Date: Fri, 14 Jul 2006 16:35:47 -0400

From: Benjamin Zipursky

Subject: A Fly in the Bottle This Time

Note that even if nervous shock were foreseeable, the plaintiff in this case was not simply making a larger than normal claim for nervous shock due to a larger than normal extent of shock, he is making a claim that psychiatric disease was caused by the fly. I think it is plausible to treat the nervous shock and the psychiatric disease as different categories of injury, not simply different degrees of harm or damage.

>>> Jason Neyers 7/14/2006 4:24 PM >>>

Dear Colleagues:

I strongly disagree with Lewis. I do not think that the case is correctly decided as a matter of law: It is not reasonably foreseeable that a person of ordinary fortitude would suffer a psychiatric illness as a result of the facts that occurred. In order for the thin skull rule to kick-in I must first prove something that would be considered a wrong to a reasonable/typical person, if I prove that then the extent of the injury is irrelevant (Deyong). As such thin skull is irrelevant to Mustapha.

I would be shocked if this is not overturned on appeal on the tort issue.

Whether or not there might be liability in contract is another matter and part of the problem with the judgment, as I remember it, is that the trial judge never truly distinguishes between the two types of liability.

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