Compensation for Fear in Product Liability Actions

Compensation for Fear in Product Liability Actions

Compensation for Fear in Product Liability Actions

In some product liability actions, such as asbestos and breast implant litigation, a known risk of the defective product is an increased risk of cancer. As a result of the litigation concerning the products, plaintiffs or potential plaintiffs may become fearful of developing cancer. Even if they never do develop cancer, a number of courts have allowed these plaintiffs to recover damages for “fear of cancer.”

To recover for fear of cancer, a plaintiff’s fear of developing the disease must be reasonable and it must be causally related to the defendant’s negligence. Courts use different standards to determine whether a fear of cancer is reasonable. In some courts, a fear of cancer was deemed reasonable even though the chance of developing cancer in that particular plaintiff was extremely remote. Nevertheless, these courts have decided that the plaintiff was entitled to recover for her fear of cancer, no matter how remote, as long as there was some possibility that she could develop cancer and that the possibility was related to the breast implants manufactured by the defendant implant manufacturer. Other courts have required more proof that the disease they fear is reasonably certain to develop.

In another fear of cancer case, six retired railroad workers were awarded nearly five million dollars for their fears of cancer stemming from exposure to asbestos in connection with their railroad jobs. None of the six ever developed cancer. The United States Supreme Court ruled that the workers were entitled to recover as long as they could document their fear of cancer. The Court determined that actual fear had to be shown with objective, corroborated proof and that the recovery of damages for fear of cancer could only be made in connection with a pain and suffering award for work-related asbestosis. Thus, suffering from some asbestos-related injury was a prerequisite to recovery for fear of cancer.

Opponents of providing monetary awards for fear of cancer complain that such awards take away from the pool of money available to pay those who are actually suffering from cancer as a result of a defendant’s negligence. Those in favor of fear of cancer awards claim that plaintiffs in product liability actions are entitled to recover for both physical and mental damages and that fear of cancer is a legitimate, compensable fear.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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