Exxon Mobil Corp. v. Ford

WATTS, J., concurring. I concur, in part, with Judge Robert A. Zarnoch’s opinion and, in part, with Judge James R. Eyler’s opinion. Property Value As to the issue of whether there was sufficient evidence to uphold the jury’s verdict that all of appellees’ properties were worthless or could not be sold, I would affirm the jury’s award of property damages to those homeowners who “either explic ²⁴⁸ itly or implicitly” testified that they believed their homes retained no market value for the reasons stated below. I agree with Judge Zamoch’s assessment that twenty-six homeowners “either explicitly or implicitly” testified that they believed their homes retained absolutely no market value.

Thirty-nine property owners testified that their homes had diminished in value by an unspecified amount, but did not go as far as to claim worthlessness. Eight remaining homeowners testified as to a generalized belief in the diminished value of their properties, such as expressing a fear of not being able to sell. An additional fifteen homeowners did not testify at all. Maryland courts have held in the context of condemnation proceedings that an owner of real property is permitted to give opinion testimony as to the value of the owner’s land.

In Brannon v. State Rds. Comm’n of State Highway Admin., 305 Md. 793, 801-02 , 506 A.2d 634 (1986) (quoting Mayor & City Council of Baltimore v. Schreiber, 243 Md. 546, 553 , 221 A.2d 663 (1966)), the Court of Appeals explained: Unlike an expert witness, the owner of the property is presumptively competent to express his opinion of its value. This presumption is based upon the owner’s familiarity with the land, that merely by virtue of his ownership ... he may be presumed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use, [so as] to have a reasonably good idea of what it is worth. (Alterations in original) (quotations omitted).

Maryland courts have applied the same standard to personal property. See, e.g., Pennsylvania Threshermen & Farmers’ Mut. Casualty Ins. Co. v. Messenger, 181 Md. 295, 302 , 29 A.2d 653 (1943) (“It is a general rule of evidence, quite liberally applied by the courts of this country, that anyone familiar with the value of property is competent to testify as to its value. ...

It is accordingly held that the owner of any article, whether or not he is generally familiar with the values of such articles, is ordinarily presumed to have such a familiar ²⁴⁹ ity with it as to qualify him to testify concerning his estimate of its worth.”); Bresnan v. Weaver, 151 Md. 375, 378-79 , 135 A. 584 (1926) (“It is not required that the owner of articles of personal property in common use should be an expert. In such cases it is a question of the weight of the testimony.”) 1 As such, the testimony of a homeowner as to the value of his or her property is admissible in Maryland and can form a sufficient basis for a jury to award property damages. See Shelton v. State, 198 Md. 405, 411-12 , 84 A.2d 76 (1951) (“In order to meet the test of legal sufficiency in any civil or criminal case ... the evidence must either show directly the fact to be proved or support a rational inference of the fact. In a civil case the fact must be shown or the inference supported by a preponderance of probability, or an opposite preponderance must be overcome.”)(internal citation omitted).

In Hall v. Lovell Regency Homes Ltd. Pshp., 121 Md.App. 1, 19-20 , 708 A.2d 344 . cert. denied, 350 Md. 487 , 713 A.2d 980 (1998), we concluded that a homeowner’s testimony regarding the fair market value of the property was a “guess” and “[i]n the absence of competent foundation evidence for his opinion, the trial court did not abuse its discretion in ruling that the homeowner’s testimony “was speculative and thus legally in ²⁵⁰ sufficient to support [the homeowners’] damages claim.” In Hall , four couples, who purchased newly-constructed houses in the Kingsbrook Development in Frederick County, experienced water and drainage problems with their properties. 121 Md.App. at 5 , 708 A.2d 344 . As a result, the homeowners brought suit against the “builder of their houses and its general partners, alleging violations of the Maryland Consumer Protection Act, Maryland Code, (1990 Repl.Vol., 1997 Cum. Supp.), §§ 13-301 through 13-501 of the Commercial Law Article (the “CPA”), and asserting claims in contract, warranty, and tort.” Id. At trial only one of the homeowners, Richard Harcum, testified as to the fair market value of the property.

Id. at 19 n. 7, 708 A.2d 344 . The homeowners appealed arguing that the trial court erred in finding that Harcum’s testimony “was speculative and thus legally insufficient to support their damages claim.” Id. at 19 , 708 A.2d 344 . This Court affirmed the trial court ruling, concluding that: We note that the comment by Mr. Harcum that the homeowners contend was competent evidence of the present fair market values of their properties without defects was not elicited in response to a question on that topic. Rather, it was a side remark given in answer to the question whether he knew the present fair market value of his house with its defects.

When Mr. Harcum was asked the basis for his observation that the “market value” of “a comparable house” without defects “is around $220,000.00 to $230,000.00,” he cited only his “general knowledge of what houses like mine tend to sell for,” which he characterized as a “guess.” There was no evidence from Mr. Harcum or from any extrinsic source showing that Mr. Harcum was familiar with or had any knowledge about non-defective properties in the neighborhood that were similar to his property and, further, that he was informed about sales of any such properties and the sums for which the properties had been sold. (In fact, Mr. Harcum’s testimony that the approximate value he would assign to a “house” like his “in a condition where everything’s fine” was not expressed in terms of a comparable property in that neighborhood.) In ²⁵¹ the absence of competent foundation evidence for his opinion, the trial court did not abuse its discretion in ruling that Mr. Harcum’s testimony was just as he described it: a “guess.” Id. at 20 , 708 A.2d 344 (emphasis added). In Hall , we relied on the Court of Appeals’s statement in Webster v. Archer, 176 Md. 245, 256-57 , 4 A.2d 434 (1939) (quoting Mayor, etc., of Baltimore v. Smith & Schwarz Brick Co., 80 Md. 458, 472 , 31 A. 423 (1895)), that: [Ojne ‘having sufficient knowledge on the subject and acquainted with the land in question’ may be permitted to express an opinion as to the value of land, even though he is not an expert or specially qualified by training and experience to value land. But it is implicit in that rule that it must appear that even such a witness must have some knowledge of land values in the neighborhood of that which he is asked to value ... otherwise his valuation would not be a reasoned opinion but a mere conjecture or guess.

(Emphasis added). It is clear that if a homeowner expresses an opinion as to the value of his property and provides “competent foundation evidence” for his opinion, the testimony is admissible and, in my view, can be sufficient to support an award of property damages. I would permit homeowners in cases of alleged environmental contamination to render an opinion as to the value of their property, and allow the jury to determine the weight to be given such testimony. In this case, the homeowners knew the location of their homes in the neighborhood, their property’s relationship or proximity to the leak, the nature of any testing completed on their property and nearby properties, and whether any remediation efforts were undertaken on their property or in their neighborhoods.

As such, there was ample foundation for the homeowners to testily and have the belief that the homes were worthless or that no one was willing to buy them. It was within the purview of the jury to assess the weight to be given to the plaintiffs’ testimony as to the value of their properties, ²⁵² and the jury clearly found this evidence to be sufficient to determine that the property had no fair market value. I would find the unobjected to testimony of the homeowners in this case sufficient to affirm the property damages judgment as to those homeowners. As to the homeowners who did not testify directly to the value of their homes, did not testify at all, or testified that their property suffered some diminution in value, but the jury nonetheless found the properties to be worthless, I agree with Judge Zarnoch that, “viewed in a light ‘most favorable to the plaintiffs’] case,’ ” the combination of expert and lay testimony, admitted without objection at trial, provided a sufficient basis for the jury’s verdict.

Fear of Cancer I concur with Judge Eyler that in order to recover for fear of cancer, a plaintiff must demonstrate “actual present symptoms or probability that the cancer or other latent disease will develop.” Although not directly determining the standard for reasonable fear of cancer, in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 658 , 464 A.2d 1020 (1983), the Court of Appeals addressed whether a person should be barred from recovery for the harm resulting from lung cancer caused by asbestos exposure, where the person previously developed asbestosis, and no tort recovery was sought for the harm resulting from asbestosis. The Court of Appeals explained that “[t]he rationale underlying statutes of limitation supports the conclusion that having never sought tort recovery for the harm resulting from asbestosis, recovery for the harm resulting from lung cancer should not be barred and that, therefore, a cause of action accrued at the time that Pierce knew or reasonably should have known of the existence of lung cancer.” Id. at 665 , 464 A.2d 1020 . The Court of Appeals explained that: In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are “mere ²⁵³ possibilities.” Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur).

Mere possibility exists when the evidence is anything less. Davidson v. Miller, 276 Md. 54, 62 , 344 A.2d 422, 427-28 (1975). Id. at 666 , 464 A.2d 1020 . Courts of other jurisdictions directly addressing the standard for reasonable fear of cancer have concluded that the standard is “reasonably probable” or “more likely than not.” The Supreme Court of California in Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (1993), held that California would allow recovery in tort for fear of cancer due to toxic exposure if the plaintiff already had contracted a physical injury or illness from the exposure or, if not, if the plaintiff proved (1) exposure to a toxic substance which threatens cancer and (2) that the “fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.” Id., 25 Cal.Rptr.2d 550 , 863 P.2d at 816 (emphasis added).

The Court of Appeals of Colorado in Boryla v. Pash, 937 P.2d 813, 816-17 (Colo.App.1996), rev’d on other grounds, Boryla v. Pash, 960 P.2d 123 (Colo.1998) held that: Traditionally, claims for increased risk of cancer damages proximately caused by a defendant’s negligence have not been allowed unless there is sufficient evidence that occurrence of the future disease is reasonably probable. The rationale for this standard when such damage claims are involved is that permitting recovery of increased risk of cancer damages should not be based upon speculation. Otherwise, recovery would violate the general precept that an injury must be shown with reasonable certainty and not be left to conjecture. Likewise, in Colorado, damages for prospective and anticipated consequences are only recoverable when there is a “reasonable certainty” that a future injury will arise. ²⁵⁴ (Citations omitted) (emphasis added).

Under the above case law, fear of cancer that is not probable is generally not compensable. Recovery for fear of cancer is based on knowledge that the cancer is probable, ie., more likely than not. Potter, 25 Cal.Rptr.2d 550 , 868 P.2d at 811-12. In my view, Maryland law permits recovery for emotional distress related to a reasonable fear of cancer, and that fear is reasonable where plaintiffs prove: (1) exposure to a toxic substance which threatens cancer and (2) that the “fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.” Id., 25 Cal.Rptr.2d 550 , 863 P.2d at 816 (emphasis added).

As noted by Judge Kathryn Grill Graeff, in Part VII of Judge Eyler’s opinion, he groups appellees by what evidence those appellees presented at trial regarding emotional distress. In Part VII A-D, he identifies the following groups of appellees: (A) withdrawn claims and unchallenged claims; (B) no evidence of actual exposure or probable future exposure; (C) no evidence of physical manifestation related to the leak; and (D) minimal evidence and clearly legally insufficient to show physical manifestation related to the leak. I agree with Judge Eyler’s opinion that the judgments for emotional distress in favor of these appellees should be reversed. In group E, Judge Eyler describes appellees who presented “some evidence of physical manifestation related to leak but legally insufficient, assuming fear of future disease is compen-sable.” Although I agree with Judge Eyler that the judgments in favor of appellees in groups A-D be reversed, for the reasons set forth by Judge Graeff, 2 1 believe that the appellees in group E—having demonstrated some evidence of physical ²⁵⁵ manifestation related to the leak—are entitled to a new trial on damages for emotional distress with a proper jury instruction regarding the reasonable fear of cancer claim.

As such, I would grant appellees contained within group E of Judge’s Eyler’s opinion a new trial on damages for emotional distress with a proper jury instruction regarding the reasonable fear of cancer claim, embodying the “more likely than not” standard. Medical Monitoring On the issue of medical monitoring, the District Court of Appeals of Florida in Petito & Stubbs v. A.H. Robins Co., Inc. & Zenith Goldline Pharm., Inc., 750 So.2d 103 (Fla.Dist.Ct. App.1999), review denied,, 780 So.2d 912 (Fla.2001), concurring with the Supreme Court of New Jersey’s decision in Ayers v. Twp. of Jackson, 106 N.J. 557 , 525 A.2d 287 (1987), held that for medical monitoring purposes plaintiffs must prove the following elements: (1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant’s negligence; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. 750 So.2d at 106 -07 (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 138-39 (3rd Cir.1998), in turn quoting Redland, Soccer Club. Inc. v. Dep’t of the Army & Dep’t of Defense, 548 Pa. 178 , 696 A.2d 137, 145-46 (1997)).

This test is similar to the standard recently discussed by the Fourth Circuit in Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 499 , 181 ²⁵⁶ L.Ed.2d 347 (2011), clarifying the Supreme Court of West Virginia’s holding in Bower, 522 S.E.2d 424 : 3 Instead, the Bower decision recognized an independent tort claim for medical monitoring, which permits a plaintiff to recover the costs of diagnostic testing for diseases that may develop in the future as a result of a defendant’s conduct. Bower, 522 S.E.2d at 431 . The “injury” required to prove a medical monitoring claim is a “significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure.” Id. at 433 . 636 F.3d at 98 . In Maryland, there is currently no independent tort cause of action for medical monitoring or a test established for recog ²⁵⁷ nizing medical monitoring as an allowable form of relief.

Philip Morris, Inc. v. Angeletti 358 Md. 689, 779-80 , 752 A.2d 200 (2000) (“[The Court of Appeals] has never considered whether a demonstrated need for medical monitoring creates a valid cause of action in Maryland or generates a permissible form of relief under this State’s more traditional tort actions[.]”). The record reflects that the circuit court in this case gave a jury instruction consistent with the standard set forth above, that recovery of damages for medical monitoring requires “a significant increased risk” of developing cancer. That being said, I agree with Judge Eyler that in this case: [Ajssuming there is no requirement of physical injury, and utilizing the test used by the circuit court in these cases, the evidence is legally insufficient to support medical monitoring recovery in all these cases because there is no evidence that appellees have a significantly increased risk of contracting cancer or other latent disease as a result of any exposure to MTBE or benzene as a result of the leak. I agree that the judgment as to medical monitoring should be reversed.

As to the remaining issue raised by appellants, I agree with the discussion in the section labeled “Waiver” in Judge Zar-noch’s Proposed Opinion. . Courts in other jurisdictions have held that the owner valuation opinion rule applies to real property in a tort context. See, e.g., Nelson v. Metropolitan Utils. Dist., 249 Neb. 956 , 547 N.W.2d 133, 136 (1996) ("[A]n owner who is shown to be familiar with the value of his land shall be qualified to estimate the value of such land for the use to which it is then being put, without additional foundation.” (Citation omitted)); Smith v. Padgett, 32 Ohio St.3d 344 , 513 N.E.2d 737, 740 (1987) ("The owner of real estate is assumed to possess sufficient acquaintance with it to estimate the value of the property, and his estimate is therefore received although his knowledge on the subject is not such as would qualify him to testify if he were not the owner.” (Emphasis in original) (citation omitted)); Pocatello Auto Color Inc. v. Akzo Coatings, Inc., 127 Idaho 41 , 896 P.2d 949, 951 (1995): ("[T]he owner of property is a competent witness concerning its value.” (Citations omitted)); Gregath v. Bates, 359 So.2d 404, 407 (Ala.Civ.App.1978) (“[A]ii owner of real property may testify to the value of such property without other qualifications.

This rule is premised on the basis that the fact of ownership renders the owner competent to testify to such value.” (citation omitted)). . As Judge Graeff observed, the jury instruction given by the trial judge included the advisement that "there must be reliable medical or scientific evidence that it is more likely than not that the substance can cause cancer.” Although the instruction contained the appropriate "more ²⁵⁵ likely than not” standard, the instruction as worded allowed the jury to award damages because the substance could cause cancer without considering whether the individual plaintiffs were more likely than not to develop cancer based on the circumstances of their exposure. . In Bower v. Westinghouse Elec. Corp., 206 W.Va. 133 , 522 S.E.2d 424, 431-33 (1999), the West Virginia Supreme Court of Appeals stated that: [A] plaintiff asserting a claim for medical monitoring costs is not required to prove present physical harm resulting from tortious exposure to toxic substances.

Nor is the plaintiff required to demonstrate the probable likelihood that a serious disease will result from the exposure. As the Third Circuit indicated in Paoli I, "the appropriate inquiry is not whether it is reasonably probable that plaintiffs will suffer [physical] harm in the future, but rather whether medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease.” 916 F.2d at 851. See also 2 Dan B. Dobbs, Law of Remedies § 8.1(3), at 380 n. 30 (2d ed.1993) (“diagnosis expenses—medical monitoring—may be both reasonable and reasonably certain to occur in the future, even if the disease it is intended to diagnose is not reasonably certain to occur”). With the significant divergence of eliminating the requirement that diagnostic monitoring must be tied to the existence of a proven treatment protocol, we substantially adopt the Paoli test.

Thus, in order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible. EYLER, DEBORAH S., J., concurring in part and dissenting in part. This case is not about Exxon’s liability for the gasoline spill at Four Corners in Jacksonville. Exxon admitted liability. 1 It is about what damages the plaintiffs who sued Exxon may recover, based on the law and the evidence.

Error by the trial court led to two baffling awards of money damages. First, every plaintiff property resident was award ²⁵⁸ ed money damages for the fear of someday getting cancer from the 2006 gasoline leak (that is, from the chemicals MTBE and benzene, which were permitted by law to be in the gasoline) even though there was no evidence that any resident experienced physical harm from an exposure to the chemicals and even though there was no evidence that any plaintiff is likely to develop cancer from exposure to the chemicals. 2 Second, every plaintiff property owner was awarded money damages for the full value of his/her property before the gasoline leak even though the properties are habitable, some have sold post-leak for more than their pre-leak values, and (except for those who sold their properties) all but one plaintiff remain living in their properties. Many of the plaintiffs in this case were entitled to money damages, perhaps substantial, for damage to their property and for the interference they experienced, and may continue to experience, with their use and enjoyment of their property, including damages for the emotional turmoil suffered in connection with that disruption. However, recovery of money damages for “fear of disease” in the absence of proof of any present injury from a toxic exposure is not permitted in Maryland, nor is there any cogent rationale to expand tort liability in this state to allow such recovery.

Maryland law also does not allow recovery for the total loss of a property that still has value and indeed is habitable; in fact, that is evident by the bind in which the trial judge was caught when certain plaintiff property owners who had been awarded the full pre-leak values of their houses, on the theory that the houses were worth nothing, sold the houses for substantial sums of money. The judge by necessity—as to do anything ²⁵⁹ else would have been utterly irrational—eliminated the awards when the houses later were sold. This shows the absurdity of the awards to begin with. If they are upheld, and the plaintiff property owners sell their houses—be that the day after the litigation ends or years later (or even if their houses are inherited upon their deaths)—they will have been paid twice for the same property.

The awards for fear of cancer and for complete loss of all value of the properties are simply untenable, as they are contrary to established tort law and sound public policy. Unfortunately, the mode by which the cases were tried—in what amounted to a class action, when no class was certified and when the cases most certainly would not have qualified for class certification—undoubtedly contributed to these bizarre damages awards. Fear of Cancer The most favorable evidence for the plaintiffs on the issue of fear of cancer was not favorable at all. It showed 1) that none of them had experienced any physical illness or disease as a result of their exposure to benzene or MTBE in their potable well water; and 2) that it was possible (not probable) that some day in the future they would develop certain types of cancer as a result of such exposure.

It was upon this evidence that all of the plaintiffs, including those who did not testify and even those who did not make claims for fear of cancer, were awarded damages for the emotional distress of fearing they will contract cancer in the future. This is not the proper legal threshold of proof to support awards of compensatory damages for fear of cancer. The Maryland law that has developed over thirty years in the asbestos toxic tort context provides the guiding tort principles tor recovery of fear damages in this case. Those cases make clear that: 1) damages for tortious exposure to a toxic substance only will be awarded to a plaintiff who has suffered physical harm from the toxin—which means more than mere exposure to it and more than cellular changes brought about by such exposure, see Owens Corning v. Bau ²⁶⁰ man, 125 Md.App. 454, 482 , 726 A.2d 745 , cert. denied, 354 Md. 572 , 731 A.2d 970 (1999); Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 158-59 , 692 A.2d 5 (1997) (citing Restatement (Second) op Torts § 7(2) cmt.b (1965)) (“ ‘Harm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing.”); and 2) damages for developing cancer in the future due to exposure to a toxic substance are not recoverable in tort absent proof of a probability (not a possibility) that the cancer will develop, see Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 , 464 A.2d 1020 (1983); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir.1986) (applying Maryland law).

In Lohrmann , the Fourth Circuit Court of Appeals made clear that the trial court acted properly by restricting any reference by the plaintiffs to their fear of developing cancer in the future, because there was no evidence comporting with Maryland law to show that it was more likely than not that any given plaintiff would develop cancer in the future as a result of the toxic exposure. The Lohrmann holding has been a standard in Maryland tort law for decades and applies with equal force when the toxic substance is, as alleged here, MTBE or benzene. The Lohrmann holding is mirrored in the seminal opinion by the California Supreme Court in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (1993), which, like this case, involved a toxic chemical spill onto the plaintiffs’ land. There, as here, the plaintiffs sought to recover damages for their fear that they someday would contract cancer due to the gasoline spill.

The court held that to recover damages for fear of cancer based upon exposure to a known or suspected carcinogen, a plaintiff must prove either present injury or disease caused by the exposure, i.e., physical symptoms brought about by the carcinogen itself, or that it is more likely than not that the exposure to the toxin will cause the plaintiff to develop the feared cancer in the future. Id. at 997 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 . Observing the obvious fact that all people are afraid of getting ²⁶¹ cancer, the court explained that damages should not be awarded for a fear of cancer that is unreasonable. It classified as “unreasonable fear” “those cases where the feared cancer is at best only remotely possible.” It reasoned that those “unreasonable fear” cases can be avoided by “requiring] a showing of the actual likelihood of the feared cancer to establish its significance.” Id. at 990 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 .

Thus, as did the court in Lokrmann, the Potter court rejected the notion that, in the absence of present harm from the toxin, the fear of possibly developing cancer in the future due to the exposure is not reasonable and therefore is not compensable. The Potter court offered several well-reasoned explanations of why allowing damages awards for fear of the possibility, instead of the probability, of contracting cancer in the future does not make sense. A “possibility” standard creates a virtually limitless class of people who can sue to recover emotional distress fear of cancer claims, which, inevitably, will produce an unwarranted cost borne by the public. Not only will it produce an unwarranted cost, it “may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure.” Id. at 993 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 .

In a world of limited resources (both realistically and practically), why would tort law compensate people experiencing unreasonable fear at the expense of compensating people who actually sustain injuries in the future? As the Potter court put it, in the comparable context of potential liability for prescribing medicines later found to carry a risk of cancer, “for every patient who might actually develop cancer because of a particular drug, there could be hundreds or thousands of patients who might allege they were negligently prescribed the drug” and that they feared developing cancer in the future. Id. at 992 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 . Only a “probability” or “reasonableness” standard, which the court equated, would provide a “predictable threshold for recovery to permit consistent application from case to case.” Id. at 993 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 .

A lesser standard—allowing recovery for the fear of only the possibility of contracting cancer—would ²⁶² hinder the development of products, especially pharmaceuticals, rendering their pricing out of reach to people who need them. The court acknowledged that some people may experience a genuine fear of developing cancer from exposure to a toxin, even though the fear is based on a possibility and is not reasonable; however, “it is sometimes necessary to ‘limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.’ ” Id. at 993 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (quoting Thing v. La Chusa, 48 Cal.3d 644, 666 , 257 Cal.Rptr. 865 , 771 P.2d 814 (1989)). In reaching a contrary conclusion, Judge Zarnoeh’s opinion relies primarily upon Faya v. Almaraz, 329 Md. 435 , 620 A.2d 327 (1993), and Wetherill v. Univ. of Chi., 565 F.Supp. 1553 (N.D.Ill.1983). Neither case is supportive.

Faya was not a product liability or premises liability case alleging exposure to a toxic substance. It was a medical malpractice case in which the plaintiffs, a small subgroup of former patients of a surgeon who died of AIDS, alleged that they had been exposed to HIV—the virus that causes AIDS— during their surgeries, and were fearful that they had contracted HIV from him and would die of AIDS, which is the deadly end-stage of HIV infection. Their primary claim, for lack of informed consent, was that, had they been told of the surgeon’s health status, they would not have allowed him to operate on them and would not have been in a position to have their own bodily fluids exposed to his HIV-infected blood during their surgeries. Their claims were dismissed by the circuit court for failure to state a claim, upon a ruling that the facts alleged could not show a compensable injury.

The Court of Appeals reversed, holding that the plaintiffs could recover damages, for a limited period of time, for the fear that they had contracted HIV from the doctor during their surgeries, and therefore would develop AIDS. The period in which they could recover damages for fear of AIDS started when they learned that the doctor had had AIDS (which for all of them was when his cause of death was ²⁶³ reported in the newspaper) and ended when they received a test result showing that they were HIV-negative, ie., that they were not infected with the virus that causes AIDS. The Court reasoned that, for that period of time (which was about six weeks), the plaintiffs reasonably feared that they had been exposed to and therefore had contracted HIV, and thus reasonably feared that they would develop and die of AIDS. 3 The Faya , case and this case have virtually nothing in common. The limited “fear” claim the Court of Appeals held the Faya plaintiffs could pursue is not akin to the sweeping fear of cancer claim in this case.

The causal relationship between HIV and AIDS is well established, and was well established in the late 1980s and early 1990s, when the events in the Faya case took place. In fact, there is really no question about causation, because only one, very specific, disease is involved. HIV is an infectious disease agent. HIV infection is itself a disease, with AIDS as its end-stage.

Thus, the fear the plaintiffs were experiencing was that they already had contracted a disease that would progress and eventually kill them. The state of medical knowledge and treatment at that time was that HIV infection was not treatable and therefore inevitably would lead to the end-stage condition known as AIDS, which was fatal. (Treatment developments during the 20 years since the Faya case was decided have made HIV infection a manageable, chronic disease that does not inevitably lead to development of AIDS and death.) So, the fear of disease for which recovery was permitted under Faya was for a contagious and ultimately 100% fatal infection the plaintiffs believed they already had contracted. By clear contrast, in this case, there was not even evidence that exposure to the substances in question more likely than not would cause the feared disease (cancer)—let alone that there was an absolute certainty of causation, as there was (before the more recent treatment developments) between ²⁶⁴ HIV infection and AIDS. 4 The scientifically established 100% cause and effect relationship between HIV and the then-fatal end-stage condition of AIDS underlay the Court’s decision in Faya to allow compensatory damages for “fear” in that context, for the period before contraction of the disease was ruled out.

By contrast, the fear claim in this case did not concern whether the plaintiffs already had contracted a disease (cancer) that could be deadly. It concerned whether, sometime in the future, they might contract cancer, even though there was no evidence on a more likely than not standard of any causal connection between the toxin and the disease. 5 Wetherill v. University of Chicago, supra, is deceptive in its holding and should not form the basis for a conclusion that damages for present fear of cancer are recoverable in the absence of evidence showing either a present physical injury from exposure to the toxic substance in question or the probability that the exposure will cause cancer in the future. In that case, daughters of women who had taken a morning sickness drug during pregnancy filed suit against the drug manufacturer and sought damages for fear that they would develop cancer in the future from their exposure to the drug in útero. The opinion is a ruling on a motion by the drug manufacturer to exclude certain evidence, including “cancer-related testimony.” The corn! denied the motion, stating that damages for fear of cancer could be recovered against the drug manufacturer in the absence of a present physical injury and even though it was not “reasonably] certain” that the cancer would develop in the future. 565 F.Supp. at 1559-61 .

In a paragraph that veers back and forth between a “high degree of likelihood” standard, i.e., something greater than a probability, and “a likelihood [of future cancer being] relatively low,” which plainly is the opposite, the Wetherill court cites ²⁶⁵ four cases to support its ruling. Id. The cases all are inappo-site: not one of them recognizes or provides any support for the concept that recovery for fear of cancer can be had in the absence either of present disease or injury caused by the defendant’s tortious exposure conduct or of the probability of developing cancer in the future due to that conduct. Indeed, in all four cases the plaintiff suffered a present and actual physical injury caused by the defendant’s conduct.

In Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 430-31 , 418 A.2d 480 (1980), the pregnant plaintiff who, upon being stabbed in her breast, heart, and lung, suffered a heart attack and went into labor while in the defendant’s parking lot, was permitted to recover damages for “anxiety neurosis,” including fear of suffering another heart attack, cancer, or an early death. In Heider v. Employers Mut. Liab. Ins.

Co. of Wis., 231 So.2d 438, 441-42 (La.Ct.App.1970), the plaintiff suffered a concussion in an automobile accident caused by the defendant and was taken to a hospital where EEGs suggested that she was suffering from epilepsy; she was permitted to recover emotional distress damages for fear of developing epilepsy in the future. In Ferrara v. Galluchio, 5 N.Y.2d 16, 18-20 , 176 N.Y.S.2d 996 , 152 N.E.2d 249 (1958), when the plaintiff had contracted radiodermatitis, a skin injury caused by overexposure to radiation, she was allowed to recover emotional distress damages for the fear that she would develop cancer from the overexposure of her skin (which the defendant had caused). Finally, in Baylor v. Tyrrell, 177 Neb. 812, 813-16 , 131 N.W.2d 393 (1964), overruled in part on other grounds by Larsen v. First Bank, 245 Neb. 950, 959 , 515 N.W.2d 804 (1994), the plaintiff was struck by a car driven by the defendant, sustaining numerous bodily injuries, including a fractured hip that required extensive surgery, resulting in one leg being shorter than the other. He was told by his surgeon that the hip surgery might not be successful, in which case he would suffer deterioration of the hip bone.

The evidence at trial was that the plaintiffs hip already had deteriorated and was in a progressive state of deterioration. A jury awarded ²⁶⁶ him damages, including for the anxiety he was experiencing about the future deterioration of his hip. It is hard to fathom the Wetherill court’s holding that recovery for fear of cancer can be had in the absence of a present physical injury or the probability of future injury given that in each of the four cases the court relied upon the plaintiff had suffered a present physical injury, caused by the defendant’s tortious act. The emotional distress damages in these four cases were tied to the progression of injuries and diseases the plaintiffs already had sustained, not to the fear of possibly developing a disease in the absence of any physical harm.

Our Court should not be swayed by an opinion that offers a holding unsupported by the very cases it cites as authority. A cogent explanation for the perplexing holding in Wethe-rill, and for any proposition that recovery can be had for fear of a disease in the absence of proof of present physical injury or that the feared disease probably will develop, is offered by James A. Henderson, Jr., and Aaron D. Twerski, in their article, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S.C. L.Rev. 815 (2002). 6 The authors, who explain that their observations are relevant not only to asbestos toxic tort cases but also to other cases based on exposure to toxins (and discuss Potter at length), point out that there was a time when plaintiffs in toxic tort exposure cases who had not developed symptoms, or who had developed one toxin-related disease (such as asbestosis) but not another (such as lung cancer), were caught in a bind by the “single-action rule,” an established tort doctrine requiring plaintiffs to bring one suit, and only one suit, for all injuries allegedly caused by a defendant’s tortious conduct. These asbestos-exposed plaintiffs could sue for one disease allegedly caused by their exposure (asbestosis) but, by the time they developed another ²⁶⁷ disease allegedly caused by their exposure (lung cancer), the statute of limitations would have expired on their claim. Starting in the early 1980s, many courts—now a majority— discarded the single-action rule in toxic exposure cases.

Our Court of Appeals did so in 1983 in Pierce v. Johns-Manville, 296 Md. at 667-68 , 464 A.2d 1020 , holding that the plaintiffs claim against asbestos manufacturers for lung cancer was not time-barred, even though he had developed asbestosis from the same asbestos exposure years earlier. The Court reasoned that the plaintiffs cause of action against the asbestos manufacturers for lung cancer did not accrue until he was diagnosed with lung cancer. As Henderson and Twerski explain in their article, before courts became “enlightened” and discarded the single-action rule in toxic exposure cases, “some courts developed stopgap causes of action to allow asbestos plaintiffs to escape the single-action rule dilemma.” 53 S.C. L. rev. at 821. For example, in situations where there was not sufficient evidence to show that the plaintiff probably would develop the feared disease in the future, some courts would permit recovery for an increased risk of contracting the disease and/or for pre-injury fear, i.e., the present fear of contracting the disease in the future.

The authors explain: Thus, some courts took the position that recovery for increased risk could be predicated on proof of less than reasonable medical probability that the plaintiff would actually develop cancer. At the same time, a number of courts recognized a cause of action on behalf of asymptomatic plaintiffs for mental distress arising from the fear that they would develop cancer in the future. Unlike the increased-risk claim in which damages are based directly on the risk of developing cancer in the future, the mental distress claim avoids dealing with the reasonable medical probability standard, since the cause of action is based on a plaintiffs currently existing fear of future injury. Id. at 821-22 (citations omitted).

The authors go on to observe that, now, in jurisdictions (such as Maryland) in which the single-action rule has been abandoned in toxic tort cases, these “stopgap” claims, which ²⁶⁸ do not comport with the firmly established probability standard of proof of damages in tort, no longer serve a purpose. Sequential causes of action may be brought, eliminating the risk that a plaintiffs cause of action based upon a disease that developed years after the exposure at issue will be time-barred. In the context of asbestos claims, for example, “the successful prosecution of one action will not bar plaintiffs from bringing a later action if they develop a more serious asbestos-related disease. Thus, a plaintiff who has contracted asbestosis can sue immediately to recover damages for the ills associated with that disease.

If ten or fifteen years later he contracts mesothelioma, he may bring a new action for damages caused by that virulent form of cancer.” Id. at 822 (citations omitted). As noted, in this case, there was no evidence that any plaintiff had suffered a physical injury as a result of exposure to MTBE or benzene. 7 There was evidence from the appel-lees’ expert witnesses that it is possible that they may develop various cancers in the future from their exposures. Because Maryland, like the vast majority of jurisdictions, has done away with the single-action rule in toxic tort actions of this sort, for any appellee who in fact contracts cancer in the future, the statute of limitations will not begin to run until the disease is contracted. That person can sue at that time, without the bar of limitations, and will bear the burden of proving, as in any tort case, that Exxon’s negligence more likely than not caused his or her cancer.

If such proof is presented and accepted by a trier-of-fact, Exxon will be responsible for damages for the cancer caused as a result of the exposure and for attendant emotional distress (and for wrongful death liability, if death results). There is no toxic tort (or any tort) case in Maryland that permits recovery of damages for the present fear of contracting cancer when the plaintiff has not suffered a present physical injury. Moreover, there is no Maryland case in which ²⁶⁹ a plaintiff has been permitted to recover damages for the present fear of contracting cancer in the future in the absence of proof that it is more likely than not that cancer will develop. Because sequential causes of action may be pursued, there is no rational basis to extend Maryland law to allow recovery for the present fear of contracting cancer in the future in the absence of a present physical injury caused by the toxin or the probability that the feared cancer will develop.

Those appellees in this case who had some evidence of exposure to MTBE or benzene did not present any proof that they had sustained present physical injuries that were caused by those chemicals. Indeed, the evidence on that score was not lacking simply in terms of standard of proof; it was altogether lacking. As noted, there was no evidence of any chemically-caused present physical injury by any plaintiff. There was no evidence that any of the plaintiffs sought to undergo testing to see if these substances in fact are present in their bodies.

And, in the light most favorable to the appellees, their own expert did not and could not testify that it was more likely than not that any of the exposed plaintiffs would contract cancer in the future as a consequence of the exposure. Accordingly, the fear of cancer damages award are unsupported by the law or the evidence and must be vacated. Property Damage The property damage verdict in this case is unsupported by any probative evidence and is, frankly, nonsensical. The plaintiffs’ expert testified that none of the 88 houses were worth zero as a result of the leak.

Yet, the jury awarded every household the full pre-leak appraised value of their homes. Thus, an owner whose house was worth $700,000 before the gasoline leak was awarded $700,000; and so forth for every household. These damages awards had to be premised upon a finding by the jury that the plaintiffs had no houses in which to live, as if the houses had been leveled by a tornado. 8 The evidence was to the contrary, however. ²⁷⁰ Given the compensatory purpose of damages in tort actions (other than punitive damages, which were not awarded here), it is untenable for the plaintiff homeowners to have their houses and also have an award of damages equal to having no house at all. The properties cannot be uninhabitable if they are habitable, which the evidence showed they are.

Moreover, the properties cannot have a zero value based upon any cost of remediation, as none of the property owners has an obligation to pay for remediation. As noted, Exxon alone is required to pay for remediation. In the legal world of compensatory damages, in which the objective is to return the plaintiff to the position he or she would have been in had the tortious conduct not occurred, the only circumstance that could justify the property damage award in this case would be if each and every house is worth absolutely nothing. Quite aside from the obvious fact that the houses are being occupied, and the inconsistent-with-zero-value fact, which led to a remittitur, that several houses have sold, there was no probative evidence in the trial of this case that could support a rational finding that the houses all are worth nothing.

Put bluntly, that finding was completely irrational. Judge Zarnoch and Judge Watts opine that, regardless of the plaintiffs’ own expert witness evidence, which did not support a finding of zero values, the testimony of some of the homeowners that their properties were worthless was in and of itself sufficient evidence to support the verdicts awarding full pre-leak values. The opinion by Judge James Eyler well explains why expert witness testimony is necessary to prove that a leak of gasoline onto a property caused a reduction in the value of the property. Judge Watts opines that the lay testimony of some homeowners that their properties are worth nothing is sufficient to support the verdicts in favor of all homeowners because the testimony was not objected to. 9 ²⁷¹ In Judge Graeffs opinion, she agrees with Judge James Eyler that expert witness testimony was needed to prove reduction in property values in these cases.

She reasons, however, that the property damage awards should be affirmed on the ground that there was no objection to the lay opinions of the homeowners, and therefore we should analyze the sufficiency of the property damage evidence by including the lay testimony. Judge Zarnoch’s opinion likewise emphasizes ²⁷² the failure to object, stating that, due to the absence of an objection to the lay testimony, it can form the basis for a reasonable finding that the properties were worth nothing. The absence of an objection is meaningless to the analysis of this issue, however. In determining the sufficiency of the evidence to support the property damage award, it does not matter one whit that the lay testimony by certain homeowners about the values of their properties (and other properties) was admitted without objection.

The central sufficiency question on property damage was whether the evidence was legally sufficient to support a reasonable finding that the homes all were worth nothing. As in any case, evidence to support a finding must be probative of it. Evidence that otherwise is not probative does not become probative merely because it was not objected to. The language in Old v. Cooney Detective Agency, 215 Md. 517, 526 , 138 A.2d 889 (1958), quoted by Judge Zarnoch (and also by Judge Graeff), that inadmissible evidence, not objected to, can support the sufficiency of a jury’s verdict says as much.

The quotation from Old actually is a quotation of part of section 54 of McCormick on Evidence. The quoted material includes the following line: “The fact that [evidence received without objection] was inadmissible does not prevent its use as proof so far as it has probative value.” Old (quoting McCormick, § 54). (Emphasis added.) Section 54 of McCormick goes on to elaborate on that point, distinguishing the use for sufficiency purposes of incompetent but probative evidence that is not objected to from the use for the same purpose of non-probative evidence that is not objected to: Relevancy and probative worth, however, stand on a different footing. If the evidence has no probative force or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth; and the evidence will not support a finding.

It is still irrelevant or insufficient. McCormick, § 54, at 277-78 (6th ed.2006). (Emphasis added.) Thus, probative evidence that should not be admitted because ²⁷³ it is incompetent for any one of a host of reasons (for example, hearsay not within an exception to the rule against hearsay, or evidence that is unduly prejudicial even though relevant), but nevertheless is admitted because there was no objection, will be considered in determining whether the evidence at trial was sufficient to support a particular finding. On the contrary, evidence that is not probative and also is not competent, so that a proper objection to it would have been sustained, does not take on probative value merely because there was no objection to it.

It remains what it was to begin with: evidence that is not probative, and therefore cannot be considered in deciding whether the evidence was sufficient to support a particular finding. This is precisely the situation regarding the lay testimony by some of the homeowners about their property values (and the property values in the neighborhood). That testimony was not probative on the issue of property value post-leak. Only expert witness testimony (which was properly admitted into evidence) was probative of that issue.

The expert witness testimony, viewed most favorably to the appellees, could not support a reasonable finding that the houses were worth nothing, and therefore could not support the jury’s finding of zero value. The lay testimony, colorful as some of it was, was not probative. Objection or not, the fact that a homeowner thinks that no one will buy a house in Jacksonville cannot and does not prove that the houses have no value. 10 There was no probative evidence adduced in this case to support the jury’s finding that the houses all were worth ²⁷⁴ nothing. Accordingly, as a matter of law, that damages award must be vacated. .

As explained in the opinions by Judge Zarnoch and Judge James Eyler, Exxon did not admit liability for fraud, and the jury found in Exxon’s favor on that count. . It is important to emphasize that the analysis presented here regarding the fear of cancer damages applies to plaintiffs who presented some evidence of exposure to MTBE or benzene. As explained in Judge James Eyler's opinion, evidence of exposure is essential. Without it, there is no "fear” case at all.

So, my references to "plaintiffs” in this analysis do not include those with no evidence of exposure. Interestingly, no plaintiff in the entire case underwent any testing to show that he or she had benzene or MTBE in his or her body as a result of the leak. . Now, two decades later, there are rapid HIV tests, which can produce results in 20 minutes. See http://www.aids.gov/hiv-aids-basics/hiv-aids-101/overview/testing/. .

Again, this is for plaintiffs who had some evidence of exposure at all. For those without some evidence of exposure, there is no viable claim to begin with. . And, as is clear from the Bauman and Grimshaw cases, there was no evidence of any present harm to any plaintiff. . Henderson and Twerski were the Reporters for the Restatement (Third) of Products Liability. .

Again, for plaintiffs with no proof of exposure, no cause of action lies to begin with. . Even then, the land would have value, as any needed remediation cost was Exxon’s responsibility. . Hall v. Lovell Regency Homes, Ltd. Partnership, 121 Md.App. 1 , 708 A.2d 344 , cert. denied, 350 Md. 487 , 713 A.2d 980 (1998), is inapposite to the property damage claim in the case at bar. Hall primarily was a ²⁷¹ breach of contract action by a small group of owners of new houses against their builder.

The homeowners alleged that improper construction had caused their houses to have water and excessive moisture in their basements, cracks in the basement walls, and puddled water in the lawns, all of which prevented them from finishing their basements and building decks or fences. The alleged damage to the homes was not a matter of contamination of the properties by an outside source but of defective performance of the construction contracts. The homeowners all still occupied their houses. At trial, they called an expert witness who testified that their houses all had fair market values of zero.

One homeowner attempted to testify about the value of his house—not saying that it was worth zero—but his testimony was stricken because, as he acknowledged, it was just a guess. We affirmed the court’s ruling that the plaintiffs could not recover any more than nominal damages because their evidence, including their expert witness's zero value opinion—did not satisfy the loss of benefit of the bargain or any other contract damage recovery theory. The only line of Maryland cases in which property owners have been permitted to express opinions about the values of their properties have been condemnation cases. Those cases are inapposite as they do not involve any issue of decrease in value of properties due to damage allegedly caused by the conduct of a tortfeasor.

On the contrary, those cases by their nature present situations in which public authorities are taking homeowners’ properties and the question for the trier-of-fact is the amount of money the homeowners should be paid in compensation for that taking. Homeowners in those situations are presumed to know the values of the properties for taking purposes; their presumed knowledge has nothing to do with harm caused to the properties by third parties; and because damages for lost value are not at issue, the homeowners are not in a position to create their own damages by saying that their homes are worth nothing or, in testimony that is subjective and does not therefore establish fair market value at all, that they simply would not sell their properties, on moral grounds. Neither Hall nor the condemnation cases provide support for the notion that the property owners in the case at bar could themselves testify probatively about the alleged decrease in the values of their properties due to the negligence of Exxon. Only expert witnesses could so testify; and, as I have explained, the sole expert witness for the homeowners did not testify that the properties were worth zero. .

If the holding of this Court comports with this completely non-probative testimony, one has to assume that there will be some fortunate beneficiaries. The homeowners who testified that their properties, in which they still live, are worth nothing, especially those whose opinions rested on moral grounds, would of course be willing to give their houses away for nothing, and use the property damage award given to them by the jury for the purpose the jury must have had in mind: to buy a house somewhere else. Surely they could not countenance accepting a damages award compensating them fully for a zero value house and then accepting money for that same house. So, we should expect to see the houses given away for free to any people willing to take them (and pay the property taxes on them).

PER CURIAM. In accordance with Md.Code (1973, 2006 ReplVol.), Courts and Judicial Proceedings Article, § l-403(c), a majority of the incumbent judges of this Court ordered this appeal from the Circuit Court for Baltimore County by appellant Exxon Mobil Corporation to be reheard in banc. The in banc panel unanimously concludes: that counsel for Exxon Mobil did not waive the appellant’s right to challenge ¹¹ the compensatory damage award; and that the circuit court did not err in admitting the testimony of appellees’ expert witness on diminution in property values in Jacksonville as a result of the spill. A majority of the panel determines that, with the exception of the property damage award to one family (the Grecos), the damage award for diminution in value shall be affirmed.

A majority finds that, under certain circumstances, Maryland law permits recovery for emotional distress related to reasonable fear of cancer. However, a different majority concludes that there was insufficient evidence of emotional distress for 58 Jacksonville residents. Thus, their judgment for this component of damages shall be reversed. Although a majority of the panel determines that there was sufficient evidence of emotional distress to support a damage award for the remaining appellees, a different majority/plurality concludes that a faulty instruction on damages for emotional distress requires a new trial for these appellees.

A majority of the in banc panel would recognize a damage award for medical monitoring under certain circumstances. However, a different majority/plurality concludes that the evidence was insufficient to support such a remedy. Therefore, the judgment of the Circuit Court for Baltimore County is affirmed in part and reversed in part and the case is remanded for proceedings consistent with this Court’s mandate. JUDGMENT FOR DIMINUTION IN VALUE IN FAVOR OF ANDREA GRECO AND VERONICA GRECO REVERSED.

JUDGMENTS FOR DIMINUTION IN VALUE IN FAVOR OF ALL OTHER APPELLEES AFFIRMED. JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF LUKE DEKOOMEN, SETH DEKOOMEN, THOMAS BENNEY, LISA BENNEY, BARTLETT COL-GAN, PATRICIA COLGAN, ELAINE LINDSEY, TRESIA PARKS, WATER MERSKI, ANTHONY MONTONE, VALERIE MONTONE, LEON NICKEL, THERESA NICKEL, ¹² RICCI DEPASQUALE, JR., JOSEPH DEPASQUALE, ALICIA DEPASQUALE, WYATT DOBB, DAVID FRITZ, JR., BRENDAN FRITZ, AIDAN FRITZ, MELO DIE HEG-GIE, ROBERT LIBERTINI, JR., NICHOLAS LIBERTINI, MICHELLE SHINDLEDECKER, ZACHARY VACOV-SKY, BROOK VACOVSKY, CHRISTOPHER VOGLER, CARLI VOGLER, STEVEN STELMACK, AMTUL BAIG, JOSEPH BATEMAN, DENNIS BERLIN, ALEXIS BLAIR, SPENCER BLAIR, ALLISON CARROLL, STEPHANIE CARROLL, JASON CARROLL, JOHN DEPASQUALE, MADISON DOBB, EMILY FABER, ALEXANDER FA-BER, KATHERINE LIBERTINI, DAVID MAHONEY, ROSEMARIE MAHONEY, LAUREN McLEWEE, LINDA OBERLIN, AMY PETERS, LESLIE RUSH, MARIA CHAVEZ, EVAN TIZARD, EMMA TIZARD, MARLENA WIT-TELSBERGER, AND LAUREN WITTELSBERGER REVERSED. JUDGMENTS FOR EMOTIONAL DISTRESS IN FAVOR OF ALL OTHER APPELLEES REVERSED AND CASES REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR A NEW TRIAL ON THAT CLAIM CONSISTENT WITH THE MAJORITY/PLURALITY VIEWS OF THIS COURT. JUDGMENTS FOR MEDICAL MONITORING IN FAVOR OF ALL APPELLEES REVERSED.

COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY APPELLEES WHOSE JUDGMENTS FOR EMOTIONAL DISTRESS OR MEDICAL MONITORING ARE REVERSED, IN EQUAL SHARES. KRAUSER, C.J., MATRICCIANI, J., and KEHOE, J. did not participate in the argument or the decision in this case. ZARNOCH, J., concurring and dissenting, in which MEREDITH, J., WOODWARD, J. and WRIGHT, J., join. This appeal challenges a jury verdict awarding compensatory damages totaling over $147 million to hundreds of plaintiffs who claimed that appellant, ExxonMobil, was responsible for ¹³ contaminating their groundwater with certain chemicals found in gasoline.

Appellees, the plaintiffs, represent over 88 households in the Four Corners neighborhood of Jacksonville in Baltimore County, Maryland. It is undisputed that a leak at the Jacksonville Exxon station discharged over 700 gallons of gasoline per day for 37 days before it was discovered and shut down in February of 2007. The plaintiffs filed claims against ExxonMobil in the Circuit Court for Baltimore County alleging strict liability for an abnormally dangerous activity, private nuisance, trespass, negligence, and fraudulent concealment. ExxonMobil accepted liability for all of the claims except fraudulent concealment, disputing only causation and damages.

The trial began in October of 2008 and lasted for five months with the Hon. Maurice W. Baldwin presiding. The jury ultimately rejected the fraudulent concealment claim as well as the request for punitive damages. The $147 million compensatory award comprised both economic and non-economic damages, including diminution in value, emotional distress, fear of cancer, and the cost of medical monitoring.

Appellant filed several post-trial motions requesting judgment notwithstanding the verdict, a new trial, or remittitur and asserted, inter alia, that the verdict was excessive and formulaic when compared to the evidence presented at trial. After a hearing, the circuit court ordered remittitur as to the diminution in value awards to four households that had sold their homes since the leak. 1 The court denied the remaining motions and upheld the verdict. Appellant noted this appeal. FACTS & LEGAL PROCEEDINGS The Leak Because liability is not an issue in this appeal, I will discuss the events leading to the leak only briefly, in order to provide ¹⁴ context for the disputed issues.

This case began on a truly unfortunate Friday the thirteenth in January 2007, when a contractor working on the fuel delivery system at the Jacksonville Exxon station accidentally drilled a hole in an underground gas line. 2 The punctured line carried regular grade gasoline from the underground storage tank to the fuel pump. As a result of the leak, the electronic line leak detector automatically shut down the line and sounded an alarm, which was received by both Storto Enterprises, the station operator, 3 and Gilbarco Veeder-Root, a central monitoring company. Gilbarco notified an independent service contractor who issued an emergency work order to Alger Electric Inc. Alger technicians arrived at the Jacksonville Exxon station ■within a few hours of the alarm. The technicians found no evidence of a gas leak and believed the problem was being caused by a faulty pump motor.

Upon replacing the motor, however, the Alger technicians did not properly recalibrate the leak detector. The alarm therefore failed to signal the continuing leak. It was later established that approximately 700 gallons of gasoline per day leaked from the underground line, beginning January 13 and continuing for 37 days until the leak was finally discovered on February 17, 2007. Storto’s station operator, Andrea Loiero, testified that she and the station manager noticed a discrepancy in their daily inventory during the time of the leak.

The parties dispute when and how often ExxonMobil was informed of this inventory discrepancy. It is clear, however, that on February 16, Loiero reported the large discrepancy to an ExxonMobil territory manager, who advised her to shut down all of the gas pumps. The territory manager arrived at the station within an hour. After examining the records and finding total unexplained ¹⁵ losses of 25,000 gallons, he suspected a meter problem and arranged for a helium test to be performed on the gas line.

The test, performed the following day, revealed the catastrophic gas leak. ExxonMobil reported the leak to the Maryland Department of the Environment (“MDE”) and cleanup efforts began immediately. MTBE and Benzene The primary concern, and the subject of this case, is the contamination of groundwater with two volatile organic compounds found in gasoline: methyl tertiary-butyl ether (“MTBE”) and benzene. MTBE is a compound commonly added to gasoline to help it burn “cleaner,” reducing emissions of air pollutants from automobile exhaust systems.

Because MTBE is highly water soluble, it easily disperses through groundwater at higher concentrations than many other contaminants. At trial, the plaintiffs’ toxicology expert, Dr. Kenneth Rudo, testified that MTBE is a known mutagen 4 and therefore, from a toxicological standpoint, “there is no safe level.” 5 Some animal studies have indicated that MTBE is carcinogenic, but there have been no human studies linking MTBE to cancer. 6 He also testified that twenty-five states ¹⁶ have banned the use of MTBE because of groundwater contamination concerns. The EPA has classified MTBE as a potential human carcinogen at large doses, but there is not enough data to classify it as a human carcinogen at low exposure levels in drinking water. Dr. Rudo described MTBE as a “probable human carcinogen.” and he testified that the plaintiffs whose wells were contaminated with MTBE faced “an incremental risk of developing these cancers in the future.” Due to the lack of scientific consensus, the EPA has not set a maximum contaminant level (“MCL”) for MTBE, only an aesthetic standard of 20-40 parts per billion (“ppb”). 7 At concentrations exceeding 20-40 ppb, water contaminated with MTBE has an unpleasant odor and taste.

The MDE has set an action level of 20 ppb for the State of Maryland, based largely on these aesthetic concerns, although it is also the position of the Department that the 20 ppb standard is “protective of human health and safety.” 8 The EPA standards for both MTBE and benzene reflect the levels at which, based on the current science, a person could be exposed to the chemical every day for 70 years with only a negligibly increased risk of cancer. Benzene, another gasoline additive, is the second contaminant of concern in this case. Unlike MTBE, benzene has been used industrially for many years and its potential carcinogenicity has been known since at least the 1940s. The EPA classifies benzene as a known human carcinogen.

According to the expert testimony, benzene has been specifically linked ¹⁷ to an increased incidence of leukemia, as well as a variety of noncancer effects related to its hematopoietic toxicity, including anemia and lowered blood concentrations of leukocytes, lymphocytes, and platelets. The EPA has set the MCL for benzene at 5 ppb, a standard also used by the MDE. The MCL is an enforceable standard believed by the EPA to be technologically and economically reasonable; it does not necessarily reflect the amount below which no adverse health effects are possible. A certain amount of “background exposure” to both MTBE and benzene is incidental to everyday life, occurring when people refill their car fuel tanks, enter parking garages, or live in homes with attached garages.

The plaintiffs’ toxicologist described the methods of potential exposure to MTBE and Benzene: Q. Dr. Rudo, when someone is potentially at risk for being exposed to a contaminant and, particularly in this case, MTBE, and in the case of five of the plaintiffs, Benzene, what are the potential sources of exposure? In other words, drinking, eating, bathing and what are the formal ways of classifying them? A. You have to—first of all, it depends on the chemical. Is the chemical a substance that can evaporate in the air, say if you are taking a shower, is it volatile, where it gets into the air and it can mix with the water vapor in the air and can you be exposed in that way.

With MTBE, the answer is yes, it is a very volatile chemical, does evaporate in the air. As a result, one of the avenues of exposure obviously is from drinking the water, if it is—if you have contaminated water, you are drinking the water with it, so ingestion is one avenue. Also what we have found to be a very, very significant exposure route is bathing and showering in a bathroom because it does evaporate, it gets into the air. So you take a ten or 15-minute bath or shower and you are actually exposed to levels of the chemical in the air in your bathroom that may be equal to or greater than what you would drink over the course of a day.

So those are the two main routes. There is also a minor, ¹⁸ more minor route would be what we can whole house exposure, where any kind of use, you use your washing machine, your dishwasher and dryer, it can get into the air that way, generally using the sink to clean dishes. So those would be lower levels than in a bathroom, but those are also avenues. Q. What about dermal exposure?

A. There would also be in the bathroom, there is both what we would call inhalation exposure and dermal exposure through, dermal through the skin, the MTBE will, can be absorbed though the skin and it can be, you can take it in through the water vapor that is in.... Contamination of Wells on Appellees’ Properties The parties dispute how long it took ExxonMobil to notify the community surrounding the station of the gas leak and the potential contamination of potable wells. 9 At some point, prior to receiving any of the water sample test results, ExxonMobil began delivering free bottled water to residents within a certain radius of the station. Pursuant to its statutory powers, MDE required ExxonMobil to submit an Interim Remedial Measure Plan. See Md.Code (1982, 2007), Environmental Art., §§ 4-401-4-419.

Part of the immediate response was to begin drilling wells for monitoring and recovery in different areas around the Exxon property. The monitoring wells were dug at various depths for the purpose of continuous water sampling to determine the presence and extent of the contamination plume (sometimes called the “strike zone”). The recovery wells were used to treat groundwater in hopes of preventing further expansion of the plume. By October of 2007, there were 227 monitoring wells and MDE had ordered the drilling of an additional 30 wells for purposes of long term monitoring.

Water samples have been ¹⁹ taken from both the monitoring wells and residential potable wells continuously since February 2006. Of the 88 properties at issue in this case, water testing revealed MTBE concentrations above the action level in only two potable wells, those on the Anderson and Fox properties. The highest concentrations of MTBE measured in those wells was 20.4 ppb and 40.7 ppb, respectively. ExxonMobil paid for the installation of point of entry treatment (“POET”) systems to filter all water entering those homes.

Traceable amounts of MTBE below the action level were found in samples from potable wells on an additional 66 properties. 10 At the time of trial, the most recent test results revealed no potable wells with MTBE concentrations exceeding the action level, while 40 wells had detectable amounts of MTBE below the action level. 11 Samples from five potable wells contained detectable amounts of benzene: Dobb (0.42 ppb); Fritz (0.096 ppb); Rush (0.10 ppb); Yacovsky (0.13 ppb); and Wiedey (0.10 ppb). None of the water samples taken from potable wells contained benzene in an amount exceeding the MCL. Dr. Harry Cohen, the plaintiffs’ expert hydrogeologist, testified that some homes that were initially perceived to have a low probability of contamination did become contaminated because of changing plumes. Monitoring wells were dug on at least 13 of the appellees’ properties. 12 MTBE concentrations exceeding the action level were found in samples from monitoring wells on six properties: Anderson (76.7 ppb); Baig (317,000 ppb); Brady (754 ppb); Dobb (60.7 ppb); Libertini (156,000 ppb); and McLewee (37,200 ppb).

Benzene levels exceeding the 5 ppb MCL were found in samples from monitoring wells on five properties: Baig (18,500 ppb); Brady (7.9 ppb); Libertini (5130 ppb); McLewee (324 ppb); and Tizard (11.8 ppb). Aside from the ²⁰ groundwater contamination, the noise, bright lights, and influx of work crews and heavy equipment necessary for the digging of monitoring wells and other remediation activities caused considerable disruption to nearby property owners. The Lawsuit Appellees, representing 88 households, all lived less than a mile from the Exxon station in the “Four Corners” neighborhood of Jacksonville for some period of time after January 13, 2006. The first lawsuit was filed on October 17, 2007.

One year later, 90 cases went to trial in the Circuit Court for Baltimore County on claims of strict liability for an abnormally dangerous activity, private nuisance,, trespass, negligence, and fraudulent concealment. Regarding the first four claims, ExxonMobil accepted liability and disputed only causation and damages. The plaintiffs sought three types of compensatory damages: (1) diminution in the fair market value of their real property; (2) non-economic damages for their emotional distress, including fear of cancer; and (3) damages for the cost of future medical monitoring. The plaintiffs sought punitive damages for fraudulent concealment, the only claim for which ExxonMobil denied liability.

During trial, the jury heard testimony from 167 witnesses, including many of the plaintiffs and various experts in the areas of toxicology, hydrogeology, and real estate appraisal. After a five month trial, 88 of the cases ultimately went to the jury. 13 On March 12, 2009, the jury returned a verdict finding appellants not liable for fraud or any resulting punitive dam-, ages. As for compensatory damages, the jury awarded the owners of each home 100% of the pre-leak value of their real property. Most of the plaintiffs also received emotional distress damages totaling approximately $ 1,000,000 per household.

Finally, most of the plaintiffs received damages for ²¹ medical monitoring, with the amount of the award equaling 100, 50, or 25 percent of their claimed costs, depending on the degree of contamination. Altogether, the jury awarded more than $150 million in damages. ExxonMobil filed six postjudgment motions: (1) motion for judgment notwithstanding the verdict (“JNOV”) on the damages for medical monitoring, claiming that Maryland does not recognize such a claim; (2) motion for JNOV regarding the claims of nineteen specific households; (3) motion for new trial or remittitur regarding property damage awards for those families whose properties did not have contamination at or above the State action level; (4) motion for new trial based on admission of prejudicial evidence, specifically Dr. Rudo’s testimony that he believed MTBE to be a human carcinogen and, separately, an email written by a high ranking Exxon official, which was used by the plaintiffs during cross-examination; (5) motion for JNOV or new trial on the emotional distress claims; and, finally, (6) motion for new trial or remittitur on the claims for property damage. The court denied the first four motions.

As for the fifth, the court denied the motion for JNOV and new trial, but reduced the non-economic damages awards of four plaintiffs to the statutory cap of $665,000. 14 Finally, the court rejected the sixth motion for a new trial or remittitur as to the property damages awarded to 84 of the households. For the four families who had sold their properties since the leak, however, the court granted the remittitur as to the claims of diminution in value, reducing the award to an amount equal to the difference between the pre-leak adjusted value and the actual sales price. 15 The court also denied the plaintiffs’ omnibus motion, which argued that ExxonMobil was estopped from pursuing its post-trial motions because it conceded liability ²² and stated to the jury, during closing argument, that it would pay whatever the jury saw fit to award the plaintiffs. Exxon-Mobil filed a timely appeal to this Court. The facts relevant to damages will be discussed in greater detail below.

QUESTIONS PRESENTED Appellant presents the following five issues for review, which I have reworded for brevity: 16 1. Was there sufficient evidence to uphold the jury’s verdict that all of the appellees’ properties were worthless? 2. Did the court properly admit the appellees’ expert witness’s opinion testimony on diminution of property values? 3. Was there sufficient evidence to support the jury’s emotional distress awards, including damages for fear of cancer? ²³ 4.

Does Maryland law permit damages for medical monitoring and, if so, was the evidence in this case sufficient to support such an award? 5. Is a new damages trial required when a jury awards similar compensatory damages to many plaintiffs with different alleged injuries? 17 In their brief, appellees raise the additional question of whether appellant has waived its right to raise each of the above issues. The in banc panel finds that it has not. As to the remaining questions, with the exception of one of the appellees, I would affirm the judgment of the circuit court.

DISCUSSION I. Waiver The in banc panel must first address appellees’ contention that certain statements made by ExxonMobil’s attorney during opening and closing arguments amounted to a waiver of appellant’s right to appeal the compensatory damages award. Appellees argue that this appeal is precluded by appellant’s strategic decision to seek a quid pro quo arrangement with the jury, premised on appellant’s promise to pay any compensatory damages in exchange for the jury’s decision not to award punitive damages. The following excerpts from appellant’s closing argument are representative: [W]e accept responsibility to pay for whatever damages you find occurred here, that’s not blaming somebody else. That’s saying it’s us....

We’ve taken responsibility. We ²⁴ pay. You find that people were hurt here, you charge us. We pay.

Now, are we blaming people for punitive damages. Of course, not. We spent a lot of time proving to you they couldn’t be guilty of punitive conduct because they didn’t know. [Appellees’ attorney] argues to you that your verdict should send a message____But his message can’t be sent because he did not prove to you what he said he was going to prove to you about fraud----I want you to send a message that when a company makes a mistake and then does what it ought to do, which is take responsibility, apologize and try to make it right, that if a company stands up and does what it is supposed to do to make things right, that it will not be punished if all there is is an accident.... So it is not a reward, it is a withholding of punishment in order to send the message we want you to behave like ExxonMobil behaved in this case____ (Emphasis added).

With respect to the compensatory damages for diminution in property value, appellant’s attorney told the jury: I’m not going to put up a chart where I tried to tell you what are the suggested numbers for each household. My reasoning is this: I do not want you to award even a dollar less than the amount you think it takes to make it right for each plaintiff household that you determine is actually harmed. That’s your call. I want you to make that decision.

Not [appellees’ attorney]. Not somebody[’s] expert. I want you to make that call. Now, obviously, some homes are not impacted and some are, and you know the difference.

Those with nondetects, those that are now nondetect, there’s no impact. Those that have detections ... then it’s a question of how much. ²⁵ Relying on these statements, appellees argue that appellant forfeited its right to appeal by acquiescence. As the Court of Appeals has stated, “the right of appeal may be waived where there is acquiescence in the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right to appeal.” Grandison v. State, 305 Md. 685, 765 , 506 A.2d 580 (1986). Waiver is “the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.” Gould v. Transamerican Assoc., 224 Md. 285, 294 , 167 A.2d 905 (1961).

It may be express or inferred from circumstances. Id. For instance, a party who reaps the benefit of a judgment generally waives the right to appeal that judgment. See Downtown Brewing Co. v. Mayor & City Council of Ocean City, 370 Md. 145, 150 , 803 A.2d 545 (2002).

Appellees’ theory has been alternately called waiver, equitable estoppel, and estoppel by waiver. Regardless of the label, however, the essence of the rule is “that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.” Franzen v. Dubinok, 290 Md. 65, 69 , 427 A.2d 1002 (1981). Because the consequences are severe, this rule is applied narrowly, only to conduct “necessarily inconsistent” with the later appeal. See Downtown Brewing Co., 370 Md. at 149 , 803 A.2d 545 .

Here, appellees urge the Court to find that appellant’s conduct during closing arguments, before the case was turned over to the jury, constituted acquiescence to the later judgment. The circuit court considered and rejected appellees’ waiver argument before deciding the post trial motions. In a written opinion, the court concluded that “by saying ‘we pay,’ Exxon was not empowering the jury to ignore the Court’s instructions on damages.” As for appellees’ argument that there was a quid pro quo bargain with the jury, whereby appellant would pay any compensatory damages in exchange for avoiding a punitive award, the court concluded that “a fair reading of the closing arguments” did not reveal such an arrangement. The in banc panel agrees with the circuit court that appellant did not waive its right to appeal the judgment. ²⁶ This Court addressed a similar contention in Boyd v. Bowen, 145 Md.App. 635 , 806 A.2d 314 (2002).

In that case, the appellee, representing herself pro se before the orphans court, said in her closing argument: “I will abide by whatever Order of the Court.” Id. at 664 , 806 A.2d 314 . After deciding the case on other grounds, this Court observed that there were no cases applying the acquiescence rule to pre-judgment conduct where the party had not expressly consented to the entry of judgment. Id. at 666 , 806 A.2d 314 . 18 This is so because “to take actions that are necessarily inconsistent with challenging a judgment, a party must have knowledge of the nature and effect of the judgment” Id. A party ordinarily does not have knowledge of a judgment before it is entered, and this case is no exception. 19 Appellant told the jury that it would pay whatever compensatory damages the jury felt appropriate based on the evidence presented at trial.

The essence of this appeal is that ExxonMobil believes that the damages awarded did not reflect the actual evidence on the questions of property values and emotional distress. There was certainly no express consent to the actual judgment, and appellant’s conduct during closing argument was not inconsistent with this appeal.

II

Admissibility Of Expert Testimony Appellant first argues that the trial court erroneously admitted the testimony of the appellees’ expert witness, ²⁷ Kenneth Acks, on the question of diminution in property values. Maryland Rule 5-702 sets forth three requirements for admitting expert testimony: (1) the witness must qualify as an expert on the topic about which he or she intends to testify; (2) the subject must be appropriate for expert testimony; and (3) there must be an adequate factual basis supporting the testimony. On appeal, ExxonMobil challenges the admission of Acks’s testimony only under the third prong. Appellant raises two specific objections to Acks’s testimony, alleging: (1) that the methodology underlying his diminution in value estimates was unreliable, and (2) that the estimates were not based on sufficient facts because he “ignored” actual sales.

This Court reviews a trial court’s decision to admit expert testimony for an abuse of discretion. CSX Transp. Inc. v. Miller, 159 Md.App. 123, 183 , 858 A.2d 1025 (2004). 20 As the Court of Appeals has explained, “the admissibility of expert testimony is a matter largely within the discretion of the trial court and its action will seldom constitute a ground for reversal.” Radman v. Harold,, 279 Md. 167, 173 , 367 A.2d 472 (1977). Although Rule 5-702 provides simply that the court must determine “whether a sufficient factual basis exists to support the expert testimony,” this Court has interpreted this factor to encompass two sub-issues: factual basis and method ²⁸ ology.

CSX Transp. Inc., 159 Md.App. at 189 , 858 A.2d 1025 . Appellant has challenged Acks’s testimony on both fronts. A. Factual Basis Rule 5-703(a) sets forth guidelines for evaluating the factual basis of an expert’s testimony: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Acks identified the following facts or data on which his opinion was based: (1) the pre-leak appraised values of the homes; (2) the presence of actual potable well contamination; (3) the risk of future contamination, as determined by another expert; (4) whether people have been able to sell homes within a one mile radius of the Exxon station; and (5) peer-reviewed articles discussing diminution in property value in other contamination events. Appellant contends that Acks’s testimony was inadmissible because he did not give weight to real estate market fluctuations or rely on comparable sales data, a factor widely-accepted as being generally useful to the jury’s determination of fair market value. See Bern-Shaw Ltd. P’ship v. Mayor & City Council, 377 Md. 277, 289 , 833 A.2d 502 (2003) (discussing use of comparable sales in condemnation cases).

Regarding the market fluctuations, it would be troubling if Acks had indeed completely failed to consider the presence or absence of these fluctuations. However, his testimony makes clear that this is not the case. On this topic, he testified that he looked at data from the Maryland Association of Realtors regarding the Baltimore County housing market in 2006, 2007, and 2008. He concluded that the market went up in 2006 and 2007, then dropped in 2008.

Overall, he found that the fluctuations were more or less a wash. Therefore, he did not incorporate market fluctuations into his estimates. Appellant ²⁹ essentially complains that Acks reached a different conclusion than its expert regarding the net market decline since 2006. This is a critique going to the weight, not the admissibility, of Acks’s testimony.

Appellant properly addressed it during cross-examination of Acks and in its direct examination of its own property value expert. Appellant also argues that the factual basis for Acks’s opinion was inadequate because he did not consider comparable sales. Evidence showed that 49 homes had been sold within a mile of the Jacksonville Exxon station between the time of the leak and the trial. 21 Five of those belonged to the plaintiffs. Acks testified that these initial sales were not necessarily indicative of the overall diminution in value, characterizing them as “low-hanging fruit,” picked off by a first wave of the “most interested buyers” who are likely to ignore contamination.

Acks testified that after this initial wave of sales, there would be fewer and fewer buyers willing to consider the properties for a reasonable price. Regarding the other 45 or so homes that had sold, those not belonging to plaintiffs, Acks explained that he could not use comparable sales data for these properties because there was no pre-spill appraisal available and it is impossible to determine the diminution in value based only on the sale price: “A home could sell for a million dollars, and that might sound like a lot, but if it’s really a $3 million home, then there’s a big diminution.” Although comparable sales data is a rehable measure of fair market value, as this Court has often recognized, it is clear that the trial court did not abuse its discretion by admitting Acks’s testimony. He acknowledged the existence of other sales and explained his reasons for not relying on those sales in this case. While comparable sales are certainly the kind of data “reasonably relied upon by experts in the particular field,” there is no support in Maryland case law for the ³⁰ proposition that a reasoned decision not to incorporate such data, due to the particular circumstances of the case, mandates the exclusion of the expert’s testimony.

The trial court did not abuse its discretion in finding that Acks’s opinion was supported by an adequate factual basis. B. Methodology As this Court recognized in CSX Transportation v. Miller, the questions of factual basis and reliable methodology often overlap and blur into each other. 159 Md.App. at 202 , 858 A.2d 1025 . Nevertheless, they present distinct issues. Id.

To meet the threshold requirement of reliable methodology, “an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data.” Id. at 203 , 858 A.2d 1025 . Again, the trial court’s decision on this evidentiary question is reviewed for an abuse of discretion. Where the trial judge has admitted the testimony, the appellant must convince the appellate court that, as a matter of law, the expert’s methodology “was not even arguably reliable and that any judge who could even think otherwise would be guilty, ipso facto, of an abuse of discretion.” Id. at 208 , 858 A.2d 1025 . This part of the Rule 5-702 inquiry focuses on whether there is “an adequate theory or rational explanation of how the factual data led to the expert’s conclusion.” Id.

The explanation cannot be merely “because I say so.” Wood v. Toyota, 134 Md.App. 512, 525 , 760 A.2d 315 (2000) The Wood court explained that the trial judge had not erred in excluding an expert’s opinion on this basis where: [The expert] never explained how the data upon which he relied led him to the conclusion that the size of the vent holes caused appellant’s injuries. No trier of fact could conclude that vent holes in an air bag caused an injury merely because an expert said that they did. [The expert’s] theory provided no rational explanation for why the size or ³¹ location of the vent holes had anything to do with the injuries that appellant sustained. Id. at 523-24 , 760 A.2d 315 . Here, appellant objects to Acks’s use of “a combination of methods” rather than one single, commonly-accepted method of valuing contaminated real property.

Acks testified that the Jacksonville leak presented a unique situation and, based on his experience, it was necessary to combine several methods in order to achieve the most accurate estimate. He explained that it is common for appraisers to use combined methods of valuation and cited a peer-reviewed article which recommended the use of a “variety of techniques” instead of any one method. 22 Acks testified that he derived his method for estimating diminution in value from this study, which concerned PCB contamination, but he had adjusted the diminution values to account for differences between MTBE and benzene contamination. In addition to the PCB contamination study, Acks testified about several other articles that he had considered when formulating his appraisals. For example, he identified one study looking at the effect of an underground storage tank leak on residential properties, a situation similar to that in Jacksonville, by surveying potential buyers. 23 But Acks explained to the jury that those authors had discarded the survey results of potential buyers who said they would never bid on the property or would bid only one percent of the property value, a decision that Acks found “very conservative.” Another article examined the effect of environmental disclosure requirements and suggested, according to Acks, that “a lot of people use data points to come up with relatively ³² low value diminutions which really aren’t very relevant because [potential buyers] don’t know about the contamination or don’t understand it.” 24 Upon review of Acks’s testimony, the in banc panel does not believe that the trial court abused its discretion by finding that the expert’s methodology was sufficiently reliable to be admitted under Rule 5-702.

Although Acks did not identify a peer-reviewed article applying the precise combination of methods he had used in this case, he identified the articles and methods he had considered and explained how he had arrived at his figures. Real estate appraisal is not an exact science in the same way as automobile engineering or DNA comparison. Appellant raises legitimate concerns about Acks’s methods, but these criticisms go to the weight, not the admissibility, of his testimony. See Thomassen Lincoln-Mercury, Inc. v. Goldbaum, 45 Md.App. 297, 305 , 413 A.2d 218 (1980) (finding that “appellant’s complaints about the manner in which [an expert witness] derived and stated his opinion as to value go to the weight to be accorded his testimony rather than to its admissibility.”).

In sum, as to both the factual basis and methodology underlying Acks’s expert testimony, it is clear that this case falls squarely in what Judge Moylan has aptly described as “that 80% bulge of the bell-shaped curve wherein the trial judge, within her discretion, could have gone either way and still been affirmed.” CSX Transp., Inc., 159 Md.App. at 198 , 858 A.2d 1025 .

III

Property Values Appellant next argues that the court erred in denying its motion for a new trial or, in the alternative, a remittitur on the basis of excessive compensatory damages. The plaintiffs, ³³ comprising the owners of eighty-eight properties, sought damages for the diminution in their property values resulting from the leak. The jury ultimately concluded that the properties were all worthless and awarded each homeowner the full pre-leak value of their property. Appellant filed a post-trial motion challenging the award, and the circuit court ordered a remittitur as to four of the households who had sold their homes after the leak: the Bradys, Csicseks, Simmses, and Murrays.

For these families, the court reduced the award from the full pre-leak value to the difference between the full pre-leak value and the actual sales price. The court denied the motion for a new trial or remittitur for owners of the remaining 84 households, whose property had not been sold since the leak. Appellant claims that those homeowners failed to produce sufficient evidence that their properties were worthless, and that the evidence only permits the conclusion that those properties retained substantial value post-leak. A. Standard of Review On appeal, this Court reviews both the denial of a motion for new trial and the refusal to grant a remittitur under an abuse of discretion standard.

See Edsall v. Huffaker, 159 Md.App. 337, 342 , 859 A.2d 274 (2004)(motion for new trial); Hebron Vol. Fire Dept., Inc. v. Whitelock, 166 Md.App. 619, 642 , 890 A.2d 899 (2006)(remittitur). “It is well settled that the trier of fact may believe or disbelieve, accredit or disregard, any evidence introduced,” and this Court “may not decide on appeal how much weight should have been given to each item of evidence.” Edsall, 159 Md.App. at 342 , 859 A.2d 274 (internal quotations omitted). Moreover, “when results cannot be characterized as ‘clearly unjust, we will not find an abuse of discretion whichever way the trial court may choose to exercise discretion.’ ” Id. (quoting Holden v. Blevins, 154 Md.App. 1 , 8 n. 9, 837 A.2d 1053 (2003)).

The breadth of a judge’s discretion, and appellate deference, is greatest when “the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and ³⁴ justice.” Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 58-59 , 612 A.2d 1294 (1992). Any evidence “however slight” is sufficient to carry the case to the jury and the “weight and value of such evidence will be left to the jury.” Cavacos v. Sarwar, 313 Md. 248, 258 , 545 A.2d 46 (1988). In passing upon the question of the legal sufficiency of the evidence to support the verdict, a reviewing court examines the testimony and all proper inferences in a light “most favorable to the plaintiffs case.” Bergeman v. State Roads Comm., 218 Md. 137, 144 , 146 A.2d 48 (1958). The function of an appellate court in reviewing the denial of a motion for judgment NOV is a “narrow one.” Meyers v. Meagher, 277 Md. 128, 132 , 352 A.2d 827 (1976).

The truth of all credible evidence and all inferences fairly deduced therefrom must be assumed in the light most favorable to the plaintiff. Id. Evidence is legally sufficient if there is some evidence, including all inferences, that may be permissibly drawn therefrom, that, if believed and if given maximum weight, could logically establish all the elements necessary to prove the plaintiffs case. CR-RSC Tower I v. RSC Tower I, 202 Md.App. 307, 346-47 , 32 A.3d 456 (2011).

Even inadmissible evidence, if not objected to, can support the sufficiency of the jury’s verdict. The Court of Appeals (quoting from McCormick on Evidence) has said: If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding.

This principle is almost universally accepted, and it applies to any ground of incompetence under the exclusionary rules. Old v. Cooney Detective Agency, 215 Md. 517, 526 , 138 A.2d 889 (1958). See also Schmitt v. State, 140 Md.App. 1, 22-24 , 779 A.2d 1004 (2001). ³⁵ In the context of a trial judge deciding whether to order a remittitur or new trial based on the excessiveness of compensatory damages, this Court has observed that the trial judge’s discretion is “virtually boundless.” John Crane, Inc. v. Puller, 169 Md.App. 1, 52-53 , 899 A.2d 879 (2006). As the Court of Appeals summarized in Banegura v. Taylor, the standard applied by the judge in exercising this discretion “has been variously stated as whether the verdict is ‘grossly excessive,’ or ‘shocks the conscience of the court,’ or is ‘inordinate’ or ‘outrageously excessive,’ or even simply ‘excessive.’ ” 312 Md. 609, 624 , 541 A.2d 969 (1988) (citations omitted).

This Court has often emphasized that “it is not necessary that the trial court’s view of the verdict be the only rational view” in order to be upheld on appeal. Balt. Harbor Charters, Ltd. v. Ayd, 134 Md.App. 188, 201 , 759 A.2d 1091 (2000), vacated in part on other grounds by Balt. Harbor Charters, Ltd. v. Ayd, 365 Md. 366 , 780 A.2d 303 (2001).

It is necessary, however, that the trial judge “ ‘extend the fullest consideration possible’ to the jury’s verdict before determining that ‘it shocked his conscience.’ ” Owens Corning v. Bauman, 125 Md.App. 454, 526 , 726 A.2d 745 (1999) (quoting Conklin v. Schillinger, 255 Md. 50, 69 , 257 A.2d 187 (1969)). B. The Compensatory Damages Award And Supporting Evidence At trial, the parties stipulated to the pre-leak values of the properties and submitted the question of post-leak values to the jury. The jury ultimately concluded that the properties were all worthless and awarded each homeowner the full pre-leak value of their property. 1. Expert Testimony Each party presented expert testimony regarding the property values.

Acks, the plaintiffs’ expert, was an economist with many years of experience appraising contaminated residential and commercial properties. He estimated the diminution in value of each home based on the current contamination or, for the properties whose wells were not yet contaminated, ³⁶ the risk of future contamination. 25 Acks’s estimates followed a specific formula: the value of contaminated properties diminished 60%, while the value of uncontaminated properties diminished 30% if risk of future contamination was low, 45% if risk of future contamination was medium, and 50% if there was a high risk of future contamination. 26 His final appraisal values reflected academic articles about appraising contaminated properties and actual data indicative of the local real estate market. Acks testified that all appraisals assume a willing, fully informed buyer and a willing, fully informed seller. He also discussed the data, including selling price and days on the market, from homes put up for sale within a two mile radius of the Jacksonville gas station.

Regarding the homes that had already been sold, he explained that those sales may not reflect the true market value of the homes: [T]he initial sales in any contamination event are sort of a low hanging fruit. You have the people, the most interested buyers that will be most likely to overlook the contamination ... pick up homes, but then as these low hanging fruit are gone, they have already purchased homes, then the potential market is reduced and potential buyers are a lot lower.[ 27 ) Acks also proposed that the difference between actual sale price and the estimated diminution in value may be explained, at least in part, by a lack of information on behalf of the buyer. In addition to the potential lack of willing buyers, ³⁷ Acks also recognized that several plaintiffs had indicated an unwillingness to sell on moral grounds, believing that they would be passing their problems on to someone else. He said that he did not conclude that any of the homes were worthless.

However, he added: “[I]f the seller is not willing to sell a contaminated property, then one could argue that the value is zero.” On cross-examination, appellant’s counsel questioned the witness about the “life cycle” of contamination-related diminution in property values, with the highest diminution occurring after the spill but before cleanup. This life cycle was acknowledged by Acks, who then clarified that this cycle was incorporated into his estimates, which assumed that proper cleanup and remediation would take place. He stated that “if this was just a single point in time, the estimate would have been much higher.” Overall, Acks described his estimates as “conservative.” 28 Acks was asked by appellees’ counsel: Q. What if any effect would it have on the stigma to the neighborhood if Exxon is unable to get all of the contamination out of the ground? A. That would be very significant.

Q. And why: A. Because, as I stated, I have stated throughout, this report assumes that it will be cleaned in a timely manner. And I actually provided some estimates initially that would be significantly higher if the property were not cleaned sufficiently or in a timely manner. And my initial estimates assume that and my continued estimates assume that cleanup proceeds in an appropriate pace and that there aren’t undiscovered new issues of a—a lot of contamination cases you find things that you think things are clean for awhile and then new ³⁸ problems turn up. So it is not really clean.

So that would definitely have a very significant impact.[ 29 ] Appellant called Ronald Lipman as a property appraisal expert. The scope of Lipman’s testimony was restricted by the trial court’s exclusion of portions of his testimony that were either based on values from property tax assessments or not provided to the plaintiffs until two days before his testimony. 30 Therefore, Lipman generally did not offer his own estimate of the diminution in each plaintiffs property value that could be attributed to the leak. 31 Instead, he testified about trends in the national and local residential real estate market since 2005. According to Lipman, the number of houses sold in the plaintiffs’ zip code had declined from a high of 93 in 2005 to 49 in 2008, while the average number of days on the market almost doubled over the same time period. Looking at the median prices of homes sold in the Jacksonville area, Lipman testified that the home prices have been declining since 2006.

In 2007, the median price of a home sold in Jacksonville fell 10% compared to 2006. The median price declined another 8% in 2008. The stipulated pre-leak appraisal values of the plaintiffs’ homes reflect the home values as of February 16, 2006, the day before the leak was discovered. Lipman conducted “matched pair analysis” 32 of homes sold over this time period and concluded that local real estate ³⁹ market fluctuations, unrelated to the leak, resulted in approximately a 12% decline in Jacksonville home values since February 2006. 33 Lipman testified that none of the Jacksonville homes are worthless.

Limiting his testimony to the plaintiffs’ homes that had been sold since February of 2006, Lipman examined the pre-leak value and selling price of those six homes, adjusted for the general decline in the housing market. He concluded the sold homes had diminished in value by an average of 10% as a result of the leak. Lipman testified that he believed these homes to be comparable to the plaintiffs’ homes which had not been sold. 34 Lipman also told the jury that he did a survey of 75 real estate brokers and agents and asked them whether the spill had affected their sales. Eighty percent of those surveyed said “no” and 20 percent said “yes.” Some brokers and agents blamed the spill for bad sales four or five miles away from the spill, he testified.

However, Lipman said in his opinion the decline in sales was due to a downturn in the market and that “those brokers were becoming somewhat defensive about why they couldn’t sell the house and they were latching onto the notion that the spill had affected them.” 2. Evidence Of Other Lawsuit During Acks’s testimony, appellees’ attorney asked him if he was aware that one family who had purchased a Jacksonville home after the leak had since filed a lawsuit against the realtor, alleging that the contamination was not disclosed to them. The court permitted this line of questioning over appellant’s objection that it was not relevant and unfairly prejudicial. In their brief, appellants allege that the court erred in permitting the jury to hear about this other lawsuit. ⁴⁰ This is incorrect.

Appellants presented evidence that a number of homes in the Jacksonville area had sold since the leak, including properties at issue in the lawsuit. The court permitted the testimony on the condition that appellees’ attorney make it clear to the witness that the suit was still pending and the allegations had not been resolved. Acks used the lawsuit to support two points: (1) that the actual sales were not necessarily useful indicators of fair market value because the buyers may not have been fully informed, and (2) that “even the mere fact that they’re being sued does have an influence on property value” because lawsuits are expensive and stressful, even if frivolous and ultimately dismissed. The court did not abuse its discretion by admitting this testimony for these relevant purposes, after making it clear to the jury that the allegations had not been proven. 3.

Plaintiffs’ Lay Testimony In addition to the expert testimony, many plaintiffs without objection testified as to their own opinion of their property’s value after the leak or of the marketability of other property in “the neighborhood.” Jurors heard testimony from the owners of 73 of the 88 homes in dispute. The property owners’ testimony on this point can be roughly divided into three categories: (1) those who testified that their property had diminished in value by some unspecified percentage; (2) those whose testified that they believed their properties to be worthless or were unwilling to sell for moral reasons; and (3) those who did not express any opinion on the value of their home. 35 At least five of the property owners were real estate agents or brokers. 36 ⁴¹ Thirty-nine homes fell within the first group, with owners testifying that they believed their homes had diminished in value by some unspecified amount, but not going so far as to suggest that the homes had no value. 37 The testimony of Mr. Faber seems to reflect the attitude of much of this group. He optimistically stated that the value of his home had “gone down just a huge amount,” but not to zero, as “someone would buy my house for $10.” Ms. Colgan testified that living in her house, without the use of her well water, was “like camping and better than a tent.” These plaintiffs described their property value using terms like “greatly diminished” or “severely impacted.” They also testified that they believed it would take a long time for their homes to sell. Some plaintiffs, like the Gregorys, had unsuccessfully tried to sell their homes, 38 while others reported that their neighbors could not sell their properties after the leak. 39 Nearly all of the plain ⁴² tiffs testified that their neighborhood had a “stigma” from the news coverage of the leak.

Mr. McLewee stated that he believed “98% of [potential buyers] wouldn’t even consider” his property. 40 Several plaintiffs expressed a desire to sell, but felt that they could not do so because they would not be able to get enough to pay off their mortgage. The second group of homeowners expressed, either explicitly or implicitly, that they believed their homes retained absolutely no market value. It would appear that at least 26 properties fell in this category. 41 Many of these homeowners specifically stated that their homes were “worthless,” “had no value,” or worth “absolutely negative, zero.” Mr. Barone testified that his house was on the market for a year and did not sell; therefore at that time he was “starting to think that [he] can’t even give the house away.” Many of these plaintiffs testified that they wouldn’t buy their own homes and couldn’t imagine why anyone else would. In the words of Ms. Cremen, if she were looking to buy a $700,000 house and “found out there was a potential of carcinogenics being in my water, I would probably just say no, thank you, I have got other options.” She went on to say that she “could not imagine anybody buying it for whatever the amount of money,” a sentiment echoed by the other homeowners in this group.

Although acknowledging that some of the leak-affected homes had sold, Mr. Jenkins observed “there [are] a limited number ⁴³ of fools out there that will pay money for a property that is completely surrounded by ... positive test results for gas.” A number of these homeowners also expressed an unwillingness to sell their homes for moral or ethical reasons. Mr. Facinoli testified that even if he and his wife could sell their home, they did not want “to put this problem, this burden on someone else.” Ms. DeBolt similarly expressed her family’s unwillingness to sell because they “can’t put anyone else in this situation.” Ms. DeDeo testified that she was “morally uncomfortable” with selling the house to a family with children. Mr. Blair elaborated: “I am not comfortable in my home right now. I could not in good conscience sell my home to a willing buyer who thinks they’re getting a great deal on a beautiful home and have them live with the same stress, the same worry that we live with right now.” Mr. Ford, a real estate agent, explained that he would not let a client buy a house like his: “As soon as ... [the seller] disclosed the well was contaminated, I would tell my buyers to walk away ...

I wouldn’t even entertain writing a contract.” Mr. Lamos echoed that “any reasonable person would be very concerned about whether or not they should be moving into that house.” The eight remaining homeowners who testified either did not say anything about the value of their home or made statements that, while relevant, do not fit into either of the above two categories. 42 Ms. Shimp, for example, testified that she and her husband entered into a contract to build their home in October 2005. When they learned of the leak in February of 2006, the Shimps tried to get out of the construction contract, but it was too late as work had already begun. Ms. Shimp testified that she believed they would have difficulty selling the house. Ms. Elkinton reported that after a neighbor’s unsuccessful attempt to sell their house, she feared that she would end up in the same situation.

The Csicseks ⁴⁴ sold their home after the leak. Ms. Csiesek testified that she “did not expect any offers” when they put the house on the market, and they were “stunned” when it sold. Without objection, some of the homeowners testified in more global terms about the valuelessness or unmarketability of their neighbor’s homes or homes “in Jacksonville” or in “the neighborhood” or “in the area.” Others questioned the marketability of homes “close to the strike zone,” those located “six-tenths of a mile from a remediation site,” or those “completely surrounded by ... positive test results for gas.” A number of witnesses emphasized “the neighborhood stigma.” One homeowner stated that there was “an absolute stigma in the area about real estate in the area.” Another testified that there was a stigma attached to his neighborhood, and that people make negative comments to him about the neighborhood at least once a week. One homeowner/real estate agent stated her belief that there was a negative stigma associated with the Jacksonville area. 43 Most of the homeowners, from these groups, testified that their home value declined for three reasons: (1) safety and convenience concerns related to the actual contamination and risk of future contamination; (2) the stigma associated with the neighborhood due to the contamination; and (3) the inconvenient and unsightly remediation efforts.

Regarding the remediation, homeowners described constant and loud noise, bright lights, and yards ruined from the digging and heavy equipment. For example, Mr. Libertini, whose property has been the site of extensive remediation, testified that the noise was so loud that his children had trouble sleeping at night and that they are unable to open their windows. He also stated that the children could not play in the yard anymore because of the dangerous equipment. Many plaintiffs reported that they could see and hear heavy equipment from their homes at ⁴⁵ all hours of the day and night.

Ms. Heggie, whose property contains several ponds, testified that the remediation work caused the water in her ponds to dry up. C. Excessiveness/Sufficiency of the Evidence As noted above, once this Court is satisfied that a trial judge fully and fairly considered a party’s motion for a new trial or remittitur on the grounds of excessive compensatory damages, it will reverse a denial only in an extraordinary case where the verdict is “ ‘grossly excessive’ or ‘shocks the conscience of the court.’ ” See Banegura v. Taylor, 312 Md. 609, 624 , 541 A.2d 969 (1988). In addition, once this Court finds some evidence, however slight, to support the jury verdict, its task has ended. Here, it is clear that the circuit court thoroughly examined appellant’s contention that the property damage verdict was excessive.

The court granted the request for remittitur as to the four properties sold since the leak. As for the rest, the trial judge noted that the jury clearly discounted both experts’ opinions that the properties retained some value and gave significant weight to the belief of some homeowner’s that nobody would buy their homes. In his written opinion, the circuit judge concluded: This writer is very tempted to substitute my view of the evidence for that of the jury and grant post trial relief. I will decline that strong temptation by keeping in mind that the jury’s view of the admitted evidence should be respected unless the verdict is against the weight of the evidence, shocks the conscience, is grossly excessive, or is excessive.

It is not, but is a millimeter shy of those standards. Without gauging the precision of the court’s measurement, I agree with the trial judge’s assessment of the jury verdict. Even if I did not, however, I see no reason to substitute this Court’s judgment for that of the judge who personally viewed all of evidence presented in a five month trial. The decision to deny a new trial was well within the broad discretion Maryland law affords trial judges in this situation.

See John Crane, Inc. v. Puller, 169 Md.App. 1, 52-53 , 899 A.2d 879 ⁴⁶ (2006) (observing that the trial judge’s discretion in this area is “virtually boundless”). As noted above, owners of twenty-six properties offered some testimony that they believed their homes to be worthless and unmarketable. 44 For at least another thirty-nine properties, the owners testified that they believed then-homes had significantly decreased in value and would be difficult to sell. Some of these homeowners made comments like “someone would buy my home for $10” or the home is “better than a tent.” Eight more homeowners testified in a manner that could not be classified as above, expressing general fears about trying to sell their homes without fully addressing whether the home retained value. An additional fifteen homeowners did not testify at all. 45 Valuation of real property is one of the few areas of the law where lay opinion testimony is admissible. “Unlike an expert witness, the owner of the property is presumptively competent to express his opinion of its value.

This presumption is based upon the owner’s familiarity with the land, that ‘merely by virtue of his ownership ... he may be presumed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use, [so as] to have a reasonably good idea of what it is worth.’ ” Brannon v. State Roads Commission, 305 Md. 793, 801-2 , 506 A.2d 634 (1986) (a takings case) (quoting Baltimore City v. Schreiber, 243 Md. 546, 553 , 221 A.2d 663 (1966)). In Bran- ⁴⁷ non, 305 Md. at 802 , 506 A.2d 634 , the Court of Appeals quoted the following passage from the U.S. Court of Appeals for the District of Columbia on the subject of owner testimony: The owner does not testify as just another expert, but from his unique position as the individual who stands to gain or lose the most from the tribunal’s determination of the value of his property. The owner is draped with no cloak of expertise; the jury is free to evaluate his testimony, even to discard it altogether, in weighing the evidence. District of Columbia Redevelopment Land Agency v. Thirteen Parcels of Land et al., 534 F.2d 337, 340 (D.C.Cir.1976).

Appellant’s brief emphasizes that a property owner’s lay opinion testimony is only admissible to establish the value of his own property, with which he is presumptively familiar. Absent an objection, a property owner cannot testify about the value of a neighboring property without qualifying as an expert witness. Under Maryland law, the converse is true. Unobjected to, inadmissible and incompetent testimony can support the legal sufficiency of the jury’s verdict.

Old, supra, 215 Md. at 526 , 138 A.2d 889 . There was probative testimony here by some appellees about the valuelessness or unmarketa-bility of neighborhood properties. Whether such testimony should have been admitted is not an issue here. It came in, and the jury was entitled to rely upon such statements, even as to those properties whose homeowners did not testify about the diminution of value of their property.

On the basis of this and other evidence, the jury could have found that as a result of the spill, a home in Jacksonville would be “an unmarketable pariah for years to come.” SCA Services of Indiana, Inc. v. Thomas, 634 F.Supp. 1355, 1364 (N.D.Ind.1986). The plume was a moving target, even endangering homes with a low detect. See pp. 18-20, 40 A.3d at 524-25, supra. It would not have been irrational for the jury to conclude that the location of a low-detect or non-detect property near a contaminated one or near a site in remediation would result in the same stigma.

The jurors could have simply found that if 26 properties scattered throughout the area were worthless, so too ⁴⁸ would neighboring properties. Lay testimony aside, there was other evidence to support the jury’s finding of worthlessness. Plaintiffs’ expert, Acks, emphasized that his diminution estimates assumed a willing, fully informed buyer and seller. He testified that “theoretically if you have a seller that’s just unwilling to sell this property, the value could be zero rather than what I had estimated, but I don’t know of any real discussion in the literature about such a situation.” Even Exxon’s property value expert told the jury that 20 percent of brokers and agents he had surveyed blamed the spill for bad sales, even four or five miles away from the location of the leak.

While the expert did not believe the 20 percent, the jury could have. Further, the jury heard that the buyers in one of the comparable sales relied on by appellant had since sued the realtor for fraud, although the allegations were not yet proven. It was possible for the jury to have concluded that no fully informed buyer would buy any of the plaintiffs’ properties at any price. In sum, although the jury’s finding of worthlessness may appear unusual, I agree with the trial court that it falls short of shocking the conscience or of utterly lacking in sufficiency.

Appellant also contends that a group of 13 property owners who had no current contamination and a low risk of future contamination, according to the plaintiffs’ expert, were not entitled to any recovery for diminution in property value. 46 In support of this argument, appellant relies on Exxon Corp. v. Yarema, 69 Md.App. 124 , 516 A.2d 990 (1986), for the proposition that, in the absence of physical impact, property damages may only be recovered where the plaintiff suffers “substantial, albeit intangible, interference with the reasonable use and enjoyment of their properties in the form of govern ⁴⁹ mental restrictions on the use of water and the sale of those properties.” 47 In Yarema , however, this Court held that physical impact is not an essential element of the tort of nuisance. Id. at 151 , 516 A.2d 990 . “The tort of nuisance should be viewed as a disturbance of some right or interest in land which may or may not involve physical invasion of the plaintiffs property.” Id. Relying on two out-of-state cases, this Court emphasized that the plaintiffs must still prove harm to their property, not mere diminution in value, but “harm to property should be construed broadly to include intangible tortious interferences of plaintiffs’ use and enjoyment of their properties.” Id. at 151-52 , 516 A.2d 990 (citing McCaw v. Harrison, 259 S.W.2d 457, 458 (Ky.1953) 48 ; Gray v. Southern Facilities, 256 ⁵⁰ S.C. 558 , 188 S.E.2d 438 , 443 (1971)). The plaintiffs in this group all had wells drawing from the contaminated aquifer, with some risk of future contamination depending on how the plume moved, and they suffered the same stigma and remediation-related intrusions as the other plaintiffs.

Yarema does not preclude recovery in the absence of either current well contamination or government restrictions on the land. 49 Thus, the circuit court did not err or abuse its discretion in denying appellant’s post-trial motions with respect to the property damage awards. 50 IY. Emotional Distress And Fear Of Cancer Appellant also challenges the trial court’s denial of its motion for JNOV or a new trial on the issue of non-economic damages. The jury awarded the plaintiffs over $70 million total in compensation for non-economic damages, including emotional distress and fear of cancer. According to appellant, the emotional distress award must be set aside because: (1) ⁵¹ the plaintiffs did not prove any physical manifestation of their mental distress; (2) only eleven plaintiffs provided evidence satisfying the standards set by Hunt v. Mercy Medical Center, 121 Md.App. 516 , 710 A.2d 362 (1998), for the award of emotional distress damages; and (3) the plaintiffs could not recover for fear of cancer because they failed to prove that there is a reasonable probability that they will develop cancer due to the leak.

The verdict sheet did not require the jury to itemize the different types of non-economic damages awarded, so it is impossible to tell which aspects of emotional distress the award is based on. 51 Thus, the question before the Court is whether the evidence in this case, viewed in the light most favorable to appellees, was sufficient to support the jury’s non-economic damages verdict under any of the theories of recovery on which the jury was instructed. A. Introduction The jury in this case was instructed: “Because ExxonMobil has accepted responsibility for injuries and dangers actually caused by this spill, you need not take the time in your deliberations to determine if ExxonMobil is responsible under the four legal claims [strict liability, private nuisance, trespass and negligence].” Although Exxon contested causation and damages, it did not otherwise question the elements of these torts. 52 B. Fear of Cancer Appellant argues that the jury was erroneously instructed on the standard of recovery for fear of cancer. On appeal, this Court will not disturb the ruling below as long as the jury ⁵² instructions fairly cover the applicable law. Univ. of Md. Med.

Sys. Corp. v. Malory, 143 Md.App. 327, 337 , 795 A.2d 107 (2001). Appellant has the burden of showing both prejudice and error. Id.

Under the circumstances of this case, where the fear of cancer damages cannot be separated from the emotional distress damages, a finding of error in the fear of cancer instruction would merit reversal of all of the non-economic damages verdicts. See id.; Oaks v. Connors, 339 Md. 24, 36 , 660 A.2d 423 (1995). Neither this Court nor the Court of Appeals has directly addressed whether Maryland law allows a plaintiff to recover for fear of cancer after tortious exposure to a carcinogen. However, the Court of Appeals’s opinion in Faya v. Almaraz, 329 Md. 435 , 620 A.2d 327 (1993), suggests that such recovery would be permissible.

In Faya , the plaintiffs sued their surgeon for negligently failing to inform them that he was HIV positive prior to the operation. Id. at 450 , 620 A.2d 327 . They claimed that the surgeon’s negligence put them in fear of contracting HIV, causing severe emotional distress. Id. at 451 , 620 A.2d 327 .

The Court of Appeals held that the plaintiffs could recover for mental anguish caused by a reasonable fear of contracting HIV. Id. at 455 , 620 A.2d 327 . It was not necessary that the plaintiffs prove actual transmission, only that the defendant’s conduct had created circumstances such that the plaintiffs fear of contracting the disease was reasonable. Id.

The Court noted that requiring plaintiffs to prove actual transmission “would unfairly punish them for lacking the requisite information to do so.” Id. The Faya plaintiffs tested negative for HIV approximately one year after the surgery, and the evidence showed that there was a 95% certainty that a person who has contracted the virus would test positive, if at all, within six months after exposure. Id. The Court also noted that this 95% figure may be conservative, citing a Centers for Disease Control statement advising that patients be tested 6 months after last exposure in order to “be sure” that they have not contracted the disease.

Id. at 456 n. 9, 620 A.2d 327 . Under these circumstances, the Court held that it would be unreasonable as a matter of law for the ⁵³ plaintiffs to continue to fear contracting HIV after the negative test. Id. at 455 , 620 A.2d 327 . Therefore, they could only recover for the mental anguish suffered from the time they learned of the surgeon’s HIV-positive status until their subsequent negative blood test.

Id. at 456 , 620 A.2d 327 . The Faya Court repeatedly cited to fear of cancer cases from other jurisdictions as analogous to the fear of HIV/AIDS context. Id. at 452 n. 7, 8, 620 A.2d 327 . Although there are clear factual differences between this case and Faya, it is apparent that the principles espoused by the Faya Court fairly apply to all cases involving fear of future disease. 53 This conclusion is further supported by Buck v. Brady, 110 Md. 568 , 73 A. 277 (1909), where the Court of Appeals held that a plaintiff who had been bitten by a rabid dog was properly permitted to testify about her continuing fear of developing rabies, although she did not currently have the disease and had undergone immediate treatment to prevent her from contracting it in the future.

Id. at 572-73 , 73 A. 277 (citing Godeau v. Blood, 52 Vt. 251, 254 (1880) (“[T]he apprehension of poison from the bite of the dog, and the fear and solicitude as to evil results therefrom—all pain, anguish, solicitude, occasioned by the bite—were proper matters for consideration by the jury in estimating damages.”)). Having decided that Maryland law permits recovery for emotional distress related to a reasonable fear of cancer, I turn to a tougher question: when is a plaintiff’s fear of cancer objectively reasonable? Faya did not address this issue directly, except to say that when there is a 95% certainty, at least, that the plaintiff had not contracted HIV, it is unreasonable for the plaintiff to continue to fear the disease. 329 Md. at 455 , 620 A.2d 327 . HIV differs in many important ways ⁵⁴ from chemical carcinogens, particularly in that there is no dispute that HTV more likely than not causes AIDS.

Moreover, HIV positive status is itself an injury. Therefore, Faya did not have occasion to directly address this issue and I am aware of no other Maryland case that has done so. Courts around the country have considered this and similar issues with divergent results. See Annot.: Future Disease or Condition, or Anxiety Relating Thereto, as Element of Recovery, 50 A.L.R.4th 13 (1986).

The variety of the state laws on the issue only compounds the confusion. For instance, some jurisdictions distinguish between physical damages for increased risk of developing cancer and emotional distress damages for fear of cancer, see Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir.1988)(applying Tennessee law), while others permit no recovery at all, Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 93 (Texas 1999).

Several courts have stressed that the fear must be genuine, see, e.g., Ferrara et al. v. Galluchio et al., 5 N.Y.2d 16, 21 , 176 N.Y.S.2d 996 , 152 N.E.2d 249 (1958), and a foreseeable result of the tortious conduct, see, e.g., Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 867 (Mo.App.1985). Most jurisdictions require proof of actual exposure. See Reynolds v. Highland Manor, 24 Kan.App.2d 859, 866 , 954 P.2d 11 (1998) (surveying different states’ exposure requirements in the context of fear of HIV claims). Appellant argues that the plaintiffs’ fear is unreasonable as a matter of law unless they can prove that it is more likely than not that MTBE exposure will cause cancer.

Some jurisdictions have followed this more-likely-than-not standard. See, e.g., Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 , 25 Cal.Rptr.2d 550 , 863 P.2d 795, 816 (1993). However, Maryland courts have not addressed it, although Faya suggests that there is some point where the likelihood of contracting future disease is so slim that the fear is objectively unreasonable. Appellant places significant weight on Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), a Fourth Circuit case interpreting Maryland law prior to Faya .

In Lohrmann , a steelworker sued his employer for ⁵⁵ negligently exposing him to asbestos continuously over the course of his 39 year employment, ultimately causing him to develop asbestosis. Id. at 1158 . At trial, it was disputed whether the plaintiff actually had asbestosis or, in fact, had other chronic lung conditions attributable to a decades-long cigarette habit. Id.

The trial court granted summary judgment to the defendants, and plaintiff appealed, challenging, inter alia, the trial judge’s limitations on the mention of the risk of cancer due to asbestos exposure. Id. at 1160 . 54 The Fourth Circuit upheld the district court’s exclusion of the cancer testimony because it was unfairly prejudicial on the issue of liability. Id. The Court concluded that “Maryland law is clear that such evidence is not admissible to prove damages where there is less than a reasonable probability that the cancer will develop.” Id.

For Maryland law, the Court relied on the following passage from Pierce v. Johns-Manville Sales Corp.: In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are ‘mere possibilities.’ Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the evidence is anything less. 296 Md. 656, 666 , 464 A.2d 1020 (1983) (citing Davidson v. Miller, 276 Md. 54, 62 , 344 A.2d 422, 427-28 (1975)). Pierce considered when the statute of limitations began to toll on the negligence claim of a plaintiff who was exposed to asbestos in his line of work and diagnosed with asbestosis in 1973 and lung cancer in 1979. 296 Md. at 658 , 464 A.2d 1020 .

Following the patient’s death in 1980, his widow filed survival and wrongful death actions against the asbestos manufacturer. ⁵⁶ Id. at 661 , 464 A.2d 1020 . Applying the discovery rule, the Court held that because lung cancer and asbestosis were distinct and latent diseases, the plaintiffs claim for lung cancer did not accrue until he discovered, or reasonably should have discovered, the presence of the cancer. Id. at 667 , 464 A.2d 1020 . To hold otherwise, that the cause of action for the cancer accrued when he was diagnosed with asbestosis, would effectively nullify the plaintiffs right to recover for his lung cancer, because he could not have proved that it was more likely than not that he would develop lung cancer in the future.

Id. I have examined Pierce and Lohrmann in detail in order to illustrate why the more-likely-than-not standard was ignored by the Court in Faya and is equally inapplicable here: the plaintiffs’ alleged fear of cancer is a present harm, not a future one. Fear of cancer is a particularized type of emotional distress, not an attempt to circumvent the limitations on recovering for disease that may or may not develop in the future. Thus, while the fear must be reasonable, I do not think reasonableness requires the plaintiff to show that it is more likely than not that he or she will develop cancer.

In other words, I would be unwilling to say that a plaintiffs emotional distress related to fear of cancer is unreasonable as a matter of law if the defendant’s tortious conduct has left them with only a 40% likelihood of developing cancer. A Federal District Court for the Northern District of Illinois rejected a similar argument that the feared disease must be “reasonably certain” to occur, observing that “such a stringent requirement would distort traditional notions of proximate cause. That concept’s touchstone—reasonable foreseeability of the claimed injury (in this case emotional distress)—merely demands a reasonable fear, not a high degree of likelihood, that the feared contingency be likely to occur.” Wetherill v. Univ. of Chicago, 565 F.Supp. 1553, 1559 (N.D.Ill.1983). 55 ⁵⁷ It is important to note that recovery for fear of cancer still requires the plaintiff to provide some objective evidence of his or her emotional distress; it is not enough to merely claim that the plaintiff is afraid of developing cancer, even if that fear is reasonable. See Vance v. Vance, 286 Md. 490, 501 , 408 A.2d 728 (1979).

It is enough that the fear be based on a substantial and medically verifiable possibility of contracting the disease. See Doe v. Northwestern University, 289 Ill. App.3d 39, 47 , 224 Ill.Dec. 584 , 682 N.E.2d 145 (1997) (plaintiffs must prove “that they knew facts that showed a substantial, medically verifiable possibility of contracting the feared disease”); Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308 , 836 P.2d 1102 (1992) (it is not necessary to show medical certainty or probability of developing disease; it is enough that there is a substantial, as opposed to slight, possibility); Leaf River Forest Prods. v. Ferguson, 662 So.2d 648, 658 (Miss.1995) (recovery for emotional distress based on fear of future illness requires “substantial proof of exposure and medical evidence that would indicate possible future illness”). Employing this standard, I turn to the jury instructions in this case.

Regarding fear of cancer, the jury was instructed: A plaintiff may also recover non-economic damages for fear of contracting a particular disease such as cancer. To recover for such fear, however, the Plaintiff must demonstrate that the fear genuinely exists and that his or her fear of contracting the disease in question is objectively reasonable. There can be no compensation for fear or anxiety that is objectively unreasonable. To be objectively reasonable, it is not enough that a [Plaintiffs] fear be genuine and sincere.

There must be reliable medical or scientific evidence that it is more likely than not that the substance can cause cancer. ⁵⁸ I think these instructions fairly cover the applicable law, and the appellant has not met its burden of proving prejudicial error. See Univ. of Md. Med. Sys. Corp. v. Malory, 143 Md.App. at 337 , 795 A.2d 107 .

C. Sufficiency of the Evidence Supporting Non-Economic Damages Appellant alleges that the trial court erred in denying its motion for JNOV or a new trial on the issue of non-economic damages. A party is entitled to judgment notwithstanding the verdict when the evidence presented at trial, even taken in the light most favorable to the nonmoving party, fails to support the verdict. See Bartholomee v. Casey, 103 Md.App. 34, 51 , 651 A.2d 908 (1994). On appeal, a reviewing court must “assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the decision of the trial court.” Id.

Review is highly deferential: “if the record discloses any legally relevant and competent evidence, however slight, from which the jury rationally could have found as it did, we must affirm the denial of [the motion for JNOV.]” Id. On the other hand, an appellate court must find that the trial court erred in denying the motion where “the evidence as a whole does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty.” Id. As discussed above, the court’s denial of appellant’s motion for a new trial is also reviewed for an abuse of discretion. See Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 58 , 612 A.2d 1294 (1992).

Appellant argues that the jury did not have objective evidence to rely upon in calculating compensation of the plaintiffs’ mental distress, which should have been unique to each individual plaintiff. According to appellant, the lack of objective evidence resulted in formulaic awards. 56 Appellees argue ⁵⁹ that the non-economic damages award is supported by adequate evidence of: (1) emotional distress due to the leak, (2) related “discomfort, annoyance, and inconvenience,” and (3) the additional distress specifically attributable to the plaintiffs’ fear of cancer. 57 Maryland long ago abandoned the physical impact requirement for recovery of emotional distress damages. Instead, the Court of Appeals adopted a more modern rule permitting recovery “if a physical injury resulted from the commission of the tort, regardless of impact.” Hoffman v. Stamper, 385 Md. 1, 34 , 867 A.2d 276 (2005). In the classic case of Bowman v. Williams, the Court held that this physical injury can be proved by: (1) an external condition, (2) symptoms of a resulting pathological, (3) physiological, or (4) mental state. 164 Md. 397, 404 , 165 A. 182 (1933).

The purpose of these four methods of proving physical injury is to “requir[e] objective evidence to guard against feigned claims.” Vance v. Vance, 286 Md. 490, 500 , 408 A.2d 728 (1979). Thus, the physical injury requirement does not rely on the dictionary definition of the term “physical.” Id. Instead, it contemplates only that the injury be “capable of objective determination.” Id. The task here is therefore to determine whether the plaintiffs offered sufficient evidence of emotional distress so that the injury was capable of objective determination.

See Hunt ⁶⁰ v. Mercy Med. Ctr., 121 Md.App. 516, 531 , 710 A.2d 362 (1998). In Hunt , this Court summarized three general principles from the case law: First, in order for an injury to be capable of objective determination, 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 .... It need not be an absolute bar to recovery, however.... 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 and not on the nature of the act causing the injury, the foreseeability of mental anguish therefrom, nor on the likely severity of such foreseeable anguish. 121 Md.App. at 531 , 710 A.2d 362 (emphasis added). In Vance , for example, a plaintiff was permitted to recover based on evidence that she was depressed, unable to sleep, embarrassed to socialize and prone to spontaneous crying, and that she had developed symptoms of an ulcer as well as a tired appearance with “unkempt hair, sunken cheeks, and dark eyes.” 286 Md. at 493 , 408 A.2d 728 . Other cases have found compensable emotional distress where there was objective evidence of nausea, insomnia, and diarrhea.

See New Summit Assoc. v. Nistle, 73 Md.App. 351, 362 , 533 A.2d 1350 (1987). Similarly, the Faya Court held that the plaintiffs could recover damages for their “fear and mental and emotional distress [which] are accompanied by headache, sleeplessness, and the physical and financial sting of blood tests for the AIDS virus” ⁶¹ to the extent that they “can objectively demonstrate [the] existence” of these injuries. 329 Md. at 459 , 620 A.2d 327 . In contrast, this Court held in Roebuck v. Steuart that there was no compensable mental anguish where the plaintiffs sole evidence was her testimony that she went to see a psychiatrist six times. 76 Md.App. 298, 315 , 544 A.2d 808 (1988). The psychiatrist never testified and there was no evidence of specific symptoms or treatment.

Id. Turning to this case, I find that the plaintiffs presented sufficient evidence to rationally support the non-economic damages awarded by the jury. A total of 180 individual plaintiffs, including 143 adults and 37 children, received awards for non-economic damages. 58 Appellant concedes that 11 of those plaintiffs provided sufficient evidence of compensa-ble emotional distress. As for the remaining 167 plaintiffs, there was sufficient testimony from the plaintiffs themselves and/or an expert psychiatrist who had examined them all that they both (1) feared for their health and that of their families and suffered emotional distress due to the fear, and (2) suffered other symptoms of emotional distress, such as insomnia and irritability, related to their inability to use their water, fear of financial ruin, embarrassment, and a sense of invasion of the safety and sanctuary of their homes.

In addition, the jury heard expert testimony that could support a finding that MTBE probably causes cancer, and benzene is a known carcinogen. 59 ⁶² Finally, it is important to note that the jury did not itemize damages for fear of cancer. The jury award could have been premised on other elements of non-economic damages, such as the physical manifestations accompanying emotional distress, including sleeplessness, anxiety, etc. I have examined the trial testimony, taken from months of trial and over 20 volumes of transcripts, and am satisfied that there was sufficient evidence presented as to all of the plaintiffs to permit the non-economic damages award. Explaining his decision to deny a new trial, the circuit court judge stated: The fear generated by the prospect of cancer caused by the Defendantfs] admitted liability is potentially devastating where the stability, security and health of adult and children family members are at stake. [S]erious non-economic consequences that threaten the stability, security, and health of the family [are] a world apart from the usual non-economic consequences that may result from a fender-bender auto accident or a slip and fall in a grocery store. While we were not privy to the deliberations, it is likely that the jury understood the difference.

In my view, the judge’s decision to deny the motions for judgment notwithstanding the verdict or a new trial did not amount to an abuse of discretion. V. Medical Monitoring Appellant also seeks reversal of the trial judge’s denial of its motion for JNOV regarding damages for medical monitoring. Maryland appellate courts have not yet recognized a plaintiffs right to recover for damages for medical monitoring. The question was raised, but not answered, by the Court of Appeals in Philip Morris v. Angeletti, 358 Md. 689, 780 , 752 A.2d 200 (2000).

The Court declined to decide the issue, but observed the following regarding the history and purpose of permitting such recovery: This Court has never considered whether a demonstrated need for medical monitoring creates a valid cause of action ⁶³ in Maryland or generates a permissible form of relief under this State’s more traditional tort actions, although several courts around the country more than a decade and a half ago began to consider this type of claim and permitted it to proceed. See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 241 U.S.App.D.C. 83 , 746 F.2d 816 (D.C.Cir.1984); Askey v. Occidental Chemical Corp., 102 A.D.2d 130 , 477 N.Y.S.2d 242 (N.Y.App.Div.1984); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn.1982). Over the intervening years, several state appellate courts have followed suit in recognizing medical monitoring as a legitimate cause of action or form of relief under their respective tort law. See, e.g., Burns v. Jaguays Mining Corp., 156 Ariz. 375 , 752 P.2d 28 (Ariz.Ct.App.1987); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 [ 25 Cal.

Rptr.2d 550 ], 863 P.2d 795 (Cal.1993); Ayers v. Township of Jackson, 106 N.J. 557 , 525 A.2d 287 (N.J.1987); Hansen, 858 P.2d 970 (Utah 1993). Nonetheless, the embrace of medical monitoring as a viable claim has not been universal. See, e.g., Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-440 , 117 S.Ct. 2113, 2121-22 , 138 L.Ed.2d 560 (1997) (rejecting particular plaintiffs medical monitoring claim because of lack of compensable injury under Federal Employers’ Liability Act and because intermediate court’s envisioned potential award of medical monitoring to asymptomatic plaintiff in form of lump sum damages went beyond bounds of “evolving common law” as it now stands); Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir.1991) (ruling that medical monitoring is not cognizable claim under tort law of Virginia or West Virginia absent manifestation of physical injury). 358 Md. at 779-780 , 752 A.2d 200 . The Court added: Medical monitoring has been defined as ‘one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances.’ [In re Paoli R. Yard PCB Litigation, 916 F.2d 829, 849 (3rd Cir.1990) (Paoli I).] ⁶⁴ See also Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R.5th 327, § 3 (stating that courts have ‘defined a medical monitoring claim as a claim for the costs of periodic medical examinations to detect latent diseases or disorders caused by a defendant’s culpable conduct, the object of which is to facilitate early diagnosis and treatment of diseases or disorders’).

In a claim for medical monitoring, the plaintiff seeks to 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, or as in the instant case, tobacco. See Ayers, 525 A.2d at 308 ; see also Paoli I, 916 F.2d at 849 and 850. The theory underlying the recognition of this claim is that the diseases or injuries caused by various toxic substances are often latent, leading to ‘problems when the claims are analyzed under traditional common law tort doctrine because, traditionally, injury needed to be manifest before it could be compensable.’ Id. at 850 . Thus, some courts have recognized medical monitoring claims that permit relief even in the absence of present manifestations of physical injury.

See id. The injury in a medical monitoring case not being a physical one, it is instead construed as “the ‘costs of periodic medical examinations necessary to detect the onset of physical harm.’ ” Barnes v. American Tobacco Co., 161 F.3d 127, 139 (3rd Cir.1998) (quoting Redland Soccer Club v. Department of the Army, 548 Pa. 178 , 696 A.2d 137, 144 (Pa.1997)); see also Hansen, 858 P.2d at 977 . Id. at 780-81 , 752 A.2d 200 . The Supreme Court considered medical monitoring damages in Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 , 117 S.Ct. 2113 , 138 L.Ed.2d 560 (1997), a case brought under the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 et seq.

In Buckley , the Court recognized policy reasons in favor of allowing such awards, as well as the concerns which had prevented many state courts from permitting medical monitoring recoveries. 521 U.S. at 442-43 , 117 S.Ct. 2113 . The ⁶⁵ primary concern is the inability to limit the potentially expansive class of plaintiffs, although the Court also recognized that medical monitoring may actually present less of a problem in this area than other common law torts, namely emotional distress. Id. The Court ultimately concluded that federal common law at the time did not permit an asymptomatic plaintiff to recover lump sum damages for medical monitoring.

Id. at 444 , 117 S.Ct. 2113 . But the Court emphasized that it was merely evaluating the state of the common law at that time, not attempting to balance the competing considerations and policies. Id. The Buckley Court also left open the possibility that it might approve a more “finely tailored” medical monitoring recovery than that sought by the plaintiff in that case, and it suggested that a limited remedy, like a court-supervised fund to administer payments for medical costs, may be the best way to balance competing interests.

Id. at 443-44 , 117 S.Ct. 2113 . Although Buckley is instructive, there are several important differences between that case and this one. 60 Significantly, the Court noted that a federal statute, 29 C.F.R. § 1910.1001 (1) (1996), already required employers to provide medical monitoring for workers who, like the Buckley plaintiff, had been exposed to asbestos. Id. at 443 , 117 S.Ct. 2113 . According to the Court, “where state and federal regulations already provide the relief that a plaintiff seeks, creating a fullblown tort remedy could entail systemic costs without corresponding benefits.” Id.

The Court was troubled because a “traditional” tort remedy would allow the plaintiff to recover irrespective of collateral payment. Id. As far as I am aware, no Maryland statute would otherwise entitle appellees to receive medical monitoring provided by Exxon. Hence, a monitoring remedy here does not provide excessive relief.

In addition, from a factual perspective, the Court also observed ⁶⁶ that the Buckley plaintiffs claim for damages was amorphous and even his own medical expert was “equivocal” about whether he required extra medical monitoring above and beyond that recommended for the general population. Id. at 442 . By contrast, the appellees here offered the testimony of a medical expert that a specific monitoring regime was necessary, as well as estimates of the specific costs of following the recommended program. In the absence of further guidance from the Court of Appeals, I agree with the circuit court that Maryland common law permits a plaintiff to recover damages for the quantifiable costs associated with medical tests and examinations necessary to monitor the plaintiffs health and to facilitate early detection of future diseases made more likely by the defendant’s tortious conduct.

This holding brings the law in line with contemporary scientific understanding of subcellular injuries and latent diseases. It also equitably imposes the costs of medical monitoring, which can help mitigate future disease, on the negligent defendant rather than the victim. See Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 442-43 , 117 S.Ct. 2113 , 138 L.Ed.2d 560 (1997) (acknowledging the public policy considerations in favor of medical monitoring awards, including that “it is inequitable to place the economic burden of such care on the negligently exposed plaintiff rather than the negligent defendant.”); Ayers v. Jackson, 106 N.J. 557, 609 , 525 A.2d 287 (1987) (“mass exposure toxic-tort cases involve public interests not present in conventional tort litigation”); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1008 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (1993) (identifying the “important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment for many cancer patients”). The trial judge gave the following instruction on the issue of medical monitoring damages: ⁶⁷ The Plaintiffs also seek a form of relief called medical monitoring.

This form of relief represents the quantifiable cost of periodic medical tests or examinations necessary to monitor a Plaintiffs health and to facilitate early diagnosis and treatment of a latent disease caused by exposure to a chemical. In this case, all of the Plaintiffs seek medical monitoring for alleged exposure to [MTBE]. A few of the Plaintiffs also seek medical monitoring for alleged exposures to benzene. To recover such damages, a Plaintiff must establish each of the following by a preponderance of the evidence.

First, that he or she compared to the general population has been significantly exposed to MTBE or benzene. Second, that MTBE or benzene is proven hazardous to humans. Third, that ExxonMobil caused the Plaintiffs’ exposure. Fourth, that as a result of the exposure, the Plaintiff has a significantly increased risk of contracting a serious latent disease.

Fifth, that diagnostic medical tests exist that make early detection of the disease possible. Sixth, that such medical monitoring procedures are different from those that would normally be recommended for persons who have not experienced Plaintiffs’ level of exposure. And seventh, that the increased risk of disease makes the proposed procedures reasonably medically necessary. If the Plaintiff fails to prove one or more of these considerations by a preponderance of the evidence, he or she is not entitled to medical monitoring.

If you find that a Plaintiff is entitled to medical monitoring, you must indicate so in your verdict, and you must also indicate the reasonable cost of this medical monitoring reduced to present cash value. I would find that these instructions fairly and accurately state the elements which must be established in order for a plaintiff to recover damages for medical monitoring. Appellant says that this Court should require plaintiffs to prove either the existence of a present physical injury or a substan ⁶⁸ tial increased risk of harm before they may recover damages for medical monitoring. Reasons for declining this request are best illustrated by the following example, offered by the U.S. Court of Appeals for the D.C. Circuit: To aid our analysis of whether tort law should encompass a cause of action for diagnostic examinations without proof of actual injury, it is useful to step back from the complex, multi-party setting of the present case and hypothesize a simple, everyday accident involving two individuals, whom we shall identify simply as Smith and Jones: Jones is knocked down by a motorbike which Smith is riding through a red light.

Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations. From our example, it is clear that even in the absence of physical injury Jones ought to be able to recover the cost for the various diagnostic examinations proximately caused by Smith’s negligent action.

A cause of action allowing recovery for the expense of diagnostic examinations recommended by competent physicians will, in theory, deter misconduct, whether it be negligent motorbike riding or negligent aircraft manufacture. The cause of action also accords with commonly shared intuitions of normative justice which underlie the common law of tort. The motorbike rider, through his negligence, caused the plaintiff, in the opinion of medical experts, to need specific medical services—a cost that is neither inconsequential nor of a kind the community generally accepts as part of the wear and tear of daily life. Under these principles of tort law, the motorbiker should pay.

Friends for All Children v. Lockheed Aircraft Corp., 746 F.2d 816, 825 (D.C.Cir.1984) (emphasis added). ⁶⁹ For the reasons set forth by the D.C. Circuit, the rationale underlying medical monitoring damages is best reflected by the test formulated by the trial judge: (1) significant exposure to (2) a substance proven hazardous to humans (3) because of the defendant’s negligence, (4) resulting in the plaintiff having a “significant increase in risk,” compared to the general population, of a developing a serious latent disease for which (5) there are medical tests making early detection possible, and the tests (6) are not medically necessary for the general population, but (7) are medically necessary for the plaintiff due to the increased risk. To use an apt metaphor, the trial judge’s test uses a scalpel to carve out the class of plaintiffs who may recover for medical monitoring, while appellant’s proposed physical injury or substantial increased risk requirements would have us use a hatchet to lop off a class of plaintiffs, a method that is poorly designed and simultaneously over-and under-inclusive. Turning now to the evidence presented by the appellees in support of medical monitoring damages, I note that the parties stipulated to the testimony of Dr. Brautbar, a physician, that all of the plaintiffs would require monitoring for testicular, kidney, liver, and blood/lymphatic cancers at an estimated cost of $2,000 per patient per year. Dr. Rudo, the plaintiffs’ toxicology expert, testified that he recommended that all of the plaintiffs follow Dr. Brautbar’s monitoring program with the goal of catching any developing cancer at an early stage.

In my view, this and other testimony provides some basis for the conclusion that the Jacksonville residents have a significantly increased risk of contacting cancer or other latent disease as a result of exposure to MTBE or benzene. Dr. Jaynes, an economics expert, testified for the plaintiffs regarding the actual present value of the $2,000 per year medical monitoring costs, considering the life expectancy of the plaintiffs as well as economic factors such as inflation. Relying on his estimates, the plaintiffs requested medical monitoring damages ranging from $17,032 to $96,997. Based on my review of the record, it appears that plaintiffs whose most recent well test results revealed the presence of ⁷⁰ MTBE or benzene received the full amount of their requested medical monitoring damages.

Plaintiffs received 50% of their claimed medical monitoring damages if their wells tested positive in the past, but had nondetectable levels of MTBE and benzene in most recent tests. Plaintiffs whose homes did not have any current contamination, but were at a “high risk” of future contamination, based on expert testimony, also received the full amount of the requested medical monitoring damages. The jury awarded only 25% of the requested medical monitoring costs to the remaining plaintiffs, those whose wells had never tested positive for MTBE or benzene and were classified as medium or low risk of future contamination. I cannot say that this result is wholly unsupported by the evidence, much less that the trial judge abused his wide discretion in denying the plaintiffs’ request for judgment notwithstanding the verdict or a new trial.

See Bartholomee, supra, 103 Md.App. at 51 , 651 A.2d 908 .

VI

Similarity Of Awards To Different Plaintiffs Finally, appellant argues that it is entitled to a new trial because the jury awarded damages formulaically, without regard to the individualized harms suffered by the plaintiffs. I have already discussed the economic and non-economic damages awards independently, finding both to be sufficiently supported by the evidence to justify denying appellant’s request for a new trial. Viewing them now collectively, I have not changed my mind. There are undoubtedly formulaic aspects of the jury’s damages award, but that is not wholly unexpected in a trial of this size and complexity, where many of the plaintiffs suffered similar injuries.

For example, the medical monitoring damages follow a certain general formula described above, with the award reflecting a certain percentage of the requested medical monitoring damages (which have already been adjusted to account for individual life expectancies), depending on the presence of current and/or past contamination and the risk of future contamination. These are relevant considerations, not arbitrary ones, and the resulting awards are in fact ⁷¹ individualized to each person’s life expectancy and estimated degree of exposure. I am not propounding this formula as the most legally correct method of awarding medical monitoring damages, but it is a reasonable method that led to reasonable awards based on the evidence presented. The out-of-state cases cited by appellant differ from this litigation in several respects.

In each cited case, the court found that the resulting awards were not supported by the evidence. For example, in Cain v. Armstrong World Indus., there were ten plaintiffs in an asbestos action whose cases were consolidated for trial. 785 F.Supp. 1448, 1452 (S.D.Ala. 1992). Seven of the plaintiffs proved medical monitoring expenses totaling $4,050 to $10,200 and no other future medical expenses. Id.

They were nonetheless awarded $80,000 to $100,000 in future medical expenses, an amount equal to the damages proved by the remaining three plaintiffs. Id. The judge found that these awards, along with similarly excessive awards for fear of cancer and emotional distress, shocked the conscience and merited a new trial. Id. at 1454 .

The most important thing about Cain, however, is that it is the decision of a trial court judge on the party’s motion for a new trial. Motions for a new trial are the province of the trial judge. Nowhere is this more true than in a trial such as this, which lasted five months and included testimony from 167 witnesses, including all manner of experts and countless plaintiffs. It is apparent from his written decision that the trial judge carefully considered the merit of the verdicts and considered them in light of the weight of the evidence, as he witnessed firsthand.

Based on a distant review of the paper record, I cannot say that he abused his discretion. In Buck v. Cam’s Broadloom Rugs, 328 Md. at 59-60 , 612 A.2d 1294 , the Court of Appeals quoted the following “salient observations” from the Superior Court of Pennsylvania regarding the deference owed by the appellate court to the trial judge and by the trial judge to the jury. I find it especially pertinent in this case: [A] jury’s verdict should not be casually overturned. In our system of justice, the jury is sacrosanct and its importance ⁷² is unquestioned.

The members of a jury see and hear the witnesses as they testify. They watch them as they sweat, stutter, or swagger under the pressure of cross-examination. This enables the jury to develop a feel for the case and its personal dynamics which cannot be conveyed by the cold printed page of a record reproduced for appellate review.... We must afford the judge great discretion in making this decision because he too is present in the courtroom as the evidence is presented.

As does the jury, he develops a feel for the human pulse of the case. In short, our seemingly simple decision to uphold the grant of a new trial is actually the end result of a highly complex process involving the interaction of judge, jury, and attorneys. This process has developed over centuries and its complicated dynamics belie its surface simplicity. However, the greatest tribute to its success is probably the extent to which we take it for granted as the ultimate guarantor of justice.

Boscia v. Massaro, 365 Pa.Super. 271 , 529 A.2d 504, 508 (1987). This is an extremely unusual toxic tort case. Here, liability is generally conceded and potentially inadmissible, but unob-jected to evidence on key issues made its way to the jury. These factors undoubtedly affected the assessment of the damages in this case.

But they also caution this Court to respect its limited role in gauging the jury’s verdict and to uphold that verdict even if there is the slightest evidentiary basis for doing so. Because a majority of the in bane panel would uphold virtually all of the jury’s award for diminution in property value, I join the Court’s affirmance of that judgment. To the extent a majority of the panel would reverse the remaining damage award, I respectfully dissent. I am authorized to say that Judges WOODWARD, MEREDITH and WRIGHT join this opinion in its entirety and the other members of the in banc panel join in this opinion in part, as explained in their opinions. .

The court also reduced the non-economic damages awards to four plaintiffs in order to comply with the statutory cap on non-economic damages. See Md.Code (1974, 2006 Repl.Vol.), Courts and Judicial Proceedings Article (CJP), §§ 11-108, ll-109(b). . The station is located on the corner of Jarrettsville Pike and Paper Mill Rd. The contractor whose work damaged the underground line is not a party in this case. .

ExxonMobil Corporation owned and maintained the property on which the Jacksonville station was located and all of the equipment. Storto Enterprises was the independent franchisee that operated the station and is also not a parly. . Dr. Rudo explained that a "mutagen” is a chemical that can cause changes to the DNA of humans or animals exposed to it. These changes may be harmful, but are not necessarily so. .

In its brief, ExxonMobil asserts generally that "chemicals that are toxic at one level may be harmless or medicinal at another.” In other words, the dose makes the poison. For clarification, however, it is worth noting that appellant never presented any evidence of a medicinal benefit to the daily ingestion of low-levels of MTBE or benzene. To the contrary, appellant’s expert testified at trial that he does not believe it is “a good thing” to have contamination from gasoline in your drinking water and he would not want his family exposed to water with such contaminants, despite his conclusion that the scientific evidence did not support classification of MTBE as a human carcinogen. . As the experts explained, MTBE was not used as a gasoline additive in the U.S. until 1979, and scientists did not begin to study its potential carcinogenicity until the late 1980s.

Therefore, there are few studies on which to base contamination standards for MTBE. In contrast, there have been many human studies linking benzene exposure to cancer. . Herbert Meade from the Maryland Department of the Environment testified that "aesthetic standards,” set by the EPA, do not require any evidence of a risk to human health and are meant only to ensure acceptable odor and taste. . The terms "action level” and "maximum contaminant level" were used interchangeably throughout the trial.

For the sake of clarity, however, the action level is the State groundwater standard set by the Maryland Department of the Environment, while the maximum contaminant level is a federal standard set by the Environmental Protection Agency. . ExxonMobil contends that it notified Herbert Meade at the MDE of the spill on February 17 and he immediately contacted the president of the community association. Appellees claim they did not learn about the leak until local media reported the story four days later. . The remaining 10 properties had undetectable levels of MTBE, meaning the concentration was below 0.05 ppb. .

Current MTBE test results were not available for 11 wells. . The number of monitoring wells on each of these properties ranged from one, on the Tirocchi property, to nineteen, on the Baig property. . The claims of the Roeterings and Mrs. Williams were dismissed during the trial. Additional claims were filed in the Circuit Court for Baltimore County.

In June, 2011 in Allison v. ExxonMobil Corp. (Case No. 03-C-47-003809), a jury awarded more than $1.5 billion in damages. That judgment has been appealed. . The plaintiffs whose awards were reduced pursuant to CJP, § 11-108, were: Amtul Baig, Mirza Baig, Robert Libertini, and Suzanne Libertini. . The property damage award was reduced for the following four households: Brady, Csicsek, Simms, and Murray. .

The questions were presented in appellant’s brief as follows: 1. May a jury’s verdict that all of plaintiffs’ properties were worthless be upheld where: (a) plaintiffs’ and defendant’s experts testified that the properties retained substantial value; (b) the properties were either sold for significant amounts or occupied by plaintiffs; and (c) many properties had no contamination and few had significant contamination? 2. Should plaintiffs’ property damage expert’s opinions have been admitted where he failed to use any generally accepted method of valuation and he failed to consider actual sales or forecast accurately those arm’s length valuation? 3. Should emotional distress verdicts of over $70 million be overturned where: (a) the uniform awards ignored the substantial differences among plaintiffs; (b) evidence satisfying the Hunt standards for recovery of such demands was not presented; and (c) the jury instruction permitted recovery for fear of cancer without any evidence of exposure to the alleged carcinogen or that the exposure made it "reasonably probable” that a plaintiff would contract cancer? 4.

Does Maryland law permit damages for medical monitoring and, if so, may such damages be awarded where: (a) no plaintiff claimed to have any current disease cause by MTBE; (b) there was no proof that any plaintiff had a significantly increased risk of contracting any disease; and (c) as to many plaintiffs there was no proof of exposure? 5. Is a new damages trial required when a jury awards similar compensatory damages to many plaintiffs with different alleged injuries? . Exxon asks this Court to: (1) reverse the property damage awards for the 13 households that failed to prove present or future contamination; (2) reverse the property damage award to the Grecos; (3) remit all other property damage awards to the highest level permitted by the expert testimony of Mr. Lipman; (4) reverse all emotional distress awards to those Plaintiffs’ whose proof was legally insufficient to support such an award; (5) reverse and remand all other emotional distress awards with an instruction that no Plaintiff may recover damages for fear of cancer; and (6) reverse all awards for medical monitoring. . Appellees rely heavily on Grandison v. State, 305 Md. 685 , 506 A.2d 580 (1984), where the Court held that, by his "conduct” during closing arguments, a defendant waived his right to appeal the trial court's refusal to allow him to refer to the sentences received by his co-conspirators.

The Grandison decision was based on defense counsel’s abandonment of this argument by stating "I will drop that subject for the moment” and never raising it again. Id. at 764-65 , 506 A.2d 580 . In other words, the trial court never made a decision reviewable on appeal. Grandison does not hold, or even suggest, that a party’s prejudgment conduct may constitute acquiescence to a future jury verdict. .

Appellant may have had an idea of the maximum possible compensatory damage verdict, but this knowledge is not specific enough to support knowing acquiescence. . Relying on Wilson v. State, 370 Md. 191 , 201 n. 5, 803 A.2d 1034 (2002), appellant states that an appellate court conducts de novo review of whether expert testimony is admissible. However, in Wilson, the Court of Appeals said only that the question of whether expert testimony meets the minimum threshold of the Frye-Reed test is subject to de novo review. Id.

The Court went on to distinguish the Frye-Reed test for new or novel scientific techniques from the discretionary aspects of qualifying an expert. Id. Frye-Reed is not applicable to Acks’s economic analysis in this case; therefore, this Court reviews the admission of his testimony under the standards set forth in Md. Rule 5-702 for an abuse of discretion. See CSX Transp.

Inc. v. Miller, 159 Md.App. 123, 187 , 858 A.2d 1025 (2004) (discussing what constitutes a "new and novel scientific technique” as contemplated by the Frye-Reed test); Carter v. Shoppers Food Warehouse, 126 Md.App. 147, 155 , 727 A.2d 958 (1999) (Frye-Reed test not relevant where testimony involved an opinion on safety measures, not a new and novel scientific technique). . The map presented at trial was updated to reflect 52 sales, rather than 49. However, Acks testified based on the map showing 49 sales, the most current number at the time of his deposition. . Acks identified this study as: Robert Simons, Estimating Proximate Property Damage for PCB Contamination in a Rural Market: A Multiple Techniques Approach, LXX Appraisal J. 388 (October 2002). .

The article cited by Acks was: Robert A. Simons & Kimberly Winson-Geideman, Determining Market Perception on Contamination of Residential Property Buyers Using Contingent Valuation Surveys, 27 J. Real Estate Research 193 (2005). . Acks identified this article as: Robert Berrens et al., The Effect of Environmental Disclosure Requirements on Willingness to Pay for Residential Properties in Borderlands Community, 84 Social Sci. Q. 359 (2003) (examining diminution in value of uncontaminated properties near a "concrete products and chlorine site” in Texas). . Acks did not estimate the diminution in value for the three properties that had been sold since the leak because, in the words of plaintiffs' attorney, "the jury knows what those homes have sold for.” .

The classification of the properties into three groups based on the likelihood of future contamination was made by the plaintiffs’ environmental expert. . Acks proffered this explanation for those sales that did occur in the area: 1) they were outliers; 2) those sales examined by Exxon’s expert were too small to base an opinion; and 3) there was no evidence that they reflected an informed purchaser. . The estimates did not include more recent readings, including the new findings of benzene contamination, or the potential for increased stigma as a result of the publicity from the trial. . According to the record, only 10,000 gallons of the leak were recovered. .

As noted by the trial judge, it is well-established in Maryland that tax assessments tire not admissible to establish a property’s fair market value for any purpose other than taxation. See Mayor and City Council of Baltimore v. Himmel, 135 Md. 65, 76 , 107 A. 522 (1919); Gravenstine v. Gravenstine, 58 Md.App. 158, 172 , 472 A.2d 1001 (1984). . Lipman did testify that "the marketplace, if it found a monitoring well on a property, would have some negative reaction. And that results from my understanding that there is a plume ...” .

Matched pair analysis involves examination of the sale and resale of the same home within a relative short time period-two to five years. None of the plaintiffs’ homes sold after February 16, 2006 were used in this analysis. . Acks disagreed with this assessment, testifying that the appreciation and depreciation of the Jacksonville housing market since 2006 were essentially "a wash.” . Lipman also admitted that of 41 homes offered for sale within one mile of Jacksonville, 21 were taken off the market. .

There is considerable overlap and a number of homeowners expressed conflicting opinions, either within their own testimony or when compared to a co-owner (i.e., husband and wife). . Gary Flora and his wife were real estate agents. He testified: What we’re saying is with the contamination in our well, and especially both of us being licensed real estate persons, we would have to disclose the contamination in our well. So how in good conscience ⁴¹ could sell it to someone with the contamination levels we have in our well.

So, therefore, yeah, it's, it’s worthless. . At. a minimum, the following 39 properties fell within this group: Alban, Albert, Anderson/Curtiss, Bateman, Benney, Berlin, Bieber, Brady, Cadigan, Coffay, Colgan, Copeland, Davis, DePasquale, Dobb, Fa-ber, Fox, Fritz, Gottschalk, Gregory, Hourihan, Kukucka, Martin, McLewee, Merski, Montone, Mucha, Nickel, Oberlin, Osmeyer, Pfeiffer, Quinn, Rosch, Rush, Tolle, Twardzik, Vacovsky, Vogler, and Wiedey. The Bradys’ compensatory damage award was reduced on remittitur to reflect the actual diminution realized when the home was sold. . Lisa Gregory reported a potential buyer’s reaction to viewing her house: We had another buyer come and she actually came twice.

She came the first time with her husband and the second time with her parents and her husband and they had not looked in the garage yet. Once they opened the garage door and they saw the Deer Park water and the Deer Park gallons of water stacked to the ceiling which we used to hide because we didn't think it was fair to anybody, she flipped out. I was still there because it was an open house. They were the last couple to come.

She said this is one of those houses that you can’t drink the water in. You should have told me. And she like freaked out. . Another realtor-plaintiff, Carolyn Heggie in response to a question on whether she had seen any properties near her home which had been on the market for some time said: ⁴² I have.

The house at the end of Whitesworth Road has been on the market for over a year, maybe two years, they have reduced it a hundred thousand dollars. They have moved out. The house has not sold. . The Baig property had 19 monitoring wells with equipment pumping 24 hours a day.

In closing argument, appellees' counsel told the judge: “Who would buy his house? It is worthless ...” . The following 26 property owners offered some testimony that their homes were worthless: Babcock, Baig, Barone, Batton, Blair, Carroll, Cremen, DeBolt, DeDeo, DeKooman, Diedeman, Facinoli, Ford, Flora, Hannan, Heggie, Howe, Jenkins, Lanting, Lamos, Libertini, Peters, Schech, Thompson, Tirocchi, and Tizard. . This group included the following property owners: Csicsek, Dixon/Elkinton, Greco, Lindsay/Parks, Mahoney, Shultz/McDevitt, Shimp, and Wittelsberger.

The Csicseks’ compensatory damage award was reduced on remittitur to reflect the actual diminution realized when the home was sold. . In Criscuola v. Power Authority of the State of New York, 81 N.Y.2d 649 , 602 N.Y.S.2d 588, 589 , 621 N.E.2d 1195 (1993), the New York Court of Appeals said that fear or perception of health risks from high voltage power lines could adversely affect market value of nearby property even if the public’s fear was unreasonable. . In its brief, appellant identifies seven plaintiffs who testified that their homes were “worthless.” Appellees’ brief identified 23 plaintiffs who so testified. The testimony of 26 homeowners could be fairly categorized as suggesting their belief that their homes were worthless This disparity is indicative of the highly subjective nature of this issue, and the reason that it is generally unwise for an appellate court, far removed from the live witnesses at trial, to substitute its judgment for that of the trial judge and jury. .

This number includes two non-testifying property owners (Murray and Simms) whose compensatory damage awards were reduced on remittitur to reflect actual diminution from home sales. The remittitur was not challenged. . These plaintiffs had "nondetect” results when their potable well water was tested for contaminants and are classified as having a low probability of future contamination. As identified by appellant, this group consists of the following households: Badders/Shoemaker; Barnett/Lindsey; Butler; Colgan; Cormier/Healey; Fulco; Gollihue; Hahn; Lindsay/Parks; Merski; Montone; Pertee; and Simms. .

Exxon Corp. v. Yarema presented a factual scenario remarkably similar to the present case. 69 Md.App. 124 , 516 A.2d 990 (1986). In Yarema , gasoline leaked from underground storage tanks located at three gas stations, owned by Amoco Oil Company, Gulf Oil Company, and Exxon Corporation, respectively. Id. at 130 , 516 A.2d 990 . As in this case, the leaked gasoline contaminated groundwater in Jacksonville, leading to several lawsuits.

Id. Amoco Oil and Gulf Oil settled the lawsuits against them, while the claims against Exxon went to trial. Id. at 131 , 516 A.2d 990 . The Yarema plaintiffs claimed that Exxon tortiously interfered with their use and enjoyment of their property, for which they sought compensatory and punitive damages.

Id. at 133 , 516 A.2d 990 . The jury ordered Exxon to pay both compensatory and punitive damages, although the judge ultimately ordered the compensatory awards to be “deemed satisfied” under the Uniform Contribution Among Tortfeasors Act ("UCATA”), CJP, §§ 3-1401-3-1409. Id. at 131, 516 A.2d 990 . On appeal, this Court upheld the application of UCATA to compensatory damages and rejected Exxon’s argument that it should also have applied to the punitive damages award.

Id. at 137 , 516 A.2d 990 . The Court also held that, under UCATA, the settlements between the plaintiffs and Exxon's co-defendants did not operate to discharge Exxon's liability for punitive damages, despite the general rule that punitive damages cannot be recovered in the absence of recoverable compensatory damages. Id. at 139 , 516 A.2d 990 . It should also be noted that Yarema was a case, unlike this one, where liability was contested.

The elements of the torts present in this case are assumed to have been met, including physical invasion of the appellees’ property. . This Court emphasized language from McCaw that proof of contamination is not required if location to the contaminate endangers the ⁵⁰ public health by corrupting the "surrounding” atmosphere, or water wells or springs. Exxon, 69 Md.App. at 152 , 516 A.2d 990 . Exxon also holds that the fact that the "reputation of the plaintiffs’ land is inextricably interwoven in the assessment of damages is not reason to avoid an award.” Id. at 153 , 516 A.2d 990 . .

In Yommer v. McKenzie, 255 Md. 220 , 257 A.2d 138 (1969), another case involving a leak from an underground gasoline tank, the Court of Appeals upheld a jury verdict imposing liability without proof that the plaintiffs' well had been contaminated by the leak and despite the fact that the leak occurred more than a mile away and was separated from the plaintiffs’ property by a river. . One family, the Grecos, did not request damages for diminution in property value and yet received an award of $367,500. The circuit court denied the appellant’s motion for judgment notwithstanding the verdict on this issue, without explanation. Presumably, this was a mere oversight considering the number of motions and verdicts the court had to review.

In any event, this isolated case demonstrates the limit of the trial judge’s broad discretion: the judge does not have discretion to uphold an award for damages that the plaintiff never asked for. The circuit court erred by not striking the property damage award to the Grecos. Therefore, pursuant to Md. Rule 8-604, the in banc panel unanimously directs modification of the Grecos’ order of judgment by reducing the award by $367,500. . The cap contemplates a single award for non-economic damages and is applied accordingly.

CJP, § 11-108 and § ll-109(b). See Oaks v. Connors, 339 Md. 24, 36 , 660 A.2d 423 (1995). . By conceding the elements of such torts as nuisance, Exxon has admitted that it substantially interfered with the use of the appellees' property and their personal comfort and health. See MPJI-Cv. 20:3.

Exxon cannot take back such a concession under the guise of challenging the sufficiency of evidence supporting causation and damages. . Appellant alleges that the Court of Appeals s opinion in McQuitty v. Spangler, 410 Md. 1, 30 , 976 A.2d 1020 (2009), "suggested that Faya should be viewed only as an informed consent case, not a fear of cancer case.” I disagree with this reading of McQuitty , which cited Faya in order to emphasize that informed consent actions are based on theories of negligence, rather than assault or battery. McQuitty, 410 Md. at 30 , 976 A.2d 1020 . . The Lohrmann plaintiff was permitted to testify that he was afraid of developing cancer, but it is not clear if he sought emotional distress damages on this issue and the case never reached the damages phase. 782 F.2d 1156 , .

In its brief, appellant cites Wetherill for the proposition that "recovery for fear of future injury under Illinois law requires a showing 'that ⁵⁷ the feared contingency [is] likely to occur.' " In fact, as the longer excerpt above illustrates, Wetherill stands for exactly the opposite. . In its brief, appellant described the formula as follows: every child who received an award got $50,000, most adults received $500,000. In a two-parent household, each adult received $500,000 minus half of their children’s awards. The net effect of this was that "virtually every” ⁵⁹ two parent household received a total of $1,000,000 for emotional distress damages. .

I agree with appellant that inconvenience and annoyance attributable to the remediation activities are not recoverable non-economic damages where they have been recovered as economic damages in the form of diminution in property value. See Hall v. Lovell Regency Homes Ltd. Pshp., 121 Md.App. 1, 26 , 708 A.2d 344 (1998). To do so would be to compensate the plaintiffs twice for the same injury. However, other "discomfort, annoyance, and inconvenience” not related to property value may be recovered.

I see no evidence in this case of double recovery in connection with remediation activities. It was possible for the jurors to compartmentalize the impact of such activities on a reasonable purchaser and their effect on individuals who reside in the community. . Plaintiffs from 15 households did not testify. These plaintiffs did not request or receive non-economic damages. .

In Laxton v. Orkin Exterminating Co., 639 S.W.2d 431, 434 (Tenn. 1982), Tennessee’s highest court reversed a lower court’s rejection of damages for mental anguish in a contamination case, noting: The chemical which polluted [the plaintiffs'] spring was a possible carcinogen. Even though the tests proved negative, in our opinion a jury could find sufficient "injury” to this plaintiff to justify a recovery for their natural concern and anxiety for the welfare of themselves and of their infant children. (Emphasis added). . In any event, Maryland courts have not hesitated to reject the common law tort principles adopted by the Supreme Court.

See, e.g., Clea v. Mayor and City Council of Baltimore, 312 Md. 662, 680-81 , 541 A.2d 1303 (1988); Erie Insurance v. Chops, 322 Md. 79, 91 , 585 A.2d 232 (1991). EYLER, JAMES R., J., concurring and dissenting, in which HOTTEN, J., joins. These consolidated cases arise from the leakage of gasoline from a gasoline service station, located at the corner of Jarrettsville Pike and Paper Mill Road in the Jacksonville area of Baltimore County. The station was owned by Exxon-Mobil Corporation, appellant.

The leak occurred, on January 13, 2006, when a contractor accidentally drilled a hole in an underground gas line leading from a storage tank to the dispensing pump. An electronic leak detector sounded an alarm. The contractor who responded to the alarm erroneously determined that a pump motor was the problem, and replaced it. As a result of the replacement, the leak detection system had to be recalibrated.

This was done, but incorrectly. Consequently, the leak detection system did not detect the continuing leak. The problem was discovered on February 16, 2006, when the franchisee/service station operator reported an inventory discrepancy. The service station immediately was shut down.

The existence of the leak was confirmed on February 17. Appellant immediately notified the Maryland Department of the Environment (MDE), and remediation efforts began. In the period between January 13 and February 16 or 17, approximately 700 gallons of gasoline per day leaked from the punctured underground line. Appellees, residents of the Jacksonville area, filed lawsuits against appellant in the Circuit Court for Baltimore County alleging that their properties had decreased in value and their health was threatened because chemicals found in gasoline, specifically, methyl tertiary-butyl ether (“MTBE”), a possible carcinogen, and benzene, a known carcinogen, contaminated their properties.

The bulk of the evidence related to MTBE because there was virtually no evidence that any appellee was exposed to benzene. The properties were serviced by potable wells; there was no public water system. As part of the remediation effort, appellant constructed monitoring and/or recovery wells, used to monitor and recover contaminants. None of the appellees used water from the monitoring and recovery wells.

All references to use of water by appellees ⁷⁴ are to the appellees’ potable wells. None of the appellees claimed a physical injury in the traditional sense. None claimed sickness or disease or symptoms of a sickness or disease, caused by the leak. Appellees’ emotional distress claims were based primarily on fear of contracting a latent disease.

We note briefly and will explain in greater detail below that federal and state governments have set levels of maximum exposure to these chemicals. The evidence was uncontradicted that all people in this country are exposed to some amount of MTBE and benzene in their daily lives. These chemicals may enter a person’s body through ingestion, dermal contact, or inhalation of vapors. At some point prior to trial, appellees’ suits were consolidated.

Appellant admitted liability for compensatory damages on causes of action other than fraud, and the cases were tried on liability for fraud and punitive damages, and the amount of compensatory damages. By the time a jury returned a verdict, there were 302 1 appellee plaintiffs who owned and/or resided on 88 properties. Ninety five of the appellees were minors at the time of the leak. The jury found in favor of appellant with respect to the fraud and punitive damage claims and awarded compensatory damages totaling over 147 million dollars to the appellees.

This damage award consisted of (1) the full pre-leak value of every property to the property’s owner(s), (2) the present value of the future costs of medical monitoring to 300 appellees who made that claim, and (3) damages for emotional distress, which included fear of cancer or other latent disease, to 180 appellees who made that claim. Even though the evidence demonstrated substantial differences in the claims, the awards were remarkably the same for each property owner, each adult claiming damages for emotional distress and medical monitoring, and each minor claiming damages for emotional distress and medical monitoring. ⁷⁵ The cases were hotly contested, and not surprisingly, the parties filed numerous pre-trial motions, including motions in limine and motions for summary judgment. The trial lasted approximately five months, during which many motions and legal arguments were advanced, including motions for judgment by appellant. Post trial, appellant filed several motions.

Pertinent to this appeal are appellant’s motion for judgment notwithstanding the verdict (“JNOV”) with respect to the emotional distress and medical monitoring claims and appellant’s motion for new trial or remittitur with respect to the damage to appellees’ properties. The circuit court denied the motions except that (1) it reduced the non-economic damages awards of four appellees to the statutory cap, pursuant to Maryland Code (2006 Repl. Vol.), § 11-108 of the Courts and Judicial Proceedings Article (CJP), 2 and (2) as to the owners of four properties who sold their homes post leak, granted a remittitur lowering the jury’s award of pre-leak value to an amount equal to the pre-leak value adjusted for the passage of time less the actual sales price. 3 On appeal, appellant contends the court erred in permitting appellees’ property damage expert to testify and in denying its motions. We conclude that the court did not err in permitting the expert to testify, but with the exceptions noted below, and as explained below, the court erred in denying the motions.

Preliminarily, we note that damages were awarded to three appellees who did not make claims. The jury awarded Andrea and Veronica Greco the pre-leak value of their property even though they sold their home post-leak for an amount in excess of the pre-leak value and, presumably as a result of the sale, withdrew their diminution in value claim prior to verdict. In addition, the jury awarded $50,000 to Luke DeKoomen and ⁷⁶ $50,000 to Seth DeKoomen, minors, for emotional distress, even though they withdrew their emotional distress claims prior to verdict. The circuit court erred in not granting appellant’s JNOY motion with respect to these claims by these appellees.

With respect to the remaining claims, clearly, the jury did not perform individualized assessments of the claims, based on the evidence. While a jury cannot commit reversible error, a judge can do so, and in some instances, the circuit court erred in not applying the correct legal standard and by not granting the motion for JNOV. In addition, the trial judge erred in not performing an individualized assessment of the verdicts in ruling on the motion for new trial or remittitur. Notwithstanding that the cases were consolidated, each claim in each case had to be analyzed as if tried separately.

The parties do not dispute that that is the law. The jury was so instructed, and no exceptions were taken to that instruction. 4 Before proceeding to a more detailed analysis, we note that these cases illustrate the danger of trying all issues in numerous disparate cases in a consolidated manner, presumably for judicial efficiency. The phenomenon is unprecedented in this State. The largest mass tort litigation in this State was and is asbestos exposure litigation.

With respect to the thousands of asbestos cases in this State, common issues were tried in large consolidated trials, but plaintiff specific issues were and are being tried in small groups, with grouping determined by similarity of claims. Each plaintiff has to prove his or her own case. In the cases before us, the propriety of the consolidation is not before us. Nevertheless, the mere size of the undertaking and the length of time consumed in arriving at judgments cannot be the basis for treating these cases as if they were a class action and ignoring reversible error.

If, by virtue of ⁷⁷ massive consolidation of cases and claims, the consolidated cases have become too big to reverse, our system has failed. For ease of reference, this opinion is divided into the following sections. I. Overview of claims II. Summary of contentions/arguments on appeal III.

Summary of evidence at trial A. Appellees’ experts B. The appellees C. Appellees’ liability witnesses D. Appellant’s evidence IV. Waiver V. Admissibility of Acks testimony VI. The law relating to emotional distress A. Personal injury versus property damage and compen-sable elements of each B. Emotional distress generally—physical manifestation requirement C. Fear of cancer or other latent disease VII. Application of law of emotional distress to facts of each case A. Withdrawn claims and unchallenged claims B. No evidence of actual exposure or probable future exposure C. Emotional distress—no evidence of physical manifestation related to leak, assuming fear of a future disease is compensable D. Emotional distress—minimal evidence and clearly legally insufficient to show physical manifestation related to leak, assuming fear of future disease is compensable E. Emotional distress—some evidence of physical manifestation related to leak but legally insufficient, assuming fear of future disease is compensable F. Fear of cancer or other latent disease VIII.

Law relating to medical monitoring ⁷⁸ IX. Application of law of medical monitoring to facts of each case A. No evidence of actual exposure or probable future exposure B. No evidence of physical manifestation C. All medical monitoring judgments X. Law relating to property damage A. Owner testimony as to value of contaminated property B. Diminution in market value as a measure of property damage 1. Permanent vs. temporary property damage under Maryland law 2. Permanent vs. temporary property damage in other jurisdictions XI.

Application of property damage law to facts of each case A. Withdrawn claims and unchallenged claims B. Properties with owner testimony that property was worthless C. All properties XII. Law applicable to new trials XIII. Appendix I. Overview of claims There is some conflict in the evidence as to when the residents of Jacksonville first learned of the leak. Most of the appellees testified that they received notice via newscasts on February 20 or 21, 2006, but there is some testimony that a representative of MDE notified some residents earlier.

In any event, the residents thereafter held meetings to discuss the developing situation, including meetings with representatives of MDE and appellant. At some point in 2006, counsel began representing some or all of the appellees. In the fall of 2006, appellees filed their complaints. The record extract contains one complaint as a representative complaint only. ⁷⁹ That complaint was filed on October 17, 2006.

We have not determined the dates of the other filings. In their complaints, appellees alleged fraudulent concealment, intentional infliction of emotional distress, strict liability, trespass, private nuisance, and negligence. They sought compensatory and punitive damages. The fraud counts were based on allegations that (1) the line leak detection system at the station was antiquated and unreliable, that appellant had concerns about the system, and that appellant failed to disclose those facts to the Jacksonville residents, and (2) appellant failed to immediately notify the residents when the leak was discovered and thereafter failed to keep them fully informed.

Eventually, appellees dismissed the intentional infliction of mental distress counts as to all appellees and dismissed the trespass counts as to some of the appellees. Appellant admitted conduct giving rise to liability for trespass, private nuisance, negligence, and strict liability, denied liability for fraud and punitive damages, and asserted that the compensatory damages claimed were, in large part, unavailable as a matter of law. Trial began in October, 2008. On March 12, 2009, the jury returned completed verdict sheets, one for each of the 88 households.

The occupants of each household were listed on the verdict sheet. The jury found in favor of appellant with respect to the fraudulent concealment and punitive damage claims. The jury returned a verdict for all appellees with respect to all other claims. The verdict sheets were in the same format, in essence, asking (A) do you find fraud by concealment?

(B) do you find that appellant’s admitted liability caused any injuries and damages? and (C) if the answer to (A) or (B) is yes, how much compensatory damages do you award? That question was followed by: Economic Damages Damages to Property Owner [name of property owner] Diminution in Property Value $_ Medical Monitoring ⁸⁰ [names of plaintiffs] $- Non-Economic Loss (Emotional Distress) [names of plaintiffs] $- D. Punitive Damages If you answered to [question (1) ], should the plaintiffs be awarded punitive damages? [names of plaintiffs] YES_NO_ (Emphasis in original). The properties in question were located at varying distances from the source of the leak. The presence of contamination and the extent of contamination, if found, between February 17, 2006 and the date of trial varied from property to property.

Appellees’ expert testimony as to likelihood of contamination in the future, or lack thereof, varied from property to property. The measures employed by residents and by others to protect residents from exposure to possibly contaminated well water varied from property to property. The remediation activities also varied by location. Much of the testimony turned on whether a property had ever been contaminated, and if so, its location vis a vis the dispersal area of the gasoline, known as the “plume” or “strike zone,” and the extent of any contamination.

Each property owner received an award for the full pre-leak value of the property, i.e., the jury found that each property was worthless. Each appellee received an award for medical monitoring. With rare exceptions, each adult received an award in the amount of $500,000 for emotional distress, and each minor received an award of $50,000 for the same. In households with children, generally speaking, the awards for the adults were reduced by the amount of the awards for the minors.

Before summarizing the positions of the parties, a review of additional basic information may be helpful. MTBE and benzene are two volatile organic compounds found in gasoline. MTBE is commonly added to gasoline to reduce emissions of air pollutants from exhaust systems. MTBE is water soluble. ⁸¹ MTBE is a possible carcinogen, but there are no human studies linking it to cancer.

Because it was not used as a gasoline additive until 1979, there are few studies in existence, other than with respect to the effect of exposure on animals. The Environmental Protection Agency (“EPA”) has classified MTBE as a potential human carcinogen at large doses, but not at low exposure levels. Because of the absence of a consensus on whether MTBE is a carcinogen, the EPA has not set a maximum contaminant level (“MCL”) for it. Based on MTBE’s bad taste and odor, the EPA has set a maximum MTBE level at 20-40 parts per billion (“ppb”).

The MDE has set an “action level,” a concept used interchangeably with MCL, at 20 ppb for MTBE and has taken the position that the standard is “protective of human health and safety.” The EPA classifies benzene as a carcinogen and has set the MCL at 5 ppb. The MDE uses the same standard for benzene. The EPA standard for each chemical is the level at which a person could be exposed to the chemical every day for 70 years with only a negligible increased risk of cancer. Other states have adopted different standards for each chemical, and some are lower than those set by the EPA and MDE.

The remediation effort as a result of the leak included drilling monitoring wells at various locations and at various depths to determine the extent of the plume. These wells were used for periodic monitoring and, when contamination was found, for recovery of the gasoline and residuals.

II

Summary of contentions/arguments on appeal On appeal, appellant contends; (1) the finding that each property was worthless was formulaic in nature without individualized determination and was contrary to all of the evidence; (2) the court erred in admitting the testimony of Kenneth Acks, appellees’ real estate expert, because he failed to use a generally accepted method of valuation and he ignored the post-leak sales; (3) as to fear of cancer or other latent disease, the awards were formulaic, the standard for ⁸² recovery for fear of cancer or other latent disease was incorrect, and in any event, the evidence was legally insufficient; (4) as to emotional distress generally, the awards were formulaic, appellees did not prove a physical injury sufficient to permit recovery, and in any event, the evidence was legally insufficient; and (5) medical monitoring is not a recognized tort or compensable type of damage, but if recognized, the standard employed was incorrect, and regardless, the evidence was legally insufficient to support an award. Appellant observes the following. Forty-two appellees, from 12 households, did not testify. The 12 households are identified as the Acchione, Barnett, Butler, DiGalbo, Fulco, Gollihue, Greenblatt/Robertson, Hahn/Tamberino, Kropfelder, Pertee, Simms, and Sipes families.

With the exception of Mildred Hahn, who dismissed her claim for medical monitoring, all 42 appellees who did not testify received medical monitoring awards and those who were owners received the full pre-leak value of their properties. Appellant asserts, based on sampling, that of the 88 properties involved in this appeal, 22 never had any contamination from the leak. By the time of trial, a total of 49 properties were without contamination. Benzene above the MCL was never found in any potable well and only two potable wells were ever found to have MTBE above Maryland’s action level.

Only eight properties ever had either a potable well or a monitoring well test for MTBE or Benzene at a level above the applicable action level or MCL. The vast majority of Plaintiffs’ properties (66 of 88) were not within the strike zone. Only a small minority of Plaintiffs’ properties (14 of 88) ever had a monitoring well or other remediation activity. As to certain of these households, the remediation process was and will continue to be a significant intrusion.

(Footnotes and references to record extract omitted.) After and as a result of the leak, one appellee, Mae DeLeo, moved out of her house and into a condominium in Towson. ⁸³ The remaining appellees continued to occupy their homes, except for those who sold them. The owners of 8 properties attempted to sell their homes after the leak; two were unsuccessful (Barone and Gregory families), and 6 were successful (Brady, Csicsek, Murray, Simms, Roeterings, and Williams families). 5 The owners of 10 other properties refinanced their homes after the leak. A total of 49 homes in the Jacksonville neighborhood were sold after the leak, at substantial prices. Appellant contends that the court erroneously admitted the testimony of Kenneth Acks, who testified as an expert on the impact of the leak on the value of appellees’s properties.

Mr. Acks testified that each property had sustained a percentage loss in value, in varying amounts, primarily dependent upon its location and extent of contamination, if any. Appellant argues that Mr. Acks did not use a generally accepted methodology in formulating his opinions and ignored the 49 sales in the neighborhood. During the course of the litigation, and prior to trial, appellees’ counsel arranged for any appellee who wished to do so to consult with Abdul Malik, M.D., a psychiatrist. Eighty-seven appellees accepted the offer.

Thirteen sought follow up treatment in Dr. Malik’s office. According to appellant, “[ejmotional distress awards were ... entered in favor of 47 non-testifying Plaintiffs.” Appellant asserts that the “overwhelming majority of Plaintiffs either provided no evidence of any physical manifestations of their alleged distress and/or insufficient information about their pre-leak emotional health to allow for a before and after comparison.” With respect to medical monitoring, appellant observes: With only a few variations, [damages for medical monitoring] also followed a formula. Each member of a household whose potable well ever had a MTBE reading above 0.5 ppb, received 100% of their claimed costs for future medical monitoring. Each member of a household whose potable ⁸⁴ well ever had an MTBE reading of less than 0.5 ppb, received 50% of their claimed costs for future medical monitoring.

Each member of a household whose potable well never tested positively for MTBE, received 25% of their claimed future medical monitoring costs. (Extract references omitted.) Thus, appellant argues: (1) The jury’s finding that each property was worthless was not supported by any evidence and was contrary to all the evidence. Appellant points to Mr. Acks’ testimony that the decrease in value ranged from 30 to 60%; the post-leak sales for substantial prices; the refinancings and corresponding appraisals; the lack of restrictions on use of most properties; and the evidence that a certain number of properties—appellant says 13—were never contaminated and, according to appellees’ expert, were not likely to become contaminated. Additionally, appellant acknowledges that a certain number of owners, (appellant says 7, appellees say 22), opined as lay witnesses that their properties were worthless, but appellant argues that the evidence had no probative value, or if it did, it was limited to the homes of those owners.

(2) Mr. Acks should not have been permitted to testify. (3) Fear of cancer or other serious latent disease is not compensable absent evidence of exposure and evidence that the person has a reasonable probability of contracting such a disease. Not all appellees proved exposure. Moreover, while the testimony by appellees’s expert was that an exposure increases the risk of cancer, there was no evidence that the risk was substantial or significant.

(4) With respect to emotional distress generally, in addition to the above, almost all appellees failed to prove any physical injury necessary to support a recovery. (5) A medical monitoring claim is not recognized in Maryland, and for reasons similar to the emotional distress claims, the evidence was legally insufficient. ⁸⁵ (6) The awards were formulaic, and the jury did not make individualized assessments. Appellees observe: The Plaintiffs all shared in the destruction of their property values, the disfigurement of the surrounding land, the noise, inconvenience and unsightliness of the equipment, the stadium lighting, the influx of hoards of remediation crews working 24/7, the exposure to gasoline and its constituents from their drinking water, and the emotional distress, anxiety and fear that results from having life as they knew it turned completely upside down. Appellees also observe that Kenneth Rudo, Ph.D, a toxicologist who testified as an expert witness on their behalf, testified that MTBE is a mutagen that causes changes in DNA, and therefore, there is no safe level of exposure.

Appellees contend: (1) Appellant waived all issues raised on appeal, by affirmative representation, acquiescence, consent, and concession. Appellees explain that appellant’s counsel tried the cases by telling the jury that it would accept their decision on compensatory damages in exchange for not ruling against it on fraud and punitive damages. (2) The evidence supported the jury’s determination that the properties were worthless. Appellees assert that 22 ap-pellees testified that their properties were worthless, there was substantial interference with the use of the properties, the well water was not drinkable, there was a stigma in the neighborhood, and there was noise, lighting, and other remediation efforts.

(3) Mr. Acks’ testimony was properly admitted. He explained his methodology, and he took the post-leak sales into account. (4) With respect to the non-economic damages, appellees support the instructions given and assert that the evidence was legally sufficient to support the awards. There was evidence of increased risk of cancer, of cellular mutation, and ⁸⁶ of physical manifestations of distress.

Appellees suffered intangible consequences such as inconvenience and embarrassment from the interference with the use of their properties in addition to the emotional distress, and that both was included in the non-economic loss awards. (5) The awards were not formulaic, and the fact that the awards were similar was supported by the evidence. (6) Damages for medical monitoring should be permitted in Maryland, and the evidence was sufficient to support the awards.

III

Summary of evidence at trial A. Appellees’ experts As mentioned above, some appellees consulted Dr. Malik, who was associated with Psych Associates of Maryland. At the beginning of trial, the parties stipulated, as to 57 appel-lees, that if a witness from Psych Associates were called to testify, the witness would testify that each appellee was diagnosed with a disorder, as identified in an attached exhibit, that was caused by, or exacerbated by, the leak. The stipulation (hereinafter “the Stipulation”) included a recitation that appellant disagreed with the expected testimony and asserted that none of the appellees “have suffered permanent psychological injuries or long term emotional distress.” The evaluation by Psych Associates for each appellee consisted of an interview that lasted 45 minutes to an hour. The information that the evaluator had was the self-reported information by appellees.

The evaluator did not have medical records for the appellees, that pre-existed February, 2006, and did not speak to any personal physicians of the appellees. Eight of the appellees covered by the Stipulation had a preexisting psychological condition that, at some point, had required psychotherapy, counseling, or medication. With respect to appellees covered by the Stipulation, Dr. Malik did not recommend therapy or counseling for 36 appellees; recommended treatment for 21 appellees with no prior history of ⁸⁷ treatment for emotional distress; and advised 4 appellees with preexisting conditions to continue therapy. The Stipulation included the following.

(A) Anxiety Disorders—Anxiety disorders are described in the DSM [Diagnostic and Statistical Manual of Mental Disorders] and categorized by the severity of symptoms and length of time the symptoms are experienced by the patient. Acute Stress Disorder is characterized by symptoms similar to those of Post Traumatic Stress Disorder that occur immediately in the aftermath of an extremely traumatic event. Generalized Anxiety Disorder is characterized by at least 6 months of persistent and excessive anxiety and worry. “Anxiety Disorder, Not Otherwise Specified (NOS)” is included for coding disorders with prominent anxiety or phobic avoidance that do not meet criteria for any of the specific Anxiety Disorders defined in this section (or anxiety symptoms about which there is inadequate or contradictory information). This Diagnosis is used to describe individuals who experienced temporary anxiety with symptoms which subsided in less than six (6) months.

(B) Adjustment Disorder An adjustment disorder is a psychological response to a stress that results in emotional or behavioral symptoms. Adjustment disorders can be Acute (less than 6 months) or Chronic (greater than 6 months). The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioral symptoms in response to an identifiable psychosocial stressor or stressors. The symptoms must develop within 3 months after the onset of the stressor(s) (Criterion A).

The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor, or by significant impairment in social or occupational (academic) functioning (Criterion B). The stressor may be a single event (e.g., termination of a romantic relationship), or there may be multiple stressors (e.g., marked business difficulties and marital problems). ⁸⁸ Stressors may be recurrent (e.g., associated with seasonal business crises) or continuous (e.g., living in a crime-ridden neighborhood). Stressors may affect a single individual, an entire family, or a larger group or community (e.g., as in a natural disaster). Some stressors may accompany specific developmental events (e.g., going to school, leaving the parental home, getting married, becoming a parent, failing to attain occupational goals, retirement).

(C) Mood Disorder Depression disorders are described in DSM under the heading of “Mood Disorders” and are categorized by the severity of symptoms and the length of time the symptoms are experienced by the patient. Major Depressive Disorder is characterized by one or more Major Depressive Episodes (i.e., at least 2 weeks of depressed mood or loss if interest accompanied by at least four additional symptoms of depression). Dysthymic Disorder is characterized by at least 2 years of depressed mood or more days than not, accompanied by additional depressive symptoms that do not meet criteria for a Major Depressive Episode. When a patient’s symptoms of depression do not persist for two (2) weeks or more they are diagnosed with “Depression,” “Depressive Disorder” or “Depressive Disorder Not Otherwise Specified (NOS).” Dr. Malik testified at trial with respect to certain appellees who were not the subject of the Stipulation.

We will include Dr. Malik’s diagnoses when we discuss each appellee, below (appendix). The parties entered into a similar stipulation with respect to the testimony of Nachman Brautbar, M.D. 6 The parties agreed that, if called to testify, Dr. Brautbar would state that all appellees require medical monitoring. The stipulation provided: “[biased on the opinions of Kenneth Rudo and my understanding of the nature and extent of Plaintiffs’ exposure to ⁸⁹ MTBE, I believe the following tests for examinations should be performed as part of an annual medical monitoring protocol.” Dr. Brautbar recommended annual tests for testicular cancer, kidney cancer, liver cancer, and hematolymphatic cancers. He estimated the cost as $2,000 per appellee, per year.

The test results for both potable and monitoring wells for the time period post-leak and prior to trial were admitted into evidence. A chart showing the maximum detection levels for all wells was admitted into evidence. Harvey Cohen, a geologist with a specialty in hydrogeology, testified as an expert for the appellees. In essence, he testified about the movement of ground water generally, the function of potable wells, his mapping of test results, and his opinion about future contamination.

Through the use of exhibits, he described the location of appellees’ properties and the wells. He opined that, at any given point in time post-leak through April, 2007, 66 properties had a detectable amount of MTBE, and 5 had a detectable amount of benzene. He also described the levels of contaminants found in monitoring wells in the same time period. His exhibits displayed the maximum concentrations, whenever recorded.

They did not purport to depict the situation at a given point in time. Mr. Cohen testified that the plume, or area of contamination, is ever-changing because of the movement of ground water. He identified 24 properties with no detected contamination, and another 30 wells with a chemical detection level under 0.5 ppb. He described the potential for contamination in the 24 potable wells not previously contaminated.

Two were described as having high potential, 5 as having medium potential, and 17 as having low potential. Mr. Cohen could not predict which well or wells might become contaminated in the future or when; he opined only as to probability. The witness testified that no wells had been abandoned and none had been condemned. He acknowledged that MTBE and benzene degrade over time.

He did not evaluate the remediation effort and did not assess its efficacy. Twenty-two potable wells were located inside the plume. Mr. Cohen ⁹⁰ expressed no opinion as to whether chemical containing vapors were present in any of the homes. Edward Sullivan, a geologist with a specialty in hydrogeolo-gy, employed by the Whitman Companies, also testified as an expert for the appellees.

He described underground fractures, aquifers, and the movement of ground water generally. He testified that the chemicals in question are soluble, therefore, when the liquid gasoline is all gone, dissolved chemicals remain that can migrate in the ground water, through fractures in the rock formations. He opined that the detected levels of chemicals on the 66 properties mentioned above were likely caused by the leak. He opined that the Baigs’ and Libertinis’ potable wells likely would be contaminated in the future.

He stated that the remediation effort was being conducted under the supervision of the MDE, but offered no opinion as to the amount of contamination being captured by the effort. He stated, however, that contamination forced down into the deeper bedrock would likely not be recovered, and it would be difficult to determine its movement. Kenneth Rudo, a toxicologist, also testified as an expert witness for the appellees. Mr. Rudo was employed by the State of North Carolina.

He stated there is a relatively small body of knowledge in existence relating to MTBE because it has been used in gasoline for only about 20 to 30 years. He opined that MTBE is a probable human carcinogen and a probable human mutagen. He explained that MTBE exposure can occur through ingestion, bathing or other skin contact, or breathing vapor containing MTBE. He stated that exposure produces an increased risk of cancer.

The witness testified that he could not state that any of the appellees would, more likely than not, get cancer as a result of the leak. On direct examination of Dr. Rudo, the following colloquy occurred: Q. And now specifically, and I don’t want to spend a lot of time on this, the jury will have and they have elaborate records of the levels of MTBE that the various plaintiffs were exposed to. There is a list of 66 plaintiffs, 66 families ⁹¹ comprising approximately two hundred or two hundred and fifty of our plaintiffs, but 66 families on Exhibit 8 and 8A and I’m not going to waste your time to show it to you, I would just remind the jury, that they have had contamination in their drinking water? A. This is true.

Q. And while not yet in evidence because the expert hasn’t testified yet, I will just mark it for identification as Plaintiffs Exhibit 88, you are aware of the fact that we have asked Dr. Whitman, an environmental engineer, to opine as to whether or not my clients were exposed to contamination in their drinking water before they knew about the spill. In other words, during the period of time when the leak occurred on January 13th, until it was publicly acknowledged on February 17th, February 18th, they would have gone about their life drinking the water, cooking, bathing, whatever, not knowing that there was this 26,000 gallon leak? A. Yes. Q. And those 40 people—I’m not going—it is 39.

Those 39 people are identified and it will be explained in detail by Dr. Whitman later in the case, but those 39 people that would have been going about their life during those 37 days and consuming the water on Plaintiffs Exhibit Number 88, so the record is clear of what I’m talking about, you would agree that the exposures to the various plaintiffs vary from plaintiff to plaintiff? A. Yes. Q. And the amount of contamination in their wells varies not only from plaintiff to plaintiff but from test to test? A. Yes, sir.

Q. Now, with that in mind, can you state to a reasonable degree of probability in your field as a toxicologist that each of the plaintiffs that I have just described is in fact at an increased risk for developing these cancers in the future? A. Yes, they are. ⁹² Q. And what is it about the exposure of any kind? Because they do vary from levels that are below one part per billion to levels that I think the highest level, 47.7 parts per billion, explain to the jury the—how you parse through the levels of exposure, the levels of contamination that they were exposed to and how you were able to conclude that even at these low levels in some of the plaintiffs’ wells they were exposed to a level that will likely put them at increased risks for cancers in the future? A. Well, Number one, they were most certainly exposed.

They had the positive [well] tests, you know, had exposure to a chemical that we consider more likely than not to be carcinogenic. Because we also consider it to be more likely than not a mutagenic chemical that can change DNA, that that implies that in essence there is no safe level; there is no safe level in terms of exposure time and there is no safe level in terms of the amount of chemical that is there. So in essence, the safe level would be considered zero. Anything over and above that would increase the risk.

(Emphasis added). Dr. Rudo did not offer opinion testimony as to increased risk of any specific appellee other than the 39 appellees referenced in the emphasized question. Later, in Dr. Rudo’s direct examination, the following occurred: Q. So the exposure to MTBE causes mutations of the human cells? A. Yes.

Q. Can you state to a reasonable—I know you couldn’t state to a reasonable degree of scientific certainty that any one client was going to get cancer, so I want to juxtapose that with can you state to a reasonable degree of scientific certainty that the plaintiffs that have been exposed to contamination have in fact had mutations of their cells? A. Yes, more likely than not they have. Dr. Rudo also opined that all persons exposed to the chemicals in question should have medical monitoring. He was asked if he knew that appellant had provided five families ⁹³ with point of entry carbon treatment systems for their wells.

He replied in the affirmative and opined that all plaintiff families should be provided with a point of entry carbon treatment system. He stated that, to be effective, the system must be regularly maintained. He testified that the cost of such a system is approximately $7,000. 7 On cross-examination, Dr. Rudo acknowledged that Americans routinely are exposed to MTBE and benzene in their everyday lives. The chemicals are in the ambient air.

In addition, when a person operates and refuels a vehicle, he or she is exposed to these chemicals. Dr. Rudo acknowledged that in North Carolina the safety standard for MTBE was higher than the one he had just advocated as safe. He also acknowledged that he had proposed lowering the North Carolina standard to 11.6 ppb for MTBE, a standard that was not adopted and was also higher than what he opined was safe. Dr. Rudo did not interview any of the appellees with respect to whether and to what extent they used potable well water.

He did not conduct air sampling. He did not calculate how much chemical or for what period of time a chemical was in a well. He did not test appellees for evidence of exposure. He had no exposure information about any particular appellee and had no information about any symptoms experienced by any appellee.

He could not quantify any appellee’s exposure to either MTBE or benzene and he could not quantify any increased risk of cancer. He had no information about any exposure by any appellee to soil contamination, or to contaminated vapors, and no information about exposure to any contamination in monitoring wells. Kenneth Acks testified for the appellees as an expert in “environmental economics” and real estate appraisal. The parties stipulated to the pre-leak value of each property.

Relying on that stipulation and information prepared by other appellees’ experts, Mr. Acks rendered an opinion as to the ⁹⁴ diminished value of each property involved. He utilized information which showed well readings taken after the leak and before trial on the various properties, and an exhibit prepared by Mr. Sullivan, reflecting Mr. Sullivan’s opinion as to whether properties with no contamination had a low, medium, or high probability of becoming contaminated in the future. Mr. Acks concluded that properties with evidence of contamination had decreased in value by 60%; properties with a high chance of future contamination had decreased in value by 50%; properties with a medium chance of future contamination had decreased in value by 45%; and properties with a low chance of future contamination had decreased in value by 30%. On cross-examination the following occurred: Q. And in your analysis, you didn’t conclude that any of the homes had been diminished in value 100 percent, am I correct?

A. Correct. But once again, the prior qualification I had if this assumes a willing buyer and willing seller, if the seller is not willing to sell a contaminated property, then one could argue that the value is zero. Q. And with respect to this case, as I understand it, you haven’t actually quantified the diminution in any of the Plaintiffs’ property values caused by stigma in this particular case? A. Not separately, but effectively it’s been included in my calculations.

Q. But you didn’t quantify stigma and set it out and say to people here’s what the lasting effect of contamination will be because of this incident? A I didn’t see any need to. Mr. Acks stated there is a recognized phenomena sometimes referred to as the “life cycle of the effect of contamination on property values.” He testified that the maximum effect “occurs immediately after the incident but before cleanup takes place,” and the impact decreases over time during ⁹⁵ remediation and after the completion of remediation. The impact also lessens the farther the property is from the source of the contamination.

He added that, because of “stigma” in a particular situation, the property value “doesn’t necessarily come all the way back.” Mr. Acks opinion estimating property values in these cases was as of February 16, 2006. He stated he was not hired to do an analysis of fluctuations in property values after that date or the effect of any lingering stigma. He did not do an individual analysis of value for any particular property. Rather, he performed an “estimate overall, and it’s an expected probability.” On redirect, Mr. Acks testified that, if appellant is unable to remove all of the contamination from the ground, that would have a “very significant” effect on property values.

He also stated that, after he finished his report, more properties showed evidence of contamination than existed when he was preparing his report. Thus, with respect to the life cycle, he stated: Well, it was implicitly—as I say, I did this preliminary estimate and then certain facts came to light that would have lowered the estimate, but more facts came to light that would have raised the estimate. So there were several factors considered and that was—that was—it counter-balanced the other life cycle effects talked about earlier. Dr. Ira Whitman, Ph.D, a civil engineer, testified for the appellees as an expert in environmental engineering.

He worked with Mr. Sullivan and Mr. Cohen, describing himself as the quarterback. He discussed exhibits showing the area of contamination and the readings. He noted that, as of the date of his report, 50 homes had shown some contamination at some point in time, and that number later rose to 66 homes. The exhibits showed the highest concentrations of a contaminant at the point in time when it was the highest, up until April, 2007.

One of the exhibits reflected his opinion as to which potable wells likely were contaminated between January 13, 2006 and February 17, 2006, a total of 38 or 39. That opinion was based on estimates of time, distance, speed of travel of the contaminants, and other probability factors. ⁹⁶ With respect to the remediation effort, Dr. Whitman stated that “they used appropriate method and appropriate equipment and so on,” but because of the complexity of the geology, they could not know where all of the contaminants are, therefore, “they’re never gonna get everything out....” Dr. Whitman did not speak to any of the appellees prior to trial. His company performed air sampling in four homes but did not further pursue air sampling. He did not do a time series mapping of the effect of remediation activities.

He acknowledged that gasoline attenuates naturally but stated that not all of it does. He did not conduct an attenuation study in these cases. Jerold Jaynes, Ph.D, an economist, opined about the present value of the cost of future medical monitoring for the appel-lees. He multiplied the remaining years of life expectancy for each appellee by $2,000 per year, increased the cost per year assuming an inflation rate of 3.74%, and then reduced the total to present value, assuming an interest rate of 5.2%.

B. The appellees The questioning of most of the appellees who testified followed a similar format. Although all topics were not covered with each appellee, and not in the same depth, the subjects included: the nature, extent, and impact of remediation activities on a particular property; the extent to which residents’ outside and/or inside activities were limited; the nature and extent of MTBE and/or benzene contamination on a property as reflected by well readings; whether harmful chemicals not attributable to gasoline were found in wells; the location of each property vis a vis the strike line; the nature and extent of use of well water; the impact of the leak on the value of each property; employment and other financial concerns of appellees; matters related to emotional distress; and appellees’ perceived need for medical monitoring. We have not included a recitation of the results of testing for the presence of MTBE or benzene on each property and have not included a detailed summary of remediation activities ⁹⁷ on each property because the detailed information is unnecessary for the resolution of the issues before us. We have concentrated on testimony relating to the claims for emotional distress and diminution in property value, contained in the attached appendix.

All, or almost all, appellees testified that they bought their homes because the homes were in an attractive area and they bought them in reliance on the belief that appellant had a safe leak detection system at the station in question. The testimony revealed that the effect of remediation activities ranged from substantial impact to minor impact, depending on the property’s location. The impact consisted of the location of monitoring wells, piping, and other equipment on certain properties, and the presence of noise, lighting, traffic, and workmen in the neighborhood. Some appellees used only bottled water for drinking prior to the leak, and some did not.

Most appellees stopped using well water for drinking after the leak, and a few did not. Some appellees used well water for cooking after the leak, and some did not. Most, but not all, appellees used well water for bathing after the leak. None of the appellees had their well water tested at the faucet and none had water vapors tested inside of their houses.

Some appellees testified that they would like to move if they could. Most appellees stated they did not intend to move. Most appellees testified that there was a “stigma” to the neighborhood. As noted above, several appellees testified that the impact of the leak caused their homes to have no value.

Most appellees stated they experienced employment and other financial concerns. After the leak, some appellees installed whole house carbon filter systems, but most did not. All testifying appellees opined that they needed annual medical monitoring. With respect to emotional distress, almost all appellees expressed fear of cancer, fear of other latent disease, fear of the unknown, and the litigation itself.

It is necessary, because of the nature of the issues relating to legal sufficiency, to set forth appellees’ testimony in some detail. We have a duty to ⁹⁸ apply the law to each case and each party. We set forth the detail in the appendix. At this point, we shall merely briefly summarize the nature of the complaints.

Some appellees testified to none of the following complaints, and others testified to one or more of the following complaints. They were anxiety, sleeplessness, anger, worry about health and finances, headaches anxiousness, stress, frustration, embarrassment, depression, upset stomach, and panic attacks. Some appellees consulted with Dr. Malik, and others did not. Some appellees sought treatment, and others did not.

The nature and extent of the distress varied. Some appellees testified that they experienced emotional/psychological issues prior to the leak and some had sought treatment. Some appellees testified to issues relating to their marriage or other relationships, concerns about their health or health of family members unrelated to the leak C. Appellees’ liability witnesses Appellees called several witnesses to testify with respect to the fraud claim, relating to appellant’s failure to detect the leak prior to February 16, 2006 and alleged concealment of information before and after the leak. We will not summarize that testimony because it is not necessary for the resolution of the issues before us. 8 D. Appellant’s evidence Because of the nature of the issues before us, it is unnecessary to review in detail the testimony of the defense witnesses, particularly those who testified about the leak detection equipment at the service station and its maintenance.

We will briefly comment on some of the testimony relating generally to health and property issues. ⁹⁹ Gary Krieger, M.D., testified that all people in this country are exposed to carcinogens and mutagens every day, including in food and water that is consumed. That includes MTBE and benzene. He emphasized that the dose is the issue, Le., mere exposure does not cause cancer. He described the government standards for MTBE and benzene and observed that even the persons with the highest potable well readings, assuming exposure during the entire time period before trial, were exposed at levels well below even the lowest, ie., most stringent, government standards, such as those in California.

He opined that the risk of disease the appellees faced was no different than the risk of disease for the general population. Ronald Lipman, a real estate appraiser, testified that, in 2007 and 2008, there was a general downturn in the real estate market everywhere. He opined that the effect of the leak on property values ranged from 0% to 15%, depending on the property. 9 Gregory Martin described the remediation efforts conducted pursuant to a consent order entered into between appellant and MDE. Pursuant to that order, appellant filed a corrective action plan and intends to continue efforts until the remediation goals are met.

Herbert Meade, administrator for the oil control program in MDE, defended the State standard for MTBE as protective of human health. He noted that MTBE is the most frequently found contaminant in ground water in the State. With respect to the properties in these cases, he stated that some needed filter systems and others should have them as a precautionary matter, but that the potable well water is safe to drink. He acknowledged that, because of the lack of human studies, he did not know the long term effects of exposure to MTBE. ¹⁰⁰ Thomas Maguire discussed the nature of a leak and how gasoline and its contaminants are dispersed, removed, or naturally attenuated.

He described the life cycle of a plume as initially expanding, then reaching equilibrium, which occurs when the rate at which the contaminants are dissolving equals the rate of attenuation. He opined that the plume for this leak had stabilized, meaning the residual contaminants were trapped and immobile. He acknowledged there likely was still some residual contamination which, in the future, would be removed as part of the remediation efforts, or would be naturally attenuated.

IV

Waiver Appellees contend that appellant waived its right to appeal by agreeing to acquiesce in the jury’s verdict for compensatory damages if the jury did not award punitive damages. We agree with the discussion in the section labeled “DISCUSSION I. Waiver” of J. Zarnoch’s opinion. V. Admissibility of Mr. Acks’ testimony Appellant contends that the circuit court erred in admitting the opinion testimony of Mr. Acks because it lacked a sufficient factual basis and did not employ a recognized methodology. We agree with the discussion in the section labeled “DISCUSSION II.

Admissibility of Expert Testimony” of Judge Zarnoch’s opinion.

VI

The law relating to emotional distress A. Personal injury versus property damage and compensable elements of each Appellees sued on several causes of action, claiming essentially the same damages as to each. At trial, they sought to recover damages for the diminution in value of their properties; the loss of use and enjoyment of their properties; intangible negatives such as annoyance, embarrassment, inability to use their yards, noise, dust, unusual traffic, and the like; worry and concern about the loss in value in their properties; emotional distress in the form of fear of cancer or other latent ¹⁰¹ disease; and the costs of medical monitoring for cancer or other latent disease. 10 In analyzing the issues in this appeal, and in particular the issues relating to emotional distress, we must distinguish between what is recoverable as damages in an action for personal injury and what is recoverable as damages in an action for property damage. Maryland does not recognize the tort of negligent infliction of emotional distress. In other words, in this State, a person does not owe a duty in tort to exercise care to protect other people from experiencing emotional distress.

However, in personal injury actions based on recognized torts, emotional distress damages sometimes are recoverable. For instance, when tortious conduct causes a physical injury, the injured person may recover damages for emotional distress attendant to the physical injury. Also, in some circumstances, emotional distress damages may be recovered for fright or for fear for human health or safety. See VI.

B. Generally speaking, emotional distress attendant to property damage is not compensable. Thus, the distress a property owner may experience over injury to his or her property— including the fear of financial difficulty due to a loss in value of the damaged property—is not compensable. H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49 , 338 A.2d 48 (1975), abrogated on other grounds by Owens-Illinois v. Zenobia, 325 Md. 420, 448-49 , 601 A.2d 633 (1992) (stating that “Maryland decisions have generally denied compensation for mental anguish resulting from damage to property”); State, use of Aronoff v. Baltimore Transit Co., 197 Md. 528, 539 , 80 A.2d 13 (1951) (explaining that “all the authorities seem to hold that a plaintiff cannot recover for injuries resulting from fear or shock at the injury to his personal property!,]” as opposed to injury to the person). An exception to the rule exists when ¹⁰² “the act occasioning the injury to the property is inspired by fraud, malice, or like motives.” Zeigler v. F. Street Corp., 248 Md. 228, 226 , 235 A.2d 703 (1967) (citations omitted).

Given the verdict in favor of appellant on the fraud claim and on punitive damages, the exception does not apply in this case. When an action is premised on injury to property, damages may be recovered for loss of value and for infringement upon the owner’s use and enjoyment of his property. The latter may include compensation for annoyance, embarrassment, and similar intangible negatives. Although damages of that sort implicate human emotions, they are not damages for personal injury; they are damages recoverable as attendant to the inability to use one’s property in the same manner as before the damage.

The general prohibition against recovery of damages for emotional distress resulting from injury to property applies not only to claims brought by a property owner in negligence, trespass, and strict liability but also to a claim brought by a property owner in nuisance. Maryland courts have adopted the definition of private nuisance set forth in Section 821D of the Restatement (Second) of Torts: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” See Rosenblatt v. Exxon, 335 Md. 58, 79 , 642 A.2d 180 (1994); Echard v. Kraft, 159 Md.App. 110, 116 , 858 A.2d 1018 (2004); and Exxon v. Yarema, 69 Md.App. 124, 147 , 516 A.2d 990 (1986). Comment (a) to that section explains that, under old English law, an action would lie for interference with possession of property, i.e., trespass, but not for a non-possessory interference with property. The concept of nuisance was developed to secure free enjoyment of property, as well as its possession.

Comment (b) of section 821D explains: ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his or freedom ¹⁰³ from detrimental change in the physical condition of the land itself. This interest in freedom from annoyance and discomfort in the use of land is to be distinguished from the interest in freedom from emotional distress. (See § 46)[ 11 ] The latter is purely an interest of personality and receives limited legal protection, whereas the former is essentially an interest in the usability of land and, although it involves an element of personal tastes and sensibilities, it receives much greater legal protection.

In other words, a property owner cannot circumvent the prohibition against recovery of emotional distress damages for injury to property by arguing that fear he or she is experiencing due to injury to property has negatively affected his or her use and enjoyment of the property. See Hall v. Lovell Regency Homes, 121 Md.App. 1, 26 , 708 A.2d 344 (1998) (holding that the trial court property instructed the jury that it could not award damages for “loss of use and enjoyment” of homeowners’ properties where: “[w]hen pared to their essence, the ‘loss of use and enjoyment’ damages that the homeowners sought were damages for mental distress attendant to their claimed pecuniary injuries”; the trial court ruled that “the homeowners could not recover damages for mental distress”; and “that ruling [was] not challenged on appeal”). Indeed, in Maryland nuisance cases, when recovery for emotional distress was permitted under a “loss of use and enjoyment” theory, the distress arose from fear for human health or safety. See, e.g., Gorman v. Sabo, 210 Md. 155, 161, 163 , 122 A.2d 475 (1956) (permitting recovery when the defendant intentionally, maliciously, and constantly blared radio music towards a married couple’s home, for the wife’s “deterioration in physical and nervous condition,” and the husband’s “irritable and nervous” condition, which resulted in part from watching his wife deteriorate); Green v. Shoemaker, 111 Md. 69, 77-80 , 73 A. 688 (1909) (allowing recovery for “fright and nervousness” when the defendant’s blasting activities over a several ¹⁰⁴ month period caused rocks to fall on plaintiffs house, putting plaintiff “in continual fear and jeopardy of her life,” and causing her “nervous prostration”).

Emotional distress damages for perceived and potential harm to human safety only may be recovered if the evidence satisfies causation and physical manifestation requirements. It is recoverable as an injury to the person, not to property; thus the distress must result from the threat to human safety. In addition, stress attributable to litigation is not compensa-ble. The jury was so instructed when these cases were tried (“emotional distress whether resulting from the testimony they heard or the general rigors of the litigation process is not compensatory”).

There was no exception taken to the instruction, and presumably, that issue is not in dispute. Although some of the evidence in these cases was inadmissible, we are not addressing admissibility of evidence issues because none are before us. What is before us are sufficiency of evidence issues. In that regard, as is clear below, admitted evidence, even if inadmissible if challenged, does not mean the evidence is legally sufficient.

Similarly, while we do not agree with all of the court’s instructions to the jury relating to damages, the instructions are not before us because there were no exceptions relevant to the issues. The instructions did not clearly differentiate between negatives attributable to damage to property versus emotional distress, ie., distress resulting from perceived danger to the person, resulting in physical manifestations. Nevertheless, the instructions drew a distinction between claims for property damage and claims for personal injury. They properly treated emotional distress as a claim of harm to the person.

The verdict sheets reflected the property damage claims as “diminution in value” and “medical monitoring” and the personal injury claim as “emotional distress” (the non-economic portion). Regardless of whether the jury fully understood the difference between the intangible negatives of a loss of use and enjoyment claim, which properly may be recoverable in a ¹⁰⁵ property damage claim, and emotional distress related to a threat to human safety that produces physical manifestations, which properly may be recoverable in a personal injury claim, we are able to address the sufficiency of evidence issues related to emotional distress for the following reasons. One issue is whether the evidence was legally sufficient to satisfy the exposure requirement, the physical manifestation requirement, and the causation requirement, i.e., whether emotional distress was caused by a perceived threat to human safety occasioned by the leak. The issue of legal sufficiency is not affected by whether the jury considered annoyance, embarrassment, or other intangible negatives as part of the emotional distress claim.

The other legal sufficiency issue is whether the evidence was legally sufficient to support the claim for fear of contracting a future latent disease. Again, the issue is not affected by whether the jury considered annoyance, embarrassment, or other intangible negatives as part of the emotional distress claim. As explained below, appellees who presented legally sufficient evidence of exposure and physical manifestation of emotional distress will be remanded for new trials, but without claims based on fear of future latent disease. We shall proceed to a discussion of Maryland law as it relates to emotional distress claims generally.

It. Emotional distress generally—physical manifestation requirement Recovery may be had for emotional distress arising out of otherwise tortious conduct, as an element of damage, not as an independent tort. Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 62-63 , 502 A.2d 1057 (1986). In other words, as noted above, Maryland does not recognize the tort of negligent infliction of mental distress as distinguished from the tort of intentional infliction of mental distress.

Traditionally, recovery for emotional distress as an element of damage required a physical injury or, in some instances, a physical impact. Vance v. Vance, 286 Md. 490, 496-97 , 408 ¹⁰⁶ A.2d 728 (1979). In Bowman v. Williams, 164 Md. 397 , 165 A. 182 (1933), the plaintiff claimed emotional distress caused when the defendant’s negligently operated truck crashed into the plaintiffs house. Prior to the impact, the plaintiff observed the truck coming towards his house and feared for the safety of his sons, who were in the basement.

When the truck crashed through the foundation of the house, the plaintiffs nervous system went into shock, causing him to fall to the floor. He remained bed-ridden for several weeks and was unable to work for six months. He had not been hit by the truck or physically injured by it in some way. In the plaintiffs negligence action against the truck driver, the Court of Appeals held, nevertheless, that “a plaintiff can sustain an action for damages for nervous shock or injury caused, without physical impact, by fright arising directly from defendant’s negligent act or omission, and resulting in some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Id. at 404 , 165 A. 182 .

In Vance, supra, Muriel Vance, the plaintiff, sought and obtained a decree awarding her alimony and child support after her husband of eighteen years, Dr. Arnold Vance, left her and their two children for another woman. Id. at 492 , 408 A.2d 728 . Dr. Vance immediately filed a motion to strike the decree and annul the marriage on the ground that it was void because Dr. Vance was not divorced from his first wife when he purported to marry Muriel. Although Dr. Vance had believed his divorce was final at the time he married Muriel, he learned nearly a month after the marriage that his divorce decree had become final several weeks after his purported marriage to Muriel.

Id. Dr. Vance, however, never disclosed this fact to Muriel prior to filing his motion to strike. Thereafter, Muriel sued Dr. Vance, for, inter alia, compensatory damages for emotional distress that she claimed to have suffered as a result of Dr. Vance’s negligent misrepresentation over their eighteen years of marriage, concerning his marital ¹⁰⁷ status at the time of their ostensible marriage. Id. at 492-93 , 408 A.2d 728 .

Interpreting Bowman , the Vance Court noted several means by which the requisite “physical injury” resulting from emotional distress may be proved. The first few categories, according to the Court, “pertain to manifestations of a physical injury through evidence of an external condition or by symptoms of a pathological or physiological state.” Id. at 500 , 408 A.2d 728 . Importantly, the Court stated that a physical injury can be proven “by evidence indicative of a mental state.... In the context of the Bowman rule, therefore, the term ‘physical’ is not used in its ordinary dictionary sense ... [, but is instead used] to represent that the injury for which recovery is sought is capable of objective determination.” Id.

(emphasis added). Then, turning to the facts of the case, the Vance Court cited evidence that upon learning that her marriage was invalid Muriel (1) went into a state of shock, (2) engaged in spontaneous crying and seemed detached and unaware of her own presence, (3) was unable to function normally, sleep, or socialize, (4) experienced symptoms of an ulcer, and (5) suffered an emotional collapse and depression, which manifested itself through unkept hair, sunken cheeks, and dark eyes. Applying the “capable of objective determination” standard, the Court concluded that Muriel had suffered a compensable injury. Specifically, the court held that the evidence supported a jury finding that Dr. Vance’s negligent misrepresentation had caused a “physical” injury to Muriel in the form of an objectively manifested nervous disorder that was sufficient to satisfy the “physical injury” requirement, as adopted in Bowman.

Id. The Court revisited this issue, in 1993, in Belcher v. T. Rowe Price Found., Inc., 329 Md. 709 , 621 A.2d 872 , where Carol Belcher, a secretarial employee of the defendant, sought compensation under the Workers’ Compensation Act (the “Act”) for, inter alia, emotional distress she suffered following a construction accident in her workplace. On April 11, 1991, Ms. Belcher was at her desk when a three-ton beam broke ¹⁰⁸ loose from a nearby construction crane and crashed, without warning, through the concrete roof above her head, ultimately landing five feet from her desk. Id. at 713 , 621 A.2d 872 .

The Court explained the nature of the accident: “The sound was deafening; it was as if a bomb had exploded. The lights in the office went out; pipes and wires were ripped apart; debris sifted over her and her surroundings; concrete dust went down her throat.” Id. Despite immediate trauma counseling provided by her employer, Ms. Belcher “suffered sleep disturbances, nightmares, heart palpitations, chest pain, and headaches.” Id. The primary issue before the Court in Belcher was whether “injury,” as used in the Act, encompassed psychological, emotional, or mental injuries, as distinguished from injuries that are purely physiological in nature, and clearly are encompassed within the Act.

Id. at 719 , 621 A.2d 872 . To address that issue, the Court set out to determine how Maryland law has treated non-physiological, emotional injuries. In its discussion, the Court citedva number of cases, including Bowman , ultimately concluding that the Vance holding that damages may be recovered for emotional distress capable of objective determination was the correct legal standard. Id. at 733-34, 621 A.2d 872 .

According to the Court, “the Vance-Bowman standard went far to dispel the fear that the right to damages for emotional distress would open the floodgates to feigned claims,” id. at 734 , 621 A.2d 872 , a concern shared by courts addressing the compensability vel non of emotional distress due to fear of future disease. See VI. C. As the Belcher Court stated, “Vance adequately answered the troubling basic policy issues surrounding [claims for damages stemming from] negligently inflicted emotional harm by requiring that such harm be capable of objective determination.” Id. at 735 , 621 A.2d 872 . As a result, the Court ultimately concluded that Ms. Belcher was entitled to pursue her emotional distress claim under the Act.

More recently, in Hunt v. Mercy Med. Ctr., 121 Md.App. 516, 520 , 710 A.2d 362 (1998), this Court had occasion to consider “whether emotional distress from being misdiagnosed ¹⁰⁹ with cancer is compensable within [Maryland’s] physical injury rule.” In Hunt , a patient brought a medical malpractice action before what was then the Maryland Health Claims Arbitration Office, after he was misdiagnosed with prostate cancer and had undergone fifteen unnecessary radiation treatments as a result. Id. One of the patient’s claims for damages related to his alleged emotional distress regarding whether he had cancer.

Prior to the arbitration hearing, the patient died, and Carol Sue Hunt, the personal representative of his estate, was substituted in his place. Id. at 520-21 , 710 A.2d 362 . The arbitration panel found that the health care providers were not liable. Id.

Soon thereafter, Ms. Hunt filed a complaint in circuit court and the defendants filed motions for summary judgment, which were granted without explanation. Id. at 523 , 710 A.2d 362 . On appeal to this Court, the defendants argued, inter alia, that the patient had not suffered a cognizable physical injury under Maryland law. Id. at 523-24 , 710 A.2d 362 .

Citing Vance , we disagreed, stating: A compensable ‘physical injury may be demonstrated simply by evidence of a distressed mental state. Therefore, although we may casually characterize a purported injury as being either physical or emotional in nature ..., the distinction is merely descriptive and not of legal significance. The doctrinally correct position is that an emotional injury (such as mental anguish or emotional distress) may come within the ambit of the ‘physical injury’ rule by virtue of its outward manifestations. The only limitation on recovery for an emotional injury, imposed to guard against feigned claims, is that the injury must be ‘capable of objective determination.’ Id. at 524-25 , 710 A.2d 362 (footnotes and citations omitted).

Although we offered no precise definition in Hunt of the type or degree of physical manifestation of emotional distress that must be shown, we did state that an emotional injury need not result in a “dearly apparent and substantial physical injury” to be compensable. Id. at 525, n. 4 , 710 A.2d 362 ¹¹⁰ (commenting that this language is traceable to Bowman , but did not survive Vance and, further, that “we have applied the ‘capable of objective determination’ standard exclusively in our post-Belcher cases”). In addition, we discussed three relevant generalizations: (1) “in order for an injury to be capable of objective determination, the evidence must contain more than mere eonclusory statements, ... [and] must be detailed enough to give the jury a basis upon which to quantify the injury;” (2) “a claim for emotional injury is less likely to succeed if the victim is the sole source of all evidence of emotional injury;” and (3) “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,” as “[t]here is no severity prong of the Vance test.” Id. at 531 , 710 A.2d 362 . Turning to the facts of the Hunt case, we evaluated the three sources of the patient’s emotional distress.

First, the deposition of testimony of Dr. Schirmer, whom the patient visited after learning of the erroneous cancer diagnosis, revealed only that the patient “was emotionally upset and he was very skeptical.” Id. at 532 , 710 A.2d 362 . We concluded that that alone did not satisfy the Vance test. The second source of evidence was the patient’s deposition testimony, during which he provided “short, eonclusory statements of his basic emotional state[, which] tended to lack the detail required to render that emotional state capable of objective determination.” Id. at 533 , 710 A.2d 362 . For example, the deposition included somewhat generic statements about the patient’s emotional state, such as “I’m worried,” “I’m concerned,” “I’m scared,” and “I think about what could have happened or what’s going to happen.” Id. at 533-34 , 710 A.2d 362 .

The patient also described “frustration,” “stress,” and “aggravation,” and stated “I don’t sleep at night,” and said “I thought I was going to die.” Id. While these statements were considered deficient, the patient made other more meaningful statements in which he described more specific manifestations of his emotional distress, such as “fatigue, sleeplessness, and ¹¹¹ constipation” that prevented him from conducting normal activities Id. at 533-34 , 710 A.2d 362 . It was not necessary for us to decide whether those statements alone would have been sufficient proof because the third source of evidence—Ms. Hunt’s testimony before the arbitration panel—proved more forceful. She testified that the patient “was extremely tired and extremely upset,” “became more irritable,” “didn’t walk as much,” “couldn’t sleep,” turned down social invitations, and “had a few bowel problems [and] eating problems.” Id. at 536-37 , 710 A.2d 362 .

She further stated that the patient was up “every night, walking around” and “was extremely quiet.” Together, the patient’s deposition testimony and Ms. Hunt’s testimony were deemed sufficient to render the patient’s emotional injury capable of objective determination. Id. at 537 , 710 A.2d 362 . C. Fear of cancer or other latent disease We begin this discussion by observing that Maryland has steadfastly adhered to traditional notions of causation. For example, Maryland has not applied theories of alternative liability, market share liability, concert of action or enterprise liability.

Lee v. Baxter Healthcare Corp., 721 F.Supp. 89 (D.Md.1989). In litigation in which a plaintiff claims to have contracted a latent disease as a result of prior exposure to a substance, the plaintiff must establish that the nature and extent of the exposure was a substantial factor in causing the disease. Eagle-Picher Industries v. Balbos, 326 Md. 179, 210-11 , 604 A.2d 445 (1992) (a plaintiff must show frequency and regularity of exposure); Reiter v. ACandS, Inc., 179 Md.App. 645, 661-662 , 947 A.2d 570 (2008) (must be evidence of exposure on a regular basis over an extended period of time). See also Philip Morris, Inc., v. Angeletti, 358 Md. 689, 755 , 752 A.2d 200 (2000) (in denying class action certification to current and former users of tobacco products, Court stated causation is not subject to general proof; the question is not whether cigarettes are capable of causing a disease; it is whether cigarettes caused a particular plaintiffs disease) (citations omitted). ¹¹² In Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965 , 25 Cal.Rptr.2d 550 , 863 P.2d 795 (1993), the most frequently cited fear of future disease case, the Supreme Court of California decided the proper standard to apply in assessing claims for fear of cancer.

In Potter , a toxic exposure case, four plaintiffs who lived adjacent to a landfill alleged that they were subjected to prolonged exposure to various carcinogens that leaked into their water supply after the defendant allegedly illegally disposed of toxic waste. When their negligence suit against the defendant was filed, none of the plaintiffs had contracted any cancerous or precancerous condition, but each faced an enhanced (although unquantified) risk of contracting cancer in the future as a result of their exposure. The plaintiffs sought damages for, inter alia, fear of contracting cancer in the future. In deciding what standard of proof should be applied in fear of cancer cases, the Supreme Court of California outlined several concerns, including (1) that a low standard of proof could result in a potentially unlimited class of plaintiffs; (2) that allowing recovery by plaintiffs without physical injuries or symptoms likely would harm those plaintiffs with actual and present injuries by reducing the resources of defendants' through increased litigation; and (3) that it is important to maintain judicial economy by creating a definite and predictable threshold for recovery that limits the number of complaints.

Ultimately, the Potter Court held that California would allow recovery in tort for fear of cancer due to toxic exposure if the plaintiff already had contracted a physical injury or illness from the exposure or, if not, if the plaintiff proved (1) exposure to a toxic substance which threatens cancer, and (2) that the “fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop cancer in the future due to the toxic exposure.” Id., 25 Cal.Rptr.2d 550 , 863 P.2d at 816 . (emphasis added). A number of states have declined to allow recovery for fear of cancer absent a present physical injury, such as diagnosis of a disease or manifest physical symptoms thereof. See Brzos- ¹¹³ ka v. Olson, 668 A.2d 1355, 1362 (Del.1995) (citing Mergenthaler v. Asbestos Corp. of America, Del.Supr., 480 A.2d 647, 651 (1984)) (noting that “damages for claims of emotional distress or mental anguish (which would include fear of contracting a disease) are recoverable only if the underlying physical injury is shown”); Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky.1994) (stating that under Kentucky law, a physical injury is required as “mere ingestion of a toxic substance does not constitute sufficient physical harm upon which to base a claim for damages”; a plaintiff must prove “some harmful result from the exposure, albeit he need not prove he is already suffering from cancer”); Curran v. Mass.

Turnpike Auth. 2 Mass. L. Rep. 260, 1994 WL 879685 at ⁵, 1994 Mass.Super. LEXIS 546 at ¹⁵-16 (1994) (stating that “Massachusetts does not allow recovery for emotional distress damages for fear of future injury,” and that a plaintiff may only recover for mental anguish and fear of developing cancer in the future when there exists a present physical injury); Daley v. A.W. Chesterton, Inc., 2009 PA Super 71 , 971 A.2d 1258, 1264 (2009) (citing Marinari v. Asbestos Corp., 417 Pa.Super. 440 , 612 A.2d 1021 (1992), and Dempsey v. Pacor, Inc., 429 Pa.Super. 404 , 632 A.2d 919 (1993) for the proposition that Pennsylvania’s adoption of the separate disease rule, which allows for plaintiffs to file separate actions for separately diagnosed asbestos-related pathologies, “abolished recovery of damages for fear and