A couple of weeks ago, an Androscoggin County Jury returned a verdict of $5.5 million for our client Marielle Bischoff-Wurstle. Perhaps the most interesting aspect of the case is that Marielle had suffered no physical injury or economic losses. She incurred no medical bills and lost no time at work. Her damages claim was exclusively for the severe emotional distress resulting from the defendant’s egregious misconduct.

You may be familiar with the case, as it has been widely reported in the media. The evidence at trial demonstrated that the defendant, Affordable Cremation Solutions LLC, continued to accept new clients for cremation services, even though its director refused to perform his duties, and therefore none of the decedents could be cremated. As a result, the decedents remained stored in ACS’s unrefrigerated basement for days, weeks, and, in some cases, months, on end. ACS continued to take in new bodies until the scheme was uncovered by state investigators who shut the business down and transferred the uncremated decedents to the Office of the Chief Medical Examiner.

Our client, Marielle, like many of the other families, first learned about the problems at ACS through media accounts. Marielle was scrolling through her Facebook page during a break at work when she came across a television news story recounting the horrific details of the uncremated bodies in the basement of ACS, describing the terrible smell and advanced state of decomposition that bodies were found in by the state investigator.

Family members of decedents filed claims against ACS, primarily on theories of negligent and intentional infliction of emotional distress. Typically, emotional distress damages are not available absent direct physical injury, or to a bystander who is not physically injured but was within the “zone of danger” and contemporaneously witnessed injury to a close family member.

However, in the landmark decision, Gammon v. Osteopathic Hospital of Maine, the Law Court held that there are certain circumstances where one need not be a “direct” victim (or bystander) to recover emotional distress damages. In Gammon, the hospital mailed the severed limb of a decedent to a family member.  Gammon stands for the proposition that emotional distress damages are available to “indirect” victims, when a tortfeasor’s conduct is outrageous and likely to cause severe emotional distress to a person of ordinary sensibilities, as in the mishandling of a loved one’s remains.

The verdict in this case demonstrates something which most of us understand well. That is, emotional injury is just as real and devastating as physical injury.

Insurance companies take a dismissive approach to claims of emotional distress, particularly if not connected to physical injury or pecuniary loss. But jurors understand, from their own life experience, that emotional distress—depression, anxiety, disassociation, withdrawal, anguish, and grief—are among the most devastating harms of all. Emotional distress injuries are devastating, particularly because they impact all aspects of a person’s life. A broken arm or leg will heal with time, but a broken heart may never heal.

At trial, we presented the testimony of a Columbia University Professor of Psychiatry, Dr. Lawrence Amsel, PhD. Dr. Amsel spent many hours interviewing and examining Marielle and was able to testify to how the mishandling of her father’s remains impacted her emotionally.  He testified that Marielle suffered from Prolonged Grief Disorder, a diagnosis recognized by the ICD and DSM manuals and validated through decades of studying the long-term effect of trauma suffered by the families of 9-11 victims on a person’s ability to process and overcome grief.

Dr. Amsel explained that certain types of events interfere with the normal grieving process, causing a person to continue dealing with grief long after the normal grieving process would have come to an end.  Those effected, like Marielle in our case, have a hard time recalling fond memories of their loved one.  Rather, their memories become marred by the horrifying images associated with the trauma, or, as in our case, the mishandling of her father’s remains after death.  The inability to go through a normal grieving process prevents a person from putting the events behind them, and can lead to ongoing depression, anxiety, withdrawal, and grief that can continue indefinitely and interfere with all aspects of the person’s life.

The jury also heard from Marielle and her older sister, who conveyed just how devastating the emotional harm to Marielle has been, and how it continues to impact her life.  Marielle explained that she withdrew from life.  She had difficulty focusing on her job as a preschool teacher, and ultimately decided to give up the career she loved to work as a nanny which required less energy and focus.  She described having difficulty bringing up memories of her father without the images of his body rotting the basement of ACS.  She described the regular nightmares she suffers, where she is in the basement of ACS searching through rotting corpses and trying to find her father there.  She described the guilt and shame she feels at allowing her father to be treated this way after his death, and how her wound was only deepened by the continuous media coverage of these events.

The verdict returned by this Androscoggin Country Jury shows that a jury of peers is willing to recognize and compensate a plaintiff for emotional injury, even where there is no associated physical harm or pecuniary loss.  It is a good reminder to all of us who represent clients who have suffered severe emotional distress that these emotional injuries are not merely an afterthought or adjunct to some other type of harm.  Indeed, emotional injury may be the most significant kind of harm that there is.

If you are in need of legal guidance or have further questions about what damages might be available to you in a particular case, contact Gideon Asen LLC today.