The fear of disease, sometimes called hypochondria, has long been recognized as a medical problem, but seldom as a legal one. Its costs, therefore, have been borne by its victims and their insurance companies. Although such fears have traditionally been dismissed as groundless, the great strides made recently in the medical profession’s ability to connect environmental exposure with disease are beginning to change this view. They are also causing a shift in the view of who should bear the costs of such fears. Increasingly plaintiffs are claiming that the entities responsible for their exposure to disease-causing agents should compensate them for their concern about the possibility of developing the disease. Courts have so far been unwilling to recognize suits for the increased chance of developing a delayed-manifestation disease. An increasing number, however, are recognizing the right to sue for the fear of disease development due to that increased chance and for medical monitoring necessary to check for that development. The recent expansion of emotional distress theories and the concomitant easing of restrictions is likely to facilitate this trend. Compensation for delayed disease-caused emotional distress may even provide the only recovery possible for thousands of people who have been exposed to toxic substances but whose diseases will not become manifest until after statutory limitations have run. Such recovery may also provide one way to ease the future claims problems raised by bankruptcy and reorganization filings, and post-insurance coverage of liabilities. Societal costs of open recognition of such claims, however, are likely to outweigh these benefits. This Article discusses the history of disease phobia recovery, the recent expansions of emotional distress theories, and how they are likely to be combined in the toxic tort area.
I. EMOTIONAL DISTRESS CLAIMS
Fear of Disease and Delayed Manifestation of Injuries: A Solution or a Pandora ‘s Box?, Fordham Law Review, Volume 53 | Issue 3 Article 5, 1984.
Common law has long recognized a right to recover for emotional distress. The tort of assault, which developed as a form of trespass, was recognized as early as the thirteenth century. This cause of action was probably originally created to deal with actions that could lead to a breach of the peace, rather than to compensate for the emotional distress that was caused by the defendant’s act. Nevertheless, compensation went to the victim primarily for the emotional harm suffered. In the early courts the amount of that compensation was determined by reference to a predetermined schedule of payments based on the kind of injury that was inflicted.
Compensation for emotional distress was also awarded early in the common law when that distress arose from an action such as battery or other nonemotional injury. These damages were parasitic, and could not be recovered without a finding that the defendant was liable to the plaintiff for the primary injury to which the emotional claim was attached.
The practice of having unscheduled damages determined by the tribunal grew along with the development of the common law of trespass The jury was eventually allowed to set the amount of compensation because it was familiar with local economic values. Inclusion of damages for pain and suffering naturally accompanying the plaintiff’s injury became part of the jury’s assessment of damages.
Unlike property damage or other types of injuries which could be measured by recognized economic yardsticks, emotional injuries had no reference to any market value scale. They were highly subjective and speculative, and as such were not truly compensatory. As a result they were viewed with suspicion, and control of such damages became a judicial concern. The judge served as a check on the jury’s discretion, with the power to change awards when he deemed the amount to be out of line. Thus judicial concern with control of emotional injury awards has a long history.
Additional checks helped control tort recovery for emotional suffering. In assault, for example, the requirement that the threat be imminent limits the number of suits that can be based on apprehension of threatened harm, and severely limits the time period for which the distress can be claimed. Even stricter controls were built into the primary emotional injury torts which developed later.
No cause of action for emotional distress independent of assault or another tort was recognized until this century. Part of the reluctance to grant such an action was based on the lack of guidelines for the jury to follow in assessing damages for an injury that had no inherent monetary value, was not overt, and was subject to great individual variation. Probably the biggest obstacle, however, was the fear of fraudulent claims and frivolous lawsuits. In response to these reservations, the courts that allowed actions for emotional distress severely restricted the kinds of actions that could support such claims as well as the persons who could claim injury.
Intentional infliction of emotional distress as an independent cause of action was contained by requiring proof of extreme and outrageous conduct resulting in serious emotional distress, which usually had to manifest itself in a physical illness. Mere insults or other annoying behavior were not to be compensated. The outrageousness could arise from either the nature of the conduct itself, or abuse of a special position or knowledge. If the defendant’s action was truly outrageous, the certainty of resulting emotional distress was assumed to be sufficiently clear to allow recovery. In addition, such actions were clearly worthy of legal deterrence. The allowance of such claims also reflected the scientific and legal communities’ growing understanding of emotional injury.
Recognition of the tort of negligent infliction of emotional distress has occurred more slowly. Voicing the same objections about fraudulent and frivolous suits and a flood of litigation, the courts have been even more reluctant to recognize this cause of action. Defendant’s actions, being merely unreasonable, are not as good an indicator of the certainty and severity of resulting distress as are intentional acts. Thus, in order to maintain control, courts usually refused to grant recovery in negligent infliction of emotional distress cases unless the plaintiffs could demonstrate some physical impact from the tort and a physical manifestation of the emotional distress. When third parties were later allowed to sue for emotional distress resulting from witnessing the defendant injuring another person, the impact and physical manifestation requirements, as well as the requirement of close familial relationship, served the same screening purposes.
A. Recent Developments in Infliction of Emotional Distress
Although some courts still cling to these early restrictions, the trend has been toward liberality in construction, or elimination of these limitations to allow wider recovery in emotional distress cases. In intentional infliction cases, for example, the class of actions that are considered to be outrageous has been expanded. As in punitive damages cases, judges and juries in emotional injury cases now find it relatively easy to be out raged by defendant’s actions.
Another trend has been to abandon the requirement of contemporaneous physical injury or impact in both intentional and negligent infliction cases. In these cases, physical manifestation of the emotional distress has become the primary screening device. Some courts have gone even further by abandoning the physical manifestation requirement and using the seriousness of the distress as the screen. These trends have been well documented in both cases and law review articles. In substituting these requirements, courts recognize the progress in knowledge about mental distress and its etiology, diagnosis and proof. Even in these later cases, however, control of emotional distress suits continues to be a concern.
In Molien v. Kaiser Foundation Hospitals, for example, the California Supreme Court broke with precedent and found that physical manifestation of the emotional distress was no longer necessary in a negligent infliction case. Plaintiff Molien’s wife was misdiagnosed by her doctor as having syphilis, and Molien was emotionally injured by this news and the resultant marital discord. The court found the touchstone to be the severity of emotional injury, not physical manifestation, because the state of the art was such that emotional injury could be established with medical certainty and causally linked to the shocking experience. The requirement that the emotional injury be serious was found to be a sufficient screen against fraudulent claims, unlimited liability and a flood of litigation. The court found that the former screening device of physical injury, which had ensured authenticity and seriousness, was both over- and under-inclusive, and could lead to extravagant pleading and distorted testimony. Other courts have followed California’s lead in substituting seriousness for physical manifestation as the screening device.
Suits by third parties who witness harm to another and thereby suffer emotional distress have probably shown the most change and growth in recent years. The case that firmly established the right of a bystander to recover for emotional harm resulting from negligent injury to another was the 1968 California case Dillon v. Legg. In that case a mother was allowed to sue for the emotional distress resulting from seeing her child injured, despite the fact that she was not in the zone of danger and was not physically injured. In order to control subsequent third-party cases, the court stressed that proximity, contemporaneous observance and close relationship must be shown if the plaintiff is to recover. Again, other states followed California’s lead in allowing such suits. The three screening factors, which were meant to be guidelines to foreseeability in determining who should be allowed to sue, became rigid requirements in an effort to keep such cases under control. Such rigidity led to fine hairsplitting and denial of recovery in some compelling cases. This in turn has led to the liberalization of these requirements in some of the subsequent cases.
In Haught v. Maceluch, for example, plaintiff’s daughter was injured during birth by the negligence of the obstetrician. Plaintiff successfully sued for the mental suffering she incurred because of her daughter’s condition, but the award was deleted by the district court because the mother did not meet one of the the three bystander criteria: She was under anesthesia during the birth and therefore did not witness the accident. The Fifth Circuit reversed, finding that Texas law would allow recovery. The court found that the mother was not only at the scene of the accident, but that in some sense she was the scene; because the accident happened before parturition, the relationship could not have been closer. The strength of these two factors was sufficient for recovery because the court found that Texas law did not require all three Dillon elements. However, the court went on to find that although plaintiff did not perceive the injury, she did have an experiential perception of the accident because of the protracted and difficult labor experienced before she was anesthetized.
Many courts that have followed the Dillon precedent have adopted an additional screening device. These courts, like the Molien court, require the mental distress to be serious. Serious mental distress is that which “a reasonable [person] normally constituted, would be unable to adequately cope with” in light of the circumstances of the event. Thus, a standard reminiscent of the outrageousness requirement in intentional infliction cases is used to keep control over negligent emotional distress suits. The especially sensitive person is still not to be accorded recovery for his or her pure mental distress.
B. Recent Developments in Other Distress Claims
The broader acceptance of emotional distress as a legitimate injury, and the willingness of courts to accept proof of it unrelated to physical injury or impact, is demonstrated by the awards for parasitic emotional distress which are being made in a wide variety of cases in which they were previously denied or only infrequently given. In Simon v. Solomon, for example, a tenant was awarded $35,000 for the emotional distress of having her apartment flooded with sewage thirty times. This case marked the first time that a state supreme court upheld emotional distress damages against a landlord. Emotional damages were also awarded for the first time in a first amendent case in Abramson v. Anderson. Abramson, a high school teacher, was awarded $300 for the mental distress he suffered from being exposed to prayers in two school holiday assemblies.
Another area in which emotional distress claims have recently been recognized is in suits for the “wrongful birth” of a child. An increasing number of courts are allowing parents to recover against physicians for the mental anguish of having a healthy but unwanted child because sterilization procedures were negligently performed, or for the anguish of having a defective child because genetic counseling was faulty or absent. Although courts usually do not allow the child to recover for its own wrongful life because of the difficulties in determining the value of being born with handicaps versus not being born at all, they are no longer deterred from allowing parental recovery for the intangible emotional distress.
Courts are also increasingly interpreting statutes to encompass damages for emotional distress. The Fifth Circuit incorporated emotional damages into the Texas Deceptive Trade Practices Act in a case in which a sixty year old woman was traumatized by a burglar when her home security system failed. The woman recovered for her past and future mental anguish which resulted from the defendant home security company’s misleading representations about its system. The Deceptive Trade Practices Act under which she sued provided for recovery of actual damages; the court interpreted this to mean common law damages. Because the woman’s emotional injury had manifested itself in physical symptoms, she met the Texas common law requirement for a mental anguish award and therefore could recover under the statute.
In Young v. Bank of America National Trust & Savings Association the California Court of Appeal allowed a consumer to recover treble damages under the Song-Beverly Credit Card Act for the emotional distress she suffered after the bank refused to remove charges from her account. Plaintiff had loaned her BankAmericard Visa to a friend so that he could buy a one-way ticket to Hawaii. He did not return the card, and two days after lending it she reported it stolen. When the bank recovered the card four months later, there were $2,200 in charges, which the bank continued to charge to plaintiff. Despite the fact that the charges were disputed, the bank informed a credit reporting service that plaintiff’s account was over its limit and past due. She was subsequently denied credit. The court found that plaintiff’s feelings of distress and frustration over several months justified the jury’s award of $50,000 against the bank’s “computer-hearted insensitivity.” Again, these cases present just a few examples of the emotional recovery expansion in the statutory area. That expansion has even longer roots in the liberal interpretations of the state workers’ compensation statutes.
Last term, however, the United States Supreme Court refused to allow emotional impact to play a determinative role in interpreting an environmental impact statute. The decision reversed the ruling of the District of Columbia Circuit Court, which had held that under the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental impact of major federal actions that have a significant effect on the human environment, the agency must consider the degree to which the proposed action affects public health and safety. Plaintiffs alleged that the start-up of the Three Mile Island reactor would create the risk of an accident, which caused them to fear that risk. The circuit court found that the psychological effect of this fear, or the impact on the psychological health of nearby residents, was part of the public’s health and safety, and had to be considered by the Nuclear Regulatory Commission before deciding whether to permit resumption of operation of the nuclear power plant. Although mere dissatisfaction engendered by political disagreements or economic or social concerns were not to be considered, the inquiry was to include genuine post-traumatic fears that engendered fears of recurring catastrophe and that were accompanied by physical effects.
The Supreme Court, in an unanimous opinion, held that the Commission was only required to assess the impact on the physical environment. Although recognizing that psychological health could be considered under NEPA, it found that such consideration was not warranted in this case because there was too tenuous a connection between the change in the environment and the alleged psychological harm. In rejecting the emotional impact claim, the Court cited reasons reminiscent of earlier courts’ objections to emotional distress claims: the fear of fraudulent or frivolous claims and the potential impact on decisionmaking resources if such considerations were allowed. The Court warned that if the circuit court’s ruling were upheld, agencies could be forced “to expend considerable resources developing psychiatric expertise” and that their resources may be spread so thin the agency could not do its job. In addition, it would be difficult for the agency to differentiate between genuine psychological claims and other objections based on political differences. Thus, with somewhat tortured logic the Court found that although NEPA “was enacted to require agencies to assess the future effects of future actions,” the effects of the risk of accident could only be considered in regard to the physical environment.
The Court recognized that a risk, which “is a pervasive element of modem life” often created by modem technology, can generate stress which in turn can cause serious health damage. Although stating that the balance to be struck between the risks of technology and its gain is an important policy issue, it was not one the Court chose to tackle in this politically charged context. Allowing anxiety about future risks in the context of agency decision making apparently was viewed by the Court as opening a Pandora’s box of emotional impact claims.
In refusing to recognize fear of future risks in the environmental context, the Court overlooked a long line of precedent that allowed fear of risks to be considered in civil damage suits. The result, however, does coincide with several recent decisions by lower courts in fear of disease cases. Unlike emotional distress damages in general, recovery for distress caused by the fear of disease has been approached with extreme caution in recent toxic tort cases.
IL DAMAGES FOR FEAR OF DISEASE
Fear of disease that arises from an injury caused by defendant’s wrongful act was traditionally considered to be part of or akin to pain and suffering damages commonly awarded. By the 1920’s several states had recognized parasitic damages for fear of disease or injury arising from, but different than, the original bodily injury. The overwhelming majority of these early cases involved fears that were necessarily short-lived. The most prevalent claim, for example, involved fear of hydrophobia or rabies from dog bites. Because the period during which rabies can develop after being bitten is no longer than a year, plaintiff’s fears about its development could not realistically last longer than this period., As in other emotional distress cases, courts denied recovery to plaintiffs whose fears of future disease were not grounded on sound probability; therefore, fears lasting longer than the incubation period were not compensated.
Other common claims were for fear of lockjaw, blood poisoning and miscarriage. Realistic fears of these diseases would also be of limited duration. Although some of the later cases were based on fears of different diseases or injuries, most of them also contained inherent time limitations. The courts were not particularly concerned with control of this form of emotional damage. The fear arose from physical injury, which was easily verified and, the plaintiff was not compensated for it unless the fear was deemed to be founded on sound probability and of limited duration. Thus, worry about fraudulent and spurious claims and a flood of litigation was not an important issue.
This is in sharp contrast to the law regarding claims for emotional distress unaccompanied by serious physical injury, which was developing at the same time. As discussed previously, concern about fraudulent and frivolous suits was pre-eminent, and recovery could be had only in the most egregious or clear cut cases.
Although a few early decisions recognized the right to recover for fear of an injury that did not contain inherent time limitations, it was not until the middle of this century that suits for fear of diseases such as cancer, which have no specific development or termination date, became more commonplace. One of the earliest cases to allow recovery for a fear of an “unlimited” disease was the 1912 case of Alley v. Charlotte Pipe & Foundry Co. Plaintiff Alley was seriously burned when a negligently made core exploded. A physician was allowed to testify that the resulting wound was “liable” to lead to an “eating cancer” or sarcoma. The court equated “liable” with “probable,” and held that the testimony was adequate to corroborate plaintiff’s mental suffering. It found that the probability of cancer “must necessarily have a most depressing effect” because, like the sword of Damocles, plaintiff knows not when it will fall. The practice of having a physician’s testimony corroborate the possibility of development of the feared disease to prove the reasonableness of the fear was followed in later cases. Fear of unlikely developments, especially in this kind of case, was not compensated.
Although the Alley court expressed some sympathy for Alley’s apprehensions, thirty years elapsed before appellate courts again dealt with a similar issue. The 1958 case of Ferrara v. Galluchio, a which is often cited as a landmark decision, also involved a wound that a doctor advised might become cancerous In this suit against her physician for x-ray bums, plaintiff was allowed to testify that her dermatologist had advised her to get six-month check-ups for cancer. This advice caused plaintiff to develop a neurosis about cancer. The testimony regarding the dermatologist’s advice legitimized plaintiff’s fears as realistic, and she recovered for them. This case, as well as other similar cases decided around this time, have in common with the earlier fear of disease cases the fact that the feared disease would arise from an existing injury inflicted by defendant. No recovery was granted for fear of disease unaccompanied by pre-existing injury.
Fear of disease cases since Ferrara have also allowed recovery so long as there was a pre-existing injury. The existing injury, rather than the degree of probability that the disease may actually develop, is determinative. Thus, in Heider v. Employers Mutual Liability Insurance Co., the plaintiff, who received a cerebral concussion in a car accident, recovered for his fear of developing epilepsy even though there was only a two to five percent chance of its developing. The plaintiff in Lorenc v. Chemirad Corp. recovered for his fear of developing cancer from a chemical burn on his hand despite the fact that cancer was highly unlikely and preventable. The plaintiff, a doctor, refused a skin graft that would have cured the hand ulceration from which he feared cancer would arise. In addition, the plaintiff had had only a single exposure to the chemical; repeated exposure was necessary to cause cancer in rats. As long as there is some reasonable medical basis for the fears, and a preexisting injury, recovery is allowed. In recent toxic tort cases, in which the typical pre-existing injury is arguably absent, courts have been reluctant to allow recovery despite the clear medical probability that the disease could develop.
III. FEAR OF DISEASE FROM Toxic SUBSTANCES
The recent product liability suits based on fear of disease differ from the earlier cases in several ways. One of the most important differences is that there is generally no diagnosable pre-existing injury from which the feared disease will come. The lack of such injury distinguishes these cases in two regards: Damages for the fears are not parasitic, and proof of injury is likely to be considered more speculative. Because of these differences courts are looking to traditional emotional distress limitations to determine the viability of claims and proceeding very cautiously. Toxic tort claimants, however, should be able to recover even under the more restrictive emotional distress requirements.
A. Negligent Infliction in Toxic Tort Cases
The original screening device in negligent infliction of emotional distress was the requirement that plaintiff suffer some contemporaneous physical injury or impact. As was discussed above, physical manifestation of the emotional distress was substituted for the impact rule when that rule was perceived to be too limiting. Some courts have further liberalized recovery by requring only that the emotional distress be serious. Ironically, toxic tort plaintiffs, who can meet the physical injury/ impact requirement, are generally barred because they do not meet the more liberal screening devices.
1. Impact in Toxic Tort Cases
Toxic tort plaintiffs have a fear of disease because they have in some manner come in physical contact with a harmful substance. Plaintiffs come in contact with that harmful substance due to defendant’s alleged negligence, and that impact leads to their emotional distress. It is foreseeable that negligently causing someone to come into contact with a harmful substance, which can cause serious or deadly disease, could lead to emotional distress. Thus toxic tort claimants should be able to recover under the traditional impact rule.
Long before the physical manifestation rule became common, impact had become quite easy to show as courts joined legal commentators in the view that this screening device was not crucial. Thus a man who inhaled oily and smoky dust showed sufficient impact without any physical damage to bring suit for his mental anxiety, and a plaintiff who felt a shock wave from an explosion but was not injured by it likewise showed sufficient impact. The ingestion of a harmful substance is certainly sufficient impact under this more relaxed standard.
Adulterated food cases provide a close analogy. Plaintiffs who ingest a noxious substance in adulterated food but who suffer no physical injury find no barriers to bringing suit for emotional distress. A few courts have recognized that ingestion of a toxic substance may be sufficient simultaneous impact or injury to sustain an award for fear of disease. They have taken different approaches, however, in arriving at this conclusion.
An example of one approach is the toxic tort case of Ayers v. Township of Jackson. In Ayers, residents of the New Jersey township sued for cancerphobia arising from their enhanced risk of cancer due to ingestion of toxic waste that leaked from the municipal landfill into their well water. Plaintiffs alleged that the ingestion caused a negligible change to their bodies, which constituted sufficient impact or injury to sustain their cause of action. The New Jersey court, citing an early impact case in which a woman was allowed to sue when some debris hit her in the neck and dust got into her eyes, denied defendant’s motion for summary judgment because further findings as to the nature of the impact were necessary. The court sought to determine whether the ingestion of the chemicals caused a change in plaintiffs’ bodies, even though currently negligible, and thereby caused plaintiffs physical injury. The question is presumably one of degree, because all chemicals that enter the body cause some change. Presumably, a purely transitory change with no discernible effects would not be sufficient, or the question would not have been put to the jury. A slight change with potential for future harm may be. A jury ultimately found in favor of Ayers plaintiffs. If such a change is adequate, most toxic tort claimants can show sufficient injury to support an emotional distress claim.
Not all courts, however, have taken such a liberal approach to impact. The court in Payton v. Abbott Labs stated that impact can be a sufficient basis for a fear of disease case as long as the emotional distress is a reasonably foreseeable outcome of the impact. It is foreseeable that the ingestion of a toxic subtsance would reasonably cause an individual to fear the possible adverse consequences. Nevertheless, the court did not discuss whether plaintiffs-women who were exposed to the drug diethystilbestrol (DES) in utero-had experienced impact. This may be because the court was answering a certified question that assumed that plaintiffs had suffered no physical harm. The Massachusetts court merely held that plaintiffs must suffer physical harm which “must either cause or be caused by the emotional distress alleged,” and that the harm “must be manifested by objective symptomatology and substantiated by expert medical testimony.”
In a later DES case, the United States District Court for the District of Rhode Island implied that ingestion was not sufficient impact and that therefore a physical manifestation of the emotional harm was necessary. The plaintiffs in Plummer v. Abbott Laboratories, who allegedly suffered emotional distress due to their increased risk of developing cancer, based their claims on negligent infliction but did not allege physical manifestations of the distress. The court found that, in the interest of control and screening of false claims, Rhode Island would not allow recovery when “both impact and physical manifestations of the asserted emotional harm are absent.” The court, without discussing it, assumed that ingestion was not sufficient impact. This focus on physical injury rather than on impact or emotional harm is likely to continue as courts become increasingly aware of the need to control toxic tort cases. It will result in the denial of recovery to many toxic tort claimants because they typically do not allege or show physical injury.
2. Physical Manifestation in Toxic Tort Cases
The great majority of states, as they abandoned impact as a requisite for negligent infliction of emotional distress claims, required that physical harm result from the emotional distress. It was assumed that if the distress were sufficient to cause physical injuries, the suits would not be frivolous or fraudulent and could be contained. This screening device will continue to be a primary focus of courts dealing with toxic tort fear of disease cases, despite the fact that the emotional distress clearly results from plaintiff’s exposure to a very real harm, and the recognition that genuine emotional injury can occur without significant physical harm.
Not all courts will interpret the manifestation requirement as a bar to recovery when the injury is limited to emotional distress. Many courts have held that even under a manifestation test, bodily contact with a frightening or noxious substance is sufficient physical injury to sustain an award for emotional distress that ensues from this contact. In Laxton v. Orkin Exterminating Co. the Tennessee Supreme Court held that contact with adulterated water containing chlordane, a possible carcinogen, is sufficient physical manifestation to meet the rule. The court allowed recovery despite the facts that the family suffered no physical injury from ingestion, the mental anxiety did not produce symptoms, and it was not severe enough to require medical treatment. At most, Mrs. Laxton was “very worried” and would “call her husband at work, and cry and express concern about the future health of her children.”
The court found persuasive the fact that the plaintiffs had reasonably obtained medical services because of their exposure. This medical treatment was sufficiently close to physical injury to fit the case within the requirement. Plaintiffs, however, did not seek treatment for any physical manifestation of their mental anxiety or for the mental anxiety itself. When the children in the family exhibited a general malaise, they were taken to their doctor, who, knowing of their ingestion of contaminated water, took blood tests of the family. The blood tests showed that the family had a mild sub-acute reaction to a viral infection, and that there were no chlordane-related abnormalities. The family was advised that they needed no more tests because they had changed water sources and the chlordane was not presently a problem.
As in the earlier fear of disease cases, the court only allowed the award after finding the family’s fears and their seeking of medical tests to be reasonable. In addition, as in those earlier cases, the time for which damages could be recovered was severely limited: Plaintiffs could recover only for the time between the discovery that the ingestion could be harmful and the time blood tests showed that the chlordane had not caused abnormalities-a period of one month. It was during this period that there was sound reason to be concerned.
The result of other courts’ focusing on this “medically reasonable” precedent from earlier fear of disease cases would be to enable virtually all fearful toxic tort plaintiffs to bring suit. Presumably anyone who discovers that he or she has been exposed to a toxic product and who is sufficiently worried to suffer mental distress will seek a medical examination to determine if he or she shows any symptoms of the feared disease. Because there has been exposure to a toxic substance, seeking such exam inations is reasonable and therefore, under the Laxton precedent, satisfies the physical manifestation requirement.
In the Payton case, however, the plaintiffs’ allegation that they had sought periodic medical exams for cancer on the advice of their physicians was not a sufficient demonstration of manifestation for the Massachusetts court. After reviewing the history of emotional distress suits, the court chose to require objective symptomatology of the physical manifestation and corroboration by expert medical testimony. The fact that the fears themselves are reasonable and are based on objective evidence that can be substantiated by expert medical testimony is not enough. The court concluded that unless anxiety produces physical manifestations or flows from a physical injury, it is not sufficiently serious to merit recovery or to ensure the genuineness of the emotional distress claim.
Because DES produces adenosis in up to ninety percent of women exposed in utero to the drug, most of the DES plaintiffs would be able to meet the Payton physical injury requirement. Such a showing, however, bears no necessary relationship to the genuineness of plaintiff’s fears about developing DES-related cancer, and would leave some of the DES daughters with no remedy. By following prior fear of disease decisions and requiring expert medical substantiation that the fears are based on sound probability, a more equitable result would have been achieved. The court, however, opted for the screening devices of other emotional distress cases, choosing control over the comprehensiveness exhibited by the Ayers and Laxton decisions. Strict adherence to the manifestation screening device will result in the denial of meritorious claims. From the standpoint of avoiding such harsh consequences, the Laxton approach is preferable. Fear of frivolous claims, however, appears to be the dominant consideration in these cases, and perhaps rightly so.
3. Judicial Concern with Frivolous Claims
The main difference between traditional impact cases and many toxic tort claims is the time lag between impact and emotional injury. In the former, mental distress occurs almost instantly; in the latter, it often occurs more than a decade later. This may also account for the difference in result between Ayers and Laxton, and decisions such as Payton and Plummer. The crucial difference may be one of degree rather than one of simultaneousness per se. Although there may be no logical or causative reason for the phenomenon, the long standing concern with control and containment of frivolous claims seems to get stronger as the time period gets longer. In Laxton and Ayers, for example, plaintiffs drank water containing toxic substances for a period of time before discovering the harmful properties in the water. In both cases, however, the last ingestion was close in time to discovery of the potential harm. After discovery, plaintiffs suffered emotional distress from concerns about developing diseases from these toxic substances. The Laxton court allowed suit without discussing the time issue, noting only that the distress followed soon after plaintiffs learned of the water’s harmful properties, and that the distress was very short-lived. The Ayers court, however, specifically stated that the issue was foreseeability, not immediacy. Plaintiffs need not show that their fright resulted from fear of immediate personal injury, as long as defendants could foresee that allowing carcinogens to get into the drinking water would cause fear of cancer. If the harm is foreseeable and the plaintiff’s fears are reasonable and sufficiently severe, suit can be brought.
The fact that the fear and ingestion were not simultaneous, however, seems to have caused the Plummer court to state that there was not sufficient impact or physical manifestation to sustain a claim for the mothers’ fears of developing cancer. The court discussed the time lag in the context of the mothers’ claims for damages based on fears that their daughters would develop cancer, a third-party emotional distress claim for which simultaneity has traditionally been crucial. The court concluded, however, that “prudential jurisprudence” would bar the mothers’ recovery for worrying about potential medical problems of their own or their daughters, because “the trauma of the moment is dissipated by space and time to such an extent that tort law should not permit recovery.” Thus, the court incorporated simultaneity into the impact and manifestation requirements to narrow recovery in toxic tort fear of disease cases.
In Plummer, the time lag between ingestion and the development of the fears was years, not days. If it is foreseeable that causing someone to ingest a carcinogen will cause emotional distress due to fears of developing cancer, it should be irrelevant that the fear develops several years after ingestion, as long as the fear develops close in time to the gaining of knowledge of the carcinogenic properties. In adulterated food cases, for example, the emotional distress arises from discovering that there was something noxious in the food ingested. In toxic substance cases the same is true: Emotional distress arises from discovery that the substance that has entered the body is potentially disease-causing. If the causal connection is clear, the fact that the emotional distress does not coincide with impact should not bar suit. Indeed, the early mishandling-of-body cases, in which recovery for emotional distress was first allowed, did not necessarily require congruence between the negligent act of mishandling and the emotional distress, which often arose later when knowledge of the mishandling was obtained. More recently the California Supreme Court, in its landmark Molien decision, found that simultaneity should not be determinative. The plaintiff husband recovered in that case even though he was emotionally injured only when he learned of the negligent diagnosis given to his wife, not when the actual diagnosis was given. Some courts may, however, be uncomfortable with a long time lag even though the knowledge just as clearly causes the emotional distress, and significant time lags may provide a convenient, though not necessarily logical, way to limit fear of disease cases.
An additional factor in most toxic tort cases which did not exist in Laxton and most early fear of disease cases is the duration of the fears. When the victims have been exposed to substances like asbestos, DES and radiation, they cannot remove themselves from the hazard and thereby stop the risk as the Laxtons were able to do. The potentially harmful substance remains in the body waiting like the sword of Damocles to strike at some indeterminate future date. Thus, the fear of disease is likely to last much longer than has been true in most fear of disease cases. Although this is likely to lead to higher jury awards, it does not change the substantive merits of the case. It may, however, make courts more reluctant to allow suits that do not have this inherent limitation. Courts faced with such situations may follow the lead of Plummer and Payton and ensure that the controls from emotional distress suits remain in toxic tort fear of disease cases.
B. Intentional Infliction of Emotional Distress in Toxic Tort Cases
The requirement of physical manifestation has generally been abandoned in cases in which the emotional distress has been recklessly or intentionally inflicted. Thus, toxic tort plaintiffs who do not suffer physical injuries may be able to proceed under the tort of intentional infliction of emotional distress. Intentional infliction is particularly amenable to toxic tort suits because virtually all such suits allege that defendants knew of the harmful properties of their products but concealed or failed to act on this knowledge for a substantial period of time.
There is increasing evidence of manufacturers distorting, hiding or ignoring information concerning the toxic effects of their products. Such evidence is likely to meet the intentional infliction requirement that defendant’s actions be outrageous or reckless. From the inception of this tort, businesses have been held to a higher standard than have individuals. Recent outrageous business examples include the high-pressure tactics of collection agencies and employer treatment of employees. The intentional or reckless endangering of the public by manufacturers fits easily into the category of the outrageous, especially in these times of consumerism and expapding liability for manufacturers. The large number of awards of punitive damages in toxic tort product liability cases lends credence to the fact that such actions are likely to be considered outrageous.
If the defendant’s actions are outrageous, courts are more likely to compensate for emotional distress even though there is no physical impact or manifestation. The outrageousness is considered a sufficient screening device in itself so that the other screening mechanisms can be eliminated without raising fears of frivolous claims and a flood of litigation. Individuals who fear a disease to which they have been exposed by defendant’s outrageous or reckless actions should have an easier time recovering for those fears. If the manufacturer’s actions are particularly irresponsible, that may even be sufficient to allow recovery for fear of another’s safety.
C. Third-Party Recovery in Toxic Tort Cases
Negligence recovery for fears that close relatives will develop a delayed-manifestation disease from toxic exposure is least likely. In this situation the time lag problem discussed above will probably be determinative. Virtually all courts that allow third-party emotional distress damages keep recovery within reasonable bounds by relying on the requirements of proximity to and contemporaneous observance of a traumatic event. These factors are used as predictors of foreseeability, and work so that liability for defendant’s negligence to someone else ceases at some point. Plaintiffs in third-party toxic tort suits are unable to point to any sudden traumatic event to their close relatives from which springs their emotional distress about those relatives’ developing the feared diseases. Rather, the distress comes long after defendant’s negligent action, and generally without proximity or contemporaneous observance. In virtually all emotional distress cases courts hold that distress from such after-acquired knowledge is not compensable. Indeed, the Supreme Court in Metropolitan Edison v. People Against Nuclear Energy specifically cited relatives’ fears as one reason not to recognize plaintiffs’ emotional impact claims. The Court recognized that relatives of residents in the Three Mile Island area may suffer emotional distress due to the risks that the start-up of the reactor presents to their relatives. The Court, however, held these fears to be too attenuated to merit cognizance. Underlying this decision were the fear of fraudulent or frivolous claims and concern for the potential impact on decisionmaking resources if such considerations were allowed. In a toxic tort context, the Plummer court denied the third-party claims of plaintiffs, DES mothers, partially on the grounds of lack of simultaneity.
Despite the strong third-party emotional distress precedent, the parents in Laxton were allowed to recover for their fears about their children’s health as well as their own. The court did not discuss the point, but it found that there was “sufficient ‘injury‘ to the plaintiffs to justify a recovery for their natural concern and anxiety for the welfare of themselves and of their infant children.
In addition to the Laxton precedent, there is also some indication that the simultaneity requirement is beginning to weaken in traditional emotional distress cases, especially when the other two requirements are especially strong. DES mothers, who are the primary third-party claimants, could present a good case in this regard. Because their children were exposed to the DES in utero, the relationship could not be closer and, as in Haught, they were in some sense the scene of the accident. Although their fear did not arise at the time of ingestion, it did coincide with their knowledge of the harm, and that fear on the acquisition of knowledge was foreseeable. So far, however, DES mothers have failed to recover for fears concerning their daughters. Few courts are soon likely to follow the Laxton or Haught precedents. Courts will most strongly express their traditional limitation and control concerns through strict adherence to Dillon. Expansion is likely to come last to this area.
The court in Mink v. University of Chicago, although denying such concerns were sufficient for a negligence action, did leave open the possibility of the mothers recovering for their fears about their daughters under a battery theory. Those toxic tort plaintiffs who can prosecute their claims under an intentional tort theory may have an easier route to recovery for their fears about others. Traditionally, courts have been more lenient regarding recovery in intentional infliction cases in which defendants’ actions are outrageous. If, as discussed above, defendants’ actions are found to be sufficient to support intentional infliction claims, fearful parents are more likely to recover.
D. Strict Products Liability
A few plaintiffs have attempted to sue for fears about others as well as themselves under the theory of strict products liability. So far, however, such claims have been unsuccessful. As in the negligent infliction cases, physical injury seems to be a problem. The Mink court denied strict liability recovery on these grounds. The court cited the Restatement (Second) of Torts, which states that one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer. The court found that because plaintiffs had not alleged physical injury, they did not fit within this tort. Yet it is clear that sellers of adulterated food can be held strictly liable for injuries flowing to consumers even when the consumers’ injuries are purely emotional. Contact with a frightening or potentially dangerous product is physically damaging enough to merit the imposition of strict liability in these cases. A few states have even allowed recovery for purely emotional distress under a theory of strict liability in bystander cases. Following these precedents in fear of disease cases could create the danger of wide recovery for toxic tort claimants because such claims would be parasitic to the claim of strict liability.
E. Containment and Control
As the foregoing discussion illustrates, toxic tort plaintiffs who sue for fear of disease have met with mixed success. Although precedent clearly exists for allowing recovery, many courts have opted to focus on requirements, such as physical injury, which may bar claimants. In so doing, these courts hope to put limits on a defendant’s liability and screen out frivolous claims. Limitation and screening have traditionally been concerns of courts recognizing suits for emotional distress. Another traditional concern, so far largely ignored but which may ultimately prove conclusive, is the fear of a flood of litigation. Modern courts, in expanding recovery under emotional distress, have cited this fear, but they have generally dismissed it as either unrealistic based on past experience, or as an insufficient reason to deny meritorious claims. Delayed manifestation injury cases, however, represent a clearer threat of inundation than any other of the previous expansions.
The number of potential suits for work-related asbestos exposure alone is in the millions. One study estimates there are 14.1 million workers who have had significant exposure to this cancer-causing product since 1940. Millions of others have been exposed outside the workplace. Another study estimates that one in five Americans runs a risk of developing cancer. The number of DES-exposed offspring, whose exposure was not work-related, is also in the millions. Asbestos and DES are but two of the many disease-causing products to which the current population has been exposed. Toxic waste, radiation, formaldehyde, and Agent Orange are other toxic products which have received much publicity, partly due to their wide dissemination. Many other products in wide use have potentially toxic effects, and new relationships are being discovered monthly.
Little is known about the long term mental or physical effects of working or living under the threat of cancer or other disease. Effects of such stress, however, are beginning to be reported. It was recently discovered that wood model makers are at much higher risk of developing colon and rectal cancer than is the general population. Workers reported higher use of alcohol since learning of this danger, and a psychologist predicts more ulcers, drinking and wife abuse will occur as a result of this occupational disease threat. The plaintiffs in Ayers alleged that, in addition to conditions ranging from mild depression to severe psychosis, the families suffered from stress, outbursts of rage and hostility, loss of sleep, and other disturbances. Similar conditions have been reported by other plaintiffs suffering under the threat of developing a disease. In general, physical or emotional illness grows with the stress of the threat of cancer or other disease. Eventually a threat-of-illness etiology may develop which will make it easier for plaintiffs to recover.
Almost one-half of the states have enacted statutes of repose, which commonly set a limit from time of purchase, often ten years, after which suit for physical injuries cannot be brought. Similarly, many state worker compensation statutes impose strict time limitations, barring recovery after a relatively short period. Because a large number of victims will not develop a diagnosable disease until after the running of the statutory time period, they will not be able to claim compensation for their injuries. A recent New Jersey decision, which will significantly add to the number of suits barred, is yet another illustration of the time problem faced by potential plaintiffs. The case, Coons v. American Honda Motor Co., does not directly involve toxic substances; it interprets the constitutionality of a New Jersey statute of limitations. Although Honda was the company involved in the suit, the case was primarily argued by an asbestos mining company as amicus curiae. The statute, which benefits New Jersey citizens without harming in-state corporations, tolls the running of the two year statute of limitations in cases involving suit against a foreign corporation not represented in New Jersey. The United States Supreme Court, in G.D. Searle Co. v. Cohn, held that the statute did not violate the equal protection or due process clauses. The Court did not resolve a commerce clause challenge to the statute, however. The Coons case resolves this issue.
The New Jersey Supreme Court found that the statute unconstitutionally burdened interstate commerce by effectively requiring foreign corporations that engage solely in interstate commerce to register to do business in New Jersey in order to gain the statute’s two-year protection. 88 Although the ruling is to be prospectively applied, its effect is that all corporations can now take advantage of the two year bar. Asbestos litigation is especially heavy in New Jersey because of ship building there, and hundreds of cases will be affected.
Thus, for a large percentage of the millions exposed to toxic substances, fear of development of the disease provides the only avenue to recovery. An additional spur to sue for fear of disease exists if potential defendants appear to be in danger of running out of assets before the claimants develop the feared disease. These incentives, when combined with the wide publicity about product-caused delayed manifestation injuries and an increasingly aggressive and organized toxic tort plaintiffs bar, make fear of inundation of the court system quite realistic.
In some states, courts are already inundated by asbestos-related disease suits alone. These courts are especialy likely to view the addition of hundreds of fear of disease cases as unmanageable. Many courts, however, may be unpersuaded by this threat. Courts that have expanded theories and developed new ones in order to facilitate plaintiffs’product liability suits and overcome time-related problems may be reluctant to deny compensation to thousands of victims of toxic torts. They have overlooked inundation fears in the past and may do so in these cases. This real threat, however, when coupled with the traditional reluctance of most courts to interpret emotional distress claims broadly, should lead to limited recognition of toxic tort fear of disease claims.
IV. COMPROMISE SOLUTIONS
A. Recovery of Medical Monitoring Costs
Plaintiffs who are unable to recover under the current restrictive requirements may still be able to recover the medical costs incurred in determining whether the feared disease has developed. The court in Ayers v. Township of Jackson so held on the basis of public policy. Although plaintiffs could not recover for the enhanced risk of developing cancer, and possibly not for the fear of developing it, medical surveillance to monitor for its development, if necessary, was compensable. Of course, allowance of such a claim implicitly recognizes that the fears are reasonable and that there is a clear causal connection between the exposure and the emotional distress. It is a short step from Ayers, in which costs of medical monitoring were recovered, to Laxton v. Orkin Exterminating Co., in which reasonably seeking medical monitoring was sufficient to support the emotional distress claim. This middle ground between recovery and denial may, however, be appealing to courts that recognize the real dangers plaintiffs face but that want to hold a tight rein on emotional distress suits.
In the recently decided case of Friends for All Children, Ina v. Lockheed Aircraft Corp. the District of Columbia Circuit affirmed an award of diagnostic damages. Although the Friends plaintiffs faced possible injury from the explosive depressurization of a crashing plane rather than from exposure to a toxic product, the court granted the diagnostic award on public policy grounds similar to those stated in Ayers. The court determined that it was fairer for defendant to pay for diagnostic exams than for plaintiff to bear the risk of receiving damages too late to be of any use. In addition, it found that such an award served the two principal aims of tort law: deterrence of misconduct and just compensation to the victims of wrongdoing. In so finding, the court rejected plaintiff’s arguments that the jurisdiction did not recognize a cause of action for diagnostic examination without proof of actual injury, and that the common law of tort does not encompass an action for being put at risk. Finally, the court rejected the argument that undergoing diagnostic exams does not constitute injury.
The award of screening costs, and treatment expenses if the disease develops, comprises an appealing settlement for many plaintiffs. Often the people who experience heaviest exposure to toxic substances are those who can least afford medical care. In the town of Triana, Alabama, for example, a dichloro-diphenyl-trichloro-ethane (DDT) manufacturer that closed its plant in 1971 left 837 tons of insecticide at the bottom of a waterway a few miles upriver from the town. Several years later it was discovered that citizens had high levels of DDT in their bodies, some having the highest levels ever reported in medical history. The town had a cancer death rate of almost four times the national average, yet most residents had not sought medical help because they could not afford to do so. At least two suits were filed against the manufacturer seeking recovery for plaintiffs’ mental anguish from knowing that high levels of DDT existed in their bodies. The Triana cases resulted in a settlement that provided funds for medical screening and treatment of the feared diseases. The Mink case was similarly settled.319 Such a settlement strikes an appropriate balance between the desire to compensate meritorious claims and the need to avoid a flood of litigation.
B. Future Claims Problems in Bankruptcy and Reorganization
Recognition of fear of disease claims may also help lead to other compromise settlements. Future claims problems have plagued attempts at settlement or management of current delayed manifestation litigation. Notable examples are the Unarco (UNR) and Manville filings for reorganization, which have affected large numbers of asbestos-related injury suits. UNR’s appeal to have a special representative appointed to represent future claimants in its bankruptcy proceeding was rejected by the district court because it found that future claimants could not be creditors under the Bankruptcy Code. Because the claims of asbestos victims do not arise under state law until these victims know or should know of their injury, there is no claim until their disease is diagnosable. Without a claim, victims cannot be included in a settlement plan. Without the ability to settle future claims problems, companies may be forced into bankruptcy, leaving future claimants with nothing. Representing future claimants in the reorganization plan, however, raises questions of due process and jury trial rights of these future litigants.
The recognition that future disease litigants have a present claim for emotional distress means that people who have knowledge of their exposure and are concerned could be included in the reorganization plan. If included, all present litigants would receive less than if they were the only claimants, and the emotional distress claimants would receive less than if they sued later when they developed the feared disease. All are better protected, however, by giving a reduced amount to each.
An additional advantage of recognizing such claims is that it would be easier to determine a settled amount for retroactive insurance purposes. Retroactive insurance, which is purchased after liabilities have been incurred, has been used recently in mass disaster situations such as the MGM Grand Hotel and Casino fire, which killed eighty-five people and injured hundreds more. Manville has suggested the purchase of such insurance to guarantee payment of claims under its reorganization plan. Because the harmful properties of many products were not known or appreciated during the many years that they were in use, many companies have inadequate insurance (or no insurance at all) covering injuries arising from those products. Retroactive insurance is thus a very attractive alternative. Insurance companies, however, are unwilling to extend such insurance for an indeterminate amount. Recognition of future disease claims as current emotional injury claims would facilitate the determination of a definite figure for insurance purposes.
Recognizing the claims of toxic tort plaintiffs who are symptomless but fear development of a delayed-manifestation disease would at best produce mixed results. It would allow suit to thousands of plaintiffs who might otherwise be denied recovery when they later develop the feared disease. In addition, it could help lead to solutions to mass disaster toxic tort problems that some manufacturers are facing. Precedent clearly exists for the allowance of such suits, but allowing them in the context of an unlimited time frame would be a dangerous break with that precedent. It is likely that such recognition would overwhelm the judicial system as well as some defendants already struggling under injury claims.
Courts have long feared that recognizing and expanding emotional distress claims would open the proverbial Pandora’s box. In the case of fear of a latent disease, these fears are well grounded. The tort system simply cannot afford to encompass such pervasive fear. Even if courts generally recognize such claims, plaintiffs still face a very practical but difficult problem: convincing the jury to compensate them for their fears. It is difficult to go a week without news of toxic exposure. Virtually everyone in society is conscious of the fact that the air they breathe, water, food and drugs they ingest, land on which they live, or products to which they are exposed are potential health hazards. Although few are exposed to all, few also can escape exposure to any. A member of our society faces a one in five chance of developing cancer or other debilitating disease. Probably most are concerned at some level about the implications of such exposure. Because such risks are inherent in everyone’s lives, it may be difficult to convince a jury that the plaintiff should be specially compensated for his or her fears. In the DES cases that have gone to trial, plaintiffs with cancer have collected sizeable awards, but those without have been denied recovery by the jury.
Courts that have liberalized the law of negligent infliction of emotional distress by not requiring impact have maintained control by requiring that the plaintiff prove that a reasonable person would have suffered severe emotional distress from the defendant’s actions. Courts that have gone further and substituted seriousness for manifestation likewise require plaintiff to prove serious mental distress by showing that a normally constituted person would be unable to adequately cope with the mental stress engendered by the circumstances. Toxic tort plaintiffs may discover that courts and juries view fear of disease to be a normal condition of everyone’s life.
Terry Morehead Dworkin, 1984.
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