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.

Other federal courts

• CSX Transp., Inc. v. Hensley (2009). Under Norfolk & Western R. Co. v. Ayers, a trial court must, on a defendant's request, instruct the jury in a FELA asbestosis case that fear-of-cancer damages require proof that the fear is genuine and serious. Sufficiency-of-the-evidence review does not replace that instruction.
• Norfolk & Western R. Co. v. Ayers (2003). Under the FELA, a railroad worker who has asbestosis may recover, as part of pain and suffering, for a genuine and serious fear of developing cancer. The FELA does not require apportioning damages among other tortfeasors, so a negligent railroad is liable for the full damages and must seek contribution elsewhere.
• Metro-North Commuter R. Co. v. Buckley (1997). Under FELA, a worker exposed to asbestos who has no symptoms or disease cannot recover for negligently inflicted emotional distress, because mere exposure is not a "physical impact". FELA also does not support an unqualified tort rule of lump-sum medical monitoring damages for an asymptomatic worker.
• Watkins v. Fibreboard Corp. (1993). Under Texas law as stated in Dartez, a plaintiff may recover for mental anguish caused by asbestos exposure even without a present asbestos disease, if the fear is reasonable. Apparently conflicting jury answers are reconciled where possible, and under Rule 49 an omitted causation issue is deemed found consistent with the judgment.
• O'banion v. Owens-Corning Fiberglas Corp. (1992). A court may exclude cancer evidence under Rule 403 in a non-cancer asbestos case when the plaintiff offers no expert testimony of a reasonable medical probability of cancer. Former testimony admitted without a finding of unavailability under Rule 804(b)(1) is error but is not reversible if the party shows no prejudice.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• Howell v. Celotex Corp. (1990). Because medical experts disagreed about whether asbestos-related pleural thickening is an injury, it is not a compensable injury as a matter of law under predicted Pennsylvania law and is a question of fact for the jury. Treating pleural thickening as an injury for limitations purposes does not require treating it as one for liability.
• Herber v. Johns-Manville Corp. (1986). Under New Jersey law, as predicted by the court, a plaintiff with asbestos-caused pleural thickening cannot recover for increased risk of a possible future cancer alone. He can recover the cost of future cancer monitoring and emotional distress from fear of cancer, without proof of a physical manifestation of that fear. Excluding that evidence under Rule 403 was an abuse of discretion.
• Jackson v. Johns-Manville Sales Corp. (1986). Predicting Mississippi law, the court held that punitive damages are available in strict liability and mass tort cases. It also held that a plaintiff who has asbestosis may recover for the reasonable probability of future cancer and for present, reasonable fear of getting cancer.
• Lohrmann v. Pittsburgh Corning Corp. (1986). Under Maryland law, circumstantial proof of substantial-factor causation in a large workplace requires evidence of exposure to a specific product on a regular basis over some extended period in proximity to where the plaintiff worked (the frequency, regularity and proximity test). State-of-the-art evidence is relevant in a strict liability failure-to-warn claim.
• Dartez v. Fibreboard Corp. (1985). Under Texas law, a plaintiff without a medically probable cancer or mesothelioma may still recover for mental anguish from fear of those diseases, though not for their future costs. Evidence of what other asbestos makers knew is relevant to the state of the art, but hearsay and treatise rules still apply, and compliance with OSHA fiber limits can defeat liability for a low-emission product.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Adams v. Johns-Manville Sales Corp. (1984). Under Louisiana law, a cause of action for cancer does not arise from asbestos exposure until cancer manifests, so evidence of increased risk of future cancer is properly excluded. A court need not instruct on future damages for which there is no proof, and a jury's findings with a reasonable evidentiary basis need not be consistent across products.
• Jackson v. Johns-Manville Sales Corp. (1984). A plaintiff with asbestosis cannot recover for, or offer proof of, a probable future cancer, because cancer is a separate disease whose cause of action accrues only when it develops. Under Mississippi law, punitive damages were disallowed in this strict liability asbestos litigation because of the extraordinary circumstances of mass asbestos litigation.

Pennsylvania

• The Continental Insurance Company v. Pennsylvania Electric Company (2024). An insurer must defend the whole suit if any claim in the underlying complaint is potentially covered, and the complaint is read liberally in the insured's favor. A workers' compensation case (Tooey) does not control how a liability policy's employer's liability exclusion is read.
• Zenak v. Police Athletic League OF Philadelphia (2016). There is no right to a jury trial on a claim under the Pennsylvania Whistleblower Law, and submitting such a claim to a jury was prejudicial rather than harmless here. Where an asbestos exposure plaintiff shows no physical injury, emotional distress damages are not recoverable, and the Workers' Compensation Act bars a negligence suit against the employer.
• Daley v. AW Chesterton, Inc. (2009). Under Pennsylvania's Marinari separate disease rule, a plaintiff who earlier sued over asbestosis and lung cancer may bring a new action for mesothelioma, a distinct disease, within two years of its diagnosis. The rule is not limited to one suit for a malignant disease and one for a non-malignant disease.
• McCauley v. Owens-Corning Fiberglas Corp. (1998). Under pre-Giffear Pennsylvania law (Marinari's separate disease rule), a plaintiff whose claim for asymptomatic pleural thickening is time-barred may still bring a timely suit for a separate, distinct asbestos disease such as asbestosis, within two years of discovering it. Simmons applies prospectively, including to limitations questions.
• Sharpless v. Owens-Corning Fiberglas (1997). In a strict-liability asbestos case, the plaintiff's expert must testify with a reasonable degree of medical certainty that asbestos exposure was a substantial contributing factor to the disease. The relaxed 'increased risk of harm' standard does not apply, and pleural thickening or plaques without a discernible physical symptom, functional impairment or disability is not actionable.
• Simmons v. Pacor, Inc. (1996). Asymptomatic pleural thickening without physical impairment is not a compensable injury, so damages for increased risk of cancer and fear of cancer are not recoverable. The plaintiffs may sue later if cancer or impairing disease develops, and medical monitoring costs are recoverable if sought.
• Busfield v. AC & S., Inc. (1994). Under Marinari and Morrison, a plaintiff with a non-malignant asbestos disease cannot recover damages for fear of future cancer in the first suit, and under Giffear asymptomatic pleural thickening gives no cause of action at all.
• DiDio v. Philadelphia Asbestos Corp. (1994). Under Giffear, asymptomatic pleural thickening is not compensable and claims for fear and risk of cancer cannot support recovery where cancer is not present. A bankruptcy filing automatically stays an appeal against the debtor, and a severance of cross-claims makes the judgment on the main claim final and appealable.
• Dempsey v. Pacor, Inc. (1993). Under the separate disease rule adopted in Marinari, a plaintiff with a non-cancerous asbestos condition cannot recover damages for fear of cancer or increased risk of cancer. The rule applies retroactively to cases pending on appeal where the defendants preserved the underlying concerns.
• Giffear v. Johns-Manville Corp. (1993). Asymptomatic pleural thickening, without disabling consequences or manifest physical symptoms, is not a compensable injury and gives no cause of action. Damages for fear or increased risk of cancer are not recoverable where cancer is not present, because of the separate disease rule.
• Higginbotham v. Fibreboard Corp. (1993). Under Pennsylvania's separate disease rule, a plaintiff with a present nonmalignant asbestos condition cannot recover damages for the increased risk of, or fear of, a future cancer or mesothelioma. He may bring a second action if a malignancy develops later.
• Marinari v. Asbestos Corp., Ltd. (1992). Pennsylvania follows a separate-disease rule in asbestos cases: discovery of a nonmalignant asbestos-related condition such as pleural thickening does not start the limitations period for a later, separately diagnosed lung cancer. Asymptomatic pleural thickening is itself an injury that supports a cause of action.
• Taliferro v. Johns-Manville Corp. (1992). An expert may rely on epidemiological studies that do not match the plaintiff's exposure or account for smoking, and such gaps go to the weight of the testimony rather than its sufficiency. Asymptomatic pleural thickening may be a compensable injury, and whether it is one is a jury question.
• Lilley v. Johns-Manville Corp. (1991). A plaintiff can show that a defendant's asbestos product caused his disease through direct and circumstantial evidence, including his own and co-workers' testimony, and not only through medical testimony. Pennsylvania law does not require a de minimis exposure instruction.
• Manzi v. HK Porter Co. (1991). Pleural thickening is not an injury as a matter of law that triggers the limitations period and bars later suits; whether it is a compensable injury is a jury question, so a plaintiff whose jury finds no compensable injury may sue later if he develops a compensable asbestos disease.
• Amader v. Johns-Manville Corp. (1981). Pennsylvania's Sinn v. Burd rule allowing recovery for emotional distress from witnessing injury to another requires a sudden and violent event, so it does not cover distress from the development of an occupational disease. A proposed amendment that fails to state a claim may be denied.
• Tysenn v. Johns-Manville Corp. (1981). Mesothelioma falls within Pennsylvania's Occupational Disease Act, so compensation is the employee's exclusive remedy against his employer, and the intentional-tort exception did not apply on these facts. For the 1975 amendment barring contribution claims against employers, the disease "occurred" when it was or should have been discovered.

Tennessee

• Ingram v. Aetna Cas. and Sur. Co. (1994). Under Tennessee's workers' compensation statutes, an employee with an occupational asbestos disease is entitled to medical benefits for reasonably required care, including periodic monitoring exams, even if not disabled. The limitations period for a disability claim runs only once the employee knows the disease affects his capacity to work to a compensable degree.
• Denton v. Southern Ry. Co. (Eastern Section, 1993). Under FELA, the employee's causation burden is slight and other causes do not reduce recovery against a negligent employer, and a plaintiff with asbestosis may present evidence of reasonable fear of cancer and future cancer-monitoring costs, with federal law governing the measure of damages.
• Daniels v. Combustion Engineering, Inc. (Eastern Section, 1978). A court may exclude evidence of asbestos-related cancers where the plaintiff has only mild asbestosis and no cancer. Prior deposition testimony from different cases with different plaintiffs and no privity is not admissible. A charge on unavoidably unsafe products is proper where the plaintiff's own complaint put failure to warn in issue.

Texas

• Ford Motor Company v. Miller (14th District, 2008). Under Michigan law, as answered by the Michigan Supreme Court, a property owner owed no duty to a household member of an independent contractor's employee for asbestos fibers carried home on clothing, and benign asymptomatic pleural plaques with only an increased future cancer risk is not a present compensable injury.
• Pustejovsky v. Rapid-American Corp. (2000). A person who sues on or settles a claim for a non-malignant asbestos-related disease is not precluded from a later action against another defendant for a distinct malignant asbestos-related condition. The malignant condition is a new cause of action, and limitations runs from when symptoms and the likely work-relatedness of that condition are, or should be, known.
• Temple-Inland Forest Products Corp. v. Carter (1999). A person exposed to asbestos who has no present asbestos-related disease cannot recover mental anguish damages for fear of possibly developing such a disease in the future, even if the fear is reasonable and the exposure is assumed to be a physical injury.
• Carter v. Temple-Inland Forest Products (9th District, 1997). A plaintiff exposed to asbestos may recover mental anguish damages for fear of cancer even if the evidence shows he does not have and probably will not develop cancer, so long as the fear is reasonable; reasonableness is ordinarily a fact question for the jury.

Virginia

• Contreras v. Thor Norfolk Hotel, LLC (2003). Under Virginia law, an asbestos exposure claim requires a diagnosed asbestos-related disease, and emotional distress damages generally require physical injury. A claim for intentional infliction of emotional distress fails where the alleged conduct was not directed specifically at the plaintiff.

Washington

• Koker v. Armstrong Cork, Inc. (1st Division, 1991). Claims from continuous asbestos exposure that occurred before July 26, 1981 'arose' before the 1981 tort reform act, so pre-Act law governs; when the claim accrued is a jury question. A plaintiff with no present cancer cannot recover for increased risk or lost chance of survival, only for a reasonable present fear of cancer.
• Sorenson v. Raymark Industries (2nd Division, 1988). Evidence of increased cancer risk from asbestos exposure is admissible to show the reasonableness of the plaintiff's fear of contracting cancer, which is a compensable damage element. A quotient-style verdict is not juror misconduct where jurors did not agree in advance to be bound by the calculation.

West Virginia

• Amick v. Ohio Power Company (2014). Discovery relevance is broad, but a party may be protected from burdensome inquiry when the anticipated benefit is outweighed by the burden; a topic calling for a legal conclusion about foreseeability is improper, though factual questions on the same subject are allowed.
• Marlin v. Bill Rich Const., Inc. (1996). A political subdivision's immunity for claims 'covered by any workers' compensation law' does not reach claims for fear of contracting an asbestos disease when no compensation benefits would be available because the worker has no present disease. A negligent infliction of emotional distress claim based on fear of disease needs actual exposure, a medically established possibility of the disease, and real and serious distress, but not physical injury.