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WVmImThe Vinyl Institute A Division of The Society of The Plashes Industry. Inc. Wayne Interchange Plaza II 155 Route 46 West Wayne, New Jersey 074 70 Dec. i6. 1988 To: Vinyl Institute Le^al Committee From: Roy T. Gottesman FOR YOUR INFORMATION WALL STREET JOURNAL Dec. lh. 1988 , lLAW Courts Lend Sympathetic Ear to Claims For Compensation Based on Cancer Fears By Paul M. Barkpit Staff Reporter of Tub Wau. STHEt-r Jouhnal Residents of rural Hardeman County, Tenn.. discovered in the late 1970s that their drinking wells had been contami nated with chemicals linked to cancer and other diseases. They blamed the Velslcol Chemical Corp., which had used a site in the area to dump waste from a nearby pes ticide plant. A group, eventually totaling 128 people, sued the company in state court in Harde man County over alleged injuries such as liver and kidney damage. But apart from their physical ailments, the Hardeman County residents also demanded compen sation for their fear of contracting cancer in the future. Until about three years ago, most courts either would have thrown out such claims of anxiety or would have allowed only nominal awards. But in August, a fed eral appeals court in Cincinnati approved the award of a total of $207,000 for "cancerphobia" to five people serving as repre sentatives of the class action. Awards for other class members will be determined by a trial judge if the amounts aren't settled out of court beforehand. Proliferation of Claims Cancerphobia claims are winning in court-and sometimes for big money. Courts in California. New Jersey. Washing ton state and elsewhere are allowing com pensation for people's fear of even minor statistical increases in the likelihood that they will gel sick because of pollution. "There has been a huge proliferation" of such claims la the past two or three years, says Arvln Maskin, a corporate de- , fense lawyer with the New York firm of Weil, Gotshal & Manges. Cancerphobia charges, he adds, "are becoming routine in the big toxic iinjury) cases, and the courts are showing signs of going along." In major cases as recent as the litiga tion in the early 1980s over the Vietnam de foliant Agent Orange and the dioxin con tamination of Times Beach, Mo., plaintiffs' lawyers didn't press claims regarding the fear of getting cancer, says Mr. Maskin. the Justice Department's lead counsel in | those cases. The plaintiffs might have been able to negotiate larger settlements if they had added that theory to their legal at tacks, he says. The new theory creates a potentially massive threat to corporate defendants. A ' single incident of water contamination, for example, could cause hundreds of people to claim fear of disease. This new dimension of possible liability has already begun to affect negotiations between plaintiffs' lawyers and alleged polluters, Mr. Maskin says. In some in stances, companies "arc forced to compro mise lout of court I because of the new risk of a thousand cancerphobia claims." The development comes as courts are accepting a variety of new approaches de- N some instances, companies `are forced to compromise out of court because of the new risk of a thousand cancerphobia claims,' says one attorney. signed to provide compensation for poten tial future illness related to pollution. Other recent examples include successful claims for the cost of medical surveillance after a chemical spill and awards based on doctors' testimony that future ailments are more likely than not to develop. Pressure on courts to expand such the ories is expected to increase as a result of the recent enactment of state and federal "right-to-know" laws. These statutes force companies to disclose the contents of in dustrial emissions in great detail. Lawyers predict that the information will ignite law suits from citizens who hadn't realized what they were breathing or drinking. A main cause of the rise in successful cancerphobia claims is the courts' relax ation of a basic legal rule limiting awards to cases in which victims can prove a physical injury is linked to their fears. Some courts now arc accepting the mere ingestion of hazardous substances-even if no physical harm occurs-as the required injury, while others appear to have dropped the rule altogether. In the Hardeman County case, the ap peals court denied awards for (he plaintills' actual heightened risk ol contracting cancer and other diseases. That increase was found to be 29% to M%. The court ruled that the plaintiffs' fear, however, "clearly constitutes a present injury." James W. Gentry, a lawyer for Velsicol. says the appeals court's decision on can cerphobia "is an enigma to me." He de clines to comment further on the case. James S. Wilder III, lead counsel for those suing Velsicol. however, contends the awards are justified because the com pany's pollution has caused his clients "to be distressed on a daily basis about them selves and their children." Critics of the new legal approach com plain that no matter how slight the risks to plaintiffs, judges are likely to find that plaintiffs' fears were justified if there was any toxic exposure at all. Robert L. Willinore, a lawyer with the Washington, D.C., firm of Arent. Fox, Kintner, Plotkin & Kahn, notes, for exam ple, a 1987 case in Washington stale hi which a federal judge awarded cancerphubin damages of SI,000 to S25.UOO each lu nine plaintiffs for their consumption of well water contaminated by pollution from McCliord Air Force Base. The plaintiffs' emotional distress was reasonable, the judge ruled, even though they weren't "ex posed to any actual risk greater than one in 1,000,000." The real risk, the judge added, "was probably much less, and may be zero." Worried Over Nothing? Some courts have allowed awards even when it turns out there wasn't any need for fear in the first place. In a case now widely cited in other cancerphobia law suits, the Tennessee Supreme Court in laad approved a $2-1,000 cancerphobia award to a four-person family after an exterminat ing company contaminated their water while spraying for termites. The mother, Teresa Laxton. testified (hat the experience "just tore her to pieces" and that she frequently cried Hut none of the Laxtons showed any physical symptoms. Eight months after they first began fearing harm, a family doctor told them that blood tests showed they weren't at risk of becoming ill. The court ruled that the Laxtons' "physical injury" was the unknowing ingestion of possible carcin ogens. and that eight months of worry de served recompense. As is almost always the case wh.-n t judges or juries assign dollar values to | emotional distress, the size of cancerphubia awards can seem arbitrary. In rumrast to the Laxton case, the court in me >uit against Velsicol b.ised its awards on the duration of the plaintiffs' exposure to toxic chemicals, rather than on the duration ol their psychological unease As tn the final amount, "it's absolutely nothing more than a guess,' cumedes the Velsicol plaintiffs' lawyer, Mr Wi :-r