Articles: Fear of Future Injury: Compensation or Not

Barrister Magazine (June 1985), By Richard J. Finn, Joshua S. Goodman and H. Christian L’Orange

In a companion article authored by the Honorable Daniel H. Weinstein, his Honor discusses the fear of cancer claims raised during the Arnett v. Dow Chemical Company (1983) S.F. Master File No. 729586 case.  In that particular matter, the court was presented with two relatively novel issues concerning whether risk and/or fear of cancer constituted compensable injuries.  While the risk of cancer issue was precluded, the court did permit the issue of fear of cancer to go to the jury.  The court’s decision was based upon the presence of verifiable objective criteria which guaranteed that plaintiffs’ fear of cancer claims were both sincere and reasonable.  The factors the court found convincing included:

  1. Plaintiffs were co-workers who suffered serious verifiable injuries to the testes causing sterility or decreased sperm count.
  2. Severe emotional distress is involved in injuries to the reproductive system.
  3. The injuries to the testes were caused by a chemical ingested at a site distant from the genitals.
  4. There was a plethora of media publicity linking DBCP to sterility and cancer.
  5. Plaintiffs received medical advice that they have regular checkups for cancer because they had an increased risk of cancer.  (See Memorandum Decision in Support of Orders Regarding Fear of Cancer and Risk of Cancer:  Arnett v. Dow Chemical (1983) S.F. Master File No. 729586, at p. 22.)

Upon review of the Memorandum Decision and the cases cited therein, one is drawn to the conclusion that the critical factor relied upon by the court in allowing the fear issue to go to the jury was that the parties had sustained physical injuries.  This physical injury criterion comports with traditional damage principles which permit recovery for the mental suffering arising from an injury.

Thus, in Arnett the injury and the highly emotional response it engendered not only served to underscore the sincerity of plaintiffs’ claims, but also provided an objective basis for the jury to evaluate the reasonableness of plaintiffs’ fears.  (Surely, there is universal appreciation for the mental suffering one undergoes upon discovery of a debilitating insult to one’s reproductive system.) It is just this type of objective basis for evaluation which is required in order to allow a jury to entertain a fear of cancer claim. (Arnett, supra, Memorandum Decision at pp. 21, 24.)

These considerations were evident in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916.  Even though the plaintiff in Molien suffered no physical injury, one finds a critical traumatic event which created emotional suffering.  In that case, plaintiff was advised that his wife was syphilitic.  This diagnosis, subsequently found to be incorrect, created a traumatic event which threw the plaintiff’s marriage into jeopardy.  Unquestionably, it raised doubts in both partners’ minds as to the faithfulness of the other, and destroyed the underlying trust necessary for the success of the marriage.  Thus, the event and the subsequent distress it created were factors a jury could readily grasp, and they were objective criterion a jury could use to determine the reasonableness of plaintiff’s emotional reactions.

Consistent with Molien is Judge Weinstein’s implicit recognition in his Memorandum Decision that the reasonableness of a fear of cancer claim must be predicated upon objective community standards. The jury, as a whole, must be able to appreciate the distress associated with the traumatic incident and the fears that it will engender.  Otherwise, the jury must evaluate reams of scientific evidence and data to determine whether the basis of the fear is reasonable.  Accordingly, the traumatic event is significant because it serves as the predominant feature which must be evaluated and understood by the jury for it to reach the decision whether fear of future consequences should be compensated.

An example of this can be found in the ruling of Dillon v. Legg (1968) 68 Cal.2d 728, where the court determined that a bystander who witnesses the death of a family member can recover for the emotional distress attendant to that traumatic event. In doing so, the court stressed the importance of the close relationship of the witness to the victim, and the fact that the plaintiff must have contemporaneous sensory perception of the accident. (Id., at 740, 741.) It cannot be controverted that members of a jury can appreciate the emotional distress an individual suffers when witnessing the accidental death of a loved one. The same can be said for a situation where one of the partners in a marriage is wrongfully diagnosed as having syphilis.  A jury can understand and evaluate the consequences attendant to such events.

The rationale for requiring the jury to be provided with objective criteria in evaluating the reasonableness of a fear of cancer claim is that it prevents an analysis based solely upon the individual juror’s subjective perceptions.  This must be avoided since there exists a tremendous variability in the capacity of individuals to withstand trauma generated in a particular situation.  This ability to cope depends upon a variety of factors, such as education, family relationships and economic background; in other words, an individual’s predisposition.  (See Schreiber, Damages and Personal Injury in Wrongful Death Cases, Practising Law Institute, 313 (1965).)

Additionally, employment of objective criteria diminishes the speculative nature of a fear without injury claim.  It is generally agreed that whether a person will contract or suffer an injury in the future cannot be predicted with any degree of medical certainty. This is particularly true with regard to cancers, since its etiology is presently unknown.

Although Judge Weinstein allowed plaintiffs to submit their fear of cancer claims to the jury in Arnett, it is clear that he did so because of the presence of highly emotional injuries which guaranteed the genuineness of plaintiffs’ claims.  Judge Weinstein specifically declined to address the issue of whether fear of cancer is compensable absent an attendant physical injury. Since it was plaintiffs’ injuries which provided the guarantees of genuineness necessary to support plaintiffs’ fear of cancer claims, the question is what, if anything, can provide sufficient guarantees of the genuineness of the plaintiff’s fear of cancer claim where plaintiff has not suffered any physical injury?

In answering this question, it must be noted that guarantees of genuineness relate to more than just the sincerity of the plaintiff’s fear.  They also provide the jury with an objective foundation upon which to evaluate the reasonableness of the plaintiff’s fear of cancer.  Thus, it is not sufficient to introduce evidence that plaintiff suffered psychiatric problems because of his fear of cancer.  There must also be a sufficiently reliable objective basis upon which the jury can evaluate the plaintiff’s emotional injury.

In cases where the plaintiff has been exposed to a toxic substance, but has not suffered a physical injury, the only objective evidence upon which his fear of cancer claim can be based is scientific evidence on the relation between the toxic substance and cancer. Relying on this type of scientific evidence to support a plaintiff’s fear of cancer claim, however, raises a myriad of problems.

The first is that scientific evidence of the relation between a given substance and cancer in human beings is inherently speculative. As Judge Weinstein noted in his Memorandum Decision, the science of assessing the risk of cancer in human beings posed by a particular substance “is only in an early stage of development and . . . provides only a crude estimate of individual risks.” (Arnett, supra, Memorandum Decision, at p. 9; citing Interagency Regulatory Liaison Group, Scientific Bases for Identifying Potential Carcinogens and Estimating Their Risks, 76 (1979).) Compounding this is the fact that the regulatory orientation of cancer science creates a mass of literature documenting the potential carcinogenicity of a wide variety of substances.  It is possible, therefore, to find many substances for which there is some scientific literature linking them to cancer.  An example is Sweet ‘n Low, which contains a warning on the packet that says scientific studies demonstrate that the product causes cancerous tumors in laboratory animals.

Furthermore although a tremendous amount of literature is generated by cancer science, the mechanisms of cancer causation are largely unknown.  Scientific studies may show a statistical correlation between exposure to a given substance and cancerous tumors in laboratory animals, but these results cannot be extrapolated to human cancer risks with any degree of certainty.  Not only are the techniques used to extrapolate animal data to human cancer risks open to serious scientific doubt, but there are many substances which yield different cancer results in animals than they do in human beings.

An example is dibromocholopropane (DBCP), which causes lung, liver and kidney changes in animals.  Additionally, there were findings which suggest that the compound could affect the testes of male animals.  Yet it was assumed that, since the compound was a halogenated hydrocarbon, it would affect the primary organs of the lung, liver and kidneys before it would affect such secondary sites as the testes.  Unfortunately, the opposite occurred in mankind in that the product injured the genitals without causing a demonstrable insult to the lungs, liver or kidneys.

Complementing the problem of the speculative nature of cancer science is the legal problem of the admissibility of scientific evidence which is open to serious doubt within the scientific community.  The legal standard for admissibility of scientific expert evidence is that the basis of that evidence “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Frye v. United States (1923) 293 F. 1013, 1014.) This general acceptance standard has been applied recently by the Ninth Circuit in United States v. Kilgus (9th Cir. 1978) 571 F.2d 508, 510, and has been adopted in California.  (People v. Shirley (1982) 31 Cal.3d 18.)

The purpose of requiring general acceptance within the scientific community is to insure that juries are not misled by conjectural opinions cloaked in the respectable form of “scientific” evidence.  If the scientific methodology is not generally accepted within the appropriate scientific community, then any conclusions based thereon are likely to be of questionable reliability.  As a result, the court required the party offering expert scientific testimony to establish that it is based on generally accepted scientific principles and methods.

This legal standard for the admissibility of scientific evidence is precisely the point seized upon by Judge Weinstein in determining that risk assessment evidence could not be admitted to substantiate a risk of cancer claim.  Yet, where plaintiff has sustained no physical injury attendant to his fear of cancer claim, this speculative risk assessment scientific evidence becomes the sole basis upon which a jury can evaluate that claim.  The fact such scientific testimony regarding cancer risks in human beings may not even pass the legal standard for admissibility highlights the difficulties involved in allowing a jury to evaluate a plaintiff’s fear of cancer claim based solely upon such speculative evidence.

Another problem raised by allowing a fear of cancer claim based solely on scientific evidence is that such evidence is highly prejudicial, and in view of its speculativeness, is more prejudicial than probative.  Under California Evidence Code Section 352, therefore, such evidence could properly be excluded by the court.  Scientific evidence is often interpreted by the layman as being conclusive, even though within the scientific community it is shrouded in doubt.  Moreover, any evidence relating to cancer risks in humans is likely to inflame the jury since cancer is a highly emotional issue.  This point has been seized upon to exclude any reference to cancer in a group of consolidated asbestos cases.  (In re: Related Asbestos Cases (1982) 543 F.Supp. 1142, 1160.)

A final problem is that most people are exposed on a regular basis to substances for which there is some scientific evidence linking that substance to cancer.  Some substances, such as Sweet ‘n Low, contain explicit warnings to that effect on the packet. Other substances, such as cigarettes, are known to be far more carcinogenic than most toxic substances which are the basis of fear of cancer lawsuits.

In a recent lecture at the University of California at Berkeley, Dr. Bruce Ames, one of the leading figures in cancer science, stated that many substances commonly used in society are far more cancerous than toxic substances regulated by the government. For example, a single phenobarbitol sleeping pill is 6,000 times more carcinogenic than tainted well water.  Even ordinary tap water, according to Dr. Ames, is far more likely to cause cancer than the daily amount of ethylenedibromide (EDB) consumed by the average American.  More surprisingly, peanut butter contains a highly cancerous mold by-product called alflatoxine.

Not only will a jury have an impossible task in evaluating scientific evidence of human cancer risks in the face of such conclusions about commonly consumed substances, but the carcinogenicity of such common substances raises serious doubts as to the compensability of a fear of cancer claim absent an attendant physical injury. How can a plaintiff recover for fear of cancer based on exposure to a toxic substance which is far less likely to cause cancer than substances to which he voluntarily exposes himself every day?  The classic example is that of a cigarette smoker.  According to Dr. Ames, cigarettes are the “real wolves” of cancer. Yet, if the risk of cancer posed by smoking cigarettes does not instill fear into a plaintiff, how can that plaintiff recover for fear of cancer based on exposure to a substance far less likely to cause cancer than cigarettes?

Where a plaintiff has suffered an attendant physical injury, such as to his reproductive system, that injury provides an objective foundation on which the jury can evaluate plaintiff’s fear of cancer claim.  In addition, that injury is itself a dramatic fear-causing event, similar to the traumatic events which were the basis of emotional distress recoveries in Dillon v. Legg, supra, and Molien v. Kaiser Foundation Hospitals, supra. Without such an attendant physical injury, the jury has no objective basis upon which to evaluate the plaintiff’s claim since cancer science is speculative and extremely difficult to evaluate by a layman.  Moreover, without a physical injury, there is no fear-causing traumatic event, only the speculative conclusions of cancer science which must be viewed in conjunction with the regulatory role cancer science plays in our society.

This is a conclusion reached by many courts, including the court in Payton v. Abbott Labs (1982) 437 N.E.2d 171, 181.  In that case, the court precluded plaintiffs from recovering for negligently inflicted emotional distress unless plaintiffs could prove that the conduct which caused the emotional distress also resulted in a physical injury.  The court ruled that the injury must either cause, or be caused by, the emotional distress and must be manifested by objective symptomology.  In that manner, the court insured that a jury evaluating plaintiffs’ fear of cancer claims would have an objective foundation on which to rely.

In the Arnett case, Judge Weinstein allowed plaintiffs to submit the fear of cancer claims to the jury because they had suffered physical injuries which provided the guarantees of genuineness necessary to enable a jury to evaluate their claims.  It is implicit in Judge Weinstein’s reasoning that, where the plaintiff suffered no physical injury, there must be some other guarantees of genuineness. Yet, as discussed above, there are a host of problems in utilizing scientific evidence as an objective foundation to support a fear of cancer claim.  Such evidence is speculative, highly prejudicial, and of insufficient general acceptance within the relevant scientific community.

Moreover, there is ample scientific literature on the relation between commonly consumed substances and cancer.  This raises serious questions about the conclusions the jury can draw from scientific literature along when assessing the reasonableness of a plaintiff’s fear of cancer.

Therefore, where a plaintiff has suffered no physical injury and is relying solely upon scientific literature to support a fear of cancer claim, no objective foundation exists for the jury to evaluate his fear.  In such a case, the fear of cancer claim should properly be denied.

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