Increasing fear of future injury claims: where speculation carries the day.

• Author: Smith, Janet H.

Plaintiffs are seeking damages for fear of future injury and the enhanced risk of future disease, along with the cost of medical monitoring

CONSIDER these cases:

* In West Virginia, a hospital patient who tested positive for HIV--the virus that causes AIDS--suddenly went out of control and bit himself. The patient, with his own infected blood still on his teeth, then bit a police officer who had been sent to subdue him. Although the police officer tested negative for the AIDS virus over several years, he recovered damages for his fear of AIDS.(1)

* A woman had a bilateral mastectomy in 1980, at which time she had silicone breast implants inserted. Eleven years later she was in a car accident that caused her breast implants to burst. She sued, not only for her localized symptoms, but also for her fear of cancer or other disease owing to the rupture of the implants. Although the medical literature does not show an association, much less causation, between silicone breast implants and cancer or other autoimmune diseases, the court deemed that her fears were reasonable and awarded her $475,000.(2)

These examples represent a growing trend in tort litigation. Over the last decade or so, courts have begun to recognize fear of future illness claims in a variety of contexts. Historically seen in toxic tort situations arising from environmental exposures, these claims also are being asserted now in medical malpractice, medical device and pharmaceutical litigation as well.

Traditionally, plaintiffs could not sue in tort to recover for an anticipated future injury. Claims for increased risk of disease and fear of cancer simply were not recognized.(3) Using this conventional common law approach, courts avoided the problem of plaintiffs trying to prove highly speculative damages.(4)

Over the last several decades, however, competing considerations have come into play. These include: (1) the possible 10-20 year latency period for a disease to manifest itself; (2) statutes of limitation or repose, or both; (3) the problem of etiology and intervening cause when plaintiffs are forced to wait until diseases actually manifest; (4) defendants who may become insolvent or otherwise judgment proof; and (5) the loss of evidence or witnesses, or both, during the years between exposure, illness, and suit.

Tort law has now come to recognize three distinct types of claims for future injury:

* Claims for alleged fear of future injury seek damages for the emotional distress suffered because of the claimants' concern that injury will occur in the future.

* Claims for enhanced risk of future disease seek recovery for the increased risk of contracting an illness or disease some time in the future.

* Claims for medical monitoring seek compensation for the reasonable costs of periodic diagnostic examinations during the latency period for exposure-related disease.

DEVELOPMENT OF THE THEORY OF RECOVERY

Fear of future illness is generally asserted as an element of damages in claims alleging negligent infliction of emotional distress. When dealing with such a cause of action, courts traditionally have been reluctant to find that a defendant had a duty to prevent a plaintiff from suffering emotional distress. First, there is a problem of providing compensation for "harm that is often temporary and relatively trivial." Second, there is a "danger that claims of mental harm will be falsified or imagined." Third, in negligence cases there is the "perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences that appear removed from the `wrongful' act." Fourth, establishing proximate cause is often a problem. Fifth, there is a concern that "mental disturbance cannot be measured in terms of money." Finally, allowing people to sue for emotional distress could produce a flood of litigation.(5)

Responding to these concerns, courts placed restrictions on the ability to recover for emotional distress by requiring the showing of a discernible physical injury before recovery for emotional distress was possible.(6) The physical injury requirement is still the major limitation on "fear of illness" or emotional distress claims. Although the parameters have been relaxed, 33 of 50 American jurisdictions require physical injury in one form or another.(7)

1. Negligent Infliction of Emotional Distress for Fear of Future Injury

   1. Physical Harm Required

   The concept of negligent infliction of emotional distress for fear of future injury first arose in toxic tort cases dealing with asbestos and contaminated ground water, in which plaintiffs had not yet sustained an injury but feared development of a future illness, usually cancer.(8) In addition to having plaintiffs prove the essential elements of their tort action, and for the specific purpose of demonstrating the genuineness of plaintiff's fear, courts originally required that plaintiffs prove present and discernible physical harm from the exposure to the toxin.

   As courts began to deem this strict requirement inequitable, some relaxed it to the extent that any physical contact, impact or invasion, regardless of whether an immediate injury was seen, became sufficient to sustain the cause of action.(9) In Plummer v. United States,(10) for example, the Third Circuit held that tuberculosis bacilli infecting the plaintiff's body was sufficient to satisfy the physical impact requirement for an emotional distress recovery. The court rationalized this by saying the effect of the tuberculosis bacillus was "potentially no less lethal than ... the impact of an automobile."

   To complicate the issue further, some courts attempted to distinguish between "impact" and "injury." In Eagle-Picher v. Cox,(11) a Florida Court of Appeal held that inhalation of asbestos fibers satisfied the impact rule, but it rejected the "fear of cancer" claim premised on impact alone. Rather, the court maintained that some injury was necessary.

   At present, however, only six states--Arkansas, Georgia, Indiana, Kentucky, Nevada and Oregon--limit plaintiffs' ability to recover in situations where they must have a contemporaneous and discernible physical injury or impact to state a cause of action.(12)

   The limiting requirement of present physical injury or impact has been diluted further by the "zone of danger" rule in eight jurisdictions--Colorado, Delaware, District of Columbia, Minnesota, New Jersey, South Carolina, Texas, and Vermont.(13) They have expanded the injury/impact requirement to permit recovery for emotional distress based on only a threat of injury or impact. There are two essential elements that must be met for recovery under this rule: (1) the plaintiff must have been "in personal danger of physical impact,"(14) although actual physical impact is not required; and (2) the plaintiff must have suffered physical consequences from the emotional distress.(15)

   While still requiring physical injury, the zone of danger rule differs from previous rules in that the physical injury is a consequence of the emotional distress. In addition to the eight jurisdictions that follow the zone of danger rule, an additional 19 now have allowed subsequent injuries to meet the physical injury requirement.(16) Therefore, plaintiffs can satisfy the physical injury requirement in two ways--first, by suffering physical injury and later emotional distress, and second, by suffering severe emotional distress that causes a subsequent physical injury.

   One of the problems with the physical injury requirement is that courts differ widely as to what suffices to satisfy the requirement. For example, one court held, that the plaintiffs "unkempt hair, sunken cheeks, and dark eyes," apparently suffered as a result of emotional distress, were sufficient.(17) Another said that ingestion of contaminated water could be a sufficient physical impact.(18) On the other hand, another held that "mere ingestion of a toxic substance does not constitute physical harm" sufficient for a claim.(19) Courts have held that a plaintiff's asymptomatic pleural thickening(20) or pleural scarring(21) did not constitute a physical impairment permitting recovery, while at least one other court has held that pleural thickening owing to occupational exposure to asbestos did constitute a present physical disease for recovery on the fear of cancer claim.(22)

   In sum, the majority of jurisdictions--33 in all--hold that there must be some minimal, objective physical manifestation that either causes or is a result of the emotional distress. Simple emotional distress without any physical injuries whatsoever is seen as "so temporary, so evanescent, and so relatively harmless that the task of compensating for it would unduly burden defendants and the courts."(23)

   Because the physical injury requirement has been gradually weakened, a minority of states--16 in all--have eliminated the physical injury requirement altogether, adopting an approach that allows a plaintiff who has, suffered neither injury nor impact to recover for emotional distress if the defendant breached a duty of care owed to the plaintiff, and as a result the plaintiff suffered emotional distress.(24) In these 16 jurisdictions, some guarantee of the genuineness of the claim is required as a substitute for present manifestation of illness. Genuineness is established by requiring that future damages are a reasonably certain result of the alleged negligence of the defendant,(25) and that the plaintiff's fear is reasonable.(26)

   This issue has arisen in many...