ELR Citation: ELR 20779
No(s). F013486 (Cal. Ct. App. Jan 4, 1993)

The court holds that the costs of future medical monitoring of students and adults exposed to unsafe levels of 1, 2-Dibromo-3-Chloropropane (DBCP) in the drinking water supplied to their school, which was a reasonably certain consequence of tortious exposure to that pesticide, is a detriment for which damages are recoverable under California Civil Code §3333. The court states that prospective medical testing and evaluation is analogous to anticipated medical care reasonably certain to be required in the future, which is a recognized detriment under §3333. The court holds that plaintiffs may collect damages from the manufacturer-tortfeasor, measured by the "reasonable medical and other expenses" to be incurred for monitoring, and physical injury need not be evident to recover. The court holds that the reasonable certainty that plaintiffs will have to pay for prospective testing is an essential element of a tort action. Thus, a toxic-tort plaintiff may recover only if the evidence establishes the necessity, as a direct consequence of the exposure, for specific monitoring beyond that which the public generally should prudently submit. The court lists five factors relating to exposure, toxicity, seriousness of disease, increased risk, and the value of early detection, which bear on "reasonable certainty." The court notes that plaintiffs need not prove a reasonable certainty of contracting a particular disease or ailment.

Counsel for Plaintiffs-Appellants
Duane C. Miller, Andrea C. Nelson
Miller & Rolfe
815 University Ave., Sacramento CA 95825
(916) 924-8600

Counsel for Defendants-Appellants
Stephen W. Jones, Frederick D. Baker
Sedgwich, Detert, Moran & Arnold
One Embarcadero Ctr., San Francisco CA 94111
(415) 781-7900

Stephen C. Lewis, Cydney T. Bachelor
Landels, Ripley & Diamond
345 Spear St., Ste. 600, San Francisco 94105
(415) 788-5000