Fear of Cancer and Medical Monitoring in Asbestos Cases

Decisions in our library in which the court ruled on fear of cancer: 93 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Many people exposed to asbestos have pleural plaques or no detectable disease, but face a higher risk of cancer. Courts have had to decide whether they can recover anything now, and the rules vary by state and by the kind of claim.

• Nonmalignant claims: some states require proof of physical impairment, by statute or case law, before a claim for asbestosis or pleural disease can proceed, and some place unimpaired claimants on inactive dockets.
• Medical monitoring: a few states allow recovery of the cost of medical monitoring without a present injury, on proof of significant exposure, a serious increased risk, and that monitoring is medically necessary. Many others reject such claims.
• Fear of cancer: states use different tests. Some allow fear-of-cancer damages only alongside a present asbestos disease; others set different requirements.
• FELA: for railroad workers, the U.S. Supreme Court allowed a worker with asbestosis to recover for a genuine and serious fear of cancer (Ayers, 2003), but rejected emotional-distress and medical-monitoring damages for workers exposed without symptoms (Buckley, 1997). See FELA.

In some states a cancer diagnosed later can be brought as a separate claim, with its own deadline, even after an earlier nonmalignant disease. That does not extend the deadline for a disease a person already has; see statute of limitations.

Alabama

• Southern Bakeries, Inc. v. Knipp (2002). Alabama requires a manifest, present injury before a plaintiff can recover in tort, including on fraud and suppression claims. Fear of developing cancer from asbestos exposure, without a physical injury or proof that cancer is likely, is not a legally cognizable present injury on this record.

Arizona

• Burns v. Jaquays Min. Corp. (2nd Division, Dept. A, 1987). Subclinical asbestos-related injury, with no manifest disease or physical injury, is not the actual loss or damage needed for a tort claim, and the statute of limitations does not run until the disease manifests. Fear and enhanced-risk damages therefore fail without bodily injury, but residents may still recover nuisance damages and the cost of reasonably necessary medical surveillance, preferably through a court-supervised fund.
• DeStories v. City of Phoenix (1st Division, Dept. A, 1987). Under Arizona law, exposure to asbestos that creates only an increased risk of future disease, with no present physical harm or medically identifiable effect, is not a compensable injury and does not support damages for emotional distress. Future medical surveillance costs also require evidence that they are reasonably necessary.

Arkansas

• Miller v. Mainard (2015). A § 1983 plaintiff must suffer an actual injury before claiming compensation. A bare allegation of unspecified breathing problems, and the future cost of medical monitoring for asbestos disease, did not state a compensable claim.

California

• Hanson v. Collins Electrical Co. (1st Appellate District, 1st Division, 2016). Under Potter v. Firestone, medical monitoring damages in a negligence action do not require present physical impairment. The question is whether expert evidence shows monitoring is a reasonably certain and reasonable consequence of the toxic exposure.
• Vos v. Calhoon (3rd Appellate District, 2014). An appellant must provide a record that affirmatively shows error, and self-represented parties get no special treatment. Without the operative complaint, the court could not find error in sustaining the demurrer without leave to amend.
• Scott v. Lennar Corporation (1st Appellate District, 2nd Division, 2013). In a toxic tort case, a plaintiff must prove exposure and causation within reasonable medical probability through competent expert testimony. When defendants' expert declarations negate causation, plaintiffs who offer no expert evidence of their own cannot avoid summary judgment.
• Gutierrez v. Cassiar Mining Corp. (1st Appellate District, 2nd Division, 1998). Under Potter, a plaintiff may recover medical monitoring costs only for monitoring additional to or different from what preexisting conditions such as smoking already require, and a defendant is entitled on request to a jury instruction saying so when the evidence supports it.

Colorado

• Miller v. Celotex Corp. (1989). Under Colorado's products liability statute, a claim arises when the plaintiff knows or should know the facts of his injury and its wrongful cause, not when he learns of a specific legal theory such as failure to warn.

Connecticut

• Poce v. O & G Industries, Inc. (2021). The court adopted the trial court's reasoning. Negligence requires an actual injury with some physical component, so claims resting only on asbestos exposure, increased risk and medical monitoring fail. A construction manager whose contract excluded responsibility for hazardous materials and safety control owed no duty to the workers.
• Dougan v. Sikorsky Aircraft Corporation (2020). Even assuming Connecticut recognizes a medical monitoring claim without a present physical injury, each plaintiff must offer individualized expert evidence that monitoring is reasonably necessary. General expert testimony about asbestos risks and conclusory affidavits do not meet that burden.
• Dougan v. Sikorsky Aircraft Corp. (2019). Even assuming Connecticut would recognize a medical monitoring claim without present physical injury and that the Massachusetts Donovan elements apply, each plaintiff must offer individualized expert evidence that monitoring is reasonably necessary. General expert statements about asbestos risk, and conclusory affidavits, do not meet that burden.

Delaware

• Nutt v. AC & S., Inc. (1983). Under Delaware's workmen's compensation exclusivity, an employer's fraud or concealment before the injury is manifested is not separately actionable, and a wife's consortium claim against the employer is derivative and barred too. Wives' mental anguish claims for witnessing a spouse's illness or fearing future asbestos disease, without a traumatic event or physical manifestation, are not cognizable, and fraud must be pleaded with particularity.

Florida

• Brown v. Crews (2015). Under the PLRA, 42 U.S.C. § 1997e(e), a prisoner seeking damages must allege a physical injury beyond de minimis, and asbestos exposure without alleged resulting disease or adverse physical effects does not qualify. Supervisory liability under § 1983 requires personal participation or a causal connection, which conclusory allegations of a widespread custom do not supply.
• Williams v. American Optical Corporation (4th District, 2008). A statute requiring proof of malignancy or physical impairment cannot constitutionally be applied retroactively to defeat asbestos causes of action that had already accrued and were pending, because accrued causes of action are vested rights. The Act was not severable, so it could not be applied to these claimants at all.
• Eagle-Picher Industries, Inc. v. Cox (3rd District, 1985). A plaintiff with asbestosis cannot recover damages for an enhanced risk of future cancer, but keeps the right to sue later if cancer develops, and that later suit is not barred by the rule against splitting causes of action. Evidence of the cancer risk is admissible to prove present fear-of-cancer distress, because inhaling asbestos counts as a physical impact and asbestosis supplies the required physical injury.

Illinois

• Betts v. Manville Personal Injury Trust (4th District, 1992). A new trial was required because of plaintiffs' counsel's prejudicial tactics, an undisclosed expert, speculative cancer-risk evidence, evidence from another plant not shown to be similar, and over-broad collateral estoppel against Grefco. A prior finding fixing when a plaintiff learned of her injury can bar a later suit on limitations grounds, and a plaintiff who gets no allocation of an earlier settlement bears the burden on the setoff.
• Wehmeier v. Unr Industries, Inc. (4th District, 1991). In asbestos cases Illinois courts apply the Lohrmann frequency, regularity and proximity test for causation. Expert fiber-drift evidence can establish the proximity prong but cannot alone support an inference of causation.

Indiana

• Hostetler v. Johnson Controls, Inc. (2021). A trespass claim over asbestos fails where there is no evidence that the debris moved actually contained asbestos or that asbestos reached the plaintiffs' homes, because a jury would have to speculate. Under Indiana's modified impact rule, plaintiffs without a manifest injury cannot recover for fear of future illness without admissible evidence of increased health risk.
• Hostetler v. Johnson Controls, Inc. (2020). Experts opining on an individual's increased risk of future harm cannot rely on exceedance of regulatory values or a no-safe-dose theory without a reliable basis tied to that person's actual dose and duration of exposure. Such opinions do not satisfy Rule 702.
• Castor v. US (1995). The Bureau of Prisons' decisions on how to manage asbestos-containing material in a prison involve judgment grounded in public policy, so the FTCA's discretionary function exception bars the claims and the court lacks jurisdiction.

Iowa

• Beeman v. Manville Corp. Asbestos Fund (1993). Evidence of cancer risk from asbestos is admissible to show a manufacturer's duty to warn and the reasonableness of a plaintiff's fear of cancer, and proof of exposure plus cumulative-effect expert testimony can create a jury question on proximate cause. Knowledge sufficient to trigger a duty to warn does not by itself support punitive damages, and Iowa law does not allow a separate award for lost opportunity to live out a full life expectancy.

Kentucky

• Combs v. Albert Kahn Associates, Inc. (2006). Under Kentucky's one-disease approach, a plaintiff with asbestosis who already sued and claimed increased cancer risk must sue within one year of the first diagnosis; Carroll's later-accrual rule for lung cancer is a narrow exception that did not apply here.
• Carroll v. Owens-Corning Fiberglas Corp. (2000). Asbestosis and lung cancer are separate and distinct diseases, so a cause of action for lung cancer accrues on the date of the cancer diagnosis rather than the earlier asbestosis diagnosis.
• Capital Holding Corp. v. Bailey (1994). A negligence claim for asbestos exposure does not accrue, and no damages for increased risk or fear of cancer are available, until the plaintiff shows some harmful result from the exposure. The tort of outrageous conduct is intentional, needs no physical contact or injury, and a failure to comply strictly with the prehearing statement rule (CR 76.03) is not grounds to withdraw a decided issue.
• Michals v. William T. Watkins Meth. Church (1994). Under Kentucky law, mental distress damages in negligence require some physical contact with the plaintiff, and a claim for increased risk of future disease cannot be maintained without a present physical injury or proof that the harm is probable rather than speculative. KRS 446.070 creates a cause of action but does not set the measure of damages.

Louisiana

• Bonnette v. Conoco, Inc. (2003). Louisiana law does not allow compensatory damages for a slightly increased risk of future asbestos disease on less proof than medical monitoring requires. Emotional distress damages without manifest physical injury require proof of a particular likelihood of genuine and serious mental distress. Punitive damages under former art. 2315.3 require wanton or reckless conduct.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Crooks v. Metropolitan Life Ins. Co. (3rd Circuit, 2001). Louisiana's 1999 amendment to Civil Code art. 2315, which barred damages for future medical monitoring absent a manifest injury, changed substantive law, so it could not be applied retroactively to deprive plaintiffs of vested rights in a suit filed before its enactment.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Lilley v. Board OF Sup'rs OF State Univ. (3rd Circuit, 1999). A defendant that knows a building contains asbestos and lets people work there without warning them owes a duty to warn, and mental anguish damages can be awarded for asbestos exposure without proven physical injury. Medical monitoring costs require a significantly increased risk of serious latent disease, and a slight increase does not meet that test.
• Asbestos v. Bordelon, Inc. (4th Circuit, 1998). Where significant asbestos exposure occurred before the Louisiana Products Liability Act, pre-Act law governs, including strict liability for products unreasonably dangerous per se, by design or for failure to warn, and pre-comparative-fault virile share rules. A manufacturer is liable only if plaintiffs show frequent, regular exposure to its product, and prescription runs from the time a plaintiff has actual or constructive knowledge of an asbestos-related injury.

Maine

• In re Moorenovich (1986). Predicting Maine law, the court held that fear of cancer is a recoverable element of damages for present anxiety in asbestos exposure cases. The anxiety must be reasonable and proximately caused by exposure for which the defendants are legally responsible.

Maryland

• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Smith v. Bethlehem Steel Corp. (1985). The second paragraph of § 58 tolls limitations only during the two months after a compensation award when the employer alone may sue a third party, not from accrual until an award. Under Pierce, a claim for a latent cancer medically separate and distinct from asbestosis accrues on discovery of the cancer, even if the worker has already sued in tort for asbestosis.

Michigan

• Pyscher v. US (2017). Under Michigan law, which applies to an FTCA claim, both negligence and medical malpractice require an actual present injury, and exposure, increased risk or emotional distress without physical harm is not enough. The FTCA's six-month limit after denial of the administrative claim also barred any refiling.

Mississippi

• Brooks v. Stone Architecture (2006). Under Mississippi law, a claim for emotional distress from fear of future illness, brought before any disease appears, requires substantial exposure and medical or scientific evidence giving a rational basis for the fear. The plaintiffs' expert evidence was unreliable and could not supply that basis.

New Jersey

• Sarkozy v. AP Green Industries, Inc. (2008). A jury's damages award stands unless it is so disproportionate that it shocks the judicial conscience. Wrongful death damages for a parent's lost guidance need no proof of dollar value, and an asbestos plaintiff with a manifest injury may recover medical monitoring costs. Evidentiary and summation errors that did not prejudice the defendant are harmless.
• In re GI Holdings, Inc. (2005). Asbestos personal injury claimants hold Seventh Amendment and statutory jury trial rights that a § 502(c) estimation for distribution cannot strip, so a matrix that finally liquidates claims without a jury is rejected; the court may estimate aggregate liability and decide the legal validity of claims.
• Mauro v. Raymark Industries, Inc. (1989). A plaintiff with a present asbestos-related injury cannot recover damages for an enhanced risk of future cancer unless the cancer is reasonably medically probable. Medical surveillance costs and emotional distress damages remain recoverable, and a later suit is allowed if cancer develops.
• Devlin v. Johns-Manville Corp. (Law Division, 1985). A person with asbestosis cannot recover damages for an enhanced risk of cancer alone when cancer cannot be shown to be reasonably probable. Emotional distress from that risk and the cost of medical monitoring are recoverable, and asbestosis and later cancer are separate diseases, so a later cancer claim is not barred.

New York

• Connor v. Brann (2018). Under the Prison Litigation Reform Act, a prisoner cannot recover for mental or emotional injury without a prior showing of physical injury. A § 1983 plaintiff must plead each defendant's personal involvement to hold that defendant individually liable. A prisoner's transfer out of the facility generally moots claims for injunctive relief.
• Crawford v. Artuz (2001). A prisoner claiming exposure to friable asbestos under the Eighth Amendment must show a present injury or an unreasonable risk of serious future harm. Where uncontradicted medical evidence shows no asbestos-related injury and only trivial exposure, no reasonable jury could find for the prisoner.
• Buckley v. Metro-North Commuter RR (1996). Under FELA, a jury could find that a worker with massive, prolonged asbestos exposure suffered a physical impact that supports a negligent infliction of emotional distress claim, even without clinical signs of disease. The cost of reasonably necessary future medical monitoring is also recoverable as damages.
• Rittenhouse v. St. Regis Hotel Joint Venture (1st Dept., 1992). Sanctions under CPLR 8303-a require a finding that the action was commenced frivolously or in bad faith, and the record did not support that finding. Summary judgment was proper where objective testing showed no physical manifestation of asbestos contamination.
• Campo v. Asbestospray Corp. (1st Dept., 1990). Plaintiffs with only minor asbestos-related conditions who disclaim recovery for present injuries and seek to preserve claims for possible future serious disease are asking for an advisory opinion. The one-year revival statute is a condition precedent that cannot be tolled.

Ohio

• Perry v. Dept. OF Rehab. & Corr. (10th Appellate District, 2013). A claim for negligent infliction of emotional distress requires severe and debilitating distress, and intentional infliction requires extreme and outrageous conduct and serious anguish. An inmate's general fear of cancer from asbestos exposure, with no disease, did not meet these requirements.
• Lavelle v. Owens-Corning Fiberglas Corp. (1987). A plaintiff with asbestosis but no cancer cannot present evidence of increased risk of cancer because it is speculative, but may present evidence of reasonable fear of developing cancer as a claim of serious emotional distress.

Oregon

• IN the Matter of Compensation OF Solberg (2007). An occupational 'disease' under ORS 656.802 requires some impairment of the normal state of the body or a condition of illness; asymptomatic pleural plaques causing no impairment of function do not qualify.
• Brown v. Saif (1986). Exposure to asbestos at work is not by itself a compensable "injury" under Oregon's workers' compensation law; a claimant must show actual physical or mental harm, not just the possibility of future disease.