Recovery for Increased Risk of Developing a Future Injury From Exposure to a Toxic Substance

Donald F. Pierce

Editors' Summary: One of the traditional principles of tort law states that a cause of action is allowed only if a present injury exists. This principle has been gradually eroded as an increasing number of courts in toxic tort cases have allowed plaintiffs to recover for the increased risk of developing a disease in the future as a result of exposure to a toxic substance. The author outlines the elements that a plaintiff must establish to recover for an increased risk of future harm, and discusses the types of evidence plaintiffs may introduce to meet their burden of demonstrating that the toxic exposure more likely than not will lead to future harm. The author concludes that there will be a growing call for legislative reform as the traditional tort machinery struggles to cope with the complexities of future harm claims.

Mr. Pierce is a partner with the law firm of Hand, Arendall, Bedsole, Greaves & Johnston, in Mobile, Alabama. The outstanding contributions of Herbert Harold West Jr., and Archibald T. Reeves IV, of Hand, Arendall, Bedsole, Greaves & Johnston, in the preparation of this paper are acknowledged with appreciation.

[19 ELR 10256]

A recurring problem in toxic tort litigation is whether to allow a plaintiff to recover for an increased risk of developing a future injury arising from exposure to a toxic substance. Traditionally a cause of action has not been allowed in the absence of a present injury: "The threat of future harm, not yet realized, is not enough."¹ This principle, however, has been steadily eroded, and now recovery is allowed by some courts if toxic exposure is more likely than not to result in future harm:²

[R]ecovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are "mere possibilities." Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the evidence is anything less.³

The single cause of action rule is the rationale generally given for permitting recovery of damages for a future harm. Under this rule, the injured party may ordinarily bring only one action for the recovery of all damages resulting from a single incident. If the plaintiff fails to pursue recovery for future damages, he will be unable to recover when they actually occur.⁴

The increasing tendency of courts to recognize a cause of action in the absence of a present injury, advancements in medical sciences, and an increasing number of chemical substances have resulted in a dramatic increase in the number of tort claims. In addition to traditional injuries, plaintiffs often seek recovery for cancerphobia, fear of cancer, medical surveillance costs, and the increased risk of developing a future harm.⁵ The scope of this article, however, is limited to a broad overview of an action for the increased risk of a future harm.

[19 ELR 10257]

The Cause of Action Defined

The increased risk of future harm is defined as the increased risk of developing a disease sometime in the future as a result of the defendant's conduct. The critical issue in such actions is whether a particular person will sometime in the future develop an injury as a result of the defendant's conduct. An increased risk of future harm, however, must be distinguished from claims for fear of cancer, cancerphobia, and present injuries that will continue indefinitely or grow progressively worse. An increased risk of future harm is concerned with whether the plaintiff will suffer from a disease in the future and not whether the plaintiff has present injuries or his present injuries will worsen. It is best stated as a present recovery for the probability of a future harm.

The increased risk of a future harm is often confused with fear of cancer and cancerphobia. Fear of cancer "is a nonidiosyncratic response to the knowledge that a person is at risk of contracting the disease."⁶ A claim for fear of cancer is similar to a claim of emotional or mental distress and does not require an expert witness' testimony to prove its existence.⁷

Cancerphobia, however, "is a recognized psychiatric illness" whose existence is normally proven by expert testimony.⁸ Cancerphobia is the present anxiety or emotional distress caused by the fear of developing cancer in the future.⁹ Both fear of cancer and cancerphobia are present injuries resulting from a fear that cancer will develop. An increased risk of future harm, however, is the recovery for the probability that a harm will manifest sometime in the future.

The increased risk of a future harm must also be distinguished from a plaintiff's present injuries that will continue indefinitely.¹⁰ The increased risk of a future harm that will not manifest, if it does manifest, until sometime in the future is separate and distinct from the worsening or further manifestations of a present disease or injury.¹¹ Although a plaintiff may have a present injury that will worsen, it is a separate and distinct injury from an increased risk of developing a future harm.¹²

Claims for a present injury that may worsen and a claim for an increased risk of future harm are commonly asserted in asbestos cases in which the plaintiff suffers from asbestosis and also alleges cancerphobia, fear of cancer, medical surveillance costs, and an increased risk of developing a future harm, typically lung cancer. In such cases, the attorney must distinguish between the claims for present and future injuries. A plaintiff may recover for the future effects of present diseases or injuries; however, these future effects are distinct from a separate diesease or injury that may develop in the future and that is not a further manifestation of the present injury.¹³ Most courts and experts agree that asbestosis is separate and independent from lung cancer, although both may be caused by the same exposure to asbestos.¹⁴ Usually the cancer will manifest later than the asbestosis.¹⁵ The major question in these cases is whether a plaintiff with asbestosis may also recover for the increased risk of contracting a disease (cancer) that he does not presently have.

In any case seeking recovery of an increased risk of future harm, the plaintiff must prove exposure, toxicity, and that he will more likely than not develop a future harm. Expert testimony, epidemiological studies, animal studies, and studies of similar substances are used to prove the likelihood of future harm. The availability of an initial recovery, however, may hinge on whether the court adheres to the single cause of action rule or will allow the plaintiff to recover in a later action.

Elements of the Cause of Action

Exposure

The initial element in any plaintiff's toxic tort claim is proving exposure to an allegedly toxic substance.¹⁶ Proof of exposure may be difficult if the plaintiff was not exposed to the substance at any one timeor the exposure occurred at low levels over a long period. In addition, many plaintiffs are unaware of their exposure. These problems are further compounded by the fact that the plaintiff's injury may not manifest for years after exposure.¹⁷ Furthermore, the fact that segments of the entire population are affected by cancer and other toxic-induced diseases requires the plaintiff to rebut the argument that other intervening factors caused his injury.¹⁸ The plaintiff must prove with reasonable medical certainty that the substance complained of is the cause of his increased risk of future harm.¹⁹

[19 ELR 10258]

In most traditional torts there is rarely any question concerning but-for causation.²⁰ For example, there is rarely any dispute that A would not have a broken leg if B's car had not run over her. Toxic injuries, however, are not simultaneous with toxic exposure. They may not manifest for a long period and when they do, attributing them to a particular substance may be difficult. Ultimately the plaintiff must prove that his harm resulted from exposure to the allegedly toxic substance rather than the unknown causes of disease that everyone faces.²¹ Despite these difficulties, demonstrating causation is possible through the use of epidemiological studies and expert testimony that establishes a relationship between the defendant's wrongful conduct and the plaintiff's exposure.

Toxicity

The second element the plaintiff must prove is toxicity. The plaintiff must prove that the substance to which he was exposed is toxic. Evidence of toxicity is usually presented by experts who rely on literature, laboratory work, field work or their own personal experience in treating toxic induced disease.²² Unless the plaintiff has been exposed to a low level of the substance over a long period of time, whether the substance has the capacity to cause the harm complained of is rarely an issue in determining whether the plaintiff has an increased risk of a future harm.²³

"More Likely Than Not" — Strong Versus Weak Versions

In order to recover, a plaintiff must prove by a preponderance of the evidence that as a result of his exposure to a particular toxic substance he will more likely than not develop a future disease.²⁴ Some courts have adopted a "strong version" of the preponderance rule while others have adopted a "weak version."²⁵ The "strong version" requires the plaintiff to provide some particularistic proof of causation even though statistics indicate the probability of causation is greater than 50 percent.²⁶

Under the "strong" version, plaintiff must offer both epidemiologic evidence that the probability of causation exceeds 50% in the exposed population and "particularistic" proof that the conduct complained of caused him harm individually.²⁷

The "weak version" burden of proof, however, allows a claim to go to the fact-finder if the plaintiff provides credible evidence that he has a greater than 50 percent chance of developing a future disease or harm. In those courts following the "weak version" the plaintiff need not provide particularistic proof that he will develop the disease or harm.²⁸ Neither version, however, allows recovery in those cases where the increase in risk is 50 percent or less.

Evidence

Expert Testimony

The key in proving a claim of future harm is not scientific certainty but whether reasonable jurors can find that the toxic substance to which the plaintiff was exposed will more likely than not cause future harm.²⁹ While either party may [19 ELR 10259] introduce several types of evidence to prove the plaintiff is or is not likely to develop a disease in the future, expert testimony is most often used. In fact, a toxic tort claim often develops into a battle of experts in which the jury must choose the victor.³⁰ One court explained that "[w]hile a plaintiff who seeks to recover for damages he is likely to sustain in the future must prove these damages by a preponderance of the evidence, he can do so only by adducing expert opinion, for what the future holds can only be prophesied."³¹

An expert's opinion, however, must be based on sound methodology, generally accepted in the scientific or medical community. It is important to note that the fact that an expert's opinion or conclusion differs from the opinion or conclusion of other experts drawn from the same methodology does not disqualify the expert. Only the methodology used to reach the opinion, not the opinion, needs to be generally accepted in the scientific or medical community.³²

In addition, an expert's opinion, although based on sound methodology, must be more than criticism of the other party's study or a reanalysis or realigning of the other party's data.³³ In Lynch v. Merrell-National Laboratories, the defendants supported a motion for summary judgment with an extensive record including an expert witness and several epidemiological studies. The plaintiff claimed that a reanalysis of the defendant's epidemiological studies created an issue of fact. The court explained:

[e]ven if this court were to find the methodology of Dr. Swan's re-analysis credible, this court still could not accept result-oriented re-analysis of epidemiological studies and criticisms of others' methodology, such as that performed here by Dr. Swan, as reliable data upon which to base an opinion on causation.³⁴

In some instances even expert testimony based on sound methodology, generally accepted in the scientific or medical community, may not be sufficient without additional support. For instance, in Adams v. Johns-Manville Sales Corp.,³⁵ the Fifth Circuit affirmed the trial court's exclusion of the plaintiff's expert testimony concerning an increased risk of cancer, even though the plaintiff's expert testified that the plaintiff's chances of developing cancer were far greater than 50 percent.³⁶ The expert's testimony was the only evidence the plaintiff presented that he would more likely than not develop cancer. Other evidence, however, strongly indicated that the plaintiff had not contracted asbestosis and would not develop cancer in the future. The court concluded:

[t]he proffer of abstract statistics and generalizations do not suffice to demonstrate that the decision of the trial court to exclude evidence of cancer was an abuse of discretion.³⁷

Epidemiological Studies

A party may use or an expert may base his opinion on epidemiological studies, animal studies, or studies conducted with similar substances to prove that exposure to a toxic substance is or is not likely to increase the risk of future harm. Although an individual study may not be conclusive, the cumulative impact of several studies can be quite compelling.³⁸

Epidemiological studies rely on "statistical methods to detect abnormally high incidences of disease in a study population and to associate these incidences with unusual exposure to suspect environmental factors."³⁹

Epidemiological studies are generally considered to provide the most competent evidence that a particular substance will cause a future harm in humans.⁴⁰ They can be based on data from surveys, death certificates, and medical and clinical observations.⁴¹ One weakness, however, is that they do not demonstrate that a particular substance caused harm to a particular plaintiff, but that exposure to a particular substance creates a certain risk of a future harm to a particular group.⁴² The defendants were granted summary judgment in In Re Agent Orange Product Liability Litigation,⁴³ because all the reliable studies did not support the plaintiffs' claim of causation:

All the other data supplied by the parties rests on surmise and inapposite extrapolations from animal studies and industrial accidents. It is hypothesized that, predicated on this experience, adverse effects of Agent Orange on plaintiffs might at some time in the future be shown to some degree of probability.⁴⁴

The other data presented by the plaintiffs consisted of extrapolations from animal studies and industrial accidents. The epidemiological studies did not indicate that agent orange caused birth defects, miscarriage, or cancer.

Epidemiological studies can also be used to form a data [19 ELR 10260] base for a risk assessment model,⁴⁵ but the studies must be conducted under conditions similar to the plaintiffs' or consistent with the aim of the model.⁴⁶ Studies reflecting conditions not similar to those of the plaintiff or inconsistent with the aim of the model will not serve as an adequate data base. In Gulf Coast Insulation v. U.S. Consumer Product Safety Commission,⁴⁷ the studies on which the model was based were not conducted on randomly selected samples, and therefore failed to serve as an adequate data base.

Animal Studies

In an animal study an animal is given a dose of the toxic substance. The animal's reaction to the substance is observed and the results are extrapolated to humans.⁴⁸ Animal studies, however, present several extrapolation problems. In many cases laboratory rats⁴⁹ are given a very high dosage to be sure the effects, if any, show up in a reasonable time. Extrapolating the results of such studies to humans may not be appropriate.⁵⁰ In addition, the plaintiff is often exposed to a much lower dose of the substance than the animal receives. Such large doses make extrapolation difficult and one court has noted that large doses of almost anything can be shown to be toxic in some species.⁵¹ In Lynch the court rejected the animal studies presented by the plaintiff because none of the animals involved received a dose comparable with a human dose.⁵² Many experts also believe that exposure below a certain cutoff is not harmful⁵³ and that even continued exposure to doses below a certain cutoff will not increase the risk of developing a future disease.

Animal studies are also considered less reliable because a substance toxic in animals may not be toxic in humans.⁵⁴ One court has found that animal studies involving different biological species are not helpful.⁵⁵ Instances of diseases sometimes vary with respect to species of animals used in the study and also with respect to different sexes within the same species.⁵⁶ Therefore, extrapolation from a particular animal to humans may not be appropriate.

Similar Substance Studies

Studies are also conducted with substances similar to the substance at issue. The results of such studies are sometimes considered sufficiently analogous to the effects of the substance at issue; however, they are sometimes rejected because differences in chemical components may affect particular chemical properties.⁵⁷

Deficiencies Common to All Studies

Most laboratory experiments are conducted in a manner such that only the dose of the substance varies. But, outside the sterile laboratory environment, many other factors may affect whether the plaintiff's risk of future injury is a result of exposure to a particular substance. Extrapolation from a sterile laboratory environment to an environment where the plaintiff is exposed to many potentially toxic substances presents the court with another difficult variable to consider.⁵⁸

Scientific studies also present problems for a court because they answer questions with statistics or percentages. The [19 ELR 10261] medical or scientific expert testifies to a particular plaintiff's risk of developing a future harm by referring to statistics. A court, however, must determine whether a particular plaintiff will or will not recover for an increased risk of developing a future harm. It would be inequitable to allow only 60 percent of the plaintiffs to recover or award each only 60 percent of their expected damages because each had a 60 percent chance of developing a future harm.⁵⁹

Judicial Recognition of a Cause of Action

Despite the highly technical, modern issues involved in cases in which the plaintiff seeks recovery for increased risk of future harm, the primary factor determining the propriety of recovery in many instances is a centuries old common law rule, the single cause of action rule.

Cases Allowing or Requiring Plaintiff to Recover for Increased Risk in a Single Cause of Action

Many courts require the plaintiff to recover for all past, present, and future injuries caused by the same exposure to a toxic substance in a single action. these courts also require that this action be brought within the appropriate limitations period following the initial physical injury resulting from exposure to that substance. This requirement is mandated by the single cause of action rule:

The generally accepted rationale for permitting recovery for future damages is that "the injured party may ordinarily bring but one action for the recovery of all damages resulting from a single incident irrespective of whether such damages may be present or prospective [and if the plaintiff] fails to pursue recovery for future damages, he will ordinarily be unable to institute another action when the damages actually accrue." The prohibition against a second action when the formerly future damages become manifest stems from the well-settled rule against "splitting" causes of action. This rule is "an aspect of the doctrine of res judicata," which makes it incumbent upon [plaintiffs] to raise all available claims in one action and which "precludes subjecting … defendants to another successive action based on this same conduct."⁶⁰

By requiring the plaintiff to recover for all injuries resulting from the same exposure in one lawsuit, adherence to the single cause of action rule necessitates recovery for an increased risk of disease at a time prior to manifestation.⁶¹

In Jackson v. Johns-Manville Sales Corporation,⁶² a former shipyard worker brought an action for damages arising from exposure to asbestos. Although at the time the suit was brought the plaintiff did not have cancer, he sought damages for increased risk of contracting cancer allegedly caused by his exposure to asbestos.⁶³ The defendants contended that the plaintiff should be left to recover for cancer only after the disease manifests.⁶⁴ The plaintiff argued that recovery for increased risk was appropriate because the potential development of cancer represented a future injury based upon his presently existing cause of action.⁶⁵ Furthermore, the plaintiff argued that because of Mississippi's rule against claim splitting, he must recover now because the statute of limitations on cancer begins to run when the asbestos is manifest.⁶⁶ The court, applying Mississippi law, concluded that because the plaintiff established that he would probably get cancer and had already discovered and brought suit for his asbestosis, he could recover for the medical probability of developing cancer.⁶⁷

In Gideon v. Johns-Manville Sales Corp.,⁶⁸ the plaintiff brought suit seeking damages for asbestosis and an increased risk of developing mesothelioma or some other form of cancer as a result of inhaling asbestos fibers.⁶⁹ The defendants contended that, because the plaintiff admitted that he did not presently have cancer, it was error for the trial court to admit testimony concerning the enhanced risk that he would develop cancer in the future. The court found that under Texas law, testimony of enhanced risk was proper:

While, therefore, "the threat of future harm, not yet realized, is not enough," once injury results there is but a single tort and not a series of separate torts, one for each [19 ELR 10262] resulting harm. The cause of action thus created is for all the damage caused by the single legal wrong, and a plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another. The cause of action "inheres in the causative aspects of a breach of a legal duty, the wrongful act itself, and not in the various forms of harm which result therefrom…." He does not have a discrete cause of action for each harm.⁷⁰

The court concluded that the evidence supported the plaintiff's claim for increased risk of developing cancer, and that the plaintiff

has but one cause of action for all the damages caused by the defendants' legal wrong; the diseases that have developed and will in probability develop are included within this cause of action, for they are but part of the sequence of harms resulting from the alleged breach of legal duty. Gideon could not split his cause of action and recover damages for asbestosis, then later sue for damages caused by such other pulmonary disease as might develop, then still later sue for cancer should cancer appear. His claim includes, without limitation, all damages for future pain and suffering, inability to work in the future, reduced life expectancy, future medical expenses, and future disabilities and diseases that will probably develop from present injuries.⁷¹

Thus, the courts adhering to the single cause of action rule require the plaintiff to recover for any future illness caused by the exposure in the initial suit.

Courts Allowing Splitting the Cause of Action

Recognizing the problems caused by requiring a plaintiff to recover for increased risk of future disease at a time before the disease is manifested, many courts have stated that a plaintiff may recover in the future once the disease occurs,⁷² regardless of any prior suit for other injuries resulting from the same exposure.⁷³

In Eagle-Picher Industries, Inc. v. Cox,⁷⁴ the court explained the problems caused by the rule prohibiting the splitting of causes of action in asbestos cases and requiring the plaintiff to recover for increased risk of cancer. The physical effects and financial costs to the victim of asbestosis are less severe than cancer.⁷⁵ The single cause of action rule encourages needless anticipatory suits due to the fact that plaintiffs who might not otherwise seek recovery for asbestosis would file a suit seeking damages for risk of cancer if they were told that a later suit for cancer would be barred by failure to sue at the time asbestosis develops.⁷⁶ Because evidence in latent disease cases improves over the course of time, a premature claim for risk of cancer denies the fact-finder of the most accurate evidence.⁷⁷ The court also noted that the speculative nature of the prediction that a person will some day contract cancer may lead to several inequitable results:

First, the plaintiff who does not contract cancer gets a windfall — cancer damages without cancer. Second, and perhaps worse, an asbestos plaintiff who is unsuccessful in his efforts to recover risk of cancer damages, but later contracts cancer, has the disease, but no damages. Third, even plaintiffs who later contract cancer and who have recovered some amount of risk of cancer damages, may emerge with an inequitable award, since the jury, cognizant of the less than one hundred percent chance that the plaintiff will contract cancer, likely will have awarded less than one hundred percent damages. Finally, inequitable results are more likely to result from a future damages action simply because damages cannot be known. If the disease is advanced — or even come into existence — the actual financial needs of the plaintiff can obviously be more accurately assessed.⁷⁸

The court in Eagle-Picher held that the risk of cancer was not a compensable damage and concluded that an action for later-discovered cancer would be permitted independent of any claim for damages, prosecuted or not, on account of asbestosis.⁷⁹

In Hagerty v. L & L Marine Services, Inc.,⁸⁰ the plaintiff was accidentally soaked with toxic chemicals. Although the plaintiff suffered some physical injury⁸¹ and presently feared that he would develop cancer, at the time the suit was brought, he did not have cancer.⁸² With regard to recovery for increased risk of cancer, the court stated that "a plaintiff can recover only where he can show that the toxic exposure more probably than not will lead to cancer."⁸³ Because the plaintiff did not allege that he had cancer or would probably develop cancer in the future, the court concluded that the plaintiff did not state a claim for such damages.

The court discussed the problems that the single cause of action rule causes in toxic substance and asbestos exposure cases, explaining that if the plaintiff "cannot prove a future probability of his contracting cancer when his trial is conducted but thereafter does contract the disease …, he will have no remedy for his damages suffered from cancer."⁸⁴ The court also acknowledged that the plaintiff could not postpone his suit to protect himself if he gets cancer, because having suffered some injury, he was forced [19 ELR 10263] to sue now or be barred by the statute of limitations.⁸⁵ This dilemma, and the highly speculative nature of increased risk of cancer damages, motivated the court to hold as follows:

At least in toxic chemical or asbestos cases, the disease of cancer should be treated as a separate cause of action for all purposes. There should be no cause of action or beginning of the running of limitations until the diagnosis of the disease. Nor should damages for that disease be discoverable unless and until that time. A prior, but distinct disease, though the tortfeasor may have paid reparations, should not affect the cause of action and damages for the subsequent disease.⁸⁶

In Ayers v. Jackson Township,⁸⁷ the plaintiffs brought a suit under the New Jersey Tort Claims Act seeking, in part, damages for increased risk of disease caused by contaminated drinking water. The court determined that because of the speculative nature of an unquantified enhanced risk claim, such a cause of action would not be recognized under the Tort Claims Act.⁸⁸ The court did state that the plaintiff could bring a timely filed cause of action for damages prompted by the future discovery of a disease related to the conduct that was the subject of the present litigation. Because of the discovery rule, the statute of limitations would not bar such a claim.⁸⁹ Furthermore, the court stated that the single controversy rule

cannot sensibly be applied to a toxic tort claim filed when the disease is manifested years after the exposure, merely because the same plaintiff sued previously to recover for property damage or other injury. In such a case, the rule is literally inapplicable, since, as noted, the second cause of action does not accrue until the disease is manifested; hence, it could not have been joined with the earlier claims.⁹⁰

Conclusion

The prior discussion presents some of the problems courts face in deciding whether to allow a present claim for damages for future harm. There are at least three possibilities from which to choose.

One option is to allow evidence of probable future harm along with other damage evidence during the trial of the original cause of action. Second, future harm evidence could be excluded as speculative and indefinite, or limited and restricted so as to in effect achieve that result. Third, evidence of future harm could be excluded in the initial proceeding with the claim for future harm maturing into a new cause of action when a new disease process is manifested; i.e., splitting the original cause of action into two actions.

The positioning of a party as a plaintiff or defendant may influence the support of or cause opposition to a given concept. Determining which position to assert based upon whether one is a plaintiff or a defendant is also complicated, however. For example, should a present party defendant successfully exclude claims for future harm in pending litigation, that party must continue to contest the claims for present disease or injury, mental anguish, cancer-phobia, health monitoring expenses, etc. At some future time, as to plaintiffs who manifest disease, a second action is to be expected. While future harm claims arising after the manifestation of disease are subject to many variables, expert witnesses have testified that 60 percent of the plaintiff class can be expected to suffer new disease at maturation.

Defendants will then be forced to produce witnesses and evidence to contest the issues of toxicity, exposure, causation, and harm as in the original action. During the time necessary for the new disease or injury to manifest, the evidence and witnesses who were available earlier may disappear or become unavailable. The passage of time between the two actions will produce additional complications with insurance coverage, the establishment and maintenance of financial reserves, and changes in the corporate structure involving mergers, dissolution, and management decisions. It may be impossible to forecast the effect on the ability to defend against future harm claims at a later date.

From the party plaintiff's perspective, equally challenging issues must be faced. Counsel's responsibility in advising a client on taking a given position is substantial. The scientific and medical expertise available to the defendant in evaluating the results of a given strategy may not be available to the plaintiff and his counsel. If the plaintiff is urged to pursue the recovery of future harm damages in a present action and receives an inadequate award, and then manifests a disease in the future and is barred from litigating that claim, he is likely to be disappointed by the earlier recommendations of his counsel. If on the other hand, the plaintiff does not pursue his claim for present future harm damages and later manifests a disease, the plaintiff will encounter problems with the preservation of evidence and testimony similar to those experienced by a defendant. The passage of time may effect the availability of counsel and experts and limit the desire of a seriously or terminally ill plaintiff to pursue the litigation process a second time.

The impact of twice litigating essentially the same facts, with the exception of the new damage evidence, for upwards of 60 percent of the plaintiffs is predictable. Can the civil justice system respond to a potentially overwhelming number of multi-party complex actions? The existing mechanism is ill-designed to decide thousands of cases a second time.

Should claims for future harm be the subject of federal legislation? Is it possible that a federal panel similar to the multi-district panel established for complex litigation administration could be established for the administration of future harm claims? One could argue that the benefits obtainable would justify federal involvement and preemption. Health monitoring, control of protocol, parameters for research purposes, worker's compensation type benefits, the elimination of punitive and non-economic damages, the standardization of rules of procedure and evidence, and the limitation of the side effects on traditional tort litigation all provide some motivation for federal action. The question of funding a new system, panel, or agency presents a major impediment, of course, even if that approach is found to be desirable and constitutional.

[19 ELR 10264]

Can the trade-offs be fashioned so as to provide a system that is appealing to the majority of potential plaintiffs and and defendants? There must be reasonable thresholds established to cause a majority of the litigants to opt into the program. Whether a new tribunal or panel is the answer will depend upon the ultimate burden presented and the adequacy of the system to produce reasonable results for its users.

The standardization of future harm rules does have broad appeal. The extension of the common law doctrines of substantive law, the enactment of new legislation, and the modification of the rules of procedure and evidence within the federal system and on a state-by-state basis in the traditional tort manner is our present method of meeting the challenge. The struggle continues back at the courthouse to deal with an avalanche of multi-party claims consisting of highly technical and complex issues using the traditional tort machinery. As future harm claims mature and new actions commence, there will be increased motivation for some type of reform.

1. PROSSER & KEETON, TORTS § 30 p. 165 (5th ed. 1984) (Lawyers Ed.). Toxic exposure torts including recovery for increased risk do not fit within the traditional rules that have been stated as follows:

A tortious cause of action accrues when the victim suffers harm caused by the defendant's wrong. The injury or harm may occur simultaneously with the tortious conduct in the case of a traumatic event or the injury may be latent and not manifested and discovered until some later date. When the fact of the injury does occur, if discovered by the victim, the cause of action accrues. The victim is then entitled to sue for his damages, past and present, as well as his probable future damages, and limitation also begins to run on the time within which suit may be instituted. The victim is entitled to only one cause of action and, if his injuries subsequently worsen, he has no further opportunity for recompense.

Hagerty v. L&L Marine Services, Inc., 788 F.2d 315, 316 (5th Cir. 1986). See also Martin v. Johns Manville Corp., 494 A.2d 1088 (Pa. 1985); In re Paoli Railroad Yard Litigation, 19 ELR 20265 (E.D. Pa. 1988).

2. Gale and Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 CUM. L. REV. 723, 736-37 (1985). See also Siegel and Salvesen, Sterling v. Velsicol: The Case for a New Increased Risk Rule, 17 ELR 10155 (May 1987).

3. Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020, 1026 (Md. 1983).

4. Eagle-Picher Industries v. Cox, 481 So. 2d 517, 519-520 (Fla. Dist. Ct. App. 1985) (quoting Medical Testimony Future Consequences, 75 A.L.R. 2d 9 (1977)).

5. Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 16 ELR 20577 (D. Mass. 1986); Hagerty v. L&L Marine Services, Inc., 788 F.2d 315 (5th Cir. 1986); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 19 ELR 20404 (6th Cir. 1988).

6. Eagle-Picher Industries v. Cox, 482 So. 2d 517, 526 n.13 (Fla. Dist. Ct. App. 1985).

7. Id.

8. Id.

9. Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 CUM. L. REV. 723, 724-30 (1985).

10. Eagle-Picher Indus., Inc. v. Cox, 482 So. 2d 517, 519 n.3 (Fla. Dist Ct. App. 1985).

11. Hagerty v. L&L Marine Services, Inc., 788 F.2d 315, 320 (5th Cir. 1986).

12. Anderson v. W. R. Grace & Co., 628 F. Supp. 1219, 1231, 16 ELR 20577, 20581 (D. Mass. 1986).

13. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir. 1986) cert. denied, __ U.S. __, 92. L. Ed. 2d 743, 106 S. Ct. 3339 (1986); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985); Dartez v. Fibreboard Corp., 765 F.2d 456, 466 (5th Cir. 1985).

14. The parties agree that asbestosis and cancer are distinct and separate diseases which emanate from the same cause — exposure to asbestos. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 117 n.33 (D.C. Cir. 1982). It is widely accepted by the scientific community that asbestosis and cancer are not medically linked, that is, cancer is not an outgrowth or a complication of asbestosis. Id. Nonetheless, it has been estimated that fifteen percent of those who contract asbestosis later develop pleural mesothelioma (lung cancer), one of the two types of cancer commonly caused by exposure to asbestosis.

Eagle-Picher Industries v. Cox, 481 So. 2d 517, 522 (Fla. Dist. Ct. App. 1985) (footnotes omitted). See also Devlin v. Johns-Manville Corp., 495 A.2d 495, 502 (N.J. Super. Ct. Law Div. 1985); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1, 7 n.6 (Mich. 1986); Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020 (Md. 1983).

15. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115, n.21 (D.C. Cir. 1982).

16. 3 Cooke, Law of Hazardous Waste: Management, Clean-up, Liability and Litigation, § 17.02 [2][b].

17. Ayers v. Jackson Township, 525 A.2d 287, 301, 17 ELR 20858, 20864 (N.J. 1987).

18. Id.

19. This burden of proof was recently explained by the court in Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1200-01, 19 ELR 20404, 20410 (6th Cir. 1988) as follows:

To the extent that the plaintiffs seek damages for their bodily injuries, they must prove to a "reasonable medical certainty," though they need not use that specific terminology, that their ingestion of the contaminated water caused each of their particular injuries. See Thompson v. Underwood, 407 F.2d 994 (6th Cir. 1969); Maryland Casualty Co. v. Young, 211 Tenn. 1,362 S.W.2d 241 (1962). This standard implicates the qualifications of the witnesses testifying, the acceptance in the scientific community of their theories, and the degree of certainty as to their conclusions. This standard is of particular importance when dealing with injuries or diseases of a type that may inflict society at random, often with no known specific origin. On numerous occasions, the Tennessee Supreme Court has addressed the degree of certainty of medical testimony required to establish a causal connection between a plaintiff's injuries and a defendant's tortious conduct. See e.g., Lindsey v., Miami Development Corp., 689 S.W.2d 856 (Tenn. 1985); Owens Illinois, Inc. v. Lane, 576 S.W.2d 348 (Tenn. 1978); P&L Construction Co. v. Lankford, 559 S.W.2d 793 (Tenn. 1978); Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675 (1961); Lynch v. LaRue, 198 Tenn. 101, 278 S.W.2d 85 (Tenn. 1955). Whereas numerous jurisdictions have rejected medical experts' conclusions based upon a "probability," a "likelihood," and an opinion that something is "more likely than not" as insufficient medical proof, the Tennessee courts have adopted a far less stringent standard of proof and have required only that the plaintiffs prove a causal connection between their injuries and the defendant's tortious conduct by a preponderance of the evidence. While, in accordance with Tennessee common law, plaintiffs' proof by a reasonable medical certainty requires them only to establish that their particular injuries more likely than not were caused by ingesting the contaminated water, their proofs may be neither speculative nor conjectural. Medical testimony that ingesting the contaminated water "possibly," "may have," "might have," or "could have" caused the plaintiffs' present ascertainable or anticipated injuries does not constitute the same level of proof as a conclusion by a reasonable medical certainty. Although it is argued that a lesser standard of proof allocates loss on a socially acceptable basis, it is the province of the state legislatures to make such changes as they have done in some areas by establishing "no-fault" or other alternate systems.

20. Ayers v. Jackson Township, 525 A.2d 287, 301, 17 ELR 20858, 20864 (N.J. 1987).

21. Developments-Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1617 (1986).

22. Cooke, supra note 16, at § 17.02 [4][c].

23. BEST & COLLINS, LEGAL ISSUES IN POLLUTION ENGENDERED TORTS, p. 117, CATO Journal 1982. For an example of a case in which the court found that the substance complained of was not toxic, see In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1231 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987).

24. In Re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1261 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987). ("plaintiff can recover only where he can show that the toxic exposure more probably than not will lead to cancer.") Hagerty v. L&L Marine Services, Inc., 788 F.2d 315, 319 (5th Cir. 1986). In those courts allowing the plaintiff to recover for an increased risk of future disease, the burden of proof is usually reasonable medical certainty. See Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1208, 19 ELR 20404, 20412 (6th Cir. 1988) (concluding that a finding of increased risk of only 25 to 30 percent was insufficient for recovery); Dartez v. Fibreboard Corp., 765 F.2d 456, 466-67 (finding that the plaintiff did not establish "reasonable medical probability" that he would develop cancer). Such proof of reasonable medical probability apparently requires a greater than 50 percent chance in order to go to the jury. See Gideon v. Johns-Manville Corp., 761 F.2d 1129, 1138 (5th Cir. 1985).

25. Developments in the Law — Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1619 (1986).

26. Id.

27. In Re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1261 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987) (emphasis in original).

28. Id. See Dartez v. Fibreboard Corp., 765 F.2d 456, 466 (5th Cir. 1985).

29. Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984), cert. denied, 469 U.S. 1062 (1984).

30. Id. at 1535.

31. Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985).

32. Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984), cert. denied, 469 U.S. 1062, 83 L. Ed. 2d 432, 195 S. Ct. 545 (1984).

33. Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 865 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).

34. Id.

35. 783 F.2d 589 (5th Cir. 1986).

36. Id. at 590-91.

37. Id.

38. Public Citizens Health Research Group v. Tyson, 796 F.2d 1479, 1490, 19 ELR 20056, 20062 (D.C. Cir. 1986). The court in Sterling v. Velsicol Corp., 855 F.2d 1188, 1200, 19 ELR 20404, 20409 (6th Cir. 1988), in affirming the lower court's decision, stated that

[o]n the basis of expert testimony (consisting of treating physicians, medical specialists, scientists, psychiatrists, clinical psychologists, engineers, hydrologists, and the plaintiffs themselves), numerous studies, and extensive literature, the district court concluded that Velsicol's chemicals and the duration of the plaintiffs' exposure to them were capable of causing the types of injuries alleged by the plaintiffs.

39. In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1231 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987).

40. Id. Epidemiological studies are generally broken into two groups, cohort studies and case control studies. Cohort studies compare the incidence of harm by those exposed to a substance with those not exposed to the substance. Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 863 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987). Case control studies start with a group with the harm, match this group with another group not having the harm, and compare the exposures of the groups to the toxic substance. Id. Both studies are designed to detect abnormally high incidence of harm in a study population and associate these results with exposure to toxic substances. Id.

41. Id.

42. Developments in the Law — Toxic Waste Litigation, 99 HARV. L. REV. 1458, 1619 (1986).

43. 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987).

44. Id. at 1231.

45. See Gulf South Insulation v. U.S. Consumer Product Safety Commission, 701 F.2d 1137, 1141 (5th Cir. 1983), in which, after collecting data the Consumer Product Safety Commission needed to quantify the risk to humans of low level formaldehyde exposure:

[T]he agency selected a computerized mathematical risk assessment model called Global 79. Global 79 was chosen over a number of other predictive models because it incorporated several assumptions the Commission believed were applicable to formaldehyde carcinogenesis. Unlike some other models, Global 79 does not predict an actual or most likely risk. Rather it predicts a range of risk within which there is a 95% possibility the actual risk will fall.

Id.

46. The studies indicated applicable uses in formaldehyde levels in homes where urea-formaldehyde foam insulation (UFFI) was installed:

But the Commission did not use the studies only to support such a generalized finding. They were also incorporated into an exacting, precise, and extremely complicated risk assessment model. The goal of the model was to determine the risk of cancer to a consumer living in an average UFFI home. The difficulty in reaching this goal is that neither the in-home nor the Franklin/Oak Ridge Labs studies were consistent with this aim. The in-home study focused on complaint residences, not average residences, not randomly selected residences. The Franklin/Oak Ridge Labs studies reflected conditions similar to an unheated, unair-conditioned home, not an average home. The similar results achieved by the two studies validate neither. The studies were inadequate to serve as a data base for the Global 79 risk assessment.

Id. at 1145.

47. 701 F.2d 1137, 1141 (5th Cir. 1983).

48. Animal studies can also be broken into two groups: in vivo studies and in vitro studies. In an in vivo study a dosage of a toxic substance is given to a live animal. In an in vitro study the substance is tested on something less than a live intact animal such as animal nerve cells or brain cells. Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 865 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).

49. Scientific studies for both economic and moral reasons are most often conducted on laboratory rats.

50. BEST & COLLINS, supra note 23, at p. 119. As a result of public demand for quick testing of chemicals, a quick and inexpensive short-term screening test on micro-organisms was developed. Just as animals had substituted for humans, micro-organisms were substituted for animals. This test, however, was never intended to be used in court to prove that a substance might cause cancer years later. As stated by Dr. Bruce Adams, a pioneer in microorganism screening tests,

[e]xtrapolations from the results of rodent cancer tests done at high doses to effects on humans exposed to low doses is routinely attempted…. There is little sound scientific basis for this kind of extrapolations, in part due to our lack of knowledge about mechanisms of cancer induction, and it is viewed with great unease by many epidemiologists and toxicologists.

The extrapolation from bacteria to humans is even more speculative. Predicting Future Harm, Medical Litigation Advisor, Nation Medical Advisory Service.

51. Lynch v. Merrell-Lynch Laboratories, 646 F. Supp. 856, 865 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).

52. Another court found "no evidence that plaintiffs were exposed to the far higher concentrations involved in both animal and industrial exposure studies." In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1241 (E.D.N.Y. 1985), aff'd, 818 F.2d 145 (2d Cir. 1987).

53. Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1536 (D.C. Cir. 1984), cert. denied, 469 U.S. 1062 (1984); see Cooke, supra note 16, at § 17.02[4][c].

54. Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 865 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).

55. In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1241 (E.D.N.Y. 1985).

56. BEST & COLLINS, supra note 23, at p. 119.

57. Lynch v. Merrell-National Laboratories, 646 F. Supp. 856, 863 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).

58. BEST & COLLINS, supra note 23, at p. 119.

59. BEST & COLLINS, supra note 23, at p. 117.

60. Eagle-Picher Industries v. Cox, 481 So. 2d 517, 519-20 (Fla. Dist. Ct. App. 1985) (citations omitted).

61. The theory behind the single cause of action rule also causes the statute of limitations to bar plaintiffs who fail to bring an action upon the initial physical injury caused by exposure to a toxic substance from recovering for later developing diseases caused by that same exposure. These courts conclude that the cause of action for the later developing disease accrued at the same time as initial injury. In Cathcart v. Keene Industrial Insulation, 471 A.2d 493 (Pa. Super. Ct. 1984), the court concluded that the plaintiff was barred by the statute of limitations because "a plaintiff's claims for all injuries arising out of the same tortious conduct of a defendant must be brought within two years of the time that the plaintiff knows, or with reasonable diligence should know, of his initial injury and that the injury was caused by someone's wrongful conduct." Id. at 507. See also Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir. 1985). In Ross, the plaintiff learned that he had asbestosis in 1963, but he did not bring a suit. After being diagnosed as having asbestos-related cancer, the plaintiff filed an action in 1980. The court applied the Pennsylvania single cause of action rule and concluded that the plaintiff's cause of action for all of his asbestos-related injuries accrued in 1963 when he discovered his initial asbestos-related injury. Id. at 827-28. Thus, the plaintiff's claim for asbestos-related cancer accrued in 1963, and, because of the two year statute of limitations, his claim was barred. Id. Other cases, however, have viewed separate and independent diseases as separate causes of action, despite the fact that they are caused by the same exposure. Such an analysis, which is at odds with the single cause of action rule, alters the time of accrual of the later developing disease and eases the harsh effects of the statute of limitations. See Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1 (Mich. 1986). In Larson, the court dealt with this same statute of limitations question at issue in Cathcart and Ross. The court expressly noted that none of the plaintiffs seeking recovery for cancer had brought a prior action to recovery for asbestosis, and that it was not deciding that issue. Id. at 2 n. 1. The court concluded that under the discovery rule, the discovery of asbestosis does not trigger the running of the statute of limitations for the cancers that arise independently of asbestosis, even though caused by the same exposure to asbestos. Id. at 7-9. See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982), in which the court held that under the discovery rule the manifestation of any asbestos-related disease did not trigger the running of the statute of limitations on all separate, distinct, and later-manifested diseases caused by the same exposure, but that the limitations period begins to run on a separate and distinct disease only when it manifests. Id. at 112. The court expressly noted that res judicata was not an issue because the plaintiff had not brought a prior suit for asbestosis. Id. at 117-18. See also Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020 (Md. 1983).

62. 781 F.2d 394 (5th Cir. 1986).

63. Id. at 410.

64. Id.

65. Id.

66. Id.

67. Id. at 411-12.

68. 761 F.2d 1129 (5th Cir. 1985).

69. Id. at 1134.

70. Id. at 1136-37 (footnotes omitted).

71. Id. at 1137 (footnotes omitted).

72. the determination of whether to allow such a splitting of a cause of action depends upon whether the future diseases are seen as part of the same disease process or are a part of a different process and thus, distinct diseases. See Anderson v. W. R. Grace Company, 628 F. Supp. 1219, 16 ELR 20577 (D. Mass. 1986).

73. The same reasoning used to justify "splitting" of a cause of action is utilized by some courts to avoid the statute of limitations problem in note 2. Such courts conclude that the cause of action for a later developing disease does not accrue until that disease manifests. When no prior suit was brought, and there is no res judicata problem, these courts do not strictly apply the single cause of action rule. See discussion of Ross and Wilson in note 2.

74. 481 So. 2d 517 (Fla. Dist. Ct. App. 1985).

75. Id. at 522.

76. Id. at 522. This is motivated by the holding of some courts that the plaintiff's single cause of action for all injuries resulting from exposure accrues at the time of the initial physical injury, thus presenting statute of limitations problems for the plaintiff. See note 2 and the discussion therein of the Cathcart and Ross decisions.

77. Id.

78. Id. at 524 (footnotes and citations omitted). See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982), for a discussion of these problems.

79. Id. at 525-26.

80. 788 F.2d 315 (5th Cir. 1986).

81. At the time the plaintiff was exposed to the toxic substance "he suffered a brief period of dizziness, followed by leg cramps until he obtained his shower. The following day he felt a stinging in his extremities." 788 F.2d at 317. The "dizziness, leg cramps, and a persistent stinging sensation in feet or fingers suggest some harm or injury." Id.

82. Id. at 317.

83. Id. at 319.

84. Id. at 320.

85. Id. at 320. See supra note 2.

86. Id. at 320 (footnote omitted).

87. 525 A.2d 287, 17 ELR 20858 (N.J. 1987).

88. 525 A.2d at 308, 17 ELR at 20868.

89. 525 A.2d at 300, 17 ELR at 20863.

90. Id. See also Devlin v. Johns-Manville Corp., 495 A.2d 495 (N.J. Super. Ct. Law Div. 1985).