Is that a finger in my soup? Suing for emotional distress.

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Okay, so maybe it's not a finger . . . but wait, there is a tooth in my soup! Tina Keeney shared a can of chicken noodle soup with her 13-month old son. They also shared the discovery of a tooth in their soup. When Tina called company headquarters, Campbell's offered her ten dollars to cover the cost of the soup. They also asked her to mail in the tooth. Ms. Keeney consulted a lawyer instead.

The reason for the lawsuit? Soup-a-phobia mixed with a small case of worry about blood borne disease. Ms. Keeney's lawsuit cited emotional distress from the incident. Her trauma had resulted in "obsessive eating issues." The judge didn't buy it and dismissed the case stating that Ms. Keeney was not "sick" enough. In other words, her health records showed no evidence of any well-accepted diseases, ulcers or headaches as a result of the incident. The fact Ms. Keeney did not satisfy the judge's "sick" rule is symptomatic of problems in recovering damages from a product based solely on emotional distress.

The majority of cases that allow for recovery from mental distress require objective evidence that results in physical illness. For the most part, claims for stand alone charges of emotional distress are still controversial. Cases based solely on emotional distress are difficult because recoverable damages are generally small. The courts are understandably wary of fraudulent claims and increased litigation. Relating cause and placing a monetary value on mental harm is complicated when a product is the culprit.

Suing solely for emotional distress without having to show direct physical impact does have some exceptions. For example, service industries, such as the funeral business, that mishandle a corpse, may be sued by loved ones for their resulting emotional distress. The "bystander rule" allows families, who have witnessed loved ones suffer from product liability, can sue for damages. Distress caused by fear of disease allows plaintiffs to file suit who were exposed to products that did not experience injury until after the time limit for filing suit. What complicates emotional distress lawsuits is that laws and interpretations vary among states.

It's clearer and easier for claimants when they can show a product caused physical harm which, in turn, caused emotional distress. Individual and class action suits have been successfully won against pharmaceutical companies, tobacco companies, manufacturers, and service providers. Additional damages can include physical pain and suffering, physical impairment, medical expenses, and loss of earnings or earning capacity.

Linking product liability to emotional distress takes a skilled lawyer and a sympathetic judge. What is product liability? What is the legal definition of emotional distress? How can one evaluate if it's worth pursuing a lawsuit based on emotional distress?

Product liability refers to the liability of any or all parties involved in the manufacture of any product. Claims can be based on negligence, strict liability, or breach of warranty. Since there is no federal products liability law, statutes vary from state to state, so the product must be proved defective. The three classifications of product defects include defects in design, manufacturing and marketing.

Serious emotional distress results when a reasonable person is unable to cope because of circumstancescaused by the product. Mentalsufferingincludes fright, anxiety, depression, grief or humiliation. Emotional distress can result from fear for one's own safety or as a bystander who observes the suffering of an immediate family member.

There is a history of cases winning successful emotional distress damages, along with other damages showing physical harm. Recently, lawsuits against manufacturers of antidepressants, allegedly causing suicides, especially among children and adolescents, have cited emotional distress. The result? The pharmaceutical industry has issued warning labels and encourages doctors and families to monitor drug usage more closely. Manufacturers of tobacco products, breast implants, play sets, picnic tables, and cars are some of the industries that have responded to emotional distress lawsuits.

Generally, one can sue if there is a finger in the soup, whether it occurred from negligence or intent. However, that lawsuit might only hold water if a reasonable person would be caused severe emotional distress, and if that emotional distress is so serious that physical harm results. In the meantime, forget the soup and enjoy a hot bowl of chili.