Potter v. Firestone Tire & Rubber Co.
Facts
Firestone disposed of large quantities of liquid and semiliquid toxic wastes at the Crazy Horse class II landfill, despite being told such wastes were prohibited there and despite internal knowledge and policy regarding proper hazardous waste disposal. Plaintiffs were neighboring landowners whose domestic wells became contaminated with chemicals from the landfill, including benzene and vinyl chloride, and they had prolonged exposure through groundwater consumption. None of the plaintiffs presently had cancer or a precancerous condition, but the trial court found their exposure enhanced their risk of future cancer and other disease. The trial court awarded damages for lifelong fear of cancer, medical monitoring, psychiatric illness, disruption of life, and punitive damages.
Issue
May plaintiffs recover negligence damages for fear of cancer without present physical injury after toxic exposure, and if so under what standard? Are medical monitoring costs recoverable without present injury, can Firestone be liable for intentional infliction of emotional distress under Christensen, and may plaintiffs' smoking reduce emotional distress damages under comparative fault principles?
Rule
In negligence actions arising from toxic exposure, absent present physical injury or illness, fear-of-cancer damages are recoverable only if the plaintiff proves exposure to a toxic substance threatening cancer and that the plaintiff's fear stems from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not the plaintiff will develop cancer due to the exposure. An exception applies if the defendant's conduct amounts to oppression, fraud, or malice under Civil Code section 3294; then the plaintiff need not prove cancer is more likely than not, but must still show a serious, genuine, and reasonable fear based on medically or scientifically corroborated knowledge that the exposure significantly increased the plaintiff's risk and created an actual significant risk of cancer. Medical monitoring costs are recoverable as damages when reliable medical expert testimony shows that future monitoring is a reasonably certain consequence of the toxic exposure and that the recommended monitoring is reasonable, evaluated by the significance and extent of exposure, toxicity, relative increase in disease risk, seriousness of the disease, and clinical value of early detection. Intentional infliction of emotional distress requires extreme and outrageous conduct directed at the plaintiff, or conduct undertaken with knowledge of the plaintiff's presence and a substantial certainty severe emotional injury will result.
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If Lena sues in negligence for emotional distress based on fear of cancer, which result is most consistent with the governing rule?