Academic journal article Defense Counsel Journal

Increasing Fear of Future Injury Claims: Where Speculation Carries the Day

Academic journal article Defense Counsel Journal

Increasing Fear of Future Injury Claims: Where Speculation Carries the Day

Article excerpt

Plaintiffs are seeking damages for fear of future injury and the enhanced risk of future disease, along with the cost of medical monitoring

CONSIDER these cases:

* In West Virginia, a hospital patient who tested positive for HIV--the virus that causes AIDS--suddenly went out of control and bit himself. The patient, with his own infected blood still on his teeth, then bit a police officer who had been sent to subdue him. Although the police officer tested negative for the AIDS virus over several years, he recovered damages for his fear of AIDS.(1)

* A woman had a bilateral mastectomy in 1980, at which time she had silicone breast implants inserted. Eleven years later she was in a car accident that caused her breast implants to burst. She sued, not only for her localized symptoms, but also for her fear of cancer or other disease owing to the rupture of the implants. Although the medical literature does not show an association, much less causation, between silicone breast implants and cancer or other autoimmune diseases, the court deemed that her fears were reasonable and awarded her $475,000.(2)

These examples represent a growing trend in tort litigation. Over the last decade or so, courts have begun to recognize fear of future illness claims in a variety of contexts. Historically seen in toxic tort situations arising from environmental exposures, these claims also are being asserted now in medical malpractice, medical device and pharmaceutical litigation as well.

Traditionally, plaintiffs could not sue in tort to recover for an anticipated future injury. Claims for increased risk of disease and fear of cancer simply were not recognized.(3) Using this conventional common law approach, courts avoided the problem of plaintiffs trying to prove highly speculative damages.(4)

Over the last several decades, however, competing considerations have come into play. These include: (1) the possible 10-20 year latency period for a disease to manifest itself; (2) statutes of limitation or repose, or both; (3) the problem of etiology and intervening cause when plaintiffs are forced to wait until diseases actually manifest; (4) defendants who may become insolvent or otherwise judgment proof; and (5) the loss of evidence or witnesses, or both, during the years between exposure, illness, and suit.

Tort law has now come to recognize three distinct types of claims for future injury:

* Claims for alleged fear of future injury seek damages for the emotional distress suffered because of the claimants' concern that injury will occur in the future.

* Claims for enhanced risk of future disease seek recovery for the increased risk of contracting an illness or disease some time in the future.

* Claims for medical monitoring seek compensation for the reasonable costs of periodic diagnostic examinations during the latency period for exposure-related disease.

DEVELOPMENT OF THE THEORY OF RECOVERY

Fear of future illness is generally asserted as an element of damages in claims alleging negligent infliction of emotional distress. When dealing with such a cause of action, courts traditionally have been reluctant to find that a defendant had a duty to prevent a plaintiff from suffering emotional distress. First, there is a problem of providing compensation for "harm that is often temporary and relatively trivial." Second, there is a "danger that claims of mental harm will be falsified or imagined." Third, in negligence cases there is the "perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences that appear removed from the `wrongful' act." Fourth, establishing proximate cause is often a problem. Fifth, there is a concern that "mental disturbance cannot be measured in terms of money." Finally, allowing people to sue for emotional distress could produce a flood of litigation. …

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