436
Opinion of the Court
diminish the likelihood of recovery by those who later suffer from the disease? Cf. J. Weinstein, Individual Justice in Mass Tort Litigation 10-11, 141 (1995); Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J. L. & Pub. Pol'y 541 (1992). We do not raise these questions to answer them (for we do not have the answers), but rather to show that general policy concerns of a kind that have led common-law courts to deny recovery for certain classes of negligently caused harms are present in this case as well. That being so, we cannot find in Gottshall's underlying rationale any basis for departing from Gottshall's language and precedent or from the current common-law consensus. That is to say, we cannot find in Gottshall's language, cited precedent, other common-law precedent, or related concerns of policy a legal basis for adopting the emotional distress recovery rule adopted by the Court of Appeals.
Buckley raises several important arguments in reply. He points out, for example, that common-law courts do permit recovery for emotional distress where a plaintiff has physical symptoms; and he argues that his evidence of exposure and enhanced mortality risk is as strong a proof as an accompanying physical symptom that his emotional distress is genuine.
This argument, however, while important, overlooks the fact that the common law in this area does not examine the genuineness of emotional harm case by case. Rather, it has developed recovery-permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns. The point of such categorization is to deny courts the authority to undertake a case-by-case examination. The common law permits emotional distress recovery for that category of plaintiffs who suffer from a disease (or exhibit a physical symptom), for example, thereby finding a special effort to evaluate emotional symptoms warranted in that category of cases—perhaps from a desire to make a
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