Conning the IADC newsletters.

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

Developments in Recovery for Fear of Future Disease

Writing in the April issue of the Product Liability Committee newsletter, Jeffrey J. Christovich and Michaela L. Sozio of Chicago's Tressler, Soderstrom, Maloney & Priess update fear of future disease:

Where are claims for fear of future illnesses, like cancer, going since the California Supreme Court's seminal decision in Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993)?

The law long has recognized a plaintiff's right to sue for emotional harm arising from an intentional tort. Claims for fear of cancer or claims involving another future disease, however, constitute a subset of negligent infliction of emotional distress claims. Many courts have adopted the physical injury rule, which requires that a plaintiff present evidence of the alleged mental anguish--that is, the plaintiff must suffer from some physical injury in order for such a claim to be compensable. However, a growing number of jurisdictions, like California and Illinois, in contrast to the majority of other states, have departed from the physical injury requirement.

Physical injury rule--Arizona

Arizona's approach to allowing damages for fear of cancer or future illness follows the physical injury rule, under which the claim is disallowed unless there is a showing of physical injury or impact or a manifestation of emotional distress is made. DeStories v. City of Phoenix, 744 P.2d 705 (Ariz. App. 1987).

The physical injury rule was adopted initially by the Arizona Supreme Court in Keck v. Jackson, 593 P.2d 668 (Ariz. 1979). Keck involved a plaintiff who sued for negligent infliction of emotional distress after she witnessed her mother die in a negligently caused automobile accident. The court held that the plaintiff could recover for emotional distress damages only if the shock or mental anguish of witnessing an injury to a person with whom the plaintiff had a close personal relationship manifested itself as a personal injury.

The Arizona Court of Appeals later expanded the holding in Keck to apply to claims for fear of future illness in a case in which the plaintiffs, who were construction workers at the Sky Harbor International Airport, were exposed to and inhaled airborne asbestos particles. They sought damages for their fear of developing lung cancer or asbestosis based on their exposure to asbestos and increased risk of cancer. The DeStories court stated that "possible future damages in a personal injury action are not compensable unless reasonably certain to occur," quoting Morrisey v. Eli Lilly & Co., 394 N.E.2d 1369 (III.App. 1979).

The court went on to state that unless the plaintiffs manifested a physical injury as a result of their mental anguish over being exposed to asbestos, they would be unable to recover on a negligent infliction of emotional distress cause of action.

Finally, the court concluded that the plaintiffs' ingestion of the asbestos particles did not constitute "sufficient physical harm on which to base a claim for mental anguish."

Thus, Arizona follows the more traditional approach of disallowing a claim for fear of future illness unless a showing of physical impact or other manifestation of emotional distress is made.

Physical injury rule--New Jersey

New Jersey also has adopted the physical injury rule. Its intermediate appellate court dealt with the fear of cancer issue in Ironbound Health Rights Advocacy Commission v. Diamond Shamrock Chemical Co., 578 A.2d 1248 (N.J.Super. 1990). Diamond Shamrock had operated an agricultural chemicals manufacturing facility for several years, during which time toxics such as dioxin were utilized in the manufacturing process. In 1983, the Environmental Protection Agency conducted tests of the area surrounding the now-defunct Diamond Shamrock plant. The tests indicated that the level of dioxin was a thousand times greater than the level the EPA established as an "unacceptable risk to human health."

The plaintiffs sued Diamond Shamrock, claiming, inter alia, emotional distress in the form of fear of cancer or other future harm due to the defendant's negligently exposing plaintiffs to toxic substances, which greatly increased their risk of cancer. The New Jersey court held that plaintiffs' fear of cancer claim was not actionable because the plaintiffs were unable to demonstrate personal injuries.

California rule--Potter

In California, the fear of cancer issue was discussed at length in Potter. The California Supreme Court declined to follow the physical injury rule and instead adopted a "more likely than not limitation" on plaintiffs seeking to recover damages for negligent infliction of emotional distress claims arising from fear of cancer. The principal issue in Potter, as stated by the court, was "whether emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance is an injury for which damages may be recovered in a negligence action."

The plaintiffs in Potter were four landowners who lived adjacent to a landfill. They claimed they were subjected to prolonged exposure to certain carcinogens as a result of Firestone's practice of disposing of its toxic wastes in the landfill. Although none of the plaintiffs suffered from cancer at the time of the lawsuit, they apparently faced an "enhanced but unquantified risk of developing cancer at a future date due to the exposure."

In deciding whether these plaintiffs could recover in the absence of physical injury, the court held that damages for fear of cancer may be recovered only if a plaintiff pleads and proves that as a result of defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance that threatens cancer, and the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to toxic exposure.

Steering a middle course

In its analysis, the Potter court examined numerous cases from around the United States dealing with the issue of recovery on a negligent infliction of emotional distress theory based on fear of future illness. It declined to follow jurisdictions that allow plaintiffs to recover for fear of cancer merely by showing the genuineness or reasonableness of their claim. It also declined to follow the physical injury rule. It adopted a "more likely than not" test as the general standard for a plaintiff's recovery for fear of cancer damages.

The Potter court identified five public policy reasons as the rationale for its holding.

First, the court reasoned that everyone has a potential fear of cancer if they are sufficiently aware of and worried about the possibility of developing cancer from exposure to or ingestion of a carcinogenic substance. Since virtually everyone has a fear of developing cancer, to allow a simple action would render the potential class of plaintiffs with this type of claim as simply immeasurable. The court also noted that should the fear of cancer liability continue to grow, it would undoubtedly lead to a substantial increase in toxic tort litigation and the awards would ultimately be borne by the public in the form of higher insurance premiums, with the risk that an increased number of businesses and residents will choose to go without insurance at all.

Second, the court considered the potential negative impact that would exist in the medical industry if there were no limits placed on plaintiffs who fear developing cancer in the future. Unless meaningful restrictions are placed on potential plaintiffs with fear of cancer claims, the court opined, the availability and development of new and beneficial drugs would be hampered, or the prices of those drugs would be so significantly increased that people who need the drugs will be unable to afford them.

A third policy reason considered by the Potter court is that allowing recovery to plaintiffs with a fear of cancer will ultimately prohibit plaintiffs with actual physical injury from being compensated.

A fourth reason cited by the court was that the "more likely than not" rule would establish a "sufficiently definite and predictable threshold for recovery to permit consistent application from case to case."

Finally, the court recognized that the need to limit the class outweighs the risk that such criteria may prohibit compensation to some plaintiffs with genuine and legitimate fears. However, it is clear that the potential societal costs involved strongly outweigh the plaintiff's right to recovery for fear of cancer in the absence of physical injury.

The "more likely than not" standard of Potter is California's attempt to reconcile the public policy considerations.

Post-Potter decisions

Since Potter, other states have rendered decisions in similar fear of cancer cases. Some have retained the traditional physical injury rule, while others have adopted different standards.

In Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999), the Supreme Court of Texas held that electrical workers who were exposed to asbestos could not recover damages for fear of possibly developing an asbestos-related disease in the future. The plaintiffs argued that their inhalation of asbestos fibers constituted a real physical injury that eventually could lead to disease, and therefore they should be compensated for their anxiety or mental anguish over this possibility.

The Texas Court of Appeals had stated that Texas law is well-established that "a plaintiff may recover for mental anguish based upon fear of cancer even though the medical evidence shows...