Combatting fear of future injury and medical monitoring claims.

• Author: Gay, Terry Christovich

CLAIMS for fear of future injury and for medical monitoring necessary to check for that development are burgeoning in tort litigation as more and more substances have been linked with cancer and with the ever-increasing threat of the AIDS epidemic. Fear, rational or not, drives these claims, which often are not accompanied by any physical injury. Judgments are being rendered incorporating separate and distinct damage awards to cover the cost of future medical care for perfectly healthy persons and for the infliction of emotional distress on people who have no substantial risk of ever contracting a disease.

Should this trend continue, defendant corporations, the health care industry and insurance companies will face increased litigation and substantially larger damage awards. At a time when the cost and availability of quality health care is in crisis, millions of dollars will be spent annually on testing and medical procedures for persons who will never develop the "feared" disease.

The fear of cancer, as opposed to "cancerphobia," a term generally used to describe a present anxiety over developing cancer in the future or the fear of contracting other types of serious physical illness, is merely a branch of the traditional theory of recovery for emotional distress damages. Medical monitoring, or medical surveillance, however, is considered a form of equitable relief that more and more is being combined with the claim for emotional distress damages due to fear of cancer.(1)

Courts have treated awards for fear of cancer and medical monitoring separately, although the crucial link-fear-is the same for both claims.

FEAR OF FUTURE INJURY

The fear of disease has been viewed traditionally as a medical problem, not a legal one.(2) Increasingly, however, as medical research continues to confirm a connection between environmental exposure and disease, plaintiffs are claiming that the parties responsible for their exposure to environmental toxins should bear the cost for their concerns about possibly developing disease in the future.

Several jurisdictions have considered the availability of damages for fear of cancer or other future injury and the appropriate limits of recovery. Several factors have been deemed important to the compensability of that fear.

1. Proof of Discernible Physical Injury

   Cases that have required the showing of a discernible personal injury are Ferrara v. Galluchio,(3) Wisniewski v. Johns-Manville Corp.,(4) Eagle-Picher Industries Inc. v. Cox,(5) and Payton v. Abbott Laboratories.(6)

2. Proof of Physical Impact or Invasion

   Cases that have required the showing of a physical impact or invasion are Merry v. Westinghouse Electric Corp.,(7) Plummer v. United States,(8) Laxton v. Orkin Exterminating Co.,(9) Herber v. Johns-Manville Corp.,(10) and Wetherill v. University of Chicago.(11)

3. Physical Manifestation of Emotional Distress

   1. Toxic Exposure

      Cases that have required the showing of a physical manifestation of emotional distress are Vanoni v. Western Airlines,(12) Stites v. Sundstrand Heat Transfer Inc.,(13) Culbert v. Sampson's Supermarkets Inc.,(14) First National Bank v. Langley,(15) Bass v. Nooney Co.,(16) and Fournell v. Usher Pest Control Co.(17)

      In Vanoni, however, the only "physical" injury suffered by the plaintiffs, who were airplane passengers suing for emotional distress because they thought the aircraft might crash, was "severe shock to their nerves and nervous systems." The meaning of physical impact also was stretched in Merry, in which a group of property owners claimed injury from exposure to toxic substances in well water. Drinking a minute amount of water was enough to satisfy "physical impact" for purposes of emotional distress litigation, the court concluded.

      So the physical injury requirement is tenuous at best, and some jurisdictions allow plaintiffs with no physical injury, no illness and no independent tort claim to recover damages for emotional distress engendered by the fear of developing future injury or disease. Allegations that they believe that one day they will become ill are enough.

      In Barth v. Firestone Tire & Rubber Co.(18) the plaintiff sued for emotional distress alleged to have been caused by exposure to certain chemicals at his employment, and he became the representative in a class action lawsuit. The federal district court determined that plaintiff suffered an "injury to his immune system," although his "latent" diseases could not be diagnosed. It also concluded that the California workers' compensation statute was not a bar to the tort claim because "the physical injuries here involve no present impairment of earning capacity and no clearly precipitable manifestation of physical dysfunction or disease." That's a catch-22 if ever there was one.

      In a Pennsylvania federal district court case, Villari v. Terminex International Inc.,(19) a pest control company, while spraying for termites, spilled a quantity of chemicals in Mrs. Villari's basement. She cleaned up the spill with a mop. After the family began experiencing headaches, they had the air chemically tested and sued for mental anguish. Without any objective illness or physical impact, the Villari plaintiffs were permitted to bring actions for mental anguish caused by cancerphobia or "fear of the consequences of exposure to hazardous termiticides." The court ruled that headaches and general malaise are sufficient symptoms of a physical injury.

      A recent California Supreme Court decision is likely to have far-reaching effects on the outcome of future litigation. Potter v. Firestone Tire & Rubber Co.(20) attempts to strike a balance between the public policy considerations concerning future injury claims and the interests of litigants who can establish a legitimate fear of future injury or disease by establishing some guidelines and specific criteria to warrant recovery.

      In Potter, four landowners living adjacent to a waste disposal site filed suit, alleging that their water supply had been contaminated by toxic chemicals negligently dumped at the site by the defendants. None of the plaintiffs manifested any cancerous or pre-cancerous condition, but each claimed to face an enhanced, unquantifiable risk of developing cancer in the future as a result of the exposure. At a bench trial, the plaintiffs were awarded $800,00 damages for fear of cancer and resultant emotional distress, $2.6 million in punitive damages, $269,500 for psychiatric illness and the cost of treating that illness, $108,100 for the general disruption of their lives and the invasion of their privacy, and $142,975 for the present value of the costs of medical monitoring to detect the onset of disease. The intermediate appellate court reversed the awards for medical monitoring costs but otherwise affirmed the judgment.

      The California Supreme Court in turn reversed the appellate court judgment insofar as it affirmed the award of punitive damages and the award of damages for plaintiff's fear of cancer, but it also reversed the denial of the award for future medical monitoring. The court held that the plaintiffs did not have to establish a present physical injury to recover emotional distress damages for fear of developing disease in the future, stating:

      [T]he physical injury requirement is a hopelessly

      imprecise screening device--it would allow

      recovery for fear of cancer whenever such

      distress accompanies or results in any physical

      injury, no matter how trivial, yet would disallow

      recovery in all cases where the fear is both serious

      and genuine but no physical injury has yet

      manifested itself.(21)

      However, the court continued, in the absence of a present physical injury or illness, plaintiffs can recover damages for negligently inflicted emotional distress engendered by fear of cancer (or disease) only if they plead and prove that (1) as a result of the defendants' negligent breach of a duty owed to the plaintiffs, the plaintiffs were exposed to a toxic substance that threatens cancer, and (2) the plaintiffs' fears stem from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that they will develop cancer (or other disease or condition) in the future because of the toxic exposure.

      Therefore, under the Potter rule, a mere showing by plaintiffs that they were exposed to or ingested toxins or that they have a significantly increased risk of contracting future disease is insufficient to sustain emotional distress damages.

      The court recognized an exception to establishing this "more probable than not" threshold, however, in cases in which plaintiffs prove by a preponderance of the evidence that the defendant, in breaching its duty, acted with "oppression, fraud or malice" as defined in Section 3294 of the California Civil Code. Even under this exception, however, the court said in a footnote, any award for fear of disease damages will remain contingent on plain tiffs' proving that their fears are reasonable with reference to the actual likelihood of disease attributable to the toxic exposure. Therefore, plaintiffs cannot recover for their fear when the risk of disease is significantly increased but remains a remote possibility.

      The court went on to hold that recovery of fear of disease damages in actions for intentional infliction of emotional distress should not depend on plaintiffs showing that it is more likely than not that they will contract the feared disease. But plaintiffs still must prove that their fear is reasonable--that is, based on medically or scientifically corroborated knowledge that the defendant's conduct has significantly increased the plaintiffs' risk of disease and that their actual risk of the threatened disease is heightened.

   2. AIDS

      Fear litigation is creeping into areas other than toxic exposure. Public anxiety is directed towards AIDS since there is no cure for the disease and its seriousness is universally known.

      In Johnson v. West Virginia University Hospital...