Standard of proof for increased risk of disease or injury.

• Author: Wiechmann, Eric W.

CLAIMS for the increased risk of future disease often are predicated on the assertion that the plaintiff has been exposed to a carcinogen and, as a result, has an increased risk of contracting some form of cancer. Historically, courts did not recognize claims for increased or enhanced risk of future disease by themselves, holding that there was no injury.(1) As Dean Prosser stated, "the threat of future harm, not yet realized, is not enough."(2)

TRADITION GIVES WAY

Under traditional tort principles, claimants did not have causes of action until they contracted the disease. This rule avoided the problem of trying to prove highly speculative damages.(3) The traditional requirement of a manifest injury prevented windfalls for those who never became ill or inadequate compensation for those who did.(4)

Plaintiffs began to argue, however, that in toxic tort exposure cases this traditional approach often denied compensation. In states in which the statute of limitations begins to run when the exposure to the carcinogen occurs, suit may be barred long before the cancer manifests itself. The same result can occur in states that have statutes of repose that bar any action after a certain period of years.(5) Even states with the so-called discovery rule, where the statute of limitations begins to run only from the point at which the plaintiff should reasonably have discovered the damage, may provide inadequate compensation to victims, because at the time the plaintiff is allowed to sue, the defendant may be bankrupt, dissolved or judgment proof.(6)

Even if plaintiffs could clear all these hurdles, the intervening time period could be detrimental to their cases. They contended that if they were unable to bring a present claim for enhanced or increased risk of cancer and were forced to wait until the condition manifested itself, which might take decades from initiation to diagnosis,(7) they inevitably would be confronted by the defense that the injury did not result from exposure to toxic chemicals but instead was the product of intervening events or causes.(8) Defendants also would be disadvataged in locating witnesses to rebut vague recollections of long-past alleged exposures. Of course, plaintiffs who had died from the disease would lack the ability to recall and locate witnesses to the exposure.

As a response to these concerns, courts began to allow a recovery for increased or enhanced risk of contracting cancer in cases in which plaintiffs had an existing injury--for instance, asbestosis--and could prove that it was reasonably certain or reasonably probable that they would contract the disease.(9)

In Jackson v. Johns-Manville Sales Corp.(10) the plaintiff, claiming that he developed asbestosis as a result of asbestos exposure, sought recovery in part for his increased risk of contracting cancer. The Fifth Circuit reasoned that since medical testimony demonstrated that the plaintiff had a better than 50 percent chance of contracting cancer, recovery was permissible. The court allowed the claim under the guise of traditional tort principles, stating that "once the injury becomes actionable--once some effect appears--then the plaintiff is permitted to recover for all probable future manifestations as well." Thus, the plaintiff was entitled to receive full compensation for injuries that may never occur.

Despite the court's attempt to characterize the claim as one arising under traditional tort principles, the underlying fact that asbestos manufacturers may be unable to provide any compensation many years down the road to plaintiffs also appears to be a partial consideration for allowing recovery for increased risk claims.

Other courts that have allowed claims for increased risk use the rubric that the plaintiff must demonstrate that contraction of the disease is more probable than not,(11) medically probable,(12) a probability(13) or a reasonable medical certainty.(14) Despite varied terminology, the standards appear to require proof that the increased risk of developing the disease exceeds 50 percent.(15)

It is clear, as the D.C. Circuit stated, "If such proof is made, the alleged future effect may be treated as certain to happen and the injured party may be awarded full compensation for it; if the proof does not establish a greater than 50 percent chance, the injured party's award must be limited to damages for harm already manifest."(16) This is the "all or nothing" rule of damages. If the plaintiff can prove prospective harm by the applicable standard, full recovery is warranted. If the standard is not met, the injury will be treated as nonexistent and no recovery will be allowed.

This rule has come under attack in recent years on the ground that it is inconsistent with traditional tort principles because many individuals will receive compensation for future consequences that will...