Poirier v. Blue Seal at Taft Corner, Inc., No. 332-3-13 Cncv (Toor, J., Feb. 20, 2015).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of
the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                          VERMONT SUPERIOR COURT
                                             CHITTENDEN UNIT
                                              CIVIL DIVISION

                                                            │
BARBARA FARR POIRIER and                                    │
MICHELE FARR                                                │
 Plaintiff                                                  │
                                                            │
 v.                                                         │ Docket No. 332-3-13 Cncv
                                                            │
BLUE SEAL AT TAFT CORNER, INC.,                             │
d/b/a GUY’S FARM AND YARD                                   │
 Defendant                                                  │
                                                            │

                                  RULING ON MOTIONS IN LIMINE

          This is a fraud case in which Plaintiffs allege they were misled into buying a new

kind of feed for their horse, which then suffered an allergy and subsequently died.

Defendant moves to exclude evidence relating to the death of the horse, and to exclude

claims relating to Plaintiffs’ emotional distress.

                                                Death of the Horse

          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.

                                               Emotional Distress

          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




                                                2
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


                                              3
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).



                                                     4
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.”).

                                            Order

       The motions in limine are granted.

Dated at Burlington, Vermont this 20th day of February, 2015.

                                                          ________________________
                                                          Helen M. Toor
                                                          Superior Court Judge




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