ATTORNEYS FOR APPELLANTS:        ATTORNEY FOR APPELLEES:

JOHN M. CLIFTON                 JACK E. MORRIS
CATHLEEN M. SHRADER            Benson, Pantello, Morris, James
Barrett & McNagny                     & Logan
Fort Wayne, Indiana                 Fort Wayne, Indiana

KARL MULVANEY
Bingham Summers Welsh & Spilman
Indianapolis, Indiana

 PATRICIA BADER, M.D., and             )
NORTHEAST INDIANA GENETIC                      )
COUNSELING, INC.,                              )
                                               )    Supreme Court Cause Number
    Appellants-Defendants,                     )    02S05-9709-CV-493
                                               )    
        v.                                     )
                                               )    
RONALD JOHNSON and                             )    Court of Appeals Cause Number
CONNIE JOHNSON,                                )    02A05-9510-CV-396
                                               )
    Appellees-Plaintiffs.                      )

Shuamber, 579 N.E.2d at 456.
The underlying rationale for Indiana’s traditional impact rule was that “absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for awarding damages.” Cullison v. Medley, 570 N.E.2d 27, 29 (Ind. 1991). As modified, the rule still requires physical impact as distinguished from physical injury. However, the rationale for requiring some type of physical impact is still the same. Stated somewhat differently, as the United States Supreme Court observed “[b]ecause the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned . . . that recognition of a cause of action for [emotional] injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act.” Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 545 (1994) (quoting Maloney v. Conroy, 545 A. 2d 1059, 1061 (Conn. 1988).
Indiana’s physical impact requirement embraces these concerns. Thus, when the courts have been satisfied that the facts of a particular case are such that the alleged mental anguish was not likely speculative, exaggerated, fictitious, or unforeseeable, then the claimant has been allowed to proceed with an emotional distress claim for damages even though the physical impact was slight, or the evidence of physical impact seemed to have been rather tenuous. See, e.g., Alexander v. Scheid, 726 N.E.2d 272, 283-84 (Ind. 2000) (holding that patient suffering from the destruction of healthy lung tissue due to physician’s failure to diagnose cancer was sufficient for negligent infliction of emotional distress); Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 996 (Ind. Ct. App. 1998) (concluding that restaurant patron’s ingestion of a portion of vegetables cooked with a worm was a direct physical impact under the modified impact rule); Dollar Inn, Inc., v. Slone, 695 N.E.2d 185, 189 (Ind. Ct. App. 1998) (finding that hotel guest stabbing herself in the thumb with a hypodermic needle concealed in a roll of toilet paper was sufficient for claim of emotional distress associated with guest’s fear of contracting AIDS), trans. denied. Further, this court has determined that the modified impact rule does not require that the impact be initiated by the tortfeasor. Conder v. Wood, 716 N.E.2d 432, 435 n.3 (Ind. 1999). Rather, the impact need only “arise[] from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct.” Id. (finding that a pedestrian suffered a direct impact by pounding on the panels of a truck that was running over her co-worker).
In this case we find that Connie’s continued pregnancy and the physical transformation her body underwent as a result, satisfy the direct impact requirement of our modified impact rule. Provided she can prevail on her negligence claim, we see no reason why Connie should not be able to claim damages for emotional distress. By contrast, Ronald did not suffer a direct impact as a result of Healthcare Provider’s alleged negligence. We disagree with his argument to the contrary. Rather, at most Ronald is a relative bystander, a classification of potential victims this court has recently adopted in Groves v. Taylor, 729 N.E.2d 569, 572-73 (Ind. 2000). See footnote Whether Ronald can prevail on his claim for emotional distress damages depends on the evidence adduced at trial.

Attorney for Appellee

Jack E. Morris
Benson Pantello Morris James & Logan
Fort Wayne, Indiana

v.

RONALD JOHNSON and
CONNIE JOHNSON,
Appellees (Plaintiffs below).

)
)    Supreme Court No.
)    02S05-9709-CV-493
)
)    
)    
)    Court of Appeals No.
)    02A05-9510-CV-396
)
)
)

A condition, occurring usually in infants, marked by an abnormal increase in the fluid (cerebrospinal fluid) which is normally present in small amounts in and around the brain. As a result, the small cavities within the brain become distended, i.e., the ventricles become enlarged. The pressure of the fluid between the brain and the cranium and within the ventricles of the brain causes the brain tissue to shrivel up and the skull to become enlarged, especially in the region of the forehead.

2 J. E. Schmidt, M.D., Attorney’s Dictionary of Medicine and Word Finder H-132 (Matthew Bender 1990).