Law and the Fear of Cancer

Increasingly, plaintiffs are seeking damages for emotional distress engendered by a fear of contracting cancer. Only a few jurisdictions have established prima facie standards for this complex cause of action. In arriving at them, courts have been challenged with the task of balancing competing public policy interests.

Potter v. Firestone Tire and Rubber Co., a Supreme Court of California decision, and Exxon Mobil Corp. v. Albright, a Maryland Court of Appeals decision, present two significant precedents for proving a prima facie case of fear of cancer.

Potter set the seminal standard by requiring proof that the plaintiff was exposed to a toxic substance which threatens cancer, and that the plaintiff’s fear stems from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that he or she will develop cancer due to the toxic exposure. The court specifically rejected the argument that an exposure is enough to recover fear of cancer damages.

The Albright case set the most recent standard, in 2013. The court ruled that a plaintiff must show that he was exposed to a toxic substance due to the defendant’s tortious conduct; which led him to fear objectively and reasonably that he would contract a disease; and that as a result of that fear he manifested a “physical injury.” The only plaintiff that prevailed in Albright manifested depression, anxiety, headaches, and nausea – attributed in expert testimony to the defendant’s tortious conduct.