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Combatting fear of future injury and medical monitoring claims.

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.

A. 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)

B. 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)

C. 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 Inc.(22) a hospital security guard, bitten by an unruly patient infected with the AIDS virus, was awarded almost $2 million for mental distress engendered by his fear of contracting AIDS. The West Virginia Supreme Court of Appeals, concluding that the "bite" was sufficient to meet the present injury requirement, did not require the plaintiff to establish any real risk that he would develop AIDS. Mere exposure, regardless of risk, was enough.

The Louisiana intermediate appellate court in Vallery v. Southern Baptist Hospital,(23) extended recovery for fear of AIDS one step further to include damages to the wife of a hospital security guard unaccompanied by any physical injury. While a guard was restraining a patient, a needle became dislodged causing the patient to bleed on the guard's hand. After completing his shift, the guard went home and had sexual relations with his wife. The following day, the guard was advised that the patient was AIDS infected.

The guard's claims were limited to recovery under the Louisiana Workers' Compensation Act, but the court held that since the wife could prove a "channel for infection," she had sufficiently stated a cause of action for fear of AIDS damages against the hospital. The court specifically stated that because AIDS is both incurable and fatal, extraordinary efforts to prevent its spread should be the rule. "Moreover," it added, "policy considerations favor finding a duty of the hospital to Mrs. Vallery." This was in spite of the fact that Mr. and Mrs. Vallery made no allegation that either was ever actually HIV infected or that either ever might actually suffer from AIDS.

FUTURE MEDICAL MONITORING

"Medical monitoring" or "medical surveillance," a remedy designed to provide healthy plaintiffs with the means to undergo periodic medical testing deemed necessarily to facilitate the early detection of diseases caused by toxic substances, is being increasingly sought by plaintiffs involved in toxic tort litigation.(24) Some courts have allowed recovery for future medical monitoring costs as a sort of compromise to those arguably deserving plaintiffs who are unable to recover for fear of disease damages, which require a higher standard of proof--that is, "more likely than not" the feared disease will occur.

Traditionally, as in the fear of disease claims, recovery for future medical monitoring was allowed only when plaintiffs were able to establish a physical manifestation or symptom of disease attributable to the defendant. Increasingly, however, plaintiffs who are perfectly healthy and who have no substantial risk of contracting a disease are bringing claims seeking recovery of costs for future medical care--and they are winning. The propriety of such awards, in the absence of present injury, is one of the most controversial topics in tort law today.

A. Recovery in Absence of Physical Injury or on Proof that Injury Is Reasonably Certain to Occur

One of the first cases allowing medical monitoring costs in the absence of physical injury was Ayers v. Township of Jackson,(25) decided in 1987 by the New Jersey Supreme Court.

Several hundred residents sued Jackson Township for contamination of their well water by chemical toxins originating from a nearby municipal landfill. None of the plaintiffs claimed any present symptoms of disease or physical injury from their exposure. The jury, nevertheless, awarded damages that totaled more than $15 million in various categories, the largest portion of which was more than $8 million to cover the costs of future medical monitoring.

The intermediate appellate court reversed the medical monitoring award because the record failed to establish that Jackson Township had so "significantly increased the 'reasonable probability' that any of the plaintiffs would develop cancer" so as to justify imposing the onerous burden of lifetime medical surveillance on the defendant.

The New Jersey Supreme Court, however, reinstated the $8 million award and held that asymptomatic plaintiffs could recover costs of future medical surveillance even when the increased risk of contracting cancer is unquantifiable. The court gave four primary reasons for doing so: (1) the "practical difficulties" faced by plaintiffs in toxic tort litigation; (2) the fear that many people exposed to a toxic substance would not seek regular medical surveillance without reimbursement of the costs; (3) the belief that "it is inequitable for an individual, wrongfully exposed to dangerous toxic chemicals but unable to prove that disease is likely, to have to pay its own expenses when medical intervention is clearly reasonable and necessary"; and (4) the deterrence of future contamination.

The court also established a basic standard for determining when medical monitoring damages should be awarded. Expert testimony must establish that the monitoring is "reasonable and necessary" based on (1) the significance and extent of exposure to chemicals, (2) the toxicity of the chemicals, (3) the seriousness of the diseases for which individuals are at risk, (4) the relative increase in the chance of onset of disease and those exposed, and (5) the value of early diagnosis.

Ayers is often cited by plaintiffs and has become influential. In Burns v. Jaquays Mining Corp.(26) the residents of a trailer park were exposed to asbestos fibers when the fibers were blown into the park from a nearby asbestos mill. Although none of the plaintiffs had been diagnosed as having asbestosis, or any present physical injury at all, the Arizona Court of Appeals, citing Ayers, reversed the trial court's grant of summary judgment and concluded that the plaintiff in the case "should be entitled to such regular medical testing and evaluation as is reasonably necessary and consistent with contemporary scientific principals."

The trial court in Merry v. Westinghouse Electric Corp.(27) also relied heavily on Ayers in concluding that the plaintiffs' experts created an issue of fact as to the probability of contracting a serious illness as a result of exposure to hazardous substances in their wells and that a jury could conclude that the plaintiffs had a significantly but unquantifiably enhanced risk of disease. And, by the way, the plaintiff's experts testified in Merry that no amount of exposure to carcinogens can be assumed safe or risk free.

Another oft-cited medical monitoring case is In re Paoli Railroad Yard PCB Litigation,(28) in which the Third Circuit allowed cost of future medical surveillance even in the absence of a present physical injury or illness. The plaintiffs alleged they had been exposed to polychlorinated biphenyls ("PCBs") traced to the Paoli railroad yard. The court rejected the argument that the plaintiffs should be required to prove that there is a "reasonable probability" that they would suffer harm in the future. Rather, the court focused on whether the plaintiffs proved to a reasonable degree of medical certainty that medical monitoring was necessary in order to diagnose the warning signs of disease properly.

To alleviate the speculative nature of medical monitoring damage awards, the court said that juries should be required to "reasonably determine that medical monitoring is probably, not just possibly, necessary." It stated that plaintiffs must meet these criteria: that (1) they were significantly exposed to a proven hazardous substance through the negligence of the defendant; (2) as a proximate result of that exposure, they suffer a significantly increased risk of contracting a serious latent disease; (3) increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) monitoring and testing procedures exist that make the early detection and treatment of the disease possible and beneficial.

B. Potter Standards

The pinnacle of fear of disease and medical monitoring damages jurisprudence is Potter (footnote 20), which relied heavily on the New Jersey Supreme Court's decision in Ayers.

In Potter, the trial court awarded future medical monitoring costs to the four plaintiffs despite the fact that none claimed present physical injury from exposure. Reversing, the intermediate appellate court held that "the problem with medical monitoring costs is that there is no physical injury upon which they can be based." The increased risk of developing cancer, said that court, is not a physical injury and "is not compensable unless there is evidence that it is probable that the disease will occur." It reasoned that "an increase in risk less than 51 percent is too speculative to warrant recovery." Declining to create "a new cause of action," it held that in order to recover medical monitoring costs, plaintiffs must show that it is probable that disease will occur.

But the California Supreme Court reversed on the issue of medical monitoring and restored the trial court's award, stating that medical science may necessarily and properly intervene in the absence of physical injury where there is a significant, but not necessarily likely, risk of disease. The court held that future medical monitoring costs are a compensable item of damages when plaintiffs prove, through reliable medical testimony, that the "need for future monitoring is a reasonably certain consequence of the plaintiffs' toxic exposure" and that the "recommended monitoring is reasonable."

Apparently attempting to set limits for the remedy in future cases, the court established the following factors to be considered in determining the "reasonableness" and "necessity" of future medical monitoring: (1) the significance and extent of the plaintiff's exposure to chemicals, (2) the toxicity of the chemicals, (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff's chances of developing the disease had he or she not been exposed and (b) the chances of the members of the public at large of developing the disease, (4) the seriousness of the disease for which the plaintiff is at risk, and (5) the clinical value of early detection and diagnosis.

The Potter court specifically rejected recovery of costs for preventive medical care and checkups to which members of the public at large should prudently submit. It also delineated what it termed "sound public policy considerations" in support of recovery of medical monitoring costs:

1. The public health interest in fostering access to medical testing for individuals whose exposure to toxic chemical creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment for many cancer patients.

2. The deterrence value of allowing plaintiffs to recover the cost of medical monitoring will stem irresponsible discharges of toxic chemicals.

3. The availability of a substantial remedy before the consequences of exposure are manifest may have a beneficial effect of preventing or mitigating serious future illnesses and thus reduce the over-all costs to the responsible parties.

4. Societal notions of fairness and elemental justice are better served by allowing recovery of medical monitoring costs.

A second California medical monitoring case is Miranda v. Shell Oil Co.,(29) in which more than 100 plaintiffs claimed that a public school's drinking water was contaminated with pesticides. Although each of the plaintiffs had consumed the contaminated water, none had cancer or any symptoms of the disease. They sought damages for the increased risk of cancer, emotional distress, and medical monitoring.

On appeal from a defendant's summary judgment, the court of appeals held that the plaintiffs could recover for the future costs of medical monitoring even though they manifested no present physical injury. The court relied heavily on Ayers and concluded that medical monitoring damages should be recoverable when the need for monitoring is a reasonably certain consequence of the exposure. The court set forth the five Ayers factors that the California Supreme Court subsequently adopted in Potter.

The Miranda case was under review by the California Supreme Court along with Potter, and the review was dismissed on the day of the Potter decision.

PRODUCT LIABILITY

Plaintiffs are filing fear claims--predictably class actions--against numerous medical devices: breast implants, Norplant, orthopedic devices, heart valves, penile implants, just to name a few. These plaintiffs claim product defect even when the product has not failed, asserting that they should be compensated for their fear that the device may one day fail.

This issue was faced squarely by the U.S. District Court for the Southern District of New York in Bravman v. Baxter Healthcare Corp.,(30) and the court rejected the plaintiff's fear claim, noting that New York generally does not recognize a cause of action for a faulty heart valve until the valve actually fails and causes a physical harm. The court quoted from a 1983 New York Court of Appeals case, Martin v. Edwards Laboratories, "An implanted or inserted device intended to perform a continuing function . . . causes no injury until the product malfunctions. Until that time the recipient ... has no causes to complain."(31)

The court further stated that since the plaintiff's valve continues to function as intended, any cause of action he might have for emotional damages arising from the valve's failure, if ever, has not yet accrued. The court expounded:

Liability without defect is a rather novel, and

dubious, theory. See James Henderson, Jr. and

Aaron Tweiski, Closing the American Products

Liability Frontier: The Rejection of Liability

Without Defect, 66 N.Y.U. L. REV. 1263 (1991)

. . . Recognition of such a cause of action could

have the marketplace result of increasing the

price of many everyday objects to compensate

all those, i.e., all consumers, who fear that the

objects might fail. Taken to its logical extreme,

fear claims could eventually swallow claims for

physical injuries, depriving the traditional plaintiff

of adequate compensation. Bravman, therefore,

has failed to state a legally cognizable

cause of action for the fear that his . . . heart

valve may fail.(32)

On appeal, the Second Circuit affirmed the defendant's summary judgement motion on product or design defect theory of liability, but held there were issues of fact with regard to whether the noise emitted by the heart valve had caused a cognizable injury and whether the defendant violated a duty to warn the plaintiff's doctor of the potential noise.(33)

A Fifth Circuit heart valve case reached the same conclusion. In Willett v. Baxter International Inc.(34) the court affirmed a defendants' summary judgment holding that the valves of the plaintiff were not defective and that Louisiana did not recognize a right of recovery for the fear that the valves may fail in the future.

The court explained:

While we recognize that the fear of an unknowable,

but potentially fatal, defect in a heart

valve is perfectly rational, and almost certainly

sincere, we have serious concerns about permitting

recovery for such fear absent actual failure

of the valve.(35)

The court's footnote 20 is particularly quotable in showing that if this plaintiff's fear claim were allowed, then every heart valve recipient would also be able to seek the same recovery:

The money flows in a circle, from each patient

(in the form of a higher price) to the company

back to the same patient (in the form of a fear

recovery), with a substantial portion of the

higher price skimmed off for attorneys' fees. In

addition, the higher price will place the product

beyond the economic reach of at least some of

the patients, forcing them to turn to the next best

(affordable) alternative. We see little reason to

adopt such a system.(36)

Another heart valve fear claim was rejected in 1990 by the California Court of Appeal in Khan v. Shiley Inc.(37)

STRATEGIES FOR DEFENSE

A. Legal Arguments

1. Law Unsettled

If litigating in a jurisdiction where the viability of claims for fear of injury and medical monitoring remains unsettled, defense counsel should argue initially that in the absence of physical injury or disease, the law does not provide an avenue of recovery for such damages since they are grounded in speculation and conjecture.(38) Requiring a physical injury would corroborate the authenticity of a plaintiff's allegations and provide "proof" that the plaintiff has been harmed.(39) Moreover, the physical injury requirement provides an accurate assessment of the type and extent of future medical care needed.(40) For instance, in Ball v. Joy Technologies Inc.(41) 20 plaintiffs alleged that their work environment exposed them to hazardous levels of various toxic substances. Their claim was that the exposure constituted a physical injury entitling them to damages for emotional distress and medical monitoring. The federal district court disagreed and granted summary judgment to the defendant because the plaintiffs had failed to show that they had suffered a present physical injury caused by the exposure. The Fourth Circuit affirmed and held that medical monitoring damages are "only available where a plaintiff has sustained a physical injury that was proximately caused by the defendants."

In Abuan v. General Electric Co.(42) the plaintiff sought medical monitoring damages on allegations that he was exposed to PCBs while working at Guam's Piti Power Plant. The Ninth Circuit affirmed a defense summary judgment in part because none of the plaintiffs could prove a physical injury beyond headaches, insomnia, anxiety or irritability.

In Purjet v. Hess Oil Virgin Islands Corp.(43) plaintiffs who alleged exposure to asbestos sought damages for enhanced risk of disease, emotional distress, and medical monitoring. With regard to the medical monitoring claim, the federal district court stated that "such relief is subject to the damage requirement and, therefore, is appropriate only when a demonstrable injury caused by a negligent act increases the probability of developing ailments in the future."

2. Reasonable Certainty

Defense counsel should argue that plaintiffs must plead and prove to a reasonable certainty through medical expert testimony that it is more likely (greater than a 50 percent probability) than not that they will develop the feared disease in the future, and/or that monitoring expenses are reasonably probable to occur.(44)

3. Use Experts

Defense counsel should be well prepared to attack plaintiffs' cases with their own persuasive medical scientific experts regarding exposure, the nature of the product or substance involved, the purported magnitude of the increased risks, and the costs of medical monitoring versus its benefits.

4. Require Satisfaction of Criteria

In litigating a claim for medical monitoring costs in a jurisdiction that has adopted the guidelines of "reasonableness" and "necessity," as set forth in Potter, Miranda and Ayers, defense counsel should make sure that plaintiffs are required to satisfy all of the elements for recovery. The rationale is that the "lack of any one of the criteria breaks the logical link to the ostensible objective."(45)

(a) Exposure

Because chemicals do not produce toxic effects based on mere opportunity or proximity, plaintiffs should be required to make a showing that there was bodily entry of the product or substance at issue versus "mere opportunity" or mere physical proximity.(46)

In Mergenthaler v. Asbestos Corp. of America(47) the Supreme Court of Delaware denied medical monitoring damages to the wives of asbestos workers who claimed they had been exposed to asbestos fibers from their husbands' clothes, in the absence of evidence that the women had actually inhaled asbestos fibers.

Given our increasingly modern industrial society, it is a fact that all people have a "background" level of toxins in their bodies derived from seemingly innocuous sources such as coffee, tea, fresh fruits and vegetables, all of which contain small quantities of carcinogens.(48) Testing to ascertain the actual level of these substances is available to provide each person with a background level. Plaintiffs should be required to present evidence that the defendant caused them to receive a dose above the "background" level sufficient to cause a toxic effect.(49)

(b) Toxicity

Plaintiffs also should be required to specify the exact harm that the alleged dose of a particular substance they received is known to cause. Evidence of toxicity should be derived from epidemiological studies on humans beings versus extrapolation from high-dose experiments performed on laboratory animals. A toxicity level determined for humans made solely on the basis of animal data is meaningful only when sufficient data for humans beings are unavailable. Thus, where human data are sufficient, plaintiffs should not be allowed to rely on contrary studies performed on animals to prove the toxicity of a substance.(50)

(c) Seriousness of Disease

Defense counsel should be armed with as much evidence as possible regarding substances, other than the one at issue, to which a plaintiff may have been voluntarity exposed--for example, smoking alcohol, diet drinks, and caffeine. The fact finder should be made to question why damages should be awarded for exposure to one toxin, when plaintiffs voluntarily may have exposed themselves to other toxins that place them at risk for future injury.

(d) Relative Increase in Risk

Defense counsel should emphasize to the fact finder that virtually everyone is exposed to potential health hazards each day through the air they breathe, water they drink, food and drugs they ingest, and on the land on which they live. We are all potential plaintiffs. Why should these particular plaintiffs be specially compensated?

Statistics show that one third of all Americans run a risk of developing cancer or other debilitating disease at some point in their lifetimes. This means that contracting cancer is an inherent risk in everyone's life. Therefore, a slight increase in plaintiffs' chances of contracting a particular cancer or disease because of a particular exposure is not so significant.

(e) Early Detection

There is an emerging area of disagreement in the medical community regarding the costs versus benefits of regular testing for asymptomatic plaintiffs.(51) Plaintiffs should be made to establish affirmatively that future monitoring is not only reasonable and necessary in their situation, but also beneficial.

Defense counsel should require plaintiffs to prove that medical procedures are even available to detect the onset of the feared disease early enough to be of some benefit, and that early detection will alter the outcome favorably.(52) It should be argued forcefully that in cases involving incurable diseases that cannot be adequately treated, medical monitoring costs are unwarranted, since medical testing is useless.

Defense counsel also should see to it that the fact finder considers the medical risk associated with the testing procedures themselves. Routine testing is known to produce false positives in asymptomatic persons, subjecting them to further unnecessary medical treatment that is often painful, stressful and sometimes risky.(53) The fact finder also should consider the role that heredity plays in the development of cancer and other diseases in certain persons.

Last but not least, defense counsel should argue that medical monitoring on asymptomatic individuals is likely to have a negative psychological impact--whether by being falsely told they are sick, by constantly being on guard against the onset of fatal disease, or by being convinced by the courts that they are in imminent peril--and is likely to impede their ability or desire to function as productive members of society. There is a similar impact on asymptomatic plaintiffs who learn early on that they are suffering from an incurable disease, only have that much longer to suffer psychologically from the knowledge that they are going to die.(54)

5. Cross-examination

With respect to medical monitoring claims, through effective cross-examination of plaintiffs, defense counsel can raise the possibility that, if awarded such damages, plaintiffs will likely not undergo the examinations they claim they want based on their failure to take advantage of monitoring opportunities already available to them to bring the circumstances of their exposure to the attention of a physician.(55)

B. Equitable Arguments

In view of the recent trend for courts to award fear of injury and medical monitoring damages, public policy arguments are likely to be defense counsel's best chance of obtaining a defense verdict. Defense counsel should argue that recovery of these types of damages should not be allowed in the absence of a present physical injury or, at a minimum, in cases in which plaintiffs cannot prove that it is "more likely than not" that the feared disease will develop. Otherwise, there is likely to be a flood of litigation that will impose onerous burdens on courts, business and industry, insurers and society in general. Allowing these recoveries without specific restrictions and limitations is likely to promote fraudulent and artful pleading and will encourage asymptomatic plaintiffs to seek damages based on a purely subjective fear of disease.

Defense counsel should point out that allowing recovery under any other standard might compromise the availability and affordability of liability insurance for toxic liability risks. In order to cover the risks, there inevitably will be a concomitant rise in insurance premiums, the effects of which will touch every household. Allowing medical monitoring costs under any less stringent standards will result in millions of dollars being spent on medical procedures for persons who will never become sick. Can society afford to waste large sums of money on testing persons who will never develop the feared disease?

At least one court has noted that "defendants' pockets or bank accounts do not contain infinite resources."(56) Limitless recovery for fear of injury or medical monitoring costs in the absence of a present injury or probability that disease will develop could force defendants into bankruptcy, leaving future legitimately injured plaintiffs without a remedy.

Defense counsel also should stress the potential impact on the health care industry if an unrestricted class of plaintiffs is permitted to recover. Access to existing prescription drugs and the availability of new, beneficial drugs are likely to be curtailed in the face of the threat of large monetary awards to persons with no present symptoms but who claim the fear of unknown effects from drugs on the market. The availability and cost of medical malpractice insurance will become more restricted, a situation that might result in reduced quality of care rendered to patients, as well as an increase in the practice of defensive medicines.(57)

As stated by the dissenter in Vallery:

Where insurance companies cannot quantify a

certain risk, the cost of insurance can be out of

all proportion to the risk. This would add another

costly layer of inordinate expense to the

treatment of AIDS without doing anything to advance

the treatment of AIDS. From a public

policy perspective, this would represent a very

poor allocation of health care dollars at a time

when money for AIDS is insufficient in particular,

and the cost of health care in general is in

crisis.(58)

Finally, as a last resort with respect to medical monitoring claims, defense counsel should argue in favor of the creation of a court-supervised fund to pay medical monitoring costs as they accrue rather than granting plaintiffs lump-sum awards. This would limit the defendant's liability to the amount actually incurred and would further the public policy goal of encouraging periodic medical examinations.(59)

CONCLUSION

Recognizing fear of injury claims of those plaintiffs who exhibit a present physical injury or a quantified risk of future injury or disease may be reasonable, and allowing for medical monitoring costs in similar situations may be acceptable, provided early detection and treatment will affect the outcome favorably. Conversely, in cases in which plaintiffs seek recovery in the absence of present injury or where there is no probability of future disease, both legal and public policy arguments should be tenaciously advanced to defeat spurious claims.

Defense counsel should argue for the requirement that plaintiffs establish a present physical injury or make a showing that they are more likely than not to develop the feared disease in the future. Counsel should stress that a less stringent standard of proof will inevitably result in a potentially unrestricted plaintiff class at a tremendous cost to society. The cost will limit the availability and affordability of liability insurance for toxic liability risk and potentially leave many future plaintiffs who are legitimately injured and in need of care without a remedy. Defense counsel also must insist that plaintiffs prove each element of their claims through reliable medical expert testimony, and they should be prepared to counter with their own credible and persuasive scientific medical evidence.

Finally, defense counsel should require plaintiffs to demonstrate the sincerity of their claims. Especially with respect to damages for future medical monitoring, some form of equitable remedy, such as the creation of a court-administered fund, should be established to ensure that healthy plaintiffs who are not concerned enough about their health to undergo testing will not receive windfalls and to guarantee that funds will be available to those who actually do submit to the examinations.

It is precisely because fear claims are so amorphous that they are so dangerous. The defendant in Potter, while ultimately successful in overturning the claims for fear of future injury, for intentional infliction of emotional distress, and for punitive damages, is still saddled with a very big ticket item--medical monitoring. By setting forth a standard of "significant but not necessarily likely" risk of disease in the absence of physical injury, the Potter court has opened the floodgates wider to claims for medical monitoring. (1.) See Martha A. Churchill, Medical Monitoring and Cancerphobia: The Rise of Fear Lawsuits, For the Defense, August 1993, at 2. (2.) Terry Morehead Dworkin, Fear of Disease and Delayed Manifestation Injuries: A Solution or a Pandora's Box? 53 Fordham L. Rev. 527 (1984). (3.) 152 N.E.2d 249, 253 (N.Y. 1958). (4.) 759 F.2d 271, 274 (3d Cir. 1985). (5.) 481 So.2d 517, 528-29 (Fla.App. 1985). (6.) 437 N.E.2d 171, 180-81 (Mass. 1982). (7.) 684 F.Supp. 847 (M.D. Pa. 1988). (8.) 580 F.2d 72, 76 (3d Cir. 1978). (9.) 639 S.W.2d 431, 434 (Tenn. 1982). (10.) 785 F.2d 79, 85 (3d Cir. 1986). (11.) 565 F.Supp. 1553, 1560 (N.D. Ill. 1983). (12.) 56 Cal.Rptr, 116 (Cal.App. 1967). (13.) 660 F.Supp. 1516, 1526-27 (W.D. Mich. 1987). (14.) 444 A.2d 433, 436-37 (Me. 1982). (15.) 341 So.2d 324, 338-39 (Miss. 1975). (16.) 646 S.W.2d 765, 772-73 (Mo. 1983). (17.) 305 N.W.2d 605, 606-07 (Neb. 1981). (18.) 661 F.Supp. 193 (N.D. Cal. 1987). (19.) 673 F.Supp. 727 (E.D. Pa. 1987). (20.) 863 P.2d 795 (Cal. 1993), superseding 274 Cal.Rptr. 885 (Cal.App. 1991). (21.) 863 P.2d at 810. (22.) 413 S.E.2d 889 (W.Va. 1991). (23.) 630 So.2d 861 (La.App. 1993). (24.) George W.C. McCarter, Medical Sue-veillance: A History and Critique of the Medical Monitoring Remedy in Toxic Tort Litigation, 45 Rutgers L. Rev. 227, 230 (1993) [hereinafter McCarter]. (25.) 525 A.2d 287 (N.J. 1987), aff'g in part, rev'g in part 493 A.2d 1314 (N.J.Super. 1985). (26.) 752 P.2d 28 (Ariz.App. 1987). (27.) 684 F.Supp. 847 (M.D. Pa. 1988). (28.) 916 F.2d 829 (3d Cir. 1990). (29.) 865 P.2d 56 (Cal. 1993), remanding and certifying for partial publication, 26 Cal.Rptr.2d 655 (Cal.App. 1993). Prior decision, 15 Cal.Rptr.2d 569 (Cal.App. 1993). (30.) 794 F.Supp. 96 (S.D.N.Y. 1992). (31.) 457 N.E.2d 1150, 1155 (N.Y. 1983). (32.) 794 F.Supp. at 101. (33.) 984 F.2d 71 (2d Cir. 1991). (34.) 929 F.2d 1094 (5th Cir. 1991). (35.) Id. at 1099-1100. (36.) Id. at 1100. (37.) 266 Cal.Rptr. 106 (Cal.App. 1990). (38.) W. Page Keeton et al,, Prosser and Keeton on The Law of Torts [section] 30, at page 165 (5th ed. 1984). (39.) See Ferrar v. Galluchio, 152 N.E.2d 249 (N.Y. 1958); Heider v. Employers Mut. Liab. Ins. Co., 231 So.2d 438 (La.App. 1970); Plummer v. Abbott Laboratories, 568 F.Supp. 920 (D. R.I. 1983). See also Albert H. Parnell et al., Medical Monitoring: A Dangerous Trend, For the Defense (April 1993, at 6). (40.) See Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1372 (S.D. W.Va. 1990), aff'd sub nom. Ball v. Joy Technologies Inc., 598 F.2d 36 (4th Cir. 1991), cert. denied, 112 S.Ct. 876 (1992); Villari, 633 F.Supp. 727, 735: Coll v. Sherry, 148 A.2d 481, 486 (N.J. 1959). (41.) 958 F.2d 36 (4th Cir. 1991), cert. denied, 112 S.Ct. 876 (1992). (42.) 3 F.3d 329 (9th Cir. 1993). (43.) 1986 WL 1200 (D. V.I. Jan. 8, 1986). (44.) See Potter, 863 P.2d 795; Fireboard Corp. v. Pool, 813 S.W.2d 658, 680-81 (Tex.App. 1991); Elam v. Alcolac Inc., 765 S.W.2d 42, 208-09 (Mo.App. 1988): Askey v. Occidental Chem. Co., 477 N.Y.S.2d 242, 247 (App.Div. 4th Dep't 1984). (45.) McCarter, supra note 24, at 265. (46.) See Beth Silverstein & Marcia F. Silcox, Medical Surveillance Claims: A Troubling Trend in Toxic Torts, 2 Envtl. Claims J. 423 (Summer 1990) [hereinafter Silverstein Silcox]. (47.) 480 A.2d 647 (Del. 1984). (48.) Allen v. United States, 588 F.Supp. 247 (D. Utah 1984), rev'd on other grounds, 816 F.2d 1417 (10th Cir. 1987), cert. denied, 484 U.S. 1004 (1988). (49.) For cases holding that mere opportunity or proximity to exposure will not engender liability, see Am. Petroleum Inst. v. Occupational Safety and Health Admin., 58 F.2d 493 (5th Cir. 1978); Schwertzer v. Consol. Rail Corp., 758 F.2d 936 (3d Cir. 1985), cert. denied, 474 U.S. 864 (1985); Friedman v. F.E. Myers Co., 706 F.Supp. 376 (E.D. Pa. 1989); Cook v. Rockwell Int'l Corp., 755 F.Supp. 1468 (D. Colo. 1991). (50.) McCarter, supra note 24, at 246-48, See also Richardson v. Richardson-Merrell Inc., 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882); Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987). (51.) Note (Allan T. Slagel), Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 Ind. L.J. 849, 868 (1988). (52.) Silverstein & Silcox, supra note 30, at 424. See Michael Alderson, Occupational Cancer 1986). (53.) McCarter, supra note 24, at 276-77. (54.) Donald H.J. Harmine, Liability Related to Diagnosis and Transmission of AIDS, AIDS: ONE 255, 257 (James Vculek ed. 1988). (55.) See Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248 (N.J.Super. 1990). (56.) Ball, 755 F.Supp. at 1372. (57.) See Potter, 863 P.2d 795. Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992). (58.) 630 So.2d at 870 (court's emphasis). (59.) See Friends for All Children Inc. v. Lockheed Aircraft Corp., 578 F.Supp. 180 (D. D.C.), modified, 593 F.Supp. 388 (D. D.C.), aff'd, 746 F.2d 816 (D.C. Cir. 1984).

IADC member Terry Christovich Gay is a partner in Christovich & Kearney, New Orleans, where she concentrates her practice in the fields of medical malpractice, medical devices and professional liability. She is a graduate of Sweet Briar College (B.A. 1973) and Loyola University of New Orleans (J.D. 1976).

Paige Freeman Rosato ia an associate in the same firm. She is a graduate of Loyola University of New Orleans (B. S. W. 1983, J. D. 1987).
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Author:Gay, Terry Christovich; Rosato, Paige Freeman
Publication:Defense Counsel Journal
Date:Oct 1, 1994
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