recover emotional distress damages for fear of cancer. A plaintiff may demonstrate an objective reasonable fear by showing that he or she has a rational basis to believe reasonably that cancer is likely to develop as a result of exposure to toxic substances stemming from the defendant's tortious conduct. Here, Appellees contend that proof that the aquifer is contaminated with MTBE and benzene is sufficient to support a claim for emotional distress for fear of cancer, regardless of any actual, demonstrable exposure on an Appellee-specific basis. We determine that Appellees who were exposed actually to MTBE as a result of the Jacksonville Exxon leak (as determined by tests of their potable wells), but at levels below the relevant EPA and MDE action levels, cannot demonstrate an objective, reasonable fear of developing cancer.*fn61
For a fear to be objectively reasonable, it must be based on more than mere exposure to a chemical or contaminant of concern. The exposure must be sufficient, based on objective standards, to justify fear of disease. In Faya, for example, we noted that there was "current credible evidence of a 95% certainty that one will test positive for the AIDS virus, if at all, within six months after exposure to it." 329 Md. at 455, 620 A.2d at 337. Thus, we determined that it was only reasonable for the plaintiffs to fear contracting HIV or AIDS within a limited period of time - specifically, the period of time between discovery of the surgeon's illness, which was over a year after their last contact with him, and when they received a negative HIV test. Id. at 455-56, 620 A.2d at 337.
Although individuals are exposed routinely and unfortunately in everyday life to MTBE and other carcinogenic toxins, low levels of exposure, absent a rational basis to support a fear of developing cancer, are not sufficient generally to justify an objectively reasonable fear. Here, similar to the circumstances in Faya, there is credible scientific evidence to suggest levels of exposure to benzene and MTBE at which a fear of developing cancer becomes objectively reasonable. The EPA and MDE establish routinely action levels, above which exposure to contaminants is deemed generally to be unsafe for human health. As admitted at trial, the relevant drinking water standards are 5 parts per billion for benzene, and 20 parts per billion*fn62 for MTBE.*fn63 We therefore determine that in order to have an objectively reasonable fear of developing cancer as a result of water contamination, measurable contamination must meet or exceed the relevant environmental action levels, if applicable, for the allegedly carcinogenic or mutagenic contaminant. As a result, Appellees residing at or occupying properties whose evidence shows test results detecting contamination below five parts per billion of benzene and twenty parts per billion of MTBE offered insufficient evidence to establish an objectively reasonable fear supporting recovery of emotional distress damages for fear of contracting cancer.*fn64 We therefore reverse the awards for these Appellees.
3. Legally Insufficient Evidence of Physical Injury Resulting from the Jacksonville Exxon Leak
Only eight Appellees recovering emotional distress damages for fear of cancer offered well test results detecting contamination sufficient to create an objectively reasonable fear of developing cancer.*fn65 These Appellees still must prove, however, a physical injury resulting from their objectively reasonable fear. The physical injury requirement contemplates not necessarily a "physical" injury as used in its ordinary sense, but rather "that the injury for which recovery is sought is capable of objective determination." Vance, 286 Md. at 500, 408 A.2d at 733-34. Because the physical injury requirement is intended to guard against feigned claims, id. at 500, 408 A.2d at 733, an injury that is capable of objective determination must be supported by sufficient evidence tending to prove both the genuineness of the claims and a causal relationship to the alleged tortious conduct. Id. at 502, 408 A.2d at 734.
As we noted in Vance, claims for emotional distress need not be supported necessarily by expert medical testimony to establish injury and causation where "the causal connection is clearly apparent from the illness itself and the circumstances surrounding it, or where the cause of the injury relates to matters of common experience, knowledge, or observation of laymen." Id. at 502-03, 408 A.2d at 734-35 (quoting Wilhelm v. State Traffic Safety Comm'n, 230 Md. 91, 99, 185 A.2d 715, 719 (1962)); see also Hunt, 121 Md. App. at 531, 710 A.2d at 369 ("[A] claim for emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury."). In Vance, for example, we determined that expert testimony was not necessary because the plaintiff's discovery of the true status of her "marriage" and its attendant emotional toll is a matter within the common understanding of a layperson. 286 Md. at 503-04, 408 A.2d at 735. See also Md. R. 5-702 ("Expert testimony may be admitted . . . if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue."). Here, however, the causal connection between the physical injuries alleged and fear resulting from exposure to carcinogenic or mutagenic contaminants is neither clearly apparent, nor within the "common experience, knowledge, or observation of laymen." See Vance, 286 Md. at 502-03, 408 A.2d at 734-35. Thus, in order for Appellees to demonstrate that their alleged physical injury is related causally to their fear of developing cancer as a result of the Exxon leak, expert testimony is necessary.
None of the remaining Appellees, with the exception of Gloria Quinan, presented expert testimony attributing their alleged physical injury to the Jacksonville Exxon leak. Therefore, we reverse the jury awards for emotional distress for fear of contracting cancer to Amy Gumina, Van Ho, Barbara Larrabee, Jon Larrabee, Edward Odend'hal, Nanette Odend'hal, and Anna Walega.*fn66
Only one Appellee demonstrating an objectively reasonable fear of developing cancer, Gloria Quinan, presented expert testimony linking her claimed physical injury to the Jacksonville Exxon release. In reviewing Quinan's claims for emotional distress for fear of cancer to determine if there was sufficient evidence to support her claim as a matter of law, we must resolve all conflicts in the evidence in her favor. See Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851, 859 (1997) ("Only where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury." (quoting Pickett v. Haislip, 73 Md. App. 89, 98, 533 A.2d 287, 291 (1987))).
As noted previously, the Court of Special Appeals in Hunt provided guidance for determining whether an injury is capable of objective determination. The evidence offered in support of physical injury "must contain more than mere conclusory statements," and be sufficiently detailed "to give the jury a basis upon which to quantify the injury." Hunt, 121 Md. App. at 531, 710 A.2d at 369. Moreover, because the requirement for physical injury must be viewed objectively, and is designed to protect against feigned claims, a claim for emotional distress damages is more likely to succeed "if the victim is [not] the sole source of all evidence of emotional injury." Id. Lastly, although more severe injuries may be more likely "capable of objective determination," there is no threshold severity requirement for establishing compensable physical injury. Id. at 531, 710 A.2d at 369-70.
In Hunt, the decedent plaintiff,*fn67 Charles Dell'uomo, offered testimony from three sources in support of his claim for emotional distress damages: his doctor, himself, and the personal representative of his estate. The doctor testified, in essence, that Mr. Dell'uomo was "emotionally upset and . . . very skeptical," which the court characterized as "simple, unadorned statements that Mr. Dell'uomo was upset," and thus insufficient to establish an injury capable of objective determination. Id. at 532, 710 A.2d at 370. In reviewing Mr. Dell'uomo's testimony, the court determined that statements like, "I thought I was going to die," and "[my physical problems consisted of] the stress and the aggravation and the worrying about it," were insufficient to render his injury capable of objective determination, id. at 533-34, 710 A.2d at 371, whereas detailed statements regarding "the duration of [his] constipation, the types of activities with which [his] fatigue interfered, and the incessant nature of [his] sleeplessness would give a jury at least some of the information necessary for quantifying a level of damages attributable to his mental injury." Id. at 535, 710 A.2d at 371.
Because the personal representative of Mr. Dell'uomo's estate testified that Mr. Dell'uomo became "extremely tired," "more irritable," stopped walking and accepting invitations to social events, lost his appetite, and became "extremely quiet," the Court of Special Appeals determined that there was sufficient evidence to show a "reasonable basis for [Mr. Dell'uomo's] anxiety and . render [his] emotional injury capable of objective determination." Id. at 536-37, 710 A.2d at 372.
Here, in support of her claim for emotional distress for fear of contracting cancer, Quinan testified on her own behalf and presented the testimony of Dr. Abdul Malik, a psychiatrist, who examined Quinan.*fn68 Quinan testified as to the following:
Q: Has the gasoline release affected your emotional state?
Q: Can you please explain?
A: Well, you know, you get depressed. Anxiety. Headaches. You feel nauseous. Lose your appetite. Don't feel like doing anything. You lose your enthusiasm.
Q: Do you have any concerns for your health and your husband's health?
A: Yes, I do. I'm concerned about cancer or any other things that might develop because not knowing how long - I mean, we were drinking it for all that time and didn't even know it. . .
Q: You mentioned a couple of things, but do you know whether or not the fears and concerns that you have have physically manifested themselves in you in any way?
A. Yes. . .
Q: You talked about depression?
Q: Okay. And you talked about lethargy?
A. Yeah. It depends. You start thinking about all of this, and it just gets you so down and then you just lose all your enthusiasm. You don't feel like doing anything. . . . So, you know, it just gets you down, and it just comes out in all different ways. You lose your appetite. It depends how much you think about it and when you think about it. If you think about it at night, then you don't sleep.
Q. I understand. When did you first begin to feel depressed about the effects of the gasoline release on your family and your home?
A. Well, you know, in the very beginning the concerns made us, you know, gave us, you know, an uneasy feeling and everything, but, when it finally kicked in the fact that we had the contamination, it really did and then I had a rash that wouldn't go away.*fn69
Q. When did that start? When did the rash start?
A. It started before May of 2008. I don't know how far before that, but I know May of 2008 I had it.
Q. So after the release?
Q. After the gasoline release?
A. After the gasoline release.
Q. How long did you suffer with the rash?
A. Over a year.
Q. Did you try to treat it?
A. Yes. I used all types of prescription topical ointments and creams. I was given a lot. A very potent one by the dermatologist. It did nothing. Nothing took it away until we went on vacation for two weeks, went away and not bathing in the water. When I came back, it was gone.
Q. And during that approximate year that you were suffering from a rash, did you ever receive any communication from Exxon giving you any information about any potential association between exposure to MTBE and the water and rashes?
Q. You mentioned sleeplessness?
Q. When did you start beginning to have issues with sleeplessness as it relates to your fears and concerns about the gasoline release?
A. We had in the beginning of 2006 and afterwards and they continued but not regularly. I mean, it was a concern and it would bother me, and some nights I couldn't sleep, but after we found out about the contamination, it was going on and on because everything would go through your head. You know, how long have you been drinking it? You know, what is it going to do to us? How is it going to impact our lives?
Q. So over this five year period from 2006 to the present, how often would you say you would have issues of sleeplessness?
A. Sometimes, several nights a week. Sometimes, maybe several times a month.
Q. And you also mentioned headaches?
A. Yes. Same thing.
Q. Same kind -
A. It just depends on how much you let yourself get, I guess, worked up over the whole thing. You know, you try to settle down and then it just gets you again.
Q. . . . [O]ver this five year period are you able to tell us would you find yourselves [sic] worked up to the point that would you experience headaches as a result of your fears and concerns relating to the gasoline release?
A. Several times a week. Sometimes, it would be a week or so and then you have them again, but would be, you know, several times a week. Several times a month.
Q. You also mentioned a loss of appetite?
A. Can you talk a little bit about what you mean by that?
A. Well, you just don't feel like eating. You're kind of feeling nauseous. You get upset and then you just don't feel like eating.
Q. Do you feel that way when you're thinking about the gasoline release?
Q. How often would you find yourself feeling nauseous and not willing to eat as it relates to your fears and concerns with the gasoline release?
A. Maybe, you know, weekly or a few times a month. I guess several times. I mean, like, a couple days a week or several times a month, you know. Whatever. Like, you might have a few days or a week in between and then it hits you again.
Dr. Malik testified that Quinan was "angry and frustrated and concerned" that she had been drinking and bathing in her well water from 2006 until the first positive detection of contamination of her well in April of 2009.*fn70 He testified that Quinan "had a rash which started before May of 2008 which [she] never had before . . . [which] continued . . . until June of 2009 when she went to Florida for one week and South Carolina for one week, so in those two weeks, it - the rash all disappeared after being way from [the] water and has not come back." Additionally, he testified that Quinan was concerned about her future health:
Q: . . . Did you notice anything about her anxiety elements?
A. Yes. She had been drinking and bathing in the contaminated water for several months to years before it was detected in April of 2009, and she had all kinds of problems which disappeared after she was on vacation for two weeks; and her husband also had all kinds of health problems related to [his] stomach, and nothing definitive was diagnosed. And it all disappeared after he started drinking bottled water within two weeks. She was anxious about developing cancer. . .
Q: Doctor, were you able to reach a diagnosis to a reasonable degree of psychiatric certainty?
A. Yes. She was suffering with anxiety disorder not otherwise specified.
Q: Were you able to determine the cause of her mental disease to a reasonable degree?
A. Yes. It was directly caused by the Exxon spillage. Q: This did not affect her normal functioning, I take it? A: No. She has been able to function in her usual ways.
Q: Has it impacted her quality of life and relationships?
A: Yes. She had been drinking bottled water as soon as she learned about the contamination of the water, and she had suffered through a skin condition; and her husband had suffered through gastrointestinal conditions. Both of them are feeling much better away from the water.
Although the testimony proffered by Quinan and Dr. Malik does not rise to the level of detail observed in Hunt, we conclude that the evidence presented was sufficient to create a jury question as to whether Quinan suffered an injury capable of objective determination. Quinan provided testimony regarding the duration and extent of her physical symptoms. Moreover, although much of Dr. Malik's testimony contained conclusory statements which otherwise might be insufficient to establish physical injury, he testified regarding his examination and diagnosis of anxiety disorder. Although we recognize that anxiety disorder not impacting normal functioning is less severe than the physical injuries asserted in Vance, as the Court of Special Appeals noted in Hunt, "[t]here is no severity prong of the Vance test." 121 Md. App. at 531, 710 A.2d at 370. Thus, "although minor emotional injuries may be less likely to produce the kind of evidence that renders an injury capable of objective determination, that does not mean that an emotional injury must reach a certain threshold level of severity before it becomes compensable." Id. at 531, 710 A.2d at 369-70. Therefore, even though Dr. Malik testified that Quinan remained able to function normally in spite of her diagnosed anxiety disorder, we conclude there is sufficient evidence, considered in the light most favorable to Quinan, to submit her claim to the jury. Therefore, we shall direct remand for Quinan's claim for emotional distress damages for fear of contracting cancer to the trial court for a new trial.
C. Compensatory Damages for Medical Monitoring
1. Does Maryland Recognize a Right to
Recovery for Damages for Medical Monitoring?
Although the trial court permitted nearly every Appellee's claim for damages for medical monitoring to go to the jury, this Court has not recognized yet a cause of action for the recovery of medical monitoring damages*fn71 in Maryland. Exxon contends that the trial court erred in denying its motion for judgment notwithstanding the verdict regarding Appellees' medical monitoring awards. In considering Exxon's assertions, we must decide first whether to recognize a right in Maryland to recover damages for medical monitoring. Secondly, we must determine, if we recognize such a claim vel non, whether, considering the evidence in this record "taken in the light most favorable to the nonmoving party," the trial court was legally correct in denying Exxon's motion for judgment notwithstanding the verdict. Gallagher, 182 Md. App. at 101, 957 A.2d at 632.
The possibility of recovery of damages for medical monitoring in Maryland was raised, but not decided by this Court, in Philip Morris, Inc. v. Angeletti, 358 Md. 689, 779-80, 752 A.2d 200, 250 (2000).*fn72 In Angeletti, we recognized that many courts permit a cause of action for medical monitoring or allow compensation for such as damages in tort actions, and discussed briefly the purpose of recovering damages for medical monitoring and policy concerns associated with this form of recovery. Id. Under such a claim, a plaintiff may recover only the quantifiable costs of "periodic medical examinations necessary to monitor plaintiffs' health and to facilitate early diagnosis and treatment of disease(s) caused by exposure to chemicals . . . ." Id. at 781, 752 A.2d at 250 (citing Ayers v. Jackson, 525 A.2d 287, 308 (N.J. 1987); In re Paoli R. Yard PCB Litigation (Paoli I), 916 F.2d 829, 849-50 (3d Cir. 1990)). These standards for recovering for medical monitoring costs help enforce the common law principle that a defendant must compensate a plaintiff fully for past or present injuries caused by the defendant's tortious conduct. See, e.g., Ayers, 525 A.2d at 311-12 ("Compensation for reasonable and necessary medical expenses is consistent with well-accepted legal principles. . . . It is also consistent with the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease.").
We agree now with other jurisdictions that recognize that "exposure itself and the concomitant need for medical testing" is the compensable injury for which recovery of damages for medical monitoring is permitted, Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977 (Utah 1993), because such exposure constitutes an "invasion of [a] legally protected interest." Bower v. Westinghouse Electric Corp., 522 S.E.2d 424, 430 (W. Va. 1999) (quoting Restatement (Second) of Torts § 7(1) (1964)). Invasion of a specific legally- protected interest in a claim for compensable medical monitoring consists of "a significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure." Id. at 433.
While problems may arise in limiting the potentially expansive class of plaintiffs in medical surveillance awards, see Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 442-43, 117 S. Ct. 2113, 2122-23, 138 L. Ed. 2d 560, 576 (1997), permitting only proven necessary medical costs helps prevent the danger of awarding medical monitoring for speculative injuries, a risk inherent in the area of other common law torts, such as emotional distress.*fn73 Id.
Although in Angeletti we considered the possibility that a plaintiff may recover for damages for medical monitoring either as an independent cause of action or as an element of damages, we noted that a "medical monitoring claim may perhaps more accurately be deemed a remedy rather than a distinct cause of action." 358 Md. at 786, 752 A.2d at 253. See also Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 823 (Cal. 1993) (holding that a defendant's conduct creating the need for future medical monitoring "does not create a new tort. It is simply a compensable item of damage when liability is established under traditional tort theories of recovery."); James A. Henderson & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S.C. L. Rev. 815, 840 (2002) (academic commentators concluded that those states that allow recovery for medical monitoring did not create new causes of action, but rather recognized a new form of tort remedy).
Likewise, our sister jurisdictions that allow recovery for medical monitoring, more often than not, allow such recovery as a remedy, rather than as an independent cause of action. See Xavier v. Philip Morris USA Inc., No. C 10-02067, 2010 U.S. Dist. LEXIS 107959, at *8-*9 (N.D. Cal. Oct. 8, 2010) (dismissing stand-alone medical monitoring claim, but recognizing that California allows a medical monitoring claim as a remedy); Mann v. CSX Transp., Inc., No. 1:07-CV-3512, 2009 U.S. Dist. LEXIS 106433, at *7 (N.D. Ohio Nov. 10, 2009) (medical monitoring recognized as a form of tort damages in Ohio); Duncan v. Northwest Airlines, Inc., No. C98-130Z, 2001 U.S. Dist. LEXIS 18276 (W.D. Wash. Nov. 5, 2001) (declining to create new and independent tort for medical monitoring because flight attendants exposed to second-hand smoke, with present injury, could seek medical monitoring as remedy to a negligence cause of action); Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007) (medical monitoring is a compensable element of damage if liability is demonstrated under traditional tort theories of recovery); Badillo v. American Brands, Inc., 16 P.3d 435, 440 (Nev. 2001) (concluding that remedy of medical monitoring, but not a stand-alone claim, may be available under common law). For these reasons, we hold that a remedy for medical monitoring costs is a compensable element of damage under traditional tort theories of recovery.
2. Burden of Proof for Recovery of Damages for Medical Monitoring
The United States Supreme Court noted that "an exposed plaintiff can recover related reasonable medical monitoring costs [as an element of damages] if and when he develops symptoms." Buckley, 521 U.S. at 438, 117 S. Ct. at 2121, 138 L. Ed. 2d at 573. By contrast, there is a divided array of states that allow medical monitoring based on different threshold standards. Compare Remson v. Verizon Commc'ns, Inc., No. CV 07-5296, 2009 U.S. Dist. LEXIS 20310 (E.D.N.Y. Mar. 13, 2009) (finding that, in New York, recovery for medical monitoring is allowed as long as the plaintiff alleges exposure to an allegedly toxic chemical and a rational basis for belief of contracting a disease), with Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1296, 1302 (N.D. Ga. 2005) (where plaintiffs claimed a"subclinical" condition due to toxic exposure, but lacked any contemporaneous physiological manifestations, the court concluded that Georgia does not recognize a medical monitoring action without a showing of physical injury). When those costs are deemed "reasonable," and irrespective of whether actual physical "symptoms" of the toxic substance-induced disease are required to recover such costs, is what we must determine in the present case.
a. "Reasonable and Necessary" Medical Costs
The weight of authority across the country recognizes that recovery for costs of medical monitoring is limited to costs that are necessary and reasonable. The seminal case recognizing compensable damages for medical monitoring seems to be Ayers v. Jackson, 525 A.2d 287 (N.J. 1987). The New Jersey Supreme Court held that a group of plaintiffs could recover medical surveillance costs for toxic exposure after their Township contaminated the town aquifer and consequently their well water, even though no plaintiff had developed symptoms of exposure-related disease that were "quantified" by the evidence, if such monitoring were found to be reasonably necessary. Id. at 312-14. The court articulated certain factors to consider in defining the meaning of "reasonably necessary."*fn74 Id. at 312 (noting that the evidence must prove that medical surveillance of the "effect of exposure to toxic chemicals is reasonable and necessary"). Necessity for medical monitoring, however, must be reasonably certain, rather than merely possible. Potter, 863 P.2d at 824 ("[T]he cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff's toxic exposure and that the recommended monitoring is reasonable."). The prime inquiry into the necessity and reasonableness of a plaintiff's claimed monitoring costs is whether "medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease." Paoli I, 916 F.2d at 851 (emphasis added). This standard requires, necessarily, medical testimony by a plaintiff's expert(s).
To determine whether monitoring is reasonably necessary, several courts have established specific multi-factor tests, such as that adopted by the Supreme Court of California:
In determining the reasonableness and necessity of monitoring . . . the following factors are relevant: (1) the significance and extent of the plaintiff's exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of the members of the public at large of developing the disease; (4) the seriousness of the disease for which the plaintiff is at risk; and (5) the clinical value of early detection and diagnosis.
Potter, 863 P.3d at 824-25; see also Paoli I, 916 F.2d at 852 (identifying analogous factors to consider in awarding compensable damages for medical surveillance);*fn75 Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 901 (Mass. 2009) ("When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.").
b. Proving Causation and a "Significantly Increased Risk" are Key to Recovery
Keys to a plaintiff's recovery are evidence of causation (from the defendant's tortious conduct) and a significantly increased risk of contracting a latent disease. For example, in Theer v. Philip Carey Co., 628 A.2d 724 (N.J. 1993), the New Jersey Supreme Court held that recovery for medical monitoring may be obtained only by plaintiffs who have "experienced direct and hence discrete exposure to a toxic substance and who have  suffered an injury or condition resulting from that exposure and whose risk of cancer [can] be limited and related specifically and tangibly to that exposure." Id. at 733 (emphasis added). Hence, a plaintiff who was exposed to asbestos by laundering her husband's clothes had no medical monitoring claim because evidence linking any potential risk of cancer to the defendant's tortious conduct was tenuous; also, the plaintiff was a smoker. Id. Courts have concluded, moreover, that an increased or different monitoring of a latent disease, even due to a pre-existing condition caused by a plaintiff's voluntary conduct, may create entitlement to recover damages, as long as there is reliable evidence that the increased risk is a direct and proximate result of the exposure to defendant's tortious conduct. Potter, 863 P.2d at 825 n.27.
Although we recognize that the injury giving rise to an alleged need for medical monitoring costs is the exposure to toxic substances, and that this exposure is an invasion of a legally-protected interest, see Hansen, 858 P.2d at 977, we are wary of damages for speculative claims resting on tenuous proof of risk of disease attributable to the type of exposure. In evaluating at "what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages[,]" Ayers, 525 A.2d at 298, we believe that, by its nature, recovery for a latent disease due to toxic exposure involves necessarily somewhat nebulous forecasts of a potential risk to develop a disease in the future. We recognize that, because of the "latent nature of most diseases resulting from exposure to toxic substances, . . . most toxic-tort plaintiffs cannot establish an immediate physical injury of the type contemplated in traditional tort actions . . . [because] the physical injury . . . manifests itself years after exposure." Hansen, 858 P.2d at 977. Requiring quantifiable and reliable proof, however, will assist courts in determining whether causation and significant risk are present in a plaintiff's prima facie case.
For a fact finder to "ascertain the probability" that the remedy of medical monitoring is appropriate, Paoli I, 916 F.2d at 852, proof of a "significantly increased risk" of developing a future disease, based on reliable expert testimony quantifying the risk, is necessary. See id. at 851 (requiring medical expert testimony to demonstrate a plaintiff's need for reasonable and necessary medical costs); Donovan, 914 N.E.2d at 901 ("When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort."). Otherwise, it is difficult for a reasonable fact finder to measure "the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of the members of the public at large of developing the disease." Potter, 863 P.2d at 824-25.
Quantifiable and reliable indicators of risk in developing disease are also helpful to determine a "significant" increase in risk of disease, thus ensuring that the nature and extent of medical monitoring is actually greater than that which should be undertaken by the general population, a key purpose in awarding appropriate medical monitoring damages. Id. at 825 (noting that "there can be no recovery for preventative medical care and checkups to which members of the public at large should prudently submit").
Hence, we conclude that quantifiable, reliable indicia that a defendant's actions have so increased significantly the plaintiff's risk of developing a disease are necessary to recover damages for medical monitoring costs. The indicia may be proven by a medical expert's testimony, particularized to a plaintiff, and demonstrating a reasonable link to toxic exposure. This requirement helps to achieve the objective of medical monitoring - that a defendant must compensate a plaintiff for past or present injuries caused by the defendant - and inhibits damages awards for speculative, and thus unreliable, opinions as to a plaintiff's potential risk of developing a future disease.
c. A Showing of "Physical Injury" is Not Required
We conclude, as have the majority of our sister jurisdictions, that evidence of physical injury is not required to support costs for medical surveillance. A compelling illustration of why proof of physical injury is not needed for this form of relief is Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 818-19 (D.C. Cir. 1984), where recovery for medical monitoring was permitted, without proof of physical injury, where the defendant caused proximately a present physical manifestation of the plaintiff children who developed brain dysfunctions. The plaintiff organization, on behalf of 149 Vietnamese orphans who survived a plane crash during the evacuation of Vietnam in 1975, sued Lockheed, alleging that because of decompression, as well as the crash, the children suffered from a neurological disorder that was classified generically as Minimal Brain Dysfunction. Id. Initial medical diagnosis trials were conducted for selected children to provide necessary information about probable litigation results. Id. at 820-22. Lockheed did not deny liability for compensatory damages, but disputed that the crash was a cause of the need for medical diagnostic tests.
The federal court rejected the argument that the need for diagnostic examination was not a compensable injury, and affirmed the imposition on Lockheed of liability for diagnostic examination expenses because the need for such examinations was the proximate result of the crash. Id. at 825-26. Even without further proof of injury, the court held, a reasonable need for medical examinations was compensable. Id. at 826. The court held further that a reasonable need for medical examinations was itself compensable, without proof of other injury: "[i]t is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations." Id. (emphasis added).
As we discussed earlier, the physical injury a plaintiff suffers in a claim for recovery for medical surveillance costs is the invasion of a legally-protected interest. See Hansen, 858 P.2d at 977. Hence, we believe that, as long as the plaintiff presents proof that the significantly increased risk of contracting a latent disease is not "speculative," Friends, 746 F.2d at 826, but is instead reasonably certain based on reliable evidence, there is no need that such plaintiff sustain an actual physical harm to recover damages.
d. Administration of Medical Monitoring Award Through an Equitable Fund
We note with approval the recent tendency of many courts that award medical monitoring costs to do so by establishing equitably a court-supervised fund, administered by a trustee, at the expense of the defendant. See Exxon Mobil Corp. v. Ford, 204 Md. App. 1, 144, 40 A.3d 514, 598 (2012) (J. Eyler, J., concurring and dissenting in part), aff'd in part and rev'd in part, ___ Md. ___, ___ A.3d ___ (2013) ("In our view, the alternative that best achieves the goal of medical monitoring is that a court, in the exercise of its equitable powers, can establish a fund, when justified by the evidence, to be administered by a trustee, at the expense of the defendant."). See also Buckley, 521 U.S. at 441, 117 S. Ct. at 2122, 138 L. Ed. 2d at 574. This approach helps ensure that the medical surveillance funds will be used for their intended purpose, while still achieving the objectives of the medical monitoring remedy, for "given the difficulty in precisely estimating the cost of relief to the plaintiffs, any money damages award would run the risk of overcompensating the plaintiffs, and the surest way for the Court to avoid any such inefficiency is to fashion relief through an injunction rather than a money damages award." Donovan v. Philip Morris USA, Inc., No. 06-12234, 2012 U.S. Dist. LEXIS 37974, at *55 (D. Mass. Mar. 21, 2012). The U.S. Supreme Court assessed the ample support among courts across the country to order an equitable fund to disburse appropriate medical monitoring costs:
[T]he cases authorizing recovery for medical monitoring in the absence of physical injury do not endorse a full-blown, traditional tort law cause of action for lump-sum damages - of the sort that the Court of Appeals seems to have endorsed here. Rather, those courts, while recognizing that medical monitoring costs can amount to a harm that justifies a tort remedy, have suggested, or imposed, special limitations on that remedy. Compare Ayers,  525 A.2d at 314 (recommending in future cases creation of "a court-supervised fund to administer medical-surveillance payments"); Hansen, [858 P.2d] at 982 (suggesting insurance mechanism or court-supervised fund as proper remedy); Potter,  863 P.2d at 825, n.28 (suggesting that a lump-sum damages award would be inappropriate); Burns,  752 P.2d at 34 (holding that lump-sum damages are not appropriate) with, e.g., Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988) (damages award for future medical expenses made necessary by physical injury are awarded as lump-sum payment) . . .
Buckley, 521 U.S. at 440-41, 117 S. Ct. at 2122, 138 L. Ed.2d at 574.
The District Court of Appeals of Florida, holding that future medical monitoring costs are compensable in Florida, determined that a Florida trial court could use its equitable powers to create a fund for medical monitoring recovery, if the plaintiff established a prima facie case for recovery. Petito v. A.H. Robbins Co., 750 So.2d 103, 106 (Fla. Dist. Ct. App. 1999). The court outlined specific guidelines for a trial court to follow if it decided that a fund was appropriate, such as: (1) appoint a plan administrator; (2) with the administrator's advice, approve an advisory panel of persons qualified and knowledgeable in the relevant medical field or fields to supervise, among other things, the persons who consume or undergo medication and treatment, and select a list of skilled and neutral examining physicians to perform the medical tests; (3) establish a time frame for those eligible to obtain the monitoring; and, (4) authorize the plan administrator to pay the reasonable amounts of claims based on submitted reports and findings by the monitoring physicians. Id. at 107. For these procedures to operate effectively, they "must be tailored to fit the facts in a given case." Ford, 204 Md. App. at 146, 40 A.3d at 599 (J. Eyler, J., concurring and dissenting in part).
In sum, we hold that Maryland recognizes a remedy of recovery for medical monitoring costs resulting from exposure to toxic substances resulting from a defendant's tortious conduct. To sustain an award for recovery for medical costs, a plaintiff must show that reasonable medical costs are necessary due to a reasonably certain and significant increased risk of developing a latent disease as a result of exposure to a toxic substance. In awarding relief, a court must consider whether the plaintiff has shown: (1) that the plaintiff was significantly exposed to a proven hazardous substance through the defendant's tortious conduct; (2) that, as a proximate result of significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) that monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.
To determine what is a "significantly increased risk of contracting a latent disease" for a particular plaintiff, the court may consider quantifiable and reliable medical expert testimony that indicates the plaintiff's chances of developing the disease had he or she not been exposed, compared to the chances of the members of the public at large of developing the disease. We hold further that, where a plaintiff sustains his or her burden of proof in recovering this form of relief, the court should award medical monitoring costs ordinarily by establishing equitably a fund, administered by a trustee, at the expense of the defendant.
3. Recovery of Medical Monitoring Damages by Appellees in the Present Case
Appellees' claims for medical monitoring damages suffer from various deficiencies of proof under the tests set out above. Specifically, because Appellees with no detected contamination have not demonstrated sufficiently that they were exposed significantly to a proven hazardous substance, they may not recover damages for medical monitoring.*fn76
Moreover, as noted above in our discussion of emotional distress damages for fear of contracting cancer, individuals are exposed routinely in everyday life activities to MTBE and its metabolite of concern, formaldehyde. Thus, those Appellees with no demonstrated exposure exceeding the MDE action levels for MTBE and/or benzene are no more at risk of developing a latent disease from these contaminants than the average person - much less suffer a significantly increased risk of developing disease. As a result, Appellees with no demonstrated contamination exceeding the governmental action levels of five and twenty parts per billion for benzene and MTBE, respectively, did not prove as a matter of law that they suffer a significantly increased risk of developing a latent disease justifying an award of damages for medical monitoring. We therefore reverse these judgments.*fn77
The remaining Appellees' potable wells tested at or above the relevant state action levels for benzene and/or MTBE.*fn78 As we noted above, however, in order for any Appellee to recover damages for medical monitoring, he or she must present expert testimony quantifying his or her risk of developing a latent disease. Specifically, the expert must indicate a particularized, significantly-increased risk of developing a disease in comparison to the general public. Here, in support of their medical monitoring claims, Appellees presented testimony by medical experts Dr. Kathleen Burns and Dr. Nachman Bratbaur. Dr. Burns testified, in effect, that if an individual is exposed to MTBE or benzene in any dosage or amount, he or she incurs an additional risk of developing cancer.*fn79 Similarly, Dr. Brautbar opined that plaintiffs exposed to MTBE or benzene contamination in groundwater at greater levels than that to which they would otherwise be exposed through everyday activities possessed a significantly increased risk of developing cancer.*fn80
Such testimony is insufficient to establish that Appellees had a significantly increased risk of developing cancer as a result of their alleged exposure to MTBE and benzene. Neither Dr. Brautbar nor Dr. Burns attempted to quantify any individual Appellee's increased risk of developing cancer. Rather, because Dr. Brautbar and Dr. Burns testified under the assumption that any exposure to MTBE or benzene is unacceptable from a public health standpoint and increases the risk of developing cancer, they offered no Appellee-specific testimony. The level of generalization in this regard presented at trial is insufficient to establish that the remaining Appellees suffered a significantly increased risk of developing cancer as a result of their exposure to MTBE and/or benzene as a consequence of the Exxon leak. Accordingly, we reverse.*fn81
III. Compensatory Damages for Injury to Real Property
A. The Proper Measure of Compensatory Damages for Injury to Real Property
As noted earlier, we review the trial court's denial of Exxon's motion for judgment notwithstanding the verdict to determine whether it was legally correct. Scapa Dryer Fabrics, 418 Md. at 503, 16 A.3d at 163. At the conclusion of the trial, the jury awarded Appellees damages for injury to real property of three principal types: (1) emotional distress for fear of property value loss and fear of loss of use and enjoyment; (2) diminution in value, measured by the difference in value between the day immediately preceding the announcement of the leak and the day immediately subsequent to the announcement of the leak; and (3) loss of use and enjoyment for the period spanning from the day immediately subsequent to the discovery of the leak until the commencement of trial. Exxon challenges these awards as contrary to Maryland law, duplicative, speculative, and grossly excessive. Specifically, Exxon contends that emotional distress damages for fear of injury to property is not compensable, that Appellees' recovery of damages for both diminution in value and past loss of use and enjoyment constitutes impermissible double compensation, that awards to Appellees not experiencing well contamination were improper and speculative, and that the jury awards were excessive and based on inadmissible expert testimony.
1. Appellees May Not Recover Emotional Distress Damages For Injury to Real Property
The jury awarded approximately one hundred and ninety-five Appellees emotional distress damages for fear of loss of property value and fear of loss of use and enjoyment. Exxon contends that these awards were impermissible. Exxon advances principally three alternative arguments in support of its contention. First, Exxon argues that, in the absence of actionable fraud, Appellees cannot recover for emotional distress as a result of property damage. In the alternative, Exxon maintains that, even if Appellees proved actionable fraud, the emotional distress awards should be reversed as duplicative of the loss of use and enjoyment awards. Lastly, Exxon argues that, of those Appellees recovering damages for emotional distress for fear of loss of property value, approximately one hundred and eighteen did not provide testimony at trial supporting their emotional distress claims.
We need not reach the latter contentions. Ordinarily, as Judge James Eyler of the Court of Special Appeals noted in Ford, in the absence of fraud, malice, or like motives, "emotional distress attendant to property damage is not compensable." Ford, 204 Md. App. at 101, 40 A.3d at 573 (J. Eyler, J., concurring and dissenting in part). See also H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49, 338 A.2d 48, 55 (1975) (stating that "Maryland decisions have generally denied compensation for mental anguish resulting from damage to property"); Zeigler v. F. Street Corp., 248 Md. 223, 226, 236 A.2d 703, 705 (1967) (noting that emotional distress damages attendant to injury to property may be recovered only where there is fraud or malice). Because, as we explained supra, we reverse the fraud award in this case,*fn82 the emotional distress damages related to fear of loss of property value alleged by Appellees are not compensable as a matter of law, and the awards are therefore reversed.*fn83
2. Appellees May Recover Damages for Diminution in Value Only
The jury awarded to Appellees, in many instances, damages for both diminution in property value and past loss of use and enjoyment of real property, over Exxon's objection. Prior to trial, Judge Dugan required Appellees to elect between pursuit of damages for diminution in value and prospective loss of use and enjoyment, noting that the forms of relief are duplicative. Appellees elected to pursue damages for diminution in value of real property, rather than prospective loss of use and enjoyment. In addition, however, Judge Dugan permitted Appellees to seek damages for past loss of use and enjoyment,*fn84 measured as damages for loss of use and enjoyment incurred between the date of the discovery of the leak and the commencement of trial.
Exxon contends that the awards for past loss of use and enjoyment are duplicative of (and subsumed by) the awards for diminution in value, and therefore the trial court erred in permitting recovery of both. Because diminution in value of real property, measured on the date the leak was discovered, encompasses necessarily the lost use and enjoyment of that real property suffered by the property owner from that date forward, Exxon contends that there remains no period of time for which Appellees are eligible for lost use and enjoyment damages. Moreover, Exxon avers that, even if Appellees were entitled to receive both types of damages, the awards for loss of use and enjoyment are excessive because they, in conjunction with the diminution in value damages, exceeded frequently the unimpaired value of the real property. In retort, Appellees contend that their recovery of damages for diminution in value, in addition to past loss of use and enjoyment for the period between the announcement of the leak and the commencement of trial, is consistent with Maryland law. Such an award is neither duplicative nor excessive, as Appellees see it, because the right to use and enjoy one's property exists as a compensable element, independent of the monetary value of real property.
Assuming that the trial court required properly Appellees to elect between pursuing either diminution in value or prospective loss of use and enjoyment damages, and Appellees were in fact entitled to receive damages for diminution in value,*fn85 the trial court erred in later permitting Appellees to recover damages for both diminution in value and past loss of use and enjoyment. Compensatory damages should be "precisely commensurate with the injury; nothing more, nor less." Baltimore Belt R.R. Co. v. Sattler, 102 Md. 595, 601, 62 A. 1125, 1127 (1906). Thus, "the general principle upon which compensation for injuries to real property is given is that the plaintiff shall be reimbursed to the extent of his injury." Id. (quoting Redemptorists v. Wenig, 79 Md. 348, 355, 29 A. 667, 668 (1894)). Plaintiffs are entitled to "but one compensation," and thus may not recover twice for the same injury. Mayor & City Council of Havre de Grace v. Maxa, 177 Md. 168, 182, 9 A.2d 235, 242 (1939).
Compensation for injury to real property is dependent generally upon the character of the harm. See, e.g., Hall v. Lovell Regency Homes Ltd. P'ship, 121 Md. App. 1, 23-24, 708 A.2d 344, 355 (1998) (noting that permanent harm to property is measured properly by the permanent diminution in the property's value, while temporary harm may be measured by the decrease in the value of the property's use and enjoyment or by the cost of restoring the property to its unimpaired state). Diminution in value of real property is available generally as the remedy for damages in actions where the injury to real property is permanent in nature. Goldstein v. Potomac Elec. Power Co., 285 Md. 673, 682, 404 A.2d 1064, 1068 (1979). In addition to damages for permanent diminution in value of real property, an individual whose real property has suffered permanent injury may also recover the loss in the "usable value" of his property and any consequential damages incurred, provided that neither is encompassed within the diminution in value. See Maxa, 177 Md. at 182-83, 9 A.2d at 242 (permitting a property owner to collect damages for diminution in value as a result of his property's loss of water access, in addition to the consequential damages incurred by plaintiff for having to store his boat in an alternate location); Restatement (Second) of Torts § 929 Cmt. d (noting that a plaintiff may recover loss of use and enjoyment damages, in addition to diminution in value, provided that the loss of use and enjoyment award is not encompassed within the diminution in value of the real property).
Diminution in value damages are appropriate where the injury is considered permanent because such damages compensate presumably the property owner fully for the injury to his or her land and improvements. Damages for diminution in value are determined by calculating the difference between the fair market value of the property immediately preceding the harm and the fair market value of the property immediately following the harm. The fair market value of property in Maryland is generally the "price as of the valuation date for the highest and best use of the property which a [seller], willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay . . . ." Md. Code Ann. (1974, 2010 Repl. Vol.) § 12-105(b) of the Real Property Article; see also Pumphrey v. State Roads Comm'n, 175 Md. 498, 506, 2 A.2d 668, 671 (1938) ("Market value is defined as the price which an owner willing but not obliged to sell would accept for the property and which a buyer willing but not obliged to buy would pay therefor.").
The definition of fair market value suggests that an agreement as to price between the prospective buyer and prospective seller necessarily takes into account any known defects or deleterious conditions in the property.*fn86 Here, for example, fair market value as determined immediately after public announcement of the gasoline leak would rely necessarily on the highest and best price that a willing purchaser would pay - and thus, would consider presumably not only the features of the individual property, but also, among other things, the existence of a nearby underground gasoline leak, the reliance of the property on well water, the likelihood of ongoing and future remediation activities and potential resulting disturbances, and the possibility that the tap water may be inappropriate or undesirable for consumption or other normal household or business use.*fn87 Because fair market value as determined immediately following the announcement of the gasoline leak would take presumably these factors into account prospectively, these inconveniences constitute, for Appellees, part of the permanent diminution in value of their properties.*fn88
Owners of real property, however, are not precluded necessarily from recovering both permanent diminution in value and loss of use and enjoyment damages, see Maxa, 177 Md. at 182-83, 9 A.2d at 242, provided that the injuries for which recovery is sought do not overlap, so as to result in duplicative compensation. See id.; Restatement (Second) of Torts § 929 Cmt. d. Appellees claim that, in addition to diminution in value, they are entitled to recoup damages for injury to property as past loss of use and enjoyment for the period spanning from the date of the injury through the commencement of the trial. To permit Appellees to recover for these injuries, as a measure of the loss in monetary value of their home, as well as in past loss of use and enjoyment is, however, to permit recovery twice for the same injury on the record of this case.
In Mayor & City Council of Havre de Grace v. Maxa, we considered whether an individual suffering permanent injury to property by virtue of a town dredging improperly fill material and depositing it onto his property (cutting off his water frontage and access) could recover damages for loss of "usable value" in addition to diminution in market value. 177 Md. at 182-83, 9 A.2d at 242. Noting that an individual may not recover twice for the same injury, but that an individual is entitled to "complete" compensation, we permitted recovery of damages for loss in market value as well as loss in "usable value." Id. We defined "usable value" as "the personal enjoyment and use by the plaintiffs as occupiers of the premises, independently of the difference in market value." Id. at 182, 9 A.2d at 242. In Maxa, the plaintiff was permitted to recover, as loss in "usable value," boat storage and wharfage fees, which constituted an additional expense that the plaintiff was forced to bear in order to obtain the same benefit from his property from what he was deprived of by the defendant's conduct. Thus, the plaintiff recovered damages for diminution in value, as well as loss of use and enjoyment in the form of consequential damages - as an additional expense incurred by the plaintiff as a direct result of the defendant's tortious conduct.
In Hall v. Lovell Regency Homes, the Court of Special Appeals determined that the plaintiffs could not recover both diminution in value and loss of use and enjoyment damages, based on breach of contract, caused by drainage problems left behind by their builder's construction of the subdivision and their homes. 121 Md. App. at 25, 708 A.2d at 356. The plaintiff homeowners in Hall sought damages for diminution in value as a result of damage done essentially to their basements, as well as loss of use and enjoyment based on the following:
The type of loss that they can't use their basements. Its [sic] the type of loss that they have a lot of tension between the spouse and the husband. They don't enjoy their home when they walk in there and think about what the fungus might be in the basement or think about in a few months when the winter comes the water table is coming up again, that they don't enjoy being there.
Id. Because the alleged loss of use and enjoyment was, in effect, the same as the condition that diminished the market value of their properties, the court determined that "[t]he damages the homeowners were seeking for the loss of use of their basements (and their yards) were subsumed in and were not distinguishable from the damages that they were seeking for loss in fair market value of their properties." Id.
Although Appellees' claims differ qualitatively from those in Hall, in that Appellees suffered injury as a result of Exxon's tortious, rather than contractual, wrongdoing, the principle set forth in both Hall and Maxa applies to the present case. Appellees may not recover twice for the same injury. Testimony by Appellees reveals that their claims for loss of use and enjoyment revolve largely around their inability to use their well water for customary purposes and the emotional toll and stress attendant to such a disruption.*fn89 Specifically, Appellees noted that they reduced their outdoor activities, including gardening and swimming, reduced the frequency and length of showers and baths, entertained less or worried about potential contamination impacting visitors, drank bottled water, and endured noise and other disturbance emanating from the remediation activities. We fail to see, however, how the injury alleged is distinguishable from the injury constituting the diminution in value.
Unlike the plaintiff in Maxa, who recovered consequential damages for loss of use and enjoyment resulting from his payment for alternative boat storage charges - a defined expense caused directly by the defendant and not encompassed necessarily within the value and expected use of the home itself - the contentions here are, like in Hall, largely subsumed within the claim for diminution in market value.*fn90 Appellees allege loss of use and enjoyment due to their inability to use their water, but their homes are diminished in value precisely because their water is contaminated, where evidence supports that conclusion, and the property's use is therefore circumscribed. Appellees argue that noise from remediation activities disturbed their use and enjoyment, but such activities, too, diminished the market value of their property. Thus, their alleged loss of use and enjoyment damages are "not distinguishable from" and "subsumed in" their claim for diminution in value, and presumably, the impaired market values of their respective homes reflects the injury. Thus, to the extent that Appellees pleaded and proved at trial an incidental cost that they were forced to bear to obtain or regain a benefit provided previously to them by their property, akin to the boat storage and wharfage charges incurred by the plaintiff in Maxa, such damages would be recoverable.*fn91 In the absence of such proof, however, Appellees are not entitled to any damages for loss of use and enjoyment. Allowing Appellees to recover both, then, constitutes an impermissible double recovery. Because Appellees elected at trial to pursue damages for diminution in value, we therefore reverse the trial court's award of damages for loss of use and enjoyment of real property to all Appellees who pursued damages for both diminution in value and loss of use and enjoyment. Thus, we need not consider whether the damages awarded by the jury for past loss of use and enjoyment are excessive.
3. Plaintiffs With No Detected Contamination May Not Recover Property Damages
The potable wells on the properties of approximately sixty-five Appellees or Appellee families did not test positive for either benzene or MTBE contamination as of the time of trial.*fn92 Nonetheless, these Appellees recovered property damages stemming from the leak, predicated on expert testimony produced at trial predicting probable or possible contamination appearing during the next thirty years based on the prevailing hydrogeology of the region. Exxon argues primarily that the expert testimony predicting the flow of contamination over the next thirty years was speculative, and thus should not have been admitted. Alternatively, Exxon argues that, despite this expert testimony, in the absence of present proof of contamination, these Appellees may not recover property damages because they cannot satisfy the elements necessary to maintain a cause of action in negligence, nuisance, trespass, or strict liability and prove legal injury. By contrast, Appellees contend that the trial court properly awarded damages to the "non-detect" Appellees because the general contamination of the aquifer from which Appellees draw their water constitutes a substantial interference with a property interest. We consider each of the four theories asserted by Appellees for recovery for damage to property - trespass, nuisance, strict liability for abnormally dangerous activities, and negligence - to determine whether the non-detect Appellees may recover damages for injury to real property.*fn93
Appellees contend that the mere existence of any contamination in the aquifer from which the non-detect Appellees draw their water permits the non-detect Appellees to recover damages for injury to property on a theory of trespass, by virtue of the potential for future detected contamination. Appellees are mistaken. An action for trespass may lie "[w]hen a defendant interferes with a plaintiff's interest in the exclusive possession of the land by entering or causing something to enter the land." Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 78, 642 A.2d 180, 189 (1994). Thus, recovery for trespass requires that the defendant must have entered or caused something harmful or noxious to enter onto the plaintiff's land. See, e.g., Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 205-06, 4 A.2d 757, 761-62 (1939) (noting that because the premises of the plaintiffs was not physically invaded, an action in trespass cannot lie). Here, the non-detect Appellees failed to demonstrate any physical intrusion of their land. General contamination of an aquifer that may or may not reach a given Appellee's property at an undetermined point in the future is not sufficient to prove invasion of property. Thus, the non-detect Appellees could not recover, at the time of trial, damages for diminution in value of property based on a theory of trespass.
Exxon contends that the non-detect Appellees may not recover damages for diminution in value under a theory of nuisance because the interference with their properties is not substantial. A cause of action for nuisance does not require present proof of contamination. See Yarema, 69 Md. App. at 147-49, 515 A.2d at 1003-04. Private nuisance is "a non-trespassory invasion of another's interest in the private use and enjoyment of land." Wietzke v. Chesapeake Conf. Ass'n, 421 Md. 355, 374, 26 A.3d 931, 943 (2011) (quoting Rosenblatt, 335 Md. at 80, 642 A.2d at 190 (quoting Restatement (Second) of Torts § 821D)). Not every interference with a plaintiff's use and enjoyment of land, however, will support a cause of action for nuisance. WSSC, 330 Md. at 143, 662 A.2d at 749 (citing Adams v. Michael, 38 Md. 123, 126 (1873)). See Wietzke, 421 Md. at 382-83, 26 A.3d at 948 (noting that a finding of nuisance involves "a balance of the competing property interests at stake"). To succeed on a nuisance claim, a plaintiff must establish an unreasonable and substantial interference with his or her use and enjoyment of his or her property, such that the injury is "of such a character as to diminish materially the value of the property as a dwelling . . . and seriously interfere with the ordinary comfort and enjoyment of it." WSSC, 330 Md. at 143-44, 662 A.2d at 759 (quoting Slaird v. Klewers, 260 Md. 2, 9, 271 A.2d 345, 348 (1970)).
In Exxon Corp. v. Yarema, the Court of Special Appeals considered whether property owners, who had not demonstrated any physical injury to property from contamination resulting from a gasoline leak, could recover in nuisance despite the absence of tangible or physical harm. 69 Md. App. 124, 515 A.2d 990. Noting that Maryland courts permitted recovery for nuisance resulting from the intangible emanation of sound, see, e.g., Gorman v. Sabo, 210 Md. 155, 122 A.2d 475 (1956); Meadowbrook Swimming Club, Inc. v. Albert, 173 Md. 641, 197 A. 146 (1938), and the threat of future harm related to nearby storage of explosives, see Hendrickson v. Standard Oil Co., 126 Md. 577, 95 A. 153 (1915), the court determined that the gravamen of a nuisance claim rests not on a tangible invasion of property, but rather on the disturbance and interference in use and enjoyment of property resulting from a defendant's actions. Yarema, 69 Md. App. at 147-49, 516 A.2d at 1003-04. In so holding, the Yarema court emphasized that, despite there being no requirement to demosntrate physical injury, a plaintiff must show nonetheless that the defendant's interference with the plaintiff's property rights, tangible or intangible, is substantial in order to recover for nuisance. Id. at 151-52, 516 A.2d at 1004. Thus, mere diminution of property value, in the absence of a demonstrable tortious injury, is not sufficient to support a cause of action for nuisance. Id. at 151, 516 A.2d at 1004.
In order to get to the jury on their claimed cause of action in nuisance, therefore, Appellees without demonstrable contamination were obliged to establish that Exxon's tortious actions unreasonably and substantially interfered with their use and enjoyment of their properties. In Yarema, the court determined that the property owners demonstrated a substantial interference due to the "crippling restrictions" imposed on the property owners by Baltimore County government officials. 69 Md. App. at 153, 516 A.2d at 1005.
Specifically, owners of contaminated and surrounding non-contaminated properties were forbidden from using their water, constructing homes, or selling their land. Id. Thus, the Yarema court distinguished the plaintiffs' injury from cases in which only the reputation of the plaintiffs' land was harmed as a result of the defendant's actions, see, e.g., McGaw v. Harrison, 259 S.W.2d 457, 458 (Ky. 1953) (a cemetery did not constitute a nuisance "merely because it is a constant reminder of death and has a depressing influence on the minds of persons who observe it, or because it tends to depreciate the value of property in the neighborhood, or is offensive to the aesthetic sense of the adjoining proprietor"); Gray v. Southern Facilities, Inc., 183 S.E.2d 438, 445 (S.C. 1971) (no recovery for nuisance when the "claim for damages is predicated upon an asserted diminution in market value resulting, not from any physical injury, but from a psychological factor, in that prospective buyers allegedly would be reluctant to purchase the property due to the fear of a similar occurrence in the future"). Yarema, 69 Md. App. at 152-53, 516 A.2d at 1004-05.
Here, however, although there is no dispute that any interference with Appellees' properties by Exxon was unreasonable, there is little to suggest that Appellees with non- detect results experienced a substantial interference. Unlike the plaintiffs in Yarema, the gravamen of Appellees' complaints consist largely of relatively minor disturbances and stigma impacts that are not comparable to the severe restrictions placed on the Yarema plaintiffs. Although interference with the use and enjoyment of property, in the absence of physical impact, need not rise necessarily to the level of the restrictions in Yarema to constitute a nuisance, the disturbances reported in this case fall well on the opposite end of the continuum and are insufficient to maintain a nuisance action. For example, most non- detect Appellees complain primarily of using bottled water or Brita filters, entertaining in and about their homes less than expected, reducing the frequency of use of outdoor spaces, and taking shorter showers and baths. Such Appellees were not deprived, however, of the use of significant portions of their property, nor was the availability of their properties for their customary uses impaired substantially.
Moreover, Appellees' adjustments in the use of their properties appear to derive not from Exxon's actual interference with their property, but rather from their fear of contamination and its possible impacts. In order to recover for nuisance, however, a plaintiff must establish that any adjustments he, she or it makes in the use of his, her, or its property as a result of the defendant's tortious conduct are objectively reasonable. See, e.g., Gorman, 210 Md. at 159, 122 A.2d at 477 (noting that, to recover for nuisance, the disturbance alleged must be "offensive or inconvenient to the normal person"). As noted above in our discussion of fear of contracting cancer, however, these Appellees' fear of future contamination and resultant effects thus far is not objectively reasonable. They have no detected contamination, nor been advised that their water is unsafe for use. Unlike the plaintiffs in Yarema, Appellees have not received communication from governmental entities that would lead them to believe reasonably that alteration of water use is necessary to protect their health. Thus, in the absence of physical injury to real property resulting from Exxon's actions, Appellees must demonstrate more than modest adjustments in their use of their real property resulting from the leak in order to establish nuisance. Because this category of Appellees have not demonstrated that Exxon's interference with the use and enjoyment of their land was substantial, they may not recover damages for diminution in value of real property on the grounds that Exxon's actions constituted a nuisance.
c. Negligence and Strict Liability
The Yarema court concluded also that no proof of physical harm to property is required to recover under a negligence or strict liability theory.*fn94 69 Md. App. at 153-55, 516 A.2d at 1005-06. In reaching this conclusion, the Court of Special Appeals relied principally on Toy v. Atlantic Gulf & Pacific Company, 176 Md. 197, 4 A.2d 757 (1939), where this Court considered whether a defendant could be held liable for negligence despite the absence of physical invasion of property. Yarema, 69 Md. App. at 155, 516 A.2d at 1006. In Toy, the plaintiffs sought recovery for the loss of water access and use of a carp pond on their property resulting from obstruction of a navigable creek following dredging operations performed by the defendant. We noted that, because the destruction of the creek "greatly diminished in value the property of the Plaintiffs, . . . [it] was the cause of a particular and special injury for which an action will lie," despite the lack of physical invasion of property owned by the plaintiffs. Toy, 176 Md. at 207, 4 A.2d at 763. Because plaintiffs had suffered damages as a result of the obstruction of the navigable creek - specifically, they could no longer access their property via boat, nor control the level of water necessary to sustain the carp in their pond - we determined that plaintiffs alleged a sufficient injury to land in order to recover, provided that they could establish a wrongful act on the part of the defendant.*fn95 Id. at 207-08, 4 A.2d at 762-63.
The alleged injury to the non-detect Appellees' properties here, however, is different in kind than that suffered by the plaintiffs in Toy. In Toy, the defendant's actions deprived the plaintiffs of substantial benefits of their property - specifically, their right of access by water and the use and enjoyment of the carp pond on their property. Id. at 207, 4 A.2d at 762-63. The non-detect Appellees here, however, have proven no analogous injury. In the absence of direct evidence of physical injury, Appellees must show more than a possibility of future contamination or mere annoyance in order to recover. Although we do not determine expressly that it need rise to the level of the interference in Yarema or Toy, there is insufficient evidence on which to base recovery for the non-detect Appellees on the record of this case. The diminution in real property value suffered by these Appellees is, without more, damnum absque injuria - a loss without legal injury.
4. Remaining Loss of Use and Enjoyment Awards
It appears to us that only four Appellees may maintain a claim for loss of use and enjoyment of real property: Amy Gumina, Van Ho, and Leslie and Timothy Tripp. Exxon conceded that it was liable to Ms. Ho and to the Tripp family for compensatory damages, but did not specify which type of damages.*fn96 Ms. Ho leased her property from a landlord, who was not a named plaintiff in either this case or Ford. Ms. Gumina and the Tripps, who have each sold their properties subsequent to the announcement of the leak, were owners of real property at the time of the leak and that tested positive for contamination during their period of occupancy in their properties. None of these four named Appellees claimed damages for diminution in value.
Exxon asserts that the loss of use and enjoyment awards are excessive and that the trial court should have granted its motion for a new trial and/or remittitur. We review the trial court's denial of a motion for a new trial and/or remittitur under an abuse of discretion standard. Merritt, 367 Md. at 28, 785 A.2d at 763. As we noted, we will reverse a trial court's denial of a motion for remittitur only where the verdict is "'grossly excessive' or 'shocks the conscience of the court.'" Banegura v. Taylor, 312 Md. 609, 624, 541 A.2d 969, 976 (1988) (citations omitted).
Compensatory damages awards "attempt to make the plaintiff whole again by monetary compensation." Yarema, 69 Md. App. at 137, 516 A.2d at 997. Although, as the Court of Special Appeals noted in Yaffe v. Scarlett Place Residential Condo., Inc., determining damages for loss of use and enjoyment "must be flexible and based on the factual circumstances of each case," 205 Md. App. 429, 450, 45 A.3d 844, 856 (2012), such damages must also be capable generally of reasonable measurement, rather than purely speculative. See McAlister v. Carl, 233 Md. 446, 455, 197 A.2d 140, 145 (1963).
Although we recognize that an interest in property may be composed of a "bundle of rights" and is thus not determinate, see Weems v. County Comm'rs, 397 Md. 606, 618-24, 919 A.2d 77, 85-88 (2007) (discussing an individual's right to compensation "for the taking of . . . [a] 'stick' from [his or her] bundle of rights"), plaintiffs may not receive generally damages for loss of use and enjoyment of real property exceeding the pre-injury fair market value of the property. See generally Regal Constr. Co. v. West Lanham Hills Citizen's Assoc., 256 Md. 302, 305, 260 A.2d 82, 84 (1970) (noting that restoration damages exceeding the pre-impairment value of the home are not permitted generally, but may be recovered only where the owner establishes a "reason personal for restoring the original condition"). Even though compensatory damages are intended to make the plaintiff whole, see Sattler, 102 Md. at 601, 62 A. at 1127; Yarema, 69 Md. App. at 137, 516 A.2d at 997, they are not intended to grant to the plaintiff a windfall as a result of the defendant's tortious conduct. Thus, an award for compensatory damages must be anchored to a rational basis on which to ensure that the awards are not merely speculative. See McAlister, 233 Md. at 455, 197 A.2d at 145 (noting, while considering a claim for loss of enjoyment of life, the difficulty in laying down a "hard and fast rule and to draw a clear and sharp line of demarcation between damages which are purely speculative and damages which are capable of some reasonable measurement"). In the context of damages for loss of use and enjoyment of real property, we determine that loss of use and enjoyment of real property cannot exceed the fair market, unimpaired value of the property at issue.
We affirm the awards for loss of use and enjoyment as to Ms. Gumina and Leslie and Timothy Tripp. The fair market value of Ms. Gumina's unimpaired property was, as determined by Appellees' expert, $370,000. Ms. Gumina testified that, because her water made her skin itchy and had an odor that burned her nostrils, she showered at an alternate location, avoided consumption of her well water, and changed her gardening habits. Additionally, she testified that she could no longer maintain koi fish in her pond, and that her cooking pots and bathtub began to stain. Ms. Gumina received, for her approximately fourteen months' residency, $250,000 in compensatory damages for loss of use and enjoyment.
Similarly, Appellees' expert determined that the unimpaired value of the Tripps' property was $730,000. Mr. and Mrs. Tripp testified that, as a result of the gasoline leak, they used bottled water, stopped using their Jacuzzi and pool, stopped doing yardwork, showered outside for a time, and suffered from noise and odors relating to remediation activities. Mr. and Mrs. Tripp each recovered $350,000 in damages for loss of use and enjoyment, thus totaling $700,000 - $30,000 less than the unimpaired value of their home. Although Ms. Gumina and the Tripps' compensatory damage awards approach very nearly the unimpaired market value of their respective properties, they do not violate the standards discussed above. Thus, while acknowledging that Ms. Gumina and the Tripps resided in the contaminated properties for only limited amounts of time, we do not think the awards are unsupported by the evidence, nor do they shock this Court's conscience. Thus, we decline to substitute our judgment for that of the jury.
As to Ms. Ho, Exxon challenges the facial excessiveness of the award for loss of use and enjoyment, although it admitted liability. Ms. Ho operates a nail and hair salon in a property located directly adjacent to the Jacksonville Exxon station. Ms. Ho provided no evidence regarding the unimpaired market value of her salon as an ongoing business,*fn97 and thus we do not have a rational basis, on appeal, upon which to determine whether her award was excessive. Moreover, Ms. Ho testified that the remediation efforts and related noise impacted negatively her business, and that the use of bottled water to provide service to her customers was extremely difficult in practice. Although difficult, she stated that it was necessary because some customers told her that they would no longer patronize her salon if she discontinued the use of bottled water. She testified that, following the announcement of the leak, her business has dropped off by an average of $3,000 to $4,000 per year, lost twenty to thirty percent of its customers, and required the addition of hair services and related investments (such as the purchase of appropriate chairs) to remain in business. Ms. Ho testified that she shortened her operating hours during the evening as a result of her fears of the men performing remediation activities nearby. Additionally, Ms. Ho testified that the testing of the POET system in her building was inconvenient, the nearby monitoring well was noisy, and that the area outside surrounding the Exxon station (and her adjacent business) was chaotic.
We determine that, in light of the evidence provided at trial, the $1.6 million loss of use and enjoyment award to Ms. Ho was too speculative and thus, denial of the request for a new trial as to Ms. Ho's claim was an abuse of discretion. As noted above, awards for loss of use and enjoyment may not exceed the unimpaired market value of the property at issue. Without evidence of the pre-leak, unimpaired market value of the ongoing business of the salon operated by Ms. Ho, we cannot determine appropriately whether the jury's award was premised on a rational basis. Although we are sympathetic to the inconveniences suffered by Ms. Ho, an award of $1.6 million was not justified properly, based on the evidence of a discomfort, annoyance, and a $3,000-$4,000 per year loss in business. We therefore reverse her verdict and direct remand of her claim for a new trial.
B. Admissibility of Testimony of Dr. Kilpatrick to Establish Diminution in Value of Real Property
Exxon contends that the trial court admitted impermissibly the testimony of Dr. John Kilpatrick, Appellees' real property valuation expert witness. "[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court and its action will seldom constitute ground for reversal." Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472, 476 (1977). Thus, the admissibility of expert opinion "is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous." Blackwell v. Wyeth, 408 Md. 575, 618, 971 A.2d 235, 261 (2009) (quoting Wilson v. State, 370 Md. 191, 200, 803 A.2d 1034, 1039 (2002)); see also Radman, 269 Md. at 173, 367 A.2d at 476 ("[I]t is well settled . . . that the trial court's determination [regarding expert qualification] . . . may be reversed if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion."). Therefore, we must determine whether the trial court abused its discretion in admitting the expert testimony of Dr. Kilpatrick.*fn98
Expert testimony is required ordinarily to establish diminution in property value resulting from environmental contamination. See Ford, 204 Md. App. at 151, 241-42, 40 A.3d at 602, 654 (J. Eyler, J., concurring and dissenting in part, and Graeff, J., concurring); Hous. Auth. of City of New Brunswick v. Suydam Investors, LLC, 810 A.2d 1137, 1150 (N.J. Super. Ct. App. Div. 2002) ("[T]he effect of environmental contamination upon a property's value must be determined on the basis of expert appraisal evidence."), aff'd in part and rev'd in part on other grounds, 826 A.2d 673 (N.J. 2003). The admissibility of expert testimony is examined generally under Maryland Rule 5-702, which requires the court to make three determinations regarding an expert's opinion. Specifically, the court must determine that (1) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the subject matter is appropriate for expert testimony; and (3) a sufficient factual basis exists to support the expert's opinion. Md. R. 5-702.
As the Court of Special Appeals noted in Giant Food, Inc. v. Booker, "simply because a witness has been tendered and qualified as an expert in a particular occupation or profession, it does not follow that the expert may render an unbridled opinion, which does not otherwise comport with Md. Rule 5-702." 152 Md. App. 166, 182-83, 831 A.2d 481, 490 (2003). Rather, an expert's opinion must be grounded in sufficient facts, such that it constitutes more than mere speculation or conjecture, and reflect the use of "reliable principles and methodology in support of the expert's conclusions." Id.; see also CSX Transp., Inc., 159 Md. App. at 189, 858 A.2d at 1063 (noting that the third factor of Maryland Rule 5-702 encompasses the two sub-issues of sufficient factual basis and reliable methodology). Here, Exxon challenges the trial court's admission of Dr. Kilpatrick's expert testimony under only the third requirement, contending that (1) the methodology underlying his estimates as to diminution in value is unreliable (as reflected in Exxon's Frye-Reed challenge); and (2) the testimony lacked a sufficient factual basis because Dr. Kilpatrick failed to take into account actual comparable real estate sales in the area following the leak.*fn99
In developing his "impaired" valuation of Appellees' residential properties, Dr. Kilpatrick used three primary methods: (1) meta-analysis derived from an article published by Dr. Robert Simons; (2) case studies, including jury verdicts and settlements from around the country (including Ford);*fn100 and (3) a contingent valuation telephone survey designed by Dr. Simons, in which respondents were asked what they would be willing to pay for a hypothetical house with MTBE well water contamination. Dr. Kilpatrick did not rely on comparable sales data, despite numerous sales of residential properties in the relevant Jacksonville area following the announcement of the leak, opining that the market was unreliable and the buyers uninformed perhaps. Thus, Dr. Kilpatrick concluded, as a blanket proposition, that each of the Appellees' properties suffered a 60% permanent diminution in value as of 16 February 2006 - regardless of the distance of the property from the emanating gasoline station*fn101 and whether, and in what amount, the wells on the properties tested positive for MTBE or benzene contamination. Exxon contends that Dr. Kilpatrick's methodology was faulty, and claims that he should have considered the comparable sales data of the nearly 180 real estate sales that occurred in Jacksonville between the leak and 2008.*fn102 We agree with Exxon's points. Because we determine that Dr. Kilpatrick's methodology was faulty, for failing to consider comparable sales data, we do not consider here the validity of the use of the three alternative methods utilized in his report.
Appraisals of fair market value are the most common method of establishing the value of real property. Comparable sales are often utilized in determining fair market value, and "ha[ve] long been accepted in Maryland." Bern-Shaw Ltd. P'ship v. Mayor & City Council of Balt., 377 Md. 277, 289, 833 A.2d 502, 509 (2003) (citing Brinsfield v. Mayor & City Council of Balt., 236 Md. 66, 202 A.2d 335 (1964)). While Maryland law does not compel the use of comparable sales data, to the exclusion of all other methodologies, a real estate appraisal expert must proffer a reasonable justification for ignoring market data where it is available. Here, there was ample actual market data from which a valuation opinion (baseline or otherwise) could have been made, had Dr. Kilpatrick chosen to use it. Any adjustments could have been explained and justified. Thus, to discard market data, Dr. Kilpatrick had to provide a reasonable justification explaining the unsuitability or unreliability of the comparable sales data in the Jacksonville area.
Dr. Kilpatrick did not discard the use of comparable sales data generally. In fact, he measured the value of plaintiffs' properties prior to the leak using actual transactional data. He opined, however, that the post-leak value of the properties at issue could not be calculated principally using comparable sales data because of the inherent unreliability of the comparable sales data in the post-leak Jacksonville community. In trying to establish this unreliability, Dr. Kilpatrick's report advanced a nuanced distinction between "market value" and "market price." Specifically, Dr. Kilpatrick stated that market value represents the true value of the property where the buyer and seller possess perfect and utterly complete information. Market price, by contrast, does not necessarily reflect perfect information. Because of the possibility that the buyer may be uninformed, Dr. Kilpatrick asserts that the market price of real estate reflects an artificial inflation over the market value. Here, Dr. Kilpatrick determined that the transactional data could not be relied upon because the sales in Jacksonville represented the market price, rather than the market value, stating that "disclosure of the ExxonMobil spill, and the risks of latent defects stemming from that spill, is not occurring in a reasonable fashion. The lack of information to buyers is creating market inefficiencies and thus sales transactions that do not represent market value."
Dr. Kilpatrick based his assessment of unreliability on informal interviews and surveys of real estate agents. These interviews, however, belie Dr. Kilpatrick's assertions. The surveyed real estate agents noted the difficulties in closing sales in the Jacksonville real estate market subsequent to announcement of the leak. Specifically, these agents noted that some buyers stayed away from the area surrounding the spill, with buyers refusing to "even look at the house because of the spill," or "look and then decide it's just too much to deal with." Other agents noted that prices were reduced dramatically in order to complete a sale; that disclosure forms were given to prospective purchasers; and in most cases, water tests were performed prior to the sale of residential properties in the Jacksonville area. Additionally, surveys of real estate mortgage lenders suggested that some financial institutions would not even agree to finance the purchase of a property with actual groundwater contamination.*fn103 Taken together, these interviews and surveys suggest, contrary to Dr. Kilpatrick's assertions, that individuals in the Jacksonville real estate market were, in fact, informed regarding the leak, and that such information made it significantly more difficult to complete a sale; yet, there were nearly 180 sales after the leak was made public.
The statements of the real estate agents are relevant to the amount of diminution in value of properties in the Jacksonville area, but do not provide an acceptable or sufficient factual basis for Dr. Kilpatrick's conclusion that the sales that occurred were unreliable. An expert's opinion "is of no greater probative value than the soundness of his reasons given therefor will warrant." Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (1970). Not only do the interviews and surveys of real estate agents and the testimony of the homeowners contradict Dr. Kilpatrick's proffered justifications for ignoring comparable sales data, but the level of speculation attendant to that conclusion is, as the United States District Court for the Northern District of California noted in reviewing Dr. Kilpatrick's proposed testimony in another case, "serious[ly] concern[ing]." Palmisano v. Olin Corp., No. C-03- 01607 RMW, 2005 U.S. Dist. LEXIS 48005, at *16 n.5 (N.D. Cal. July 5, 2005). Dr. Kilpatrick testified that he does not know when, if ever, the "market price" will reflect the sixty percent diminution in "market value" that he concludes the properties suffered. As we have noted, however, fair market value is the highest and best price at which a prospective buyer and a prospective seller will agree for the sale of a given property. See Md. Code (1974, 2010 Repl. Vol.), Real Property Article § 12-105(b). Thus, even if we accepted, for the sake of argument, Dr. Kilpatrick's theory that prospective purchasers are ill-informed regarding the Jacksonville Exxon leak, the market prices represented by actual sales in the community still represent the highest and best price for the property - even if the buyers are paying, as Dr. Kilpatrick asserts, too much. Allowing the plaintiffs to recover damages for a hypothetical and speculative diminution in market value that may never materialize is to permit them a potential double recovery - "[i]f plaintiffs could recover for a decline in value that had not yet been reflected in prices, they could sell their homes immediately and receive a windfall: damages for as-yet unrealized diminution in value plus the full market price." Palmisano, 2005 U.S. Dist. LEXIS 48005, at *16 n.5. Dr. Kilpatrick's disregard of the existence of an actual, functioning market - no matter how skewed - was clear error. Because the trial court's admission of Dr. Kilpatrick's testimony was clear error, we reverse the jury awards for diminution in value as to all Appellees and direct remand for a new trial.
JUDGMENTS OF THE CIRCUIT
COURT FOR BALTIMORE COUNTY FOR FRAUD IN FAVOR OF ALL APPELLEES REVERSED; JUDGMENTS FOR PUNITIVE DAMAGES IN FAVOR OF ALL APPELLEES REVERSED; JUDGMENTS FOR EMOTIONAL DISTRESS FOR FEAR OF CONTRACTING CANCER IN FAVOR OF ALL APPELLEES REVERSED, EXCEPT THAT THE CLAIM OF APPELLEE GLORIA QUINAN IS VACATED AND REMANDED TO THE CIRCUIT COURT FOR A NEW TRIAL NOT INCONSISTENT WITH THIS OPINION; JUDGMENTS FOR MEDICAL MONITORING IN FAVOR OF ALL APPELLEES REVERSED; JUDGMENTS FOR EMOTIONAL DISTRESS FOR FEAR OF LOSS OF PROPERTY VALUE IN FAVOR OF ALL APPELLEES REVERSED; JUDGMENTS FOR LOSS OF USE AND ENJOYMENT IN FAVOR OF APPELLEES AMY GUMINA, LESLIE TRIPP, AND TIMOTHY TRIPP AFFIRMED; JUDGMENT FOR LOSS OF USE AND ENJOYMENT IN FAVOR OF APPELLEE VAN HO REVERSED AND REMANDED TO THE CIRCUIT COURT FOR A NEW TRIAL NOT INCONSISTENT WITH THIS OPINION; JUDGMENTS FOR LOSS OF USE AND ENJOYMENT IN FAVOR OF ALL OTHER APPELLEES REVERSED; JUDGMENTS FOR DIMINUTION IN VALUE OF REAL PROPERTY IN FAVOR OF APPELLEES DAVID AUSTIN, EMILY AUSTIN, PATRICIA BATEMAN, JON BLUM, TRACY BLUM, MARGARET BROWN, LOUISE BULL, ADRIANE BURKE, LLOYD BURKE, BARI JO BURNETT, CARLO CAPIZZI, FRANCA CAPIZZI, PHILIP CAPRON, SUSAN CAPRON, LLOYD CLARK, JOAN CLARK, SHARON DORSCH, WILLIAM DORSCH, DARYL DUTROW, JENNIFER DUTROW, CHRISTOPHER EASTON, MONIQUE EASTON, BRUCE ELLIOTT, CHRIS FEDERICO, TRACY FEDERICO, CLEVER FONSECA, DENISE FONSECA, MARIANNE FRATTAROLA LIVING TRUST, ANN FULLER, STANLEY FULLER, MARY PAT GOODHUES, HEATHER HUEY, MICHAEL HUEY, DOROTHY HYMAN, RICHARD HYMAN, KENNETH KELLY, STEPHANIE KELLY, LEONARD KENNEDY, MARGARET KENNEDY, PAUL K I N G A S P E R S O N A L REPRESENTATIVE FOR KATHERINE KING, MARK KIRKWOOD, NANCY PUGLIESE, ELLEN KOERNER, HENRY KOERNER, DONNA LAWRENCE, ROBERT LAZZARO, NIKOLAOS MAKRIS, VALERIE MAKRIS, JOHN MATRA, MARY MATRA, KIRK MCCLEARY, MARY MCCLEARY, PAMELA MORGAN, RONALD MORGAN, DENISE MOSS, GREGORY MOSS, KATHLEEN NAUGHTON, TIM NAUGHTON, GREGORY NAYLOR, SUSAN NAYLOR, DONALD NEMER, KELLI NEMER, JOANNE O'CONNELL, ANITA PODLES, THOMAS PODLES, CYNTHIA POPOMARONIS, WILLIAM POPOMARONIS, MARY KATHRYN PROEFROCK, SCOTT PROEFROCK, EDNA RUDELL, PAUL RUDELL, RICHARD RUDELL, ALAN SAEVA, ELLAINE SAEVA, JOSEPH SCHMITZ, SUSAN SCHMITZ, ERNEST SESSA, PAULA SESSA, NATALIE SHIELDS, BRUCE STUMPP, NORMA STUMPP, CHESTER TOKARSKI, MARILYN TOKARSKI, CHRISTY WHALEY, NEIL WHALEY, HANS WILHEMSEN (AWARDS FOR PROPERTIES LOCATED AT 13707, 13729, AND 13821 JARRETTSVILLE PIKE), JEAN WIMMER, PAUL WIMMER, CHRISTOPHER GARLISS/ HIGHPOINT HOMEBUILDERS, INC., KLEIN'S OF JACKSONVILLE, AND 14342 JARRETTSVILLE PIKE, LLC REVERSED; JUDGMENTS FOR DIMINUTION IN VALUE OF REAL PROPERTY IN FAVOR OF DOGWOOD MANAGEMENT, LLC, KLEIN FAMILY DEVELOPMENT CORP., 3313 PAPER MILL ROAD, LLC, JARRETTSVILLE RETAIL, LLC, 14231 JARRETTSVILLE PIKE, LLC, 14237 JARRETTSVILLE PIKE, LLC, 3422 SWEET AIR ROAD, LLC, LENORE ZACCARI/LENORE E. ZACCARI RESIDUAL TRUST AFFIRMED; JUDGMENTS FOR DIMINUTION IN VALUE OF REAL PROPERTY IN FAVOR OF ALL OTHER APPELLEES REVERSED AND REMANDED TO THE CIRCUIT COURT FOR A NEW TRIAL NOT INCONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE DIVIDED PRO RATA BY APPELLEES.