Margaret Cronin Fisk
The National Law Journal
November 8, 2002

In lawsuits involving plane crashes, plaintiffs are prevented by the Warsaw Convention from recovering for purely emotional injuries. In many states, as well, recovery for emotional distress is severely limited. This can diminish the prospects for collecting damages for post-traumatic stress disorder.

But courts have now begun accepting claims of organic brain disease as an end-result of post-traumatic stress. In August 2001, for example, Delta Air Lines was hit with a $1.25 million verdict in a lawsuit brought by a woman who contended that the fright she experienced during a harrowing Delta flight caused a harmful chemical reaction in her brain. Following the flight, plaintiff Kathy Weaver began experiencing "psychotic flashbacks," in which she would continually relive the incident, reports plaintiffs' attorney Randy Bishop of Billings, Mont. She contended that the terror had a physical impact on her brain through the release of "excitotoxins" -- chemicals that kill brain cells.

In the pretrial order rejecting Delta's motion for summary judgment, U.S. District Judge Jack Shanstrom in Montana found that the plaintiff had provided sufficient proof, in the form of articles in scientific journals and expert reports, that "extreme stress causes actual physical brain damage," in particular, "physical destruction or atrophy of portions of the brain." The verdict was reduced to $75,000 and settled. Weaver v. Delta Air Lines Inc., No. CV 98 151BLGRFC (D. Mont.).

In January 2002, the Washington Court of Appeals ruled similarly in a separate case. Plaintiff Lein Trinh had been involved in an automobile accident in Seattle in which she was not hit, though one friend was killed and another injured. She contended that the emotional distress she experienced watching her friend die created physical manifestations, says plaintiff's attorney Betsylew Miale-Gix of Seattle's Adler Giersch.

Trinh had sought benefits from Allstate Insurance, but Allstate rejected the claim, contending that the uninsured motorist policy involved provided no coverage for emotional distress that was not a result of physical injury. The trial court agreed with Allstate and dismissed Trinh's claim.

The Washington appellate court, however, reversed, finding that "'bodily injury' includes emotional injuries that are accompanied by physical manifestations" and remanded the lawsuit to trial. In September, the Washington Supreme Court denied Allstate's petition for cert. No trial date has been set. Trinh v. Allstate Insurance, No. 002105827 (King Co., Wash., Super. Ct.).

Proving a brain injury brought on by psychological stress can be difficult, Bishop notes. "Brain scans are not likely to demonstrate physiological change because any change occurs at the cellular level." Instead, he says, the plaintiff's attorney has to provide medical literature on the effect of such stress on the brain and accompany this with testimony and affidavits from physicians and experts.

In Trinh, adds Miale-Gix, the plaintiff also used the testimony of lay witnesses to establish the concrete physical manifestations she exhibited following the accident, including hair loss, weight loss and muscle spasms.