Sterling v. Velsicol: The Case for a New Increased Risk Rule

Andrew Siegel and David Salvesen

Editors' Summary: Contamination of groundwater and other public water supplies caused by the migration of hazardous wastes from chemical burial sites has long been recognized as posing a significant health hazard. The recent decision by a federal district court in Sterling v. Velsicol demonstrates the importance of state tort law in fixing liability for the harm caused by such dumpsites, as the $12.7 million award to the plaintiffs would indicate. In this article, Mr. Siegel and Mr. Salvesen analyze the Velsicol decision, particularly the award of damages for plaintiffs' fear of cancer and the increased risk of cancer, and argue that such an award is a departure from traditional damage rules. The article concludes that, in part because of the latency period for the manifestation of injuries resulting from exposure to hazardous chemicals, the award for increased risk is desirable, but that a new formulation of the increased risk rule is necessary.

Mr. Siegel is an attorney with ICF Incorporated, an environmental consulting firm in Washington, D.C. He analyzes CERCLA regulatory policy for the U.S. Environmental Protection Agency. Mr. Salvesen, also with ICF, analyzes insurance issues relating to environmental regulation.

[17 ELR 10155]

On August 1, 1986, the United States District Court for the Western District of Tennessee found Velsicol Chemical Corporation (Velsicol) strictly liable for injuries resulting from its operation of a chemical waste burial site in Hardeman County, Tennessee. Plaintiffs — residents who live nearby the burial site — were exposed to hazardous chemicals that leached from Velsicol's site into their residential wells. They alleged that they suffered permanent injuries as a result of drinking, bathing, cooking, and cleaning in water contaminated by chemicals from Velsicol's waste site.

In Sterling v. Velsicol,¹ a class action suit, the court awarded plaintiffs $5.2 million in compensatory damages for bodily injury, property damage, physical injury, and emotional distress, including increased risk of cancer and fear of developing cancer in the future, and $7.5 million in punitive damages.

This Article focuses on several unique aspects of the Velsicol decision, particularly the award of damages for increased risk of cancer and fear of cancer.² Traditionally, courts have been reluctant to award such damages because the alleged harm is too remote, too speculative, or both. Thus, Velsicol represents either the beginning of a new trend in hazardous waste litigation, or an anomalous result that will likely be reversed on appeal.

This Article first summarizes the facts and key holdings of the Velsicol decision. It then surveys recent case law on fear of cancer and increased risk of cancer and analyzes the Velsicol court's treatment of these issues. Also examined are the policy implications of awarding damages for increased risk in light of the single cause of action rule and the recently enacted federal commencement date for state statutes of limitations in hazardous waste cases. The Article concludes that a new rule should be adopted by courts in toxic tort cases. This new rule should give plaintiffs the choice of either pursuing a present action for increased risk of cancer or bringing an action for cancer in the future, should the disease occur.

Summary of the Velsicol Case

Facts

Velsicol owned and operated a 242-acre hazardous waste disposal facility in rural Hardeman County, Tennessee, from 1964 to 1973. During those years, Velsicol buried approximately 300,000 55-gallon steel drums (and hundreds of fiber cartons containing dry chemical wastes) at the site. The drums contained various solid, semisolid, and liquid organic chemical wastes including carbon tetrachloride, chloroform, napthalene, and toluene. Over time, these chemical wastes leached from the site and contaminated plaintiffs' water supplies. On June 1, 1973, the site was declared a public nuisance and was closed by the State of Tennessee.

In December 1978, 125 plaintiffs who lived or owned property near the Velsicol site sued Velsicol for $1.5 billion for a variety of injuries they sustained from prolonged exposure to Velsicol's wastes. The plaintiffs alleged that they suffered physical injury, mental and emotional anguish, and property damage as a result of Velsicol's grossly negligent selection and operation of its chemical waste burial site. They also asserted that their injuries are permanent and that the injuries have left them with an enhanced risk of cancer and fear of cancer. Finally, the plaintiffs stated that Velsicol was liable for trespass, nuisance, common law negligence, and strict liability and accordingly requested both compensatory and punitive damages.

Velsicol admitted that some of the plaintiffs' wells were contaminated by chemicals from Velsicol's waste site and therefore admitted its liability under the theories of nuisance and trespass. With respect to the strict liability claim, however, Velsicol asserted that it met the then known state of the art in its selection and operation of its chemical waste burial site and that its operation of the site was not "inherently or abnormally dangerous."³ Velsicol [17 ELR 10156] further stated that it had a legal right to use its property as it did under Tennessee's Solid Waste Disposal Act and Water Quality Control Act. Finally, Velsicol questioned whether carbon tetrachloride and chloroform are health hazards and whether they had any adverse impact on the plaintiffs' health, considering the doses to which they were exposed.

In this class action suit involving 125 plaintiffs, the judge split the class into two trials: (1) the five "flagship plaintiffs;" and (2) the remaining 120 plaintiffs. The five flagship plaintiffs were selected because their claims were generally representative of the entire class. The flagship plaintiffs submitted evidence on liability and punitive damages, and the court's ruling on those issues is binding on both the class and the defendant. The remaining 120 plaintiffs will have to prove only the degree of their injury but not that Velsicol is liable.

Key Holdings

U.S. District Judge C. Odell Horton held that Velsicol's operation of its chemical waste burial site was ultrahazardous and that Velsicol was strictly liable for injuries to plaintiffs.⁴ In addition, the court found Velsicol liable under the theories of common law negligence, trespass, and nuisance.

The court awarded $5.2 million in compensatory damages (including $725,000 for fear of cancer and $775,000 for present injury and increased risk of cancer) to the five flagship plaintiffs.⁵ The court also awarded $7.5 million in punitive damages to all members of the class. Judge Horton stated that Velsicol's operation of the chemical waste burial site constituted "gross, wilful, oppressive and wanton misconduct."⁶

The case has been appealed to the U.S. Court of Appeals for the Sixth Circuit.

Analysis

Review of Recent Case Law

The law of damages for fear of cancer and increased risk of cancer is a rapidly evolving area of tort law. Consequently, these issues are treated differently by various courts. Two related questions addressed by nearly every court that has decided whether or not to admit evidence on or award these damages are: (1) whether such damages are too remote or speculative to be awarded; and (2) if not, whether the plaintiff must demonstrate a present physical injury, or a certain probability of future injury, as a prerequisite to recovery. Because many of the claims for increased risk of cancer and fear of cancer have arisen in the context of asbestos and diethylstilbestrol (DES) litigation, the following discussion surveys these cases first, and then examines cases involving exposure to other hazardous substances.⁷

Asbestos Litigation. Many of the recent developments in the law of fear of cancer and increased risk have been spurred by the large volume of asbestos litigation over the past several years. Typically in these cases, the plaintiff who presently suffers from a precancerous lung injury (usually asbestosis) sues for compensatory or punitive damages for both fear and increased probability of developing cancer in the future.

In Jackson v. Johns-Manville Sales Corp.,⁸ the Court of Appeals for the Fifth Circuit held that Mississippi law permits damages for both fear of cancer and increased risk of cancer. In Jackson, an action based on strict products liability, the court ruled that once some physical injury becomes manifest, the plaintiff may recover for all reasonably probable future injuries. In asbestos litigation, this means that a plaintiff who has contracted asbestosis can sue for increased risk of cancer. In awarding damages for increased risk, the Jackson court relied on evidence that Jackson had a greater than 50 percent chance of contracting cancer.⁹ From the court's discussion, it appears that its statistical analysis was based on epidemiological evidence that 40 to 60 percent of victims of asbestosis later die from lung cancer.

The court also considered the same evidence critical to the fear of cancer claim: "Jackson's claim is not merely that he might get cancer, or that there is a remote possibility that he will. [He] has established that there is a greater than fifty percent chance that he will get cancer."¹⁰ Thus, the court ruled that the plaintiff's fear was reasonable, since he was more likely than not to contract cancer. The court also stated that under Mississippi law, damages for mental distress may be recovered where there is either physical injury or where the damages are caused by a willful, wanton, malicious, or intentional act of the defendant. Jackson satisfied the physical injury requirement because he had contracted asbestosis. Because the facts of the case met the test under Mississippi law, the court allowed damages for fear of cancer.

Some courts have stated explicitly that evidence of present injury is not a prerequisite to awarding damages for fear of future injury. For example, the United States District Court for the District of Maine held in In re Moorenovich¹¹ that asbestos workers' evidence of fear of [17 ELR 10157] cancer was admissible absent present physical injury. In so holding, the court observed that while the criteria for proof of damages for mental distress vary from state to state, Maine law is atypical in that it currently recognizes an independent cause of action for mental distress without accompanying physical injury. The court concluded that evidence of fear of cancer without physical injury would not be prejudicial because juries are capable of placing such evidence in the proper perspective (i.e., juries can use their common sense to determine whether the plaintiff's fear is reasonable). Although the Moorenovich court stated that one prerequisite to recovery is that the fear must be reasonable, the court did not interpret the reasonableness factor as requiring a showing of any particular probability of future injury.

Other courts in asbestos decisions have held evidence of increased risk or fear of cancer inadmissible based on the nature of the proof offered in those cases. In Herber v. Johns-Manville Corp.,¹² for example, the Court of Appeals for the Third Circuit held that under New Jersey law, evidence of increased risk of cancer from asbestos exposure was inadmissible to prove damages for that increased risk because the plaintiff failed to show a reasonable medical probability of developing cancer. As in Jackson, the court adhered to the 50 percent probability threshold, noting that there was no epidemiological evidence indicating this level of risk to the plaintiff.¹³ The Herber case is notable because the plaintiff there argued that damages for his increased risk should be equal to the amount he would have received if he had contracted asbestos-related cancer, reduced proportionately by the probability that he will not contract the disease. The court rejected this argument because under New Jersey law, damages may not be awarded "for an injury that probably will not be suffered."¹⁴ The court, however, allowed the evidence of increased risk to be offered to show that greater than normal medical monitoring for cancer would be necessary in the future.¹⁵

For the fear of cancer claim, the Herber court ruled that evidence of mental distress resulting from fearof cancer should have been submitted to the jury because plaintiff's showing of "pleural thickening" (the presence of scar tissue in the lungs) was sufficient to satisfy New Jersey's physical impact requirement. The Herber court stated that it would not require the plaintiff to show a physical injury resulting from his fear of cancer, as had the district court.

DES Litigation. Over two million women used the antimiscarriage drug DES in the 1950s and 1960s.¹⁶ Subsequently, DES was found to cause adverse health effects including cervical cancer in the daughters of these women. Many of the women and their daughters sued both the hospitals that administered the drug and the drug manufacturers for increased risk of cancer or fear of cancer. In these cases, plaintiffs often were precluded from recovering damages for increased risk because of a lack of present physical injury.

For example, in Mink v. University of Chicago,¹⁷ several women who ingested DES during pregnancy brought a products liability suit against the manufacturers of the drug. The plaintiffs claimed that as a result of their ingestion of DES, their daughters developed cervical abnormalities and both they and their daughters incurred an increased risk of cancer. The court held that the plaintiffs were not entitled to damages for increased risk because they failed to prove that they suffered from any accompanying physical injury.

In another DES case, Morrisey v. Eli Lilly & Co., an Illinois court denied class certification for a group of "DES daughters" who alleged increased risk of cancer as a common injury.¹⁸ The Morrisey court held that under Illinois law, an increased risk of injury is not compensable unless the injury is "reasonably certain to occur."¹⁹

In a third DES decision, McAdams v. Eli Lilly & Co.,²⁰ the District Court for the Northern District of Illinois held that under Illinois law, evidence of increased risk of cancer was admissible for the limited purpose of establishing the reasonableness of the plaintiff's fear-of-cancer claim.²¹ The court also ruled that plaintiff must demonstrate present bodily injury to recover for fear of future injury.²²

Thus, the DES cases follow the same basic increased risk rule as the other cases discussed in this section, i.e., that the plaintiff must establish some present physical injury and at least a 50 percent probability of future injury to recover. With respect to fear of cancer, the McAdams case required a showing of present bodily injury. This is a more restrictive rule than some courts have adopted,²³ but is not an unusual result.Most states, including Illinois, adhere to this restrictive rule in all emotional distress cases.²⁴

Hazardous Substance Litigation. In a third class of cases with facts more similar to Velsicol, plaintiffs were exposed to potential carcinogens and sued for fear of cancer and increased risk of cancer. As the following cases demonstrate, the exposure can occur either in an occupational or residential setting, and the plaintiff may or may not suffer from a present physical injury. For example, in Hagerty v. L & L Marine Services, Inc.,²⁵ the Court of Appeals for the Fifth Circuit held that a cause of action for fear of cancer, but not for increased risk of cancer, had accrued when a tankerman was soaked with a solution of carcinogenic chemicals while loading a barge. The court ruled that proof of physical injury or impact²⁶ is not necessary to recover for fear of cancer so long as the fear is reasonable and causally related to the defendant's negligence. [17 ELR 10158] The court held, however, that a plaintiff can recover for increased risk of cancer only where it can be shown that exposure to the hazardous substance more probably than not will cause cancer. The Hagerty court ruled that because the plaintiff in that case had not established a 50 percent probability of contracting cancer, he could not recover for increased risk.

In Arnett v. Dow Chemical Co.,²⁷ the plaintiffs were exposed to 1,2-dibromo-3-chloropropane (DBCP) while working in defendant's pesticide production plant. All seven male plaintiffs alleged that they had suffered sterility or decreased sperm counts as a result of their exposure to DBCP. Again, the court allowed the claim for fear of cancer, but not the claim for increased risk of cancer, to be submitted to the jury. The Arnett court noted that it did not decide whether the reasonableness requirement would be satisfied in a case where there was no accompanying physical injury.

Finally, in Brafford v. Susquehanna Corp.,²⁸ the plaintiffs alleged that they had suffered present chromosome damage and increased risk of cancer as a result of exposure to radon gas (from radioactive uranium mill tailings) in their home. The court restated the familiar rule that damages for increased risk of cancer may not be recovered without an accompanying physical injury. The court held that the plaintiffs' evidence of increased risk was admissible, however, because the alleged subcellular damage to their chromosomes constitutes a present physical injury.²⁸

From the above summary of the relevant case law, it is apparent that courts are much less likely to award damages for increased risk of cancer (or even to allow such claims to go to the jury) than damages for fear of cancer. Courts generally require proof of the following as a prerequisite to recovery for increased risk of cancer: (1) a present physical injury; and (2) a greater than 50 percent probability of contracting cancer in the future. With respect to awarding damages for fear of cancer, courts have split on whether the plaintiff must demonstrate a present physical injury. Most courts, however, do not require a showing that it is "more likely than not" that the plaintiff will contract cancer. The key to recovery for fear of cancer seems to be the court's determination of the reasonableness of that fear. Courts generally have allowed evidence of a present physical injury or a relatively high medical probability of future injury to be used to establish this reasonableness.²⁹

The Standards Established by Sterling v. Velsicol

Increased Risk of Cancer. When viewed in light of these general rules, the Velsicol case represents an important new development in the law of damages for increased risk of cancer. Although the court concluded that all the expert testimony taken together indicated an increased cancer risk of less than 50 percent (10 to 49 percent), the court nevertheless awarded compensation for that increased risk. The Velsicol court, however, did not acknowledge that it had departed from a well-established rule or offer any rationale for that departure. In its two-page analysis of the issue, the court merely explained that increased susceptibility to disease is a compensable element of damages.³⁰ The court failed to articulate the standards for recovery of such damages. As the following discussion demonstrates, the reason for the court's summary treatment of the increased risk issue may be that the facts of the Velsicol case do not meet these general standards or the specific standards set by Tennessee law. The district court apparently was reluctant to state explicitly that it was departing from the law of damages for increased risk.

In the Tennessee case most on point, Daniels v. Combustion Engineering, Inc.,³¹ the Court of Appeals of Tennessee held that testimony regarding the association between asbestos exposure and cancer was properly excluded on grounds of irrelevancy and prejudice. In that case, the plaintiff was an installer of asbestos-related insulation materials who had contracted asbestosis. Although the evidence of a medical association between asbestos exposure and cancer was offered to show "mental distress or anguish," the following passage suggests that the court would also have held the evidence properly excluded if it was offered to prove damages for increased risk of cancer. "The Plaintiff make[s] no contention that he has cancer. He has only amild case of asbestosis and we therefore see no relevancy between his injuries and cancer. To have admitted the evidence could have served only to prejudice the jury."³² From this language, it appears that the Daniels court would not consider evidence of increased risk of cancer from exposure to a potential carcinogen to be relevant either to claims for fear of cancer or increased risk of cancer. Further, other courts have allowed evidence of increased risk of cancer to be considered for the limited purpose of showing the reasonableness of a plaintiff's claim of damages for fear of cancer, while excluding consideration of the same evidence to prove damages for increased risk itself,³³ Because the Daniels court would not allow evidence of the association between asbestos exposure and cancer to be admitted even to show fear of cancer, it is highly unlikely that the court would have allowed such evidence to be admitted to prove damages for increased risk. Thus, the Tennessee courts probably would not allow evidence of the association between exposure to carbon tetrachloride and cancer in Velsicol to be considered for the four flagship plaintiffs who sought damages for increased risk of cancer, but did not allege present cancer (one plaintiff alleged present cancer of the kidney).

Interestingly, although it is clear from the Velsicol court's discussion of the punitive damages issue³⁴ that it applied Tennessee law in the case, the court did not review Tennessee law in its analysis of the increased risk issue. The Velsicol court began its analysis by stating that increased risk of disease "is an existing condition, and not a speculative future injury" and that damages for such injury "are recoverable under traditional principles of [17 ELR 10159] damage law."³⁵ The court then reviewed five cases (none of which were Tennessee cases) that either awarded damages for increased risk or held that evidence of such damages is admissible. Having substantiated its initial statement that damages for increased risk are recoverable, the court concluded that "the enhanced risk of liver cancer and kidney disease and cancer suffered by [plaintiffs] fits squarely within the rule articulated in those decisions, and plaintiffs are entitled to be compensated for the condition."³⁶

Because the Velsicol court's discussion and conclusion are so general, the case could be interpreted as standing for the proposition that an increased risk of disease is compensable regardless of the probability that the disease will occur. The court found that the risk of cancer to the five flagship plaintiffs was at least 25 to 30 percent.³⁷ But the court's analysis leaves open the possibility that a much lower level of risk would be compensable. If so, the measure of damages would either be the full amount of damages the plaintiff would have received had he or she contracted cancer, or the percentage of that amount corresponding to the increased probability. The Velsicol court (along with many other courts) has left this question open. As discussed earlier,³⁸ however, most courts will not even allow the question of increased risk to be considered by the jury unless there is evidence that the increased probability of future harm is at least 50 percent. Where the increased risk is less than 50 percent, a minority of courts (including some of those cited in Velsicol) have allowed the evidence of increased risk to be submitted to the jury. It seems that these courts believe that a jury is capable "as a matter of common sense" of increasing an award of damages for a physical injury based on increased susceptibility to a future disease.³⁹ Where a physical injury already has occurred, Judge Posner also would allow recovery for future manifestations of the injury.⁴⁰

Without explicit guidance from the judge, however, a jury may be arbitrary in deciding whether to award damages for increased risk and in determining the amount of such damages given the complex and often conflicting medical evidence in toxic tort cases. Thus, there should be a specific set of rules both for deciding when damages for increased risk should be awarded and for measuring such damages.

Fear of Cancer. Damages for fear of cancer are merely a specific form of traditional tort damages for emotional distress. The physical injury requirement is gradually giving way in emotional distress cases.⁴¹ In light of this trend, it is not surprising that courts in latent disease cases are also relaxing the physical injury requirement.⁴² Present physical injury along with the risk of future injury, however, is still important because it can be used as evidence of the reasonableness of plaintiffs' fear.

In Velsicol, physical injury clearly was present; each of the five flagship plaintiffs had sustained headaches, nausea, visual damage, and/or cancer or other damage to liver and kidneys. The Velsicol court held that fear of cancer is an established element of damages in Tennessee as well as in other states.⁴³ The court stated that it had considered the reasonableness of each plaintiff's emotional reaction to his or her consumption of contaminated water in awarding damages for fear of future disease. The court reasoned that plaintiffs were allowed to recover for their fear "because that fear … reasonably and naturally flowed and resulted from the disclosure of the nature and possible effects of [the] chemical contaminants."⁴⁴

Thus, based on precedent and the strong facts of the case, the Velsicol court awarded damages for fear of cancer, as have other courts in occupational exposure cases.⁴⁵ Velsicol reinforces this trend and helps extend it to cases involving environmental exposure to toxic substances.

Statutes of Limitation

The major purpose of statutes of limitation is to provide injured parties with a reasonable length of time to assert a claim, while assuring defendants that, at some point in time, they will be free from claims against them. In the words of the United States Supreme Court, defendants should be free from defending stale claims after "evidence has been lost, memories have faded, and witnesses have disappeared."⁴⁶

Exposure to toxic substances can cause acute adverse health effects (e.g., nausea, headaches, dizziness, skin damage) or diseases where there is a long time period between initial exposure to a harmful substance and subsequent manifestation of a disease (e.g., cancer). In cases involving diseases with long latency periods, plaintiffs may be denied recovery if the statute of limitations has expired.

Generally, statutes of limitation begin to run when a plaintiff's cause of action "accrues." In personal injury cases, the traditional rule is that the cause of action accrues when a tortious event occurs. For example, in an automobile accident, the cause of action accrues at the time the accident occurs. But in hazardous waste cases, there is generally no discernible incident from which the running of the statute of limitations can be measured.⁴⁷ Victims often do not know the cause of a disease or that they have been exposed to toxic substances until long after the exposure [17 ELR 10160] and long after a traditional statute of limitations would expire. Thus, plaintiffs who have been exposed to toxic substances may be caught in a "Catch-22": they cannot recover damages until there is some evidence of disease, but by the time a disease is manifest, the statute of limitations has expired.⁴⁸

Many courts have recognized the injustice of allowing the statute of limitations to run before a victim becomes aware of exposure to a harmful substance or that the exposure has led to a particular disease.⁴⁹ Most states make exceptions to their general limitations periods and apply the "discovery rule" in toxic tort cases to determine when the cause of action accrues.⁵⁰ Under a typical discovery rule, a cause of action will not accrue until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the injury and that it may have been caused by the defendant's conduct.

One of the first cases to use the discovery rule in a latent disease case was Urie v. Thompson.⁵¹ In that case, a fireman contracted silicosis due to continuous inhalation of silica dust for over 30 years and sued for damages. The Supreme Court held that the plaintiff could be "considered 'injured' only when the accumulated effects of the deleterious substance manifest themselves."⁵² Thus, although there was a 30-year period between initial exposure and onset of disease, the plaintiff's claim was not barred by the Federal Employers Liability Act's three-year statute of limitations.⁵³

In states without a discovery rule, it is possible for the statute of limitations to run before the victim is injured or becomes aware of the injury. Congress recognized the inequity brought by strict adherence to statutes of limitation in toxic tort cases, and codified the discovery rule in the Superfund Amendments and Reauthorization Act of 1986 (SARA).⁵⁴ SARA establishes a federally required commencement date (which preempts state statutes of limitations that have an earlier trigger date) for the running of state statutes of limitations. The SARA commencement date is the date the plaintiff "knew (or reasonably should have known) that the personal injury … was caused or contributed to by the hazardous substance or pollutant or contaminant concerned."⁵⁵ The effective date of the federally required SARA statute of limitations provision is December 11, 1980,⁵⁶ the date the Comprehensive Environmental Response, Compensation, and Liability Act was enacted.

Despite state trends toward adopting a discovery rule for toxic torts and recent federal action to codify that rule, plaintiffs should still be allowed to recover for increased risk. If a plaintiff brings an action for present injuries that resulted from exposure to hazardous substances, that plaintiff may later be barred by the traditional rule against claim-splitting from recovering for a latent disease that resulted from the same initial exposure. For example, if a plaintiff who developed asbestosis sues for damages and subsequently develops cancer as a result of the same asbestos exposure that caused the asbestosis, the cancer claim may be barred by the "single cause of action rule." Similarly, if a plaintiff with asbestosis sues for both present injury and for increased risk of cancer, but cannot prove that the increased risk is more than 50 percent, the single cause of action rule would leave that plaintiff with no remedy for cancer should he later contract that disease. The single cause of action rule, followed in the vast majority of latent disease cases under state tort law,⁵⁷ is designed to ensure that a "plaintiff will not get a second bite of the apple."⁵⁸ The rule also forces an injured plaintiff to file a claim, once he has discovered a cause of action, within the statute of limitations period or forfeit his right to recovery. Thus, under the single cause of action rule, in order to receive compensation for present and future injuries, plaintiffs exposed to hazardous substances must not only bring an action for present injury within the statutory period, but must also sue for increased risk of future injury.

A few courts, however, would allow defendants in cases involving diseases with long latency periods to split claims, thus preserving plaintiffs right to sue later, when the cancer becomes manifest.⁵⁹ In Hagerty, for example, the court held that, at least in toxic chemical or asbestos cases, cancer should be treated as a separate cause of action, and damages for cancer should not be recoverable unless and until the cancer is diagnosed.⁶⁰ The Hagerty court would preserve the right of plaintiffs to split claims and preclude claims for increased risk, thus forcing plaintiffs to delay recovery of damages for cancer until that disease becomes manifest.

Even if claim-splitting becomes an established rule in latent disease cases, plaintiffs would still be burdened with linking the initial exposure with a latent disease, many years after the events that gave rise to the injury took place. In addition, even if the plaintiff could successfully establish causation after a long latency period, the defendant may have gone out of business, leaving plaintiff without a remedy.

Conclusion

In Velsicol, the court compensated plaintiffs for both fear of cancer and increased risk of cancer. The award for fear of cancer is important because it extends the cases awarding such damages in other contexts to toxic tort cases. After Velsicol, it is likely that many more plaintiffs exposed to potential carcinogens will assert claims for fear of cancer.

The court's award for increased risk, the primary focus [17 ELR 10161] of this Article, was the most significant aspect of the case because the court departed from traditional damage rules. Under the traditional rule that allows damages to be awarded only for injuries that are "more likely than not" to occur, plaintiffs with a significant, but less than 50 percent, increased risk may be denied recovery. The Velsicol case is a step in the right direction even though the court did not state explicitly that it was abandoning the 50 percent rule. For example, in Hagerty and Herber,⁶¹ plaintiffs alleged that as a result of exposure to potential carcinogens, they were subject to a significant increased risk of developing cancer. The degree of increased risk in both cases was somewhat less than 50 percent⁶² and both plaintiffs therefore were denied the chance to recover for their increased risk.

It could be argued that this result is desirable because awarding present damages for increased risk would overcompensate those plaintiffs who do not develop cancer and undercompensate those who do. But this argument fails to support the 50 percent rule for two reasons: (1) the rationale for denying recovery applies equally to factual situations of greater than 50 percent risk; and (2) plaintiffs who are denied present recovery may also be denied recovery in the future when they develop cancer by statutes of limitation, the single cause of action rule, or evidentiary difficulties in proving causation. Ideally, all plaintiffs who suffer personal injury should be fully compensated and those who do not should receive no compensation.⁶³ But because of the unique nature of the causation mechanism of cancer (i.e., a latency period of approximately 15 to 30 years),⁶⁴ traditional rules designed to encourage plaintiffs to recover for all their injuries when the cause of action "accrues," and the unavailability of evidence or defendants, future recovery for cancer may be impracticable.

Because of the combined effect of these factors, a new rule is needed. One possibility is to eliminate the single cause of action rule in latent disease cases (as suggested by the Hagerty court) and allow plaintiffs to choose between present recovery for increased risk of cancer and future recovery when the cancer develops. A plaintiff who sues for increased risk would be entitled to recover an amount equal to the product of the probability that he or she would contract cancer and the amount one having cancer would recover. This type of suit must be limited in some way to protect the courts from a flood of spurious claims. For example, courts could set a minimum level of increased probability of future cancer as a cutoff, below which a claim for increased risk would not be compensated. Although a court must decide the appropriate cutoff point based on what is reasonable in light of the facts of the case, the Velsicol case provides some guidance on this issue. One expert in Velsicol testified that a 10 percent increased probability of cancer represents an unacceptable health risk.⁶⁵ Moreover, the court awarded damages based on increased risk between 10 percent and 49 percent.⁶⁶ Thus, a 10 percent level of increased risk may be a reasonable cutoff point, at least based on the facts in Velsicol. Judges should provide explicit instructions to the jury that only increased risk above the cutoff point is compensable and that the measure of such damages is the amount one having cancer would recover reduced by the probability that the plaintiff will not contract cancer.⁶⁷

Plaintiffs with higher levels of increased risk (e.g., 60 percent) may elect to forego present compensation for that increased risk and instead wait until the cancer develops before bringing suit. In this way, such plaintiffs could be fully compensated for their injury, rather than receiving only partial compensation. Although problems relating to proof of causation may present a major obstacle to recovery for latent diseases such as cancer, toxic tort plaintiffs should have the option of pursuing a remedy after their injury becomes manifest. A plaintiff who chooses a present action for increased risk, of course, would be precluded from later recovery for cancer by the doctrine of res judicata (i.e., claim preclusion). Thus, this proposed new rule would benefit both plaintiffs and defendants because plaintiffs would be assured one, but only one, bite of the apple.

1. 647 F. Supp. 303, 17 ELR 20081 (W.D. Tenn. 1986), appeal docketed, No. 86-6087 (6th Cir. Oct. 6, 1986).

2. As used in this Article, the terms "increased risk of cancer" and "fear of cancer" include fear and increased risk of other diseases as well, such as liver and kidney disease.

3. Generally, courts have applied strict liability to activities that are considered "ultrahazardous" or "abnormally dangerous." See generally RESTATEMENT (SECOND) OF TORTS §§ 519, 520 (1977); W. PROSSER, THE LAW OF TORTS 505-16 (4th ed. 1971).

4. Other courts have held that activities related to hazardous waste disposal are subject to strict liability. See, e.g., Branch v. Western Petroleum, Inc., 657 P.2d 267, 13 ELR 20362 (Utah 1982) (ponding of waste oil on land adjacent to drinking water waste wells); Ashland Oil, Inc. v. Miller Purchasing Co., 678 F.2d 1283, 12 ELR 20845 (5th Cir. 1982) (injection of corrosive hazardous wastes into crude oil pipeline).

5. The court also awarded compensation for damage to the immune system. Awards for such damages are relatively novel, but a discussion of this issue is beyond the scope of this Article. Another recent decision has also addressed the issue of damages to the immune system. See Anderson v. W.R. Grace & Co., 628 F. Supp. 1219, 16 ELR 20577 (D. Mass. 1986) (damage to immune system allowed as evidence of physical injury in emotional distress claim associated with exposure to contaminated groundwater).

6. Judge Horton also stated that "[i]f there has ever been a civil action filed in this court that cried out for the levy of punitive damages, it is the case at bar…. In fact, failure to award punitive damages in this case would, in itself, be an act of injustice." Velsicol, 647 F. Supp. at 324.

7. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 44005, defines the term "hazardous substance" by reference to lists of substances under other federal environmental statutes. Any such substance identified by EPA as a potential carcinogen is evaluated for potential carcinogenicity using both qualitative and quantitative factors and then assigned a relative hazard ranking. Asbestos, DES, carbon tetrachloride, and other substances discussed in this Article have been so identified and ranked. See 52 Fed. Reg. 8140 (Mar. 16, 1987).

8. 781 F.2d 394 (5th Cir. 1986).

9. Id. at 413.

10. Id. at 414 (emphasis in original).

11. 634 F. Supp. 634 (D. Me. 1986).

12. 785 F.2d 79 (3d Cir. 1986).

13. Id. at 81.

14. Id. at 82.

15. Id. at 83.

16. C. GREENBERG, DES: THE COMPLETE STORY xiii (1981).

17. 460 F. Supp. 713 (N.D. Ill. 1978).

18. Morrisey v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill. App. 1979).

19. Id. at 1376.

20. 638 F. Supp. 1173 (N.D. Ill. 1986).

21. Id. at 1178.

22. One reason for the prevalence of DES cases in Illinois state and federal courts is that between September 1950 and November 1952, the University of Chicago and Eli Lilly and Co. conducted an experiment in which approximately 1000 women were administered DES without their knowledge. See Mink, 460 F. Supp. at 715.

23. See, e.g., In re Moorenovich, 634 F. Supp. 634 (D. Me. 1986).

24. See, e.g., Payton v. Abbott Laboratories, 437 N.E.2d 171 (Mass. 1982) (proof of physical harm is a prerequisite to recovery for emotional distress).

25. 788 F.2d 315 (5th Cir. 1986).

26. Physical impact is merely contact between a hazardous substance and the plaintiff, whereas physical injury represents the adverse health effects that may or may not arise from such impact.

27. Doc. No. 729586 (Cal. Super. 1983).

28. 586 F. Supp. 14 (D. Colo. 1984).

29. In addition to Jackson, supra note 8, and McAdams, supra note 20, at least one other court has admitted evidence of increased risk to establish the reasonableness of a plaintiff's fear. See Clark v. Taylor, 710 F.2d 4 (1st Cir. 1983) (compensatory damage award for fear of cancer affirmed where prisoner's chance of contracting bladder cancer was increased from .01 percent to 10 percent as a result of involuntary exposure to benzidine solution).

30. Velsicol, 647 F. Supp. at 321-22.

31. 583 S.W.2d 768 (Tenn. 1978).

32. Id. at 770.

33. See, e.g., Arnett v. Dow Chem. Co., supra note 27.

34. Velsicol, 647 F. Supp. at 322-24.

35. Id. at 321.

36. Id. at 322.

37. Id. at 480.

38. See supra notes 7-29 and accompanying text.

39. See, e.g., Feist v. Sears, Roebuck & Co., 517 P.2d 675, 680 (Or. 1973) (risk of meningitis from injury causing fractured skull).

40. See DePass v. United States, 721 F.2d 203, 206 (7th Cir. 1983) (Posner, J., dissenting) (statistical evidence should have been admitted to show 30 percent reduction in tort victim's life expectancy due to cardiovascular problems associated with amputation).

41. See Note, Molien v. Kaiser Foundation Hospitals: Negligent Infliction of Serious Emotional Distress is Cognizable in California as an Independent Tort and an Averment of Physical Injury is No Longer Necessary, 50 U. CIN. L. REV. 200 (1981). In addition, several state courts have eliminated the physical injury requirement in latent disease cases. See Gale & Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 CUM. L. REV. 823 (1985).

42. See supra notes 7-29 and accompanying text (discussion of cases).

43. See Velsicol, 647 F. Supp. at 321, citing Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn. 1982); Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401 (1962); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958); Dempsey v. Hartley, 94 F. Supp. 918 (E.D. Pa. 1951); Flood v. Smith, 126 Conn. 644, 13 A.2d 677 (1935); Southern Kansas Ry. Co. of Tex. v. McSwain, 55 Tex. Civ. App. 317, 119 S.W. 874 (1909).

44. Velsicol, 647 F. Supp. at 320.

45. See, e.g., Moorenovich, supra note 11, and Arnett, supra note 27.

46. Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349 (1944).

47. Lippes, Representing Individuals Exposed to Hazardous Substances, in TOXIC SUBSTANCES: PROBLEMS IN LITIGATION 75 (1981).

48. See, e.g., Steinhardt v. Johns-Manville Corp., 430 N.E.2d 1297 (N.Y. 1981) (plaintiff denied recovery for asbestosis because statute of limitations began to run when plaintiff inhaled asbestos particles).

49. For a list of state cases on this issue, see King. v. Seitzingers, Inc., 287 S.E.2d 254 (Ga. App. 1981).

50. Trauberman, Statutory Reform of "Toxic Torts:" Relieving Legal, Scientific, and Economic Burdens on the Chemical Victim, 7 HARV. ENVTL. L. REV. 177, 191 (1983).

51. 337 U.S. 163 (1949). See also Birnbaum, The Discovery Rule Approach, in TOXIC SUBSTANCES: PROBLEMS IN LITIGATION 245 (1981).

52. Urie, 337 U.S. at 170 (quoting Associated Indem. Corp. v. Industrial Accident Comm'n, 124 Cal. App. 378, 381).

53. Id. at 169.

54. Pub. L. No. 99-499, § 203(a), 100 Stat. 1695, codified at CERCLA § 309(a), 42 U.S.C. § 9658, ELR STAT. 44071.

55. CERCLA § 309(a)(4)(A), 42 U.S.C. § 9658(a)(4)(A), ELR STAT. 44072.

56. At least one commentator has argued that CERCLA § 309 may be unconstitutional, particularly with respect to its retroactive effect. See Ledbetter, Opinion, 11 Chem. Waste Litig. Rep. 314 (1986).

57. See, e.g., Hagerty, 788 F.2d at 320.

58. Brafford, 586 F. Supp. at 18.

59. See, e.g., Wilson v. Johns-Manville Sales Corp., 584 F.2d 111 (D.C. Cir. 1982); Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976, cert. denied, 429 U.S. 1038 (1977).

60. Hagerty, 788 F.2d at 320.

61. See supra notes 12-15 (discussion of Herber) & 25-26 (discussion of Hagerty) and accompanying text.

62. In Hagerty, the court noted that the plaintiff did not explicitly state in his brief "what he believes [his] increased risk to be; we assume, however, that it is not greater than 50 percent." Hagerty, 788 F.2d at 319. Similarly, the Herber court observed that the record did not contain epidemiological data showing a class risk of greater than 50 percent. Herber, 785 F.2d at 81 n.1.

63. But see Note, Increased Risk of Cancer as an Actionable Injury, 18 GA. L. REV. 563 (1984) (arguing that a present action for increased risk is preferable to a future action for cancer because it allows corporate defendants to internalize compensation costs sooner and therefore has a greater deterrent effect).

64. Velsicol, 647 F. Supp. at 482.

65. Id.

66. Id. at 480.

67. A similar approach has been adopted by the Supreme Court of Washington in a case where the plaintiff's life expectancy was reduced by the defendant's negligent failure to diagnose cancer. In Herskovits v. Group Health Cooperative, 664 P.2d 474 (Wash. 1983), the plaintiff's less than 50 percent chance of a five-year survival was reduced an additional 14 percent by the defendant's negligence. Instead of awarding damages for all medical expenses, loss of earnings, etc., resulting from the cancer, the court awarded an amount equal to the portion of such damages caused by the defendant (i.e., 14 percent of the total injury).