How much leeway should courts give to plaintiffs seeking recovery for emotional distress? Should claimants be permitted to seek recovery for emotional distress over the loss of family heirlooms, photographs or other objects to which they are emotionally attached? How can a jury be expected to separate real from spurious claims? Particularly in toxic tort litigation, claims for emotional distress can generate exposure for defendants.  How do courts guarantee that these claims are genuine? 
Some states, including New Jersey, permit a claim for emotional distress by a plaintiff who witnesses the death of a family member. Portee v. Jaffee, 84 N.J. 88 (1980). There was little doubt that the emotional distress claim in Portee was genuine.  The case involved a mother who stood by helplessly as her seven year old son was crushed to death by an elevator door while crying out in pain and flailing his arms. Shortly thereafter, the distraught grieving mother attempted suicide by slitting her wrists.
Portee has been broadened over time to include intimate acquaintances, such as friends who live together. However, the Supreme Court of New Jersey recently refused to expand Portee to allow claims for emotional distress attendant to the loss of a beloved pet. The court was concerned that permitting such a claim would create an “ill-defined and amorphous cause of action that would elevate the loss of pets to a status that exceeds the loss of all but a few human beings.” The court observed that “not even all humans are engaged in a relationship that is sufficiently close to support such an award.”
The facts of McDougall v. Lamm, decided on July 31, 2012,  are poignant. Plaintiff Joyce McDougall was walking “Angel,” her maltipoo, a cross between a maltese and a poodle, when a large, mixed breed dog attacked it, grabbed it by the neck, shook it violently and dropped it dead to the ground. In her suit against the attacking dog’s owner, according to a report in the New York Law Journal on August 3, 2012, McDougall claimed that Angel had been her close companion for years and that the loss was especially hard for her since she and her husband had separated and her children had gone to college. Although the trial court awarded her $5,000 for the loss of the dog, the emotional distress count was dismissed on summary judgment. The Appellate Division affirmed.
Although the Supreme Court acknowledged that New Jersey law has treated pets differently than mere chattel in various situations (such as permitting a pet owner to recover not only the pet’s replacement cost but also for veterinary expenses), the high court drew the line on permitting recovery for emotional distress damages when pets are injured or killed. In ruling against McDougall, the court noted that, in some circumstances, a neighbor would not be permitted to seek damages for emotional distress after observing a next door neighbor’s child, with whom it had a close relationship, being torn apart by a wild animal. This would lead to the incongruous result that a plaintiff would be able to recover for emotional distress over the loss of a dog, but that a neighbor could not recover for the loss of a child with whom she shared an emotional attachment. Thus, in the end, the court left the Portee doctrine intact.
In the toxic tort context, across the Hudson River from New Jersey, New York litigants look to In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 379 F. Supp. 2d 349 (S.D.N.Y. 2005), which makes it clear that “damages are not recoverable for anxiety caused by property damage.” Recovery for emotional distress in New York requires Plaintiffs to establish that emotional distress arises from injury or fear of injury to the person.” The case General Accident Ins. Co. v. Black & Decker (U.S.), Inc., 266 A.D.2d 918, 918 (4th Dep’t 1999), stands for the proposition that “there is no cause of action for emotional distress caused by the destruction of one’s property…nor for emotional distress caused by the observation of damage to one’s property.”  In that case, the plaintiffs' children who observed their family home burn down from across the street, but were never themselves in any physical danger, were not permitted to seek damages for emotional distress. 
New York courts draw a line where someone is claiming emotional distress for mere loss of chattel. A related claim “fear of injury to the person,” requires proof that such fear has a rational basis. MTBE Products Liability Litigation, 379 F.Supp.2d at 430. Such a ‘rational basis’ requires “the clinically-demonstrable presence of a toxin in the plaintiff’s body, or some other indication of a toxin-induced disease.” Thus, in Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 592 N.Y.S.2d 782 (2d Dep’t 1993), plaintiffs seeking damages for sleeplessness, anxiety, and fear of developing cancer because defendants did not remove asbestos from their home saw their claims dismissed on summary judgment because they could not offer evidence of asbestos contamination that might develop into cancer. In the absence of such proof, the plaintiffs were not able to “guarantee the genuineness of the claim.” Without such evidence of genuineness, New York courts typically dismiss such cases as speculative at the summary judgment phase of the proceedings.