Ellen was thrilled to finally be adding to her house a sun room overlooking the pond. Her excitement turned to horror, however, when she came home one afternoon to find her home in flames. A contractor’s negligence had caused an electrical fire which burned Ellen’s home to the ground as she watched. For months after the fire, Ellen suffered from sleeplessness, haunted by the trauma she had suffered. She consulted her doctor who diagnosed her insomnia and prescribed medications to treat it.
In Ellen’s lawsuit against the contractor, she includes a count for negligent infliction of emotional distress (“NIED”). The contractor files a motion to dismiss, arguing that mere insomnia is not an injury which can form the basis an NIED claim. The Court should deny the motion to dismiss because sleeplessness and/or insomnia, if adequately corroborated, are the types of physical harm which can serve as the basis for a viable NIED claim.
In Gutierrez v. MBTA, 437 Mass. 396 (2002), the Supreme Judicial Court summarized the present requirements for an NIED claim, as follows:
Prior to Sullivan, our case law had required that a plaintiff demonstrate: “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Sullivan v. Boston Gas Co., supra at 132, 605 N.E.2d 805, quoting Payton v. Abbott Labs, 386 Mass. 540, 557, 437 N.E.2d 171 (1982). Under the former rule, the plaintiffs had to substantiate the objective symptomatology with “expert medical testimony.” Payton v. Abbott Labs, supra at 556, 437 N.E.2d 171. We then relaxed this requirement, holding instead that plaintiffs must “corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial.” Sullivan v. Boston Gas Co., supra at 137–138, 605 N.E.2d 805. We did not eliminate the physical harm requirement, but merely expanded the range of symptoms that may provide the type of objective evidence to prove physical harm to include symptoms that could be classified as more “mental” than “physical.” Id. at 135–139, 605 N.E.2d 805 (“we hold that both plaintiffs produced sufficient objective evidence of physical manifestation of mental distress to survive a summary judgment motion” [emphasis supplied]). In addition, we explicitly stated that “[a] successful negligent infliction of emotional distress claim … must do more than allege ‘mere upset, dismay, humiliation, grief and anger.’ ” Id. at 137, 605 N.E.2d 805, quoting Corso v. Merrill, 119 N.H. 647, 653, 406 A.2d 300 (1979).
Id. at 412.
Expert testimony is not required. Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702 (2005). See also Peters v. Burns, 95 Mass. App. Ct. 1114, 2019 WL 2172790, *4 (5/20/19) (unpublished Rule 1:28 decision). However, plaintiffs must, “corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial.” Rodriguez, 443 Mass. at 702; Peters, 2019 WL 2172790, *4. For some claims, “medical testimony may be needed to make this showing.” Sullivan v. Boston Gas Co., 414 Mass. 129, 137-38 (1993). However, the expert “need not have observed an actual, external sign of physical deterioration. They may consider, in the exercise of their professional judgment, the plaintiffs’ description of the symptoms they experience.” Id. at 138. (Internal citation omitted).
“The length of time that plaintiffs experienced particular symptoms could be one reliable indicator of the sufficiency of their evidence.” Rodriguez, 443 Mass. at 702. See also O’Neil v. Daimlerchrysler Corp., 538 F. Supp.2d 304, 321 (D. Mass. 2008).
The nature of the incident alleged to have given rise to NIED is also relevant. Where a plaintiff has witnessed her own home burning down, that “might be sufficient, in and of itself, to corroborate the physical manifestations of emotional distress.” Gardner v. Simpson Financing Ltd. Partnership, 963 F.Supp.2d 72, 83 (D. Mass. 2013), citing Sullivan (where the court held that plaintiffs had suffered compensable negligent infliction of emotional distress watching their house burn down after a gas explosion).
Difficulty sleeping, insomnia or sleep disorders, if adequately corroborated, can satisfy the physical harm element of an NIED claim. Sullivan, 414 Mass. at 131-32, 139-40 (noting that sleeplessness is a common manifestation of PTSD). See also Rodriguez, 443 Mass. at 705 (finding that plaintiff had presented sufficient objective evidence to enable jury to rule for her on NIED claim, where her doctor had noted that she, “was suffering from an increase in posttraumatic stress disorder, nightmares, insomnia, and dissociative episodes.” (Emphasis added)); Calderon v. Royal Park, LLC, ___ Mass. App. Ct. ___, 2019 WL 4266099, *5 (9/10/19) (“objective manifestations of her emotional distress include anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm. Nothing more was required at the pleading stage.” (Internal quotation marks omitted)); Adams v. Congress Auto Ins. Agency, Inc., 90 Mass. App. Ct. 761, 770 (2016); Marinova v. Boston Herald, Inc., 2016 WL 7637805, *3 (Mass. Super. 8/3/16) (“The plaintiff testified to her fear, paranoia, depression, anxiety, and sleeplessness. Others testified to the apparent impact that the publication had had upon the plaintiff, including a multi-faceted lethargy, crying jags, and the like. That evidence was sufficient….” (Emphasis added)); Palano v. Bellagio Corp., 2009 Mass. App. Div. 125, 2009 WL 1846347, *3 (3/6/09) (plaintiff stated in her affidavit that “she was “feeling upset, frustrated, helpless and depressed…. [She] continued to suffer stress headaches, sleeplessness and crying fits.” (Emphasis added)); McCrohan v. Uxbridge Police Assoc. Local #123, MCOP, AFL-CIO, 2014 WL 12769267, *11 (D. Mass. 11/12/14) (“Therefore, a plaintiff’s claim may go forward upon production of sufficient objective evidence that they suffer from PTSD, tension headaches, sleeplessness, nightmares, depression, or other symptoms of emotional distress.” (Emphasis added)); O’Neil, 538 F. Supp.2d at 321.
Accordingly, the mere fact that Ellen’s NIED claim is based on difficulty sleeping do not render it inadequate as a matter of law. If Ellen provides adequate proof of her insomnia, and its connection to the trauma of watching the destruction of her home, her NIED claim is viable.