Academic journal article Defense Counsel Journal

Developments in Recovery for Fear of Future Disease

Academic journal article Defense Counsel Journal

Developments in Recovery for Fear of Future Disease

Article excerpt

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

Developments in Recovery for Fear of Future Disease

Writing in the April issue of the Product Liability Committee newsletter, Jeffrey J. Christovich and Michaela L. Sozio of Chicago's Tressler, Soderstrom, Maloney & Priess update fear of future disease:

Where are claims for fear of future illnesses, like cancer, going since the California Supreme Court's seminal decision in Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993)?

The law long has recognized a plaintiff's right to sue for emotional harm arising from an intentional tort. Claims for fear of cancer or claims involving another future disease, however, constitute a subset of negligent infliction of emotional distress claims. Many courts have adopted the physical injury rule, which requires that a plaintiff present evidence of the alleged mental anguish-that is, the plaintiff must suffer from some physical injury in order for such a claim to be compensable. However, a growing number of jurisdictions, like California and Illinois, in contrast to the majority of other states, have departed from the physical injury requirement.

Physical injury rule-Arizona

Arizona's approach to allowing damages for fear of cancer or future illness follows the physical injury rule, under which the claim is disallowed unless there is a showing of physical injury or impact or a manifestation of emotional distress is made. DeStories v. City of Phoenix, 744 P.2d 705 (Ariz.App. 1987).

The physical injury rule was adopted initially by the Arizona Supreme Court in Keck v. Jackson, 593 P.2d 668 (Ariz. 1979). Keck involved a plaintiff who sued for negligent infliction of emotional distress after she witnessed her mother die in a negligently caused automobile accident. The court held that the plaintiff could recover for emotional distress damages only if the shock or mental anguish of witnessing an injury to a person with whom the plaintiff had a close personal relationship manifested itself as a personal injury.

The Arizona Court of Appeals later expanded the holding in Keck to apply to claims for fear of future illness in a case in which the plaintiffs, who were construction workers at the Sky Harbor International Airport, were exposed to and inhaled airborne asbestos particles. They sought damages for their fear of developing lung cancer or asbestosis based on their exposure to asbestos and increased risk of cancer. The DeStories court stated that "possible future damages in a personal injury action are not compensable unless reasonably certain to occur," quoting Morrisey v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill.App. 1979).

The court went on to state that unless the plaintiffs manifested a physical injury as a result of their mental anguish over being exposed to asbestos, they would be unable to recover on a negligent infliction of emotional distress cause of action.

Finally, the court concluded that the plaintiffs' ingestion of the asbestos particles did not constitute "sufficient physical harm on which to base a claim for mental anguish."

Thus, Arizona follows the more traditional approach of disallowing a claim for fear of future illness unless a showing of physical impact or other manifestation of emotional distress is made.

Physical injury rule-New Jersey

New Jersey also has adopted the physical injury rule. Its intermediate appellate court dealt with the fear of cancer issue in Ironbound Health Rights Advocacy Commission v. Diamond Shamrock Chemical Co., 578 A.2d 1248 (N.J.Super. 1990). Diamond Shamrock had operated an agricultural chemicals manufacturing facility for several years, during which time toxics such as dioxin were utilized in the manufacturing process. …

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