Fear of Cancer Damages

Fear of cancer damages compensate the emotional distress a person suffers from a reasonable fear of developing cancer because of toxic exposure. In asbestos cases they are usually claimed by people with asbestosis or pleural disease who know they face a higher cancer risk. Whether and when they are allowed depends on state law.

Origin

Courts began considering fear of cancer claims in toxic exposure cases in the 1980s. In 2003, in Norfolk & Western Railway Co. v. Ayers, the U.S. Supreme Court held that railroad workers with asbestosis could recover for genuine and serious fear of cancer under the federal employers' liability law; earlier, in Metro-North Commuter Railroad Co. v. Buckley (1997), it had refused emotional-distress recovery to an exposed worker with no disease.

Significance in Asbestos Context

Living with asbestosis or pleural plaques often means living with worry about mesothelioma or lung cancer, and that fear can be real and lasting. Many states allow it as part of the damages for a present asbestos disease if the fear is genuine, serious and reasonable, often supported by evidence that the person's risk really is increased. Courts are much more cautious when the person has been exposed but has no diagnosed disease: most require a physical injury, and some require proof that cancer is more likely than not. Fear of cancer damages are separate from damages for a cancer that actually develops; under the separate disease rule in most states, a later cancer can still be the subject of its own claim. Testimony from the person, family members and treating doctors usually supports the claim. These damages are part of noneconomic damages and can be subject to state caps.

Example Sentence

The jury awarded him damages for fear of cancer after his pulmonologist testified that his asbestosis increased his risk of lung cancer.

Related Terms

Noneconomic Damages, Medical Monitoring, Asbestosis, Pleural Plaques, Separate Disease Rule, Damage Caps, Unimpaired Claimant

Notes

• Talk honestly with your doctor about worry or anxiety; their records can reflect the real effect on your life.
• Ask your doctor what your actual cancer risk is and what screening makes sense for you.
• Rules differ by state, especially if you have been exposed but have no diagnosis.