California high court limits 'cancerphobia' damages except for callous negligence.

The California Supreme Court recently ruled that people who are afraid they may develop cancer because they were wrong-fully exposed to toxic chemicals may be able to recover damages for their distress. However, the court set stringent conditions for winning these damages. Either the victims must be more likely than not to develop the disease, or the tortfeasors' misconduct must have been outrageous enough to also warrant punitive damages. (Potter v. Firestone Tire & Rubber Co., No. S018831, 1993 WL 537373 (Cal. Dec. 27,1993).)

The supreme court affirmed most of a 1987 Monterey County nonjury judgment in which Superior Court Judge Robert O'Farrell awarded substantial punitive damages, as well as compensatory damages for negligent infliction of emotional distress, medical monitoring, expert witness costs, and prejudgment interest. The punitives and emotional distress issues were remanded, medical monitoring was upheld, and the expert fees and interest were struck.

The victims in the case were two couples who lived near a landfill. They discovered that for years their well water had been contaminated with toxic seepage from chemicals dumped there illicitly by Firestone. Company documents showed that the chemicals had been sent there to save money and that the manager in charge knew this was illegal because cause the waste would seep into the groundwater.

In 1990, a court of appeal upheld most of the judgment but reversed the damages for medical monitoring, expert witness costs, and prejudgment interest. (274 Cal. Rptr. 885 (1990).) justice Franklin Elia rejected Firestone's contention that to win cancerphobia damages, victims must prove they are likely to develop cancer. Instead, he said, they must show that their fear is genuine, serious, and reasonable.

The state supreme court heard Firestone's appeal in December 1993. The case drew amicus curiae briefs from manufacturers, the medical profession, and other businesses threatened with liability for toxic torts. Many of these briefs took an even harder line than Firestone. They said damages for fear of cancer should be ruled out except when plaintiffs can show present physical injury such as cancer or a precancerous condition.

The supreme court rejected the industry argument because California discarded the physical injury requirement for emotional distress damages over a decade ago. However, the court accepted Firestone's proposed standard, reasoning that toxic exposure is so common that a lower threshold would allow too many people to file suit. But the court created an exception for cases involving "despicable conduct."

"Firestone's conduct brings this case within the |oppression, fraud or malice' exception" laid out by the state's civil code, according to the opinion. The court set aside the punitive damages because an intervening decision, Christensen v. Superior Court, established that only conduct directed at particular parties can be considered outrageous. (2 Cal. Rptr. 79 (1991).)

The court held that the plaintiffs could recover for the expense of future medical examinations to detect the feared condition. Medical monitoring "is simply a compensable item of damage when liability is established under traditional tort theories of recovery," the opinion said. The court also held that the fact that all four victims were smokers was irrelevant. The case was remanded for possible retrial on punitives and emotional distress damages.