Academic journal article Defense Counsel Journal

Combatting Fear of Future Injury and Medical Monitoring Claims

Academic journal article Defense Counsel Journal

Combatting Fear of Future Injury and Medical Monitoring Claims

Article excerpt

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. …

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