Date: 11-27-2015

Case Style: Poirier V. Blue Seal at Taft Corner, Inc.

Case Number: 332-3-13 Cncv

Judge: Helen Toor

Court: VERMONT SUPERIOR COURT

Plaintiff's Attorney: Not Available

Defendant's Attorney: Not Available

Description: The evidence presented to the court is that the veterinarian cannot say that it is
more likely than not that the horse either became ill or died because of eating the new
feed. Given that, it would be pure speculation to conclude that the illness or death were
related to the feed. It would also be highly prejudicial to Defendant for the jury to hear
about the death. The motion in limine is granted. Plaintiffs may not mention the horse’s
death. Defendant argues that there are no claims for either intentional or negligent
infliction of emotional distress in this case, that the allegations do not rise to the level
required for intentional infliction of emotional distress, and that because there was no
physical injury here any claim for negligent infliction of emotional distress must fail.
Plaintiffs argue that they are entitled to seek such damages in the context of their fraud
claims. The court begins by noting that the complaint fails to allege any emotional
distress, and fails to request any damages for emotional distress. The court therefore
considers any such claim waived. However, even if it had not been waived the court
would not permit such claims to go to the jury for the reasons that follow.
First, there are no allegations in this case that could support a claim of intentional
infliction of emotional distress. The standards for such claims are very high, and require
actions that are “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency . . . .” Demag v. Am. Ins. Cos., 146 Vt. 608, 611 (1986)
(citation omitted) (internal quotation marks omitted). Nothing in this case rises to that
level.
There is also no claim in this case for negligence, and thus none for negligent
infliction of emotional distress. The only potential basis for such damages here would be
in connection with the two claims actually asserted in the complaint: common law fraud
and consumer fraud.
Other courts have noted that “[b]lack letter law indicates that emotional distress
damages are not recoverable for fraud.” Nelson v. Progressive Corp., 976 P.2d 859, 867
(Alaska 1999); see also Moore v. Slonim, 426 F. Supp. 524, 527 (D. Conn. 1977) (“[I]t is
black letter law that damages for mental distress are not ordinarily available in a cause of
action for a business fraud.”), aff’d, 562 F.2d 38 (2d Cir. 1977). The Restatement of Torts

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describes the damages available for misrepresentation as including only “pecuniary
losses.” Restatement (Second) of Torts § 549, Measure of Damages for Fraudulent
Misrepresentation (1977) (WL updated Oct. 2014). Dobbs notes as follows:
Fraud, deceit and negligent misrepresentation are economic torts. Although the invasion of an economic interest by tort or contract breach will often cause the plaintiff personal distress, the interest ordinarily protected in such cases is purely an economic interest and does not include interests in personality. Accordingly, the usual rule is that the plaintiff must show pecuniary loss in misrepresentation cases and the damages are limited to such pecuniary loss, with no recovery for emotional distress.
Dan B. Dobbs, Law of Remedies § 9.2(4), at 559–60 (2d ed. 1993), quoted in Nelson,
supra at 867; see also Steven J. Gaynor, Fraud Actions: Right to Recover for Mental or
Emotional Distress, 11 A.L.R. 5th 88 (1993) (“Damages in an action for fraud are
generally limited to actual pecuniary loss[.]”).
There is not unanimity on this point, however. Id. Courts in other jurisdictions are
all over the map on the question of whether, and when, emotional distress damages are
available in fraud cases. See, e.g., Kregos v. Associated Press, 3 F.3d 656, 665 (2d Cir.
1993) (“New York law awards only ‘out-of-pocket’ expenses in fraud cases entitling
plaintiffs to damages solely for their actual pecuniary losses.”); Spooner v. State Farm
Mut. Auto. Ins. Co., 709 So. 2d 1157, 1161 (Ala. 1997) (“Emotional distress is
compensable in a fraud action.”); Nelson, 976 P.2d at 868 (“We believe that the best
approach is to permit emotional distress damages under a fraud theory only when such
damages are severe.”); Kilduff v. Adams, Inc., 593 A.2d 478, 485 (Conn. 1991) (such
damages recoverable in fraud cases when “the defendant should have realized that its
conduct involved an unreasonable risk of causing emotional distress and that that distress,
if it were caused, might result in illness or bodily harm”); Hoffman v. Stamper, 867 A.2d

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276, 297–98 (Md. 2005) (discussing divergent cases and allowing such damages where
there is proof of “physical manifestations” of stress).1
Neither party points to any Vermont case addressing this issue, and the court has
found none. As noted above, the traditional rule is that only pecuniary damages are
available in fraud cases. Thus, in the absence of any different directive from the Vermont
Supreme Court, and no persuasive argument from Plaintiff for changing that rule, this
court concludes that it should apply the standard rule.
Nor is there anything in the Vermont Consumer Fraud Act to suggest that it
intended otherwise. The statute is designed to address fraud in the marketplace, and is
thus focused on economic injury. See, e.g., Moore v. Slonim, 426 F. Supp. at 527
(“damages for mental distress are not ordinarily available in a cause of action for a
business fraud”); Bates v. Allied Mut. Ins. Co., 467 N.W.2d 255, 260 (Iowa 1991)
(“Ordinarily, a successful plaintiff in a fraud action may only recover the benefit-of-the
bargain plus consequential damages. . . . The purpose of this rule is to put the defrauded
party in the same financial position they would have been in had the fraudulent
misrepresentations been true.”); Jourdain v. Dineen, 527 A.2d 1304, 1307 (Me. 1987)
(“[F]raud actions are essentially economic in nature and serve to protect economic
interests.”).
Nothing in the Vermont statute suggests that it intended to address anything other
than economic harm. The court sees no basis on which to read emotional distress
1 As one commentator has noted, courts that have allowed such damages “have suggested four possible positions limiting the award of damages for emotional distress: (1) a requirement that the emotional distress be particularly severe; (2) a demand that the plaintiff's pecuniary loss be substantial; (3) a distinction between business frauds and other frauds; and (4) an inclusion of emotional distress damages as part of a punitive damage award.” Andrew L. Merritt, Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42 Vand. L. Rev. 1, 7 (1989).

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damages into the statute. Accord Gennari v. Weichert Co. Realtors, 691 A.2d 350, 369
(N.J. 1997) (“One reading of the [Consumer Fraud] Act is that a party who suffers any
ascertainable loss has standing to sue and can recover three times ‘any and all damages
sustained.’ The alternative, and we believe more appropriate, interpretation is that
‘damages’ are limited to ‘ascertainable loss.’ At common law an injured party could
recover only for the injuries sustained. Absent a clear expression of legislative intent
changing the common-law rule, we are reluctant to read the Act to encompass non
economic losses.”

Outcome: The motions in limine are granted.

Plaintiff's Experts:

Defendant's Experts:

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