4. If the supplier is subject to liability to the plaintiff for damages, should the award include damage for emotional distress he has suffered arising from his knowledge of the increased risk that he will develop lung cancer?

Usually, to recover damages for mental distress, the plaintiff must establish that he: (i) was within the «zone of danger» (i.e., the plaintiff's distress was caused by a threat of physical impact); and (ii) suffered physical symptoms from the distress (i.e., the defendant's conduct caused distress to the plaintiff that manifested in the form of physical symptoms).

However, a plaintiff may recover damages for mental suffering once he brings an underlying tort claim from which he suffered an original physical impact or injury, followed by emotional distress. In this instance, he may «tack on» damages for mental and emotional suffering to the underlying claim. This is because defendants are liable not only for physical consequences from his tortious conduct, but also for virtually all emotional or mental suffering that flows naturally from it. This includes fright at the time of the injury, «pain and suffering» from the injury, anxiety about the possibility of repetition, humiliation from disfigurement, and so on. These «tacked on» damages are often called parasitic in that they «attach» to the claim for physical injury, much like a parasite attaches to a host.

Exam Tip: The call poses a hypothetical: IF the supplier is held strictly liable for damages, should the plaintiff recover damages for his emotional distress caused by discovering his risk of getting cancer?

D is correct. The plaintiff may recover for his emotional suffering because the supplier was found strictly liable for the harm caused by asbestos exposure, and the mental distress flows from that underlying physical injury. Although generally, mental distress may not be recoverable on its own absent special circumstances, a plaintiff may «tack on» mental suffering damages when an underlying tort action gives rise to physical impact for which the defendant is liable.

Here, the plaintiff's injury is his abnormal chest condition from asbestos exposure, which we are to assume the supplier is strictly liable for. Therefore, because the plaintiff's emotional distress from receiving this diagnosis and future prognosis stems from this underlying injury, he may tack on the mental suffering damages.

A is incorrect. Determining whether the plaintiff's emotional distress caused the physical condition is only relevant in a claim for negligent or intentional infliction of emotional distress, neither of which applies here. Where there is an underlying physical injury that caused the emotional suffering, the latter may be tacked on and recoverable.

B is incorrect. The question asks you to presume that the supplier has already been found strictly liable, so the analysis must proceed to whether the emotional suffering may be added as damages. Whether the cause of action itself is proper is no longer the issue. The issue is whether, based on the hypothetical presented, the emotional impact of the physical injury and prognosis may be recoverable.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. The plaintiff will recover damages for mental distress, but not because of the broad assertion that the supplier is strictly liable for all harm. The ability to tack on emotional suffering to an underlying claim requires that there be an underlying physical impact or injury, as explained above.