Poster  10

ELEMENTS OF A CIVIL LAWSUIT

Third Element of Liability:

Proof of Harm Using Risk Assessment

Risk per se of an adverse effect is rarely compensable, unless the risk is greater than 50%. That  is, the plaintiff must prove that it is more likely than not (the standard preponderance test) that a particular adverse effect will occur in the future, even if it has not appeared by the time of trial. Needless to say, very few toxic risks present that degree of likelihood of an adverse effect occurring in a specific individual. However, other items of damages may act as "surrogates" for risk. Some are traditional items of damages; others are less commonly encountered.

TRADITIONAL FORMS OF DAMAGES

  Medical costs, lost wages, pain and suffering

  Property damage

Wood v. Picillo, 443 A.2d 1244 (R.I. 1982).
In Wood, the court held that the operation of a largely uncontrolled hazardous waste disposal area (described by the court as a "chemical nightmare") was a nuisance in that it interfered with the plaintiffs' use and enjoyment of their neighboring properties.

Village of Wilsonville v. SCA Services, Inc., 426 N.E.2d 824 (Ill. 1981).
The court held that a hazardous waste disposal facility could be considered a nuisance, not only due to the current effects of operation, but also its very existence: "defendant is engaged in an extremely hazardous undertaking at an unsuitable location, which seriously and imminently poses a threat to the public health."

  Diminution of property value

Stambovsky v. Ackley, 169 A.D.2d 254, 572 N.Y.S.2d 672 (3d Dep't 1991).
In Stambovsky, the legal consequences of admittedly irrational fears reached their apogee. The plaintiff learned that the house he had contracted to buy had a local reputation for being inhabited by ghosts. "Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic," the court stated, "having reported their presence in both a national publication (Reader's Digest') and the local press ... defendant is stopped to deny their existence and, as a matter of law, the house is haunted." This factor cannot be detected by conventional due diligence. As the court noted, "[a]pplying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale." The house's notoriety having been established, the court ruled that "[t]he impact of the reputation thus created goes to the very essence of the bargain between the parties, greatly impairing both the value of the property and its potential for resale." [Gerrard]

San Diego Gas And Electric Company v. Covalt, 13 Cal.4th 893, 920 P.2d 669, 55 Cal.Rptr.2d 724 (1996).
Homeowners brought an action against the San Diego Gas And Electric Company, a public utility, alleging that electric and magnetic fields (EMFs) emitted from electric power lines in close proximity to their house had caused them emotional distress, made their home uninhabitable, and destroyed its market value. The utility petitioned to dismiss the complaint on the ground that Public Utilities Commission (PUC) had exclusive jurisdiction over issues raised by the complaint. After a complex legal process,  the Supreme Court of California granted review. That Court held, in pertinent part, that:

Effectively, this California Supreme Court case prohibits plaintiffs in that state from suing the owners of power lines near their home, even if they, and the surrounding public, fear that their exposure to EMFs could be a health hazard. [McMenamin]

City of Santa Fe v. John Komis, 114 N.M. 659, 845 P.2d 753 (1992).
The city of Santa Fe, New Mexico, brought partial taking condemnation proceeding to obtain land for construction of highway to transport nuclear waste. The property owners proved loss of market value of remaining property based on the fear of use for which condemned property was taken with a reasonable degree of probability by presenting expert testimony based, in part, on a public opinion poll. The city of Santa Fe made no attempt to show whether buyers and sellers perceived harm associated with the transportation of nuclear materials. Further, the city did not attempt to show the effect, if any, public perception had on prices, or any correlation between actual prices paid and public perception of harm. The Supreme Court of New Mexico held that property owners could recover for decreased market value caused by public perception regardless of whether the public's fear was reasonable. [McMenamin]

Criscuola et al., v. Power Authority of the State of New York et al., 81 N.Y.2d 649, 621 N.E.2d 1195, 602 N.Y.S.2d 588 (1993).
Claimants sought direct and consequential damages for the diminution of property values due to a high voltage power line easement acquired by the Power Authority of the State of New York over their Delaware County property. The only issue that went to the Court of Appeals was whether a claim for consequential damages, based on the claimants' assertion that "cancerphobia" and the public's perception of a health risk from exposure to electromagnetic emissions from power lines negatively impact upon the market value of their property and would "render the remainder valueless." The claimants argued that they should not have to prove the "reasonableness" of this perception as a separate, additional component of diminished market value. The Court of Appeals of New York agreed and held that claimants were not required to establish reasonableness of fear or perception of danger or of health risks from exposure to high voltage power lines in order to recover consequential damages attributable to that fear or perception. [McMenamin]

 

Poster 11a

ELEMENTS OF A CIVIL LAWSUIT

Third Element of Liability:

Proof of Harm Using Risk Assessment (Cont.)

NON-TRADITIONAL ITEMS OF DAMAGES

The availability of these items depends on the law of the state that governs the litigation. While not explicitly based on risk, the newer harms often rely on some form of risk analysis.

  Emotional Distress

Accompanying Physical Harm

Metro‑North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997).

A railroad worker was negligently exposed by his employer while on his job to insulation dust that contained asbestos. However, the worker had suffered from no asbestos‑related disease and had exhibited no physical symptom of exposure to asbestos. The worker then brought this action against the employer under the Federal Employers' Liability Act (FELA). The action sought damages for negligently inflicted emotional distress and to cover the costs of future medical checkups for cancer and asbestosis (., medical monitoring). The employer conceded negligence. The Supreme Court held that the worker:

* could not recover damages under the FELA for negligently inflicted emotional distress until the employee manifested symptoms of an asbestos related disease; and

* had failed to show that the worker was entitled to recover damages for future medical monitoring costs under the FELA

In its review, the Supreme Court determined that those cases in which states' highest courts had authorized recovery for medical monitoring in the absence of physical injury did not endorse a full blown, traditional tort law cause of action for lump‑sum damages. The Supreme Court also found that such a cause of action would create various "policy concerns." [McMenamin]

 Heiner v. Moretuzzo, 652 N.W.2d 664 (Ohio 1995).
In Heiner, the court held that emotional harm resulting from two incorrect reports of plaintiff's blood as HIV‑positive was not compensable since plaintiff was never in "real physical peril."

 Cancerphobia (Fear of Future Harm)

Sterling v. Velsicol, 855 F.2d 1188 (6th Cir. 1988).

In Sterling, the court held that present, reasonable (i.e., based on demonstrated exposure to a proven carcinogen) fear of cancer is recoverable, even if the likelihood of contracting the disease is less than 50% probable. The court would have permitted the plaintiffs to recover for post‑traumatic stress syndrome, but they did not present evidence that would meet its clinical definition. See also Jones v. Howard University, Inc., 589 A.2d 419 (D.C. App. 1991) (fears of pregnant woman arising from ill‑advised x‑ray is compensable); Quill v. Trans World Airlines, Inc., 361 N.W.2d 438 (Minn. App. 1985) (fear from near plane crash is compensable).

Potter v. Firestone Tire and Rubber Co., 863 P.2d 795 (Cal. 1993).
The court rejected plaintiffs' claims for emotional distress/cancerphobia damage resulting from their long‑term exposure to carcinogens dumped by defendants at a near‑by landfill. The court held that in order to obtain cancerphobia damages in California, plaintiffs must show "a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer." (emphasis added).

Among the courts' bases for imposing such a stringent standard was its observation that " all of us are exposed to carcinogens every day" and that a weaker requirement could have "an unduly detrimental impact" on health care costs. [Wagner]

"Bystander"

Courts use a variety of tests for bystander recovery, but usually the bystander must witness severe harm to a close family member who is located in close physical proximity. See, e.g. Dillon v. Legg., 441 P.2d 912 (Cal. 1968). In some jurisdictions, the bystander must herself also be in the "zone of danger." Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984). The difficulties of applying this in toxic tort cases was demonstrated in Anderson v. W.R. Grace, 628 F. Supp. 1219 (D. Mass. 1986), in which the plaintiffs claimed, among other things, emotional distress from watching their children die over a long period of time from leukemia. The court held that this did not meet the further requirement of a"traumatic shock" because the dying process extended over several years. Accordingly, the court reasoned, the optional distress of the bystanders was not "foreseeable."

  Medical Monitoring

Abuan v. General Electric Co., 3 F.3d 329; Prod.Liab.Rep . P13,632 (1993).
A class of plaintiffs (Plaintiffs) brought this action for personal injuries after they were exposed to toxic chemicals when an electrical transformer manufactured by General Electric Company (GE) ruptured, releasing PCBs manufactured by Monsanto Company. Plaintiffs included workers exposed during the accident or its clean‑up, and individual class members exposed accidentally. The Plaintiffs presented expert opinion that focused on the general conditions of exposure at the site, but did not address the relative exposures of individual plaintiffs. They also presented expert opinion that concluded that the plaintiffs were exposed as a result of the accident and that the exposure placed them at an increased risk of future illness that required continuing medical monitoring. However, this expert opinion did not make qualitative or quantitative distinctions among the exposures of the various plaintiffs. Defendants moved for summary judgment. The Court of Appeals for the Ninth Circuit affirmed the judgment of the lower court holding that the plaintiffs failed to prove a genuine factual issue regarding either the probability of future injury or the necessity of continuing medical monitoring resulting from alleged exposures to toxic chemicals. The Court held that the Plaintiffs were required to show that they suffered a significantly increased risk of contracting a serious disease in the future to recover the costs of medical monitoring. Having failed to define the significance of the increased risk to each Plaintiff, damages for medical monitoring could not be awarded. [McMenamin]

Redland Soccer Club, Inc. v. Department of the Army, 55 F.3d 827; 25 21026 (1995).
The United States Department of the Army used a landfill as a dump for toxic waste until the1950's. Subsequently required to dispose of excess acreage, the Army negotiated transfer of the landfill to the adjoining township for use as a public recreational area. The Army did not inform the township that the landfill contained potentially hazardous or toxic substances. The township subsequently created a park for use as a soccer field. (The plaintiffs included township workers who converted the area into the soccer field, people living near the landfill, and children who played soccer on the soccer fields, including several children who suffered from leukemia and enlarged lymph nodes.) Government testing of the wells and land around the park showed a significant presence of contaminants in some areas of the park and contamination in most of the groundwater, soil and sediment samples. Amongst other things, the contamination included volatile organic compounds, semi‑volatile organics, metals, cyanide, and low levels of polycyclic aromatic hydrocarbons. The government concluded that the sampling results showed no apparent increase in health risk to children playing in the Park because the contaminant concentration was within the acceptable limits under federal environmental laws. Plaintiffs sought medical monitoring costs, alleging increased risk of adverse health effects from the landfill contaminants. The trial court dismissed the medical monitoring claims. On appeal, the Court of Appeals for the Third Circuit held that the Plaintiffs failed to introduce evidence that their exposure required a different medical monitoring regimen than that which would normally be recommended for the general population. The Third Circuit stated that a plaintiff seeking medical monitoring must have experienced direct and discrete exposure to a toxic substance and that exposure must be beyond what would normally be encountered by

Poster 11b

a person in everyday life. Further, the Third Circuit stated that the Plaintiffs could have produced evidence through expert testimony showing that they were exposed to toxins at levels significantly above normal background that required special testing or more frequent medical monitoring than recommended for the general population. The record showed that there was no expert opinion on this point. The limited exception to this holding regarded that class of Plaintiff children who played soccer on the soccer fields who suffered from leukemia and enlarged lymph nodes, whose physical injuries, the court found, made them a unique class. The children's illnesses reflected an immediate need for medical monitoring beyond that recommended for the general population. The Third Circuit determined that the expert witness testimony proffered on this point clearly indicated that the children's illnesses were "related to" their exposure to the Army‑created health hazards at the park and therefore raised a genuine issue of material fact. [McMenamin]

*Note that both the 9th and 10th Circuits have held that medical monitoring expenses cannot be recovered by private parties under the Comprehensive Environ‑mental Response, Compensation, and Liability Act (CERCLA). Price v. Navy , 39 F.3d 1011 (9th Cir. 1994) (holding that CERCLA does not provide exposed residents with a claim for medical monitoring expenses since they are not "response costs" within the meaning of the statute); Daigle v. Shell Oil Co., 972 F.2d1527 (10th Cir.1992) (same). The 10th Circuit has also held that workers' claims for medical monitoring expenses arising out of their employment at the Rocky Flats Nuclear Weapons Plant are limited to those available under Colorado workers' compensation law. Building and Construction Dept. v.Rockwell International Corp., 7 F.3d 1487 (10th Cir. 1993). [McMenamin (Wagner)]

  Loss of Chance

Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983).
In this case, the patient went to the physician complaining of a cough. The physician failed to diagnose the decedent's lung cancer upon initial presentation. Over a year passed between the time Mr. Herskovits sought treatment and the lung cancer was ultimately discovered. His lung was removed at that time and he died less than 2 years later. Had the cancer been detected and treated at the time of initial presentation, the decedent's chance of survival would have been 39%. Due to the delay in diagnosis and treatment, the decedent's chance of survival was reduced to 25%. In its analysis, the Supreme Court of Washington focused on the issue of whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but can not show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy. That Court held that the 14% reduction (from 39% to 25%) in the decedent's chance for survival was sufficient evidence of causation to allow jury to consider possibility that physician's failure to timely diagnose illness was the proximate cause of his death. Here, the physician's alleged malpractice increased the decedent's risk of death by only 14%. However, traditional causation analysis requires that this risk be increased by greater than 50% under a preponderance of the evidence to maintain a wrongful death claim. Of course, the Washington Court recognized that this approach would allow physicians to be absolved of liability whenever malpractice is committed upon a patient who has less than a 50% chance of survival. [McMenamin]

Delaney v. Cade, 255 Kan. 199, 873 P.2d 175, 62 USLW 2682 (1994).
On November 22, 1986, plaintiff Julie Delaney's car collided with another automobile. As a result of the accident, the plaintiff suffered numerous injuries. She was first transported to St. Joseph Memorial Hospital. After primary treatment, the adequacy of which is the basis for this action, she was transferred to Central Kansas Medical Center. After receiving some care at Central Kansas Medical Center, Ms. Delaney was transferred to the University of Kansas Medical Center. At K.U. Medical Center, a physician performed an aortagram which showed the plaintiff had a transected aorta which had thrombosed. The physician operated on the plaintiff to repair the transected aorta. Plaintiff claims that as a result of the thrombosed aorta she is permanently paralyzed. She contends that the treatment she received at St.

Joseph Memorial Hospital, and the delays due to her transfer to a facility that was equipped to treat her injuries, deprived her of a significant chance to better recover from her permanent injuries. Patient brought medical malpractice suit against hospitals and physicians for alleged negligent treatment following the automobile accident. The Supreme Court of Kansas held that:

* Kansas recognizes a medical malpractice cause of action for loss of chance of recovery;

* In proving that plaintiff suffered harm in a loss of chance case, plaintiff must prove that lost chance for better recovery was a substantial loss of the chance; and

* Damage award in a lost‑chance‑for‑better‑recovery action is limited to that amount attributable to lost or reduced chance and should not represent total damages which would include those resulting from a pre‑existing condition.

Smith v. State, Dept. of Health and Hospitals, 676 So.2d 543, rehearing denied (La. 1996).
In this case, the mother and sons of a patient who died of lung cancer brought wrongful death action based on medical malpractice against the hospital. The District Court for the Parish of Ouachita entered judgment for the hospital based on the failure of plaintiffs to prove, by a preponderance of the evidence, that failure to diagnose the cancer caused patient to die or lose a chance of survival. The mother and sons appealed. In reversing and assessing monetary awards, the Louisiana Court of Appeal held that:

* Trial court erred in finding that patient did not lose a chance of survival where all experts testifying stated that chance for survival was lost;

* Trial court erred in requiring survivors to demonstrate that patient had reasonable chance of survival;

* In cases of wrongful death due to medical malpractice, percentage probability of loss, if less than 50%, is proper measure of damages; and

* Patient was deprived of ten percent chance of surviving five years, and damages would be adjusted accordingly.

The mother and sons sought further review. Upon review, the Supreme Court of Louisiana remanded the case, holding that the correct method of valuation of lost chance of survival in a professional malpractice case is for the fact finder to focus on chance of survival lost on account of malpractice as a distinct compensable injury and to value lost chance as a lump‑sum award based on all evidence in the record, as a is done for any other item of general damages. For medical malpractice in Louisiana, the focus of the court's inquiry after this case is no longer whether the patient had a "reasonable or substantial chance of survival" (e.g. greater than 50%) but whether the patient's chance of survival was diminished in any way because of the physician's negligence (and ultimately, the assessed value of that diminished chance of survival.) [McMenamin]

  Additional Loss‑of‑chance Cases

Hardy v. Southwestern Bell Telephone Co., 910 P.2d 1024 (Okla. 1996).

In wrongful death action against telephone company alleging that its negligence caused the failure of the 911 emergency system and death of heart attack victim, the United States District Court for the Northern District of Oklahoma certified the following question regarding Oklahoma lost chance of survival doctrine:

Does the lost chance of survival doctrine set out in McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okla.1987), and restricted therein to certain limited types of medical malpractice actions, apply in an ordinary negligence case that is not brought against a medical practitioner or hospital?

Answering the question in the negative, the Oklahoma State Supreme Court held that an action for lost chance of survival may not be expanded to apply in an ordinary negligence action brought against one other than medical practitioner or hospital. The "loss of chance doctrine" in Oklahoma holds medical providers liable for negligent treatment which decreased the patient's chance of survival for a better outcome. This is true, even if the adverse result "probably would have occurred anyway." However, under the instant action the same does not hold true outside the narrow arena of medical malpractice. Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995). In medical malpractice action, analysis under Restatement (Second) of Torts ' 323, that one is subject to liability to another for physical harm resulting from failure to exercise reasonable care if failure increases risk of harm, is most consistent with state law, and accepting ' 323 approach does not require separate loss of chance doctrine.

Jones v. Owings, 456 S.E.2d 371 (S.C. 1995).

South Carolina declines to adopt "loss of chance doctrine," pursuant to which recovery may be had in medical malpractice action when delay in proper diagnosis or treatment of medical condition results in patient being deprived of less than even chance of surviving or recovering; rather, the rule continues to be that plaintiff must introduce evidence that defendant's negligence most probably resulted in injuries alleged.

Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993).

There is no Texas common‑law cause of action for lost chance of survival in a medical malpractice case; no liability exists for negligent treatment that decreases patient's chance of avoiding death or other medical conditions in cases where adverse result probably would have occurred anyway.