The Uninjured Plaintiff: New Frontiers of Liability · The Restatement (Second) of Torts de- ... harm” as set out in the Restatement (Sec-ond). It remains the case that an injury

IADC member Thomas E. Peisch ismanaging partner of Conn KavanughRosenthal Peisch & Ford, LLP, in Boston,where his practice is concentrated in com-mercial and tort litigation. He is a gradu-ate of Dartmouth College (B.A. 1970) andBoston College Law School (J.D. 1974).

Johanna L. Matloff, an associate in thefirm, practices in the area of civil litiga-tion. She earned her B.A. at the Universityof Pennsylvania in 1998 and her J.D. fromSuffolk University Law School in 2002.

The Uninjured Plaintiff:New Frontiers of Liability

Defense counsel must prepare for tort claims based on theories that arenot part of the traditional history and requirements of tort law

By Thomas E. Peisch andBy Johanna L. Matloff

IT HAS long been a fundamental tenet ofAmerican tort law that a cause of action

requires an injury. In recent years, how-ever, many courts have loosened this re-quirement significantly, so that a host ofcauses of action are recognized now in theabsence of a quantifiable injury. Specula-tive or even phantom “harms” now canform the basis of protracted and expensivelitigation. No manufacturer, insurer or pro-fessional service provider can ignore thisunfortunate trend, which must be examinedso as to alert defense practitioners as topossible defense theories.

PRECEDENTS

A. Injury and Harm

The English word “tort” derives fromthe Latin word “tortus,” meaning “twisted,”and the French word “tort,” meaning “in-jury or wrong.” In essence, the purpose oftort law is to make an injured party whole.Thus, tort law imposes duties on individu-als to prevent the injury of others.1

The Restatement (Second) of Torts de-fined the terms “injury,” “harm” and“physical injury” in accordance with thecommon understanding of those terms. Ac-cording to Sections 7(1), 7(2) and 7(3) ofthe Restatement (Second), “injury” denotes

“the invasion of any legally protected inter-est of another.” “Harm” is defined liberallyas “the existence of loss or detriment infact of any kind to a person resulting fromany cause.” “Physical harm” means then“physical impairment of the human body,or of land or chattels.”

In 2001, the American Law Institutesought to clarify the definition of “physicalharm” in Section 4 of Tentative Draft No.1 of the Restatement (Third) of Torts, “Li-ability for Physical Harm,” by adding thesentence, “The physical impairment of thehuman body includes physical illness, dis-ease, and death.” However, from Commenta to that section, it does not appear that theALI intended any significant change in thetraditional understanding of “physicalharm” as set out in the Restatement (Sec-ond). It remains the case that an injury re-sults from the infliction of some harm,even though an injury may result absentany harm.

A “harmless” injury, however, is action-able only because the law recognizes andpermits a cause of action. For example, aplaintiff is “injured” under the commonlaw when a defendant trespasses on the

1. JOHN W. WADE ET AL., PROSSER, WADE ANDSCHWARTZ’S CASES AND MATERIALS ON TORTS 1(9th ed. 1994); Restatement (Second) of Torts § 4(1965). See Restatement (Third) of Torts: Liabilityfor Physical Harm § 6 (Tentative Draft No. 2) (2002)(“An actor has a duty to exercise reasonable carewhen the actor’s conduct poses a risk of physicalharm.”)

Page 263The Uninjured Plaintiff: New Frontiers of Liability

plaintiff’s property. The law allows theplaintiff to recover, even if the defendant’sintrusion is “beneficial, or so transitory thatit constitutes no interference with or detri-ment to the land or its beneficial enjoy-ment,” to quote Comment a to Section 7 ofthe Restatement (Second).2 Conversely, aharm may exist without a legal injury orthe invasion of a legally protected interest.For example, when a friend or familymember dies of natural causes, there is nolegally protected injury despite the loss.3

To maintain a cause of action in tort, aplaintiff usually must prove that a defen-dant invaded the plaintiff’s legally pro-tected interest, and that this resulted inharm to the plaintiff. According to Com-ment d to Section 7 of the Restatement(Second), emotional distress alone is notactionable unless there are physical conse-quences. Usually the plaintiff also mustshow that the resulting harm is not remote,speculative, hypothetical or uncertain.4

Nevertheless, recent trends have allowedplaintiffs to expand the Restatement (Sec-ond) definition of “harm” to cover injuriesthat are speculative or that exist only in theminds of those claiming them. Allowingplaintiffs to relax or eliminate the burdenof proving actual injury and harm rendersmeaningless the singular purpose of tortlaw: to make whole a plaintiff who has sus-tained an actual injury.

B. Actual Injury Requirement

Traditionally, there was no cause of ac-tion in tort unless there was actual loss ordamage resulting to the interests of an-other. For example, the Fifth Circuit has

stated, “While the sale of a defective prod-uct creates a potential for liability, the lawgrants no cause of action for inchoatewrongs.”5 In addition, the majority ofcourts has required a showing of physicalharm before allowing recovery for emo-tional distress, even when that distress re-sults from an increased likelihood that theplaintiff will suffer serious future disease.6

Historically, courts have held fast to theactual injury requirement, allowing plain-tiffs to use the civil action to recover onlyfor harm done.7

An actual injury requirement also hasbeen embedded in most statutes of limita-tion, which generally do not begin to rununtil the plaintiff has sustained an actualinjury or has become aware of an actualinjury. Otherwise, plaintiffs would be re-quired to file suit before knowledge that aninjury has arisen. Without that injury re-quirement, defendants would not knowwhether a plaintiff has based a claim onreal injury or has brought a pre-emptivesuit to preserve the right to sue in the fu-ture.8 Therefore, the actual injury require-ment has prevented fraudulent, vexatiousand pre-emptive lawsuits.9

The origin of the actual injury require-ment also is rooted in the concept of stand-ing. For example, in order to bring claimsarising under the U.S. Constitution or fed-eral law, a plaintiff must establish standing.To do that, according to the U.S. SupremeCourt in Lujan v. Defenders of Wildlife, aplaintiff first must show an “injury in fact,”described as an “invasion of a legally pro-tected interest, which is (a) concrete andparticularized . . . and (b) actual or immi-

F.2d 1129, 1136 (5th Cir. 1985); See also In reStarLink Corn Prods. Liab. Litig., 212 F.Supp.2d828, 839 (N.D. Ill. 2002); Restatement § 907 cmt. a(recognizing nominal damages in certain cases).

6. Payton v. Abbott Labs., 437 N.E.2d 171, 174-81 (Mass. 1982). See also Restatement (Third) § 4cmt. b (Tentative Draft No. 1) (2001).

7. Wade, supra note 1, at 4.8. See Donald L. DeVries & Ian Gallacher, Medi-

cal Monitoring in Drug and Medical Device Cases:Taking the Temperature of a New Theory, 68 DEF.COUNS. J. 163, 169 (April 2001) (discussing func-tion of statutes of limitations).

9. Payton, 437 N.E.2d at 175, 178-80.

2. See also Wade, supra note 1, at 4 (discussinghistory of trespass).

3. Restatement (Second) § 7 cmt. a and cmt. d.4. See, e.g., Bond Pharmacy Inc. v. City of

Cambridge, 156 N.E.2d 34, 37-38 (Mass. 1959);Kitner v. CTW Transport Inc., 762 N.E.2d 867, 874(Mass.App. (2002). See also Restatement (Second)§ 7 cmt. b (harm should be particular and specified);Tory A. Weigand, Loss of Chance in Medical Mal-practice: The Need for Caution, 87 MASS. L. REV. 1,3 (Summer 2002), quoting W. PAGE KEETON ET AL.,PROSSER & KEETON ON THE LAW OF TORTS (5th ed.1984)).

5. Gideon v. Johns-Manville Sales Corp., 761

Page 264 DEFENSE COUNSEL JOURNAL—July 2004

nent, not ‘conjectural’ or ‘hypothetical.’”Second, there must be a “casual connectionbetween the injury and the conduct com-plained of.” That is, the injury has to be“fairly traceable” to the defendant’s con-duct. Third, it must be likely that the courtwill be able to redress the injury by a fa-vorable decision.10

The actual injury requirement also isconsistent with the definition of harm inSection 4 of the Tentative Draft No. 1 ofthe Restatement (Third). Comment b tothat section observes that a physical changeto a person’s body or property must be“detrimental” for physical harm to result.For example, the Reporter’s Note states,the fact that a person’s skin color changesto bronze on exposure to the sun does not“in the absence of any detriment, count asphysical harm.”

Thus, the actual injury requirement hasbeen firmly rooted in our jurisprudence andis based on traditional definitions of tortliability, limitations of action and legalstanding.

C. Exceptions

While the common law precedent hasheld fast to the actual injury requirement,there have been a few notable exceptions.11

First, Section 907 of the Restatement(Second) recognizes so-called nominalcauses of action, where the harm to theplaintiff is either nonexistent or insignifi-cant, or where compensatory damages arespeculative. In such cases, a court mayaward nominal damages or an insignificantsum of money. Second, a court may awardnominal damages where harm is not a pre-requisite, such as in actions for trespass,

breach of duty by a public officer or inter-ference with a right to vote or hold publicoffice.

Trespass to land is another exceptionrecognized in the common law’s early pre-cedents. The action in trespass was origi-nally criminal in nature, and the king usedthe action to punish “forcible breaches ofthe king’s peace.” A guilty defendant wasimprisoned or fined and held responsiblefor paying damages to the plaintiff. Al-though the criminal aspect of trespass dis-appeared at the end of the 17th century, thecourts continued to allow the action, eventhough the plaintiff suffered no real injury.However, courts were “disinclined to ex-tend the scope of trespass beyond the exist-ing precedents perhaps because of the be-lief that . . . the civil action should be usedonly to compensate for harm done.”

Other exceptions to the actual injury re-quirement include actions for assault, of-fensive but harmless battery, and false im-prisonment.12

Although the general concept of “harm”centers on the physical, courts and the Re-statement (Second) have recognized recov-ery for emotional and mental distress.13

The majority of these courts, however, re-quire the plaintiff to prove some type ofphysical harm is linked to the distress be-fore allowing recovery.14 Proof of physicalharm provides a type of guarantee that thedistress is genuine. Pure emotional harm,on the other hand, is not necessarily quanti-fiable.15 Nevertheless, some courts havebegun to accept the idea that fear of futureharm or disease may be actionable despitethe absence of an actual injury. They re-quire a showing that the fear is reasonableor reliable.16

10. 504 U.S. 555, 560 (1992).11. See, e.g., Carey v. Piphus, 435 U.S. 247, 266

(1978) (recognizing action for deprivation of “abso-lute” rights without proof of actual injury; nominaldamages appropriate for violation of due processrights in absence of actual injury).

12. Wade, supra note 1, at 3, 4.13. See Restatement (Second) § 7 cmt. b and

§§ 436-436A.14. Simmons v. Murray, 674 A.2d 232, 238 (Pa.

1996) (asbestos-related pleural thickening is not suf-ficient physical injury to warrant recovery of emo-

tional distress); Payton, 437 N.E.2d at 175 & n.5(supporting majority of courts that requires physicalharm before allowing recovery for emotional dis-tress). See also Restatement (Second) § 436A (no re-covery for emotional distress without physicalharm).

15. Payton, 437 N.E.2d at 178-79 (discussing ra-tionale for requiring proof of physical harm).

16. Day v. NLO, 851 F.Supp. 869, 878 (S.D.Ohio 1994) (recognizing recovery for emotional dis-tress in form of fear of cancer, provided fear is rea-sonable); Potter v. Firestone Tire and Rubber Co.,


CRACKS IN THE DAM

A. Erosion of Present Physical InjuryRequirement

The erosion of the actual injury require-ment appears to have begun in the early1900s as the United States became moreindustrialized. New and innovative prod-ucts were entering the market, but alongwith innovation came new types of harm.New products and new harms ultimatelygave rise to what has become known asproducts liability law.

One particular line of cases involved softdrink bottles that were contaminated with aforeign and unexpected object. In theseprecursors to modern-day products liabilitydecisions, the plaintiffs recovered damageseven though their actual injury was mini-mal. A paradigmatic case is Boyd v. Coca-Cola Bottling Works, a 1915 TennesseeSupreme Court case in which “a lady indelicate health” (to use the court’s descrip-tion) drank a portion of a Coca Cola from abottle that was contaminated with a cigarstub and immediately became “intenselynauseated.” The court held that the defen-dant, Coca-Cola Bottling Works, was li-able, although the lady’s injuries wereminimal.17

As early as 1961, a New York court inBattalla v. New York18 allowed a minorplaintiff to recover for mental distress andanxiety arising from the defendant’s negli-gence, although the plaintiff could notdemonstrate a present physical injury. Astate employee had failed to secure theplaintiff properly in a state-run chair lift

before allowing her to descend to the bot-tom of a mountain. The plaintiff rode thechair all the way to the base without anysafety belt and with the guard rail wideopen. As a result, she became frightenedand hysterical but suffered no physical in-juries. The court awarded damages, despitethe absence of any proof of physical harm,because it was satisfied that the minor’s al-leged distress was genuine.

More recently, other courts have allowedplaintiffs to recover for mental distress oranxiety arising from exposure to toxic sub-stances, although they could not demon-strate present physical injuries. In Laxton v.Orkin Exterminating Co.,19 the defendantexterminating company contaminated theplaintiffs’ household water supply, whichwas located 15 to 20 feet away from theirhome. About nine months later, notwith-standing Orkin’s assurances that the watersupply was safe, the plaintiffs discoveredthat the water was contaminated with apossible carcinogen. Blood tests, however,revealed no abnormalities or illnesses inany of the plaintiffs. Nevertheless, the Ten-nessee Supreme Court held that the inges-tion of a harmful substance is a “sufficientphysical injury to support an award formental anguish even if subsequent medicaldiagnosis fails to reveal any other physicalinjury.”

Some courts have permitted “uninjured”plaintiffs to recover for mental distressarising from a fear that they will developcancer because of exposure to toxic orother contaminants.20 They allow recoveryfor “cancerphobia” if plaintiffs prove their

863 P.2d 1553 (Cal. 1993) (recovery for fear of can-cer as long as fear is corroborated by reliable medi-cal testimony).

17. 177 S.W. 80 (Tenn. 1915). Two later Tennes-see cases are Roddy Mfg. Co. v. Cox, 7 Tenn.App.147 (Tenn.App. 1927), available at 1927 WL 2265(awarding damages to plaintiff who consumed softdrink contaminated with dead mouse), and Ford v.Roddy Mfg. Co., 448 S.W.2d 433 (Tenn.App. 1969)(awarding damages for nauseated plaintiff whodrank Coca Cola contaminated with insects).

18. 200 N.Y.S.2d 852, 852-53 (App.Div. 3dDep’t 1960), rev’d, 176 N.E.2d 729, 730-32 (N.Y.1961).

19. 639 S.W.2d 431, 434 (Tenn. 1982). See alsoWetherill v. Univ. of Chicago, 565 F.Supp. 1553,

1560 (N.D. Ill. 1983).20. See, e.g., Hagerty v. L & L Marine Servs.

Inc., 788 F.2d 315, 318-19 (5th Cir. 1986) (recoveryfor cancerphobia where plaintiff was doused withtoxic chemicals and no physical injury was appar-ent); Day, 851 F.Supp. at 878 (exposure to radiationconstituted physical injury for purposes of recover-ing for mental distress); Wetherill, 565 F.Supp. at1559-560 (recovery for fear of cancer where plain-tiffs were exposed to toxic drug prior to birth, al-though they could not demonstrate present physicalinjury); Potter, 863 P.2d at 808-10 (discarding physi-cal injury requirement in favor of “guarantee ofgenuineness” of mental distress);. See generally Gre-gory G. Sarno, Annotation, Infliction of EmotionalDistress: Toxic Exposure, 6 A.L.R.5th 162 (1992).


fear of developing cancer is reasonable.Some courts have awarded damages to per-sons suffering from asbestosis, a non-cancerous scarring of the lungs caused byasbestos fibers, where medical evidencesupported claims that cancer likely woulddevelop in the future.21 Under the FederalEmployers’ Liability Act, asbestosis is asufficient injury to warrant recovery ofdamages for mental distress arising fromthe fear of developing cancer.22 Other courtshave refused damages to compensate plain-tiffs for their fear of cancer unless they canshow a sufficient physical injury.23

To complicate the issue further, fear-re-lated recovery poses an issue with respectto the traditional rule against claim-split-ting. Some courts, while denying claims byasbestos plaintiffs for damages based onthe fear of developing cancer, have al-lowed these plaintiffs to bring claims oncethe cancer has developed.24 Other courtshave allowed plaintiffs to recover fear-re-lated damages but have barred a subse-quent action for the actual injury ongrounds of claim splitting.25

B. Loss of Chance

Another troubling and recently devel-oped theory of liability in the medical mal-practice area is called “loss of chance.”The loss of chance doctrine applies incases of terminal illness and allows anaward of damages to compensate for a neg-ligence-caused reduction in the plaintiff’schance of survival.26 In other words, undera loss of chance theory, plaintiffs can re-cover, even though they likely would notsurvive irrespective of the defendant’s neg-ligence.27 The loss of chance theory relaxesand erodes established tort principles thatrequire plaintiffs to prove that a defen-dant’s alleged negligence more likely thannot caused the plaintiff’s injury.28

Loss of chance cases may be categorizedinto at least three rough groups. In the first,plaintiffs are permitted to recover for a re-duction in the chance of survival where (1)there was a “substantial chance” that theywould survive, and (2) the defendant’snegligence was a “substantial factor” in theplaintiff’s failure to survive.29

21. Jackson v. Johns-Manville Sales Corp., 781F.2d 394, 411-15 (5th Cir. 1986) (recovery whereplaintiff established 50 percent chance that cancerwould develop); In re Asbestos Litig., 679 F.Supp.1096, 1100 (S.D. Fla.1987) (recovery for distressbased on evidence of increased risk of cancer);Lilley v. Bd. of Supervisors of Louisiana StateUniv., 735 So.2d 696, 702-03 (La.App. 1999) (re-covery may be had for mental distress where distressis genuine); Peterson v. Owens-Corning FiberglasCorp., 50 Cal.Rptr.2d 902, 910 (Cal.App. 1996) (re-covery where there is reasonable degree of medicalcertainty that physiological change will result in can-cer), review granted and opinion superseded, 918P.2d 997 (Cal. 1996).

See also Stephen J. Carroll, Deborah Hensler etal., Interim Report, Asbestos Litigation Costs andCompensation 16-17 (Rand Institute for Civil Jus-tice, 2002).

22. Norfolk & W. Ry. Co. v. Ayers, 538 U.S.135, 141-42 (2003) (workers suffering from asbesto-sis may recover for “related negligently caused emo-tional distress”); Metro-North Commuter RailroadCo. v. Buckley, 521 U.S. 424 (1997), rev’g and re-manding 79 F.3d 1337 (2d Cir. 1996). See alsoHerber v. Johns-Manville Corp., 785 F.2d 79, 85 (3dCir. 1986) (asbestosis or pleural thickening is suffi-cient physical injury to justify award for distressdamages).

23. See, e.g., Simmons v. Murray, 674 A.2d 232,238 (Pa. 1996) (asbestos related pleural thickeningor calcified tissue on the lung membranes not suffi-

cient injury to give rise to fear-related distress dam-ages); Burns v. Jaquays Mining Corp., 752 P.2d 28,31-32 (Ariz.App. 1987) (psychosomatic injuries aris-ing from asbestos exposure not sufficient to sustaincause of action for emotional distress); Busfield v.A.C. & S. Inc., 643 A.2d 1095, 1096-97 (Pa.Super.1994) (damages based on fear of cancer not recover-able). See generally Restatement (Third) § 4,Reporter’s Note to cmt. b (discussing cases involv-ing recovery for physical and emotional injuries).

24. See, e.g., Simmons v. Pacor Inc., 674 A.2d232, 237-39 (Pa. 1996) (asbestosis plaintiff does notrecover for distress damages, but may bring futureclaim should cancer develop).

25. See, e.g., Gideon, 761 F.2d at 1136-137 (as-bestosis plaintiff recovers distress damages but maynot seek damages for later developing injuries insubsequent lawsuit).

26. See Weigand, supra note 4, at 3 (discussingloss of chance theory); Lisa Perrochet, Sandra Smithet al., Lost Chance Recovery and the Folly of Ex-panding Medical Malpractice Liability, 27 TORT &INS. L.J. 615 (1992) (same).

27. Roberts v. Ohio Permanente Med. GroupInc., 668 N.E.2d 480, 482-85 (Ohio 1996).

28. Crosby v. United States, 48 F.Supp.2d 924,926 (D. Alaska 1999).

29. Crosby, 48 F.Supp.2d, at 926. See Hicks v.United States, 368 F.2d 626, 632 (4th Cir. 1966)(recovery for lost chance where chance of survivalwas substantial).


A second group of cases finds support inSection 323 of the Restatement (Second),entitled “Negligent Performance of Under-taking to Render Services,” which providesin pertinent part:

One who undertakes, gratuitously or forconsideration, to render services to anotherwhich he should recognize as necessary forthe protection of the other’s person orthings, is subject to liability to the other forphysical harm resulting from his failure toexercise reasonable care to perform his un-dertaking, if

(a) his failure to exercise such care in-creases the risk of such harm. . . .

Under this formulation, a defendant maybe liable to a plaintiff for physical harmresulting from the defendant’s negligenceif the defendant’s services were necessaryfor the protection of the plaintiff and thedefendant’s negligence increased the riskof harm to the plaintiff. Courts that followthis theory have held that a jury, as op-posed to a medical expert, may decide theissue of causation, once a plaintiff hasshown that the defendant increased the riskof harm.30

The third group of cases recognizes whathas been called a “pure loss of chance”theory of recovery,31 under which a plain-tiff may recover for the loss of chance it-self, regardless of the cause of the plain-tiff’s ultimate injury. A claimant with lessthan an even chance of survival could re-cover damages only for the lost chance ofsurvival, on a showing that the defendant’snegligence reduced this chance of survivalby any amount.32

The policy arguments in favor of recog-nizing a loss of chance action emphasizethe precious nature of human life. Propo-nents make several arguments. First, thatany measurable reduction in the plaintiff’schance of survival should be compensable.Second, that a loss of chance action shouldbe recognized because acts of negligencethat harm patients with poor prognosesshould not go ignored. Third, that physi-cians and other health care providersshould be encouraged to treat patients ag-gressively, even in difficult cases. Fourth,that permitting loss of chance recovery will

eliminate the need for experts to parse sur-vival statistics. Finally, that negligenthealth care providers should not be allowedto take advantage of clinical uncertain-ties.33

The defense bar has been rightly hostileto the loss of chance doctrine to the extentthat it imposes liability on defendants forharm that more likely than not would occuranyway. Defense counsel also argueagainst recognition of a loss of chancecause of action on the ground that there aremany correct clinical approaches to medi-cal treatment, all of which may be clini-cally appropriate. Health care providersshould not be subjected to lawsuits simplybecause they might have tried a differentcourse of treatment, with possibly betterresults, and they should not be under pres-sure to practice medicine defensively at asubstantially higher cost. The loss ofchance doctrine conflicts with many com-parative negligence statutes that bar recov-ery if a plaintiff is greater than 50 percentat fault, or has less than a 50 percentchance of survival in any event. Finally,opponents point out that the tort systemwas never intended to compensate for ev-ery injury, and that only the legislativebranch of government should effect such adramatic change in the system.34

In sum, the loss of chance doctrine sig-nificantly relaxes a plaintiff’s burden ofproof as to causation in medical malprac-tice cases. While traditional tort principlesrequire the plaintiff to prove that thedefendant’s conduct more likely than notcaused harm, loss of chance requires aplaintiff to show only that the defendant

30. See, e.g., Roberts, 668 N.E. 2d at 483-85;Herskovits v. Group Health Coop. of Puget Sound,664 P.2d 474, 476-79 (Wash. 1983); Hamil v.Bashline 392 A.2d 1280, 1288 (Pa. 1978).

31. Crosby, 48 F.Supp.2d at 927; DeBurkarte v.Louvar, 393 N.W. 131, 137 (Iowa 1986). See JosephH. King Jr., Causation, Valuation, and Chance inPersonal Injury Torts Involving Preexisting Condi-tions and Future Consequences, 90 YALE L.J. 1353,1363-64 (1981).

32. DeBurkarte, 393 N.W. at 137.33. These arguments are stated variously in

Crosby, 48 F. Supp.2d at 928-29, and Weigand, su-pra note 4, at 15-16.

34. Id.


reduced the plaintiff’s chances of recovery.In some cases, courts have gone as far as toaward damages to plaintiffs for the loss ofchance itself, without consideration of anyactual harm. Thus, the loss of chancetheory represents a departure from the pur-pose of traditional tort law: to make theplaintiff whole for actual harm done.

The loss of chance doctrine invites atroubling expansion of other types ofclaims against other professionals. If aphysician can be held liable for reducedsurvival prospects, may an accountant beliable in analogous circumstances? May alawyer who is unsuccessful in staving off aforeclosure be liable for a portion of hisclient’s loss on the basis of a perceived re-duction in the client’s prospects? Onewould hope that these types of claimsnever are recognized.

C. Medical Monitoring

Medical monitoring is another cause ofaction that has eroded the traditional injuryrequirement. Medical monitoring is a com-mon law equivalent to preventative medi-cine, and while it has some appeal to de-fendants, it must still be looked at warily.35

In some jurisdictions, plaintiffs may re-cover monitoring costs if they can showthat (1) the defendant negligently causedthem to be exposed to toxins; (2) as a resultof the exposure, they have an increasedrisk of developing a latent disease; (3) areasonable physician would prescribemonitoring treatments; and (4) monitoring

treatments exist that make early detectionof the latent disease possible.36 At leastthree courts have allowed a class of“healthy” plaintiffs to recover medicalmonitoring costs against cigarette andpharmaceutical manufacturers.37

One rationale supporting recognition ofthe cause of action is that monitoring is aless costly remedy than a full tort recovery.Another is that the prevention and earlydetection of latent disease mitigate againstserious future harm. And a third is that al-lowing plaintiffs to recover medical moni-toring costs owing to exposure to toxicsubstances will deter irresponsible behav-ior.38

Nevertheless, medical monitoring, likeloss of chance, has injected considerableuncertainty into the law of torts. For ex-ample, it is unclear whether defendantsmay be sued twice, once for monitoringcosts and then again after the feared illnessdevelops.39 Recognition of a medical moni-toring cause of action also exposes defen-dants to a flood of claims by those allegingto have been exposed to a toxin at somepoint in their lives. It also is difficult todetermine the cost of medical monitoringbecause of uncertainty and disagreementabout the necessary monitoring treatments.

The U.S. Supreme Court has held thatplaintiffs suing under the Federal Employ-ers’ Liability Act plaintiffs cannot recovermedical monitoring costs absent a showingof some type of disease.40 Other courtshave refused to recognize medical monitor-

35. See DeVries & Gallacher, supra note 8 (de-scribing development of medical monitoring causeof action).

36. Metro-North Commuter, 521 U.S. at 449-50(Ginsburg, J., concurring in part and dissenting inpart) (arguing for and summarizing elements ofmedical monitoring claim under the Federal Employ-ers’ Liability Act); Bower v. Westinghouse ElectricCorp., 522 S.E.2d 424, 432-33 (W. Va. 1999).

37. See Petito v. A.H. Robins Co., 750 So.2d 103,105-07 (Fla.App. 2000) (allowing “uninjured” classto recover medical monitoring costs from pharma-ceutical manufacturers); In re Tobacco Litig. (Medi-cal Monitoring Case), No. 00-C-6000 (W. Va.Cir.Ct., Ohio County, January 4, 2002) (order filedallowing class of “healthy” smokers to recover medi-cal monitoring costs from tobacco manufacturers).See also Melissa Nann, Three Baycol Plaintiff

Classes Rejected, A Fourth Seeking Medical Moni-toring Is Approved, NAT’L L.J., March 29, 2004 at 6(reporting that Pennsylvania state court judge al-lowed class action for medical monitoring to proceedagainst drug company).

38. These policy arguments are stated by JusticeGinsburg in Metro-North Communter, 521 U.S. at443, 451.

39. Compare Petito, 750 So.2d at 106 (ruleagainst claim splitting does not preclude medicalmonitoring plaintiff from bringing subsequent actionfor actual injury) with Wood v. Wyeth-Ayerst Labs.,Div. of Am. Home Prods., 82 S.W.3d 849, 858 (Ky.2002) (claim splitting rule precludes medical moni-toring plaintiff from bringing subsequent claim onceinjury develops).

40. Metro-North Commuter, 521 U.S. 424(1997).


ing, concluding that the viability of such anaction should be left to legislatures, whichmore easily can acquire all relevant infor-mation, provide fair notice to potentialtortfeasors, and consider claims involvingcollateral compensation.41

D. Birth-related Claims

1. Wrongful Life

Wrongful life claims also have extendedthe boundaries of the traditional injury re-quirement. They are brought on behalf ofhandicapped children against health careprofessionals for failing to provide thechild’s parents with information necessaryfor them to decide whether they shouldconceive a child or terminate a preg-nancy.42 The gravamen of this claim is thatbut for the defendant’s negligence theplaintiff’s parents would not have con-ceived or would have terminated the preg-nancy. Therefore, the plaintiff child wouldnot have had to suffer the impairments thatthe defendant could and should have fore-seen. As a Maryland court stated in Kas-sama v. Magat, “The injury complained ofin a wrongful-life lawsuit is life itself.”43

Although the wrongful life cause of ac-tion has some conceptual appeal, at least23 states have rejected it, according toKassama. Those that have done so havecited the difficulty in assessing damages,posing the question of how a judge or jurycan arrive at a figure that will compensatea handicapped child who might not havebeen given life at all in the absence of thedefendant’s negligence. One court an-swered this question by deciding that thereis no compensable injury because natural

processes, not the defendant’s alleged neg-ligence, caused the child’s handicap.44

Nevertheless, at least one other court hasallowed a plaintiff child in a wrongful lifeaction to recover specific damages, includ-ing the cost of special education and equip-ment resulting from the child’s handicap.45

2. Wrongful Birth

Wrongful birth is similar to wrongfullife in that both actions seek damages aris-ing from the unwanted birth of a handi-capped child. However, a wrongful birthclaim differs in that it is brought by parentson behalf of themselves, whereas a claimfor wrongful life is brought by the handi-capped child. The gravamen of a wrongfulbirth claim is that but for the defendant’snegligence the parents would not havegiven birth to a handicapped child andwould not have had to incur the extraordi-nary cost of goods and services, beyondnormal child-rearing costs, to care for thechild. Unlike the damages sought in awrongful life action, damages for extraor-dinary care do not rely on moral judgmentsregarding the value of an impaired lifecompared to the value of non-life.46

3. Birth-Related Claims InvolvingHealthy Children

More questionable are birth-relatedclaims, such as wrongful pregnancy andwrongful conception, involving the un-wanted birth of healthy children. Wrongfulpregnancy and conception claims appear toinvolve “uninjured” plaintiffs in that it isdifficult to imagine how a parent is harmedby the birth of a healthy child.47

41. See, e.g., Wood, 82 S.W.3d at 858; Badillo v.Am. Brands Inc., 16 P.d 435, 440 (Nev. 2001). Seealso Kentucky Rejects Medical Monitoring as aCause of Action, 44 FOR THE DEFENSE, November2002, page 4.

42. Alan J. Belsky, Injury as a Matter of Law: IsThis the Answer to the Wrongful Life Dilemma? 22U. BALT. L. REV. 185, 189-91 & n. 15 (1993).

43. 767 A.2d 348, 364 (Md.App. 2001).44. Ellis v. Sherman, 515 A.2d 1327, 1329 (Pa.

1986).45. Turpin v. Sortini, 643 P.2d 954, 963 (Cal.

1982)

46. Schirmer v. Mt. Auburn Obstetrics & Gyne-cological Assocs., 802 N.E.2d 723, 729-32 (OhioApp. 2003); Belsky, supra note 41, at 190.

47. See Burke v. Rivo, 551 N.E.2d 1, 3-4 (Mass.1990) (allowing parents to recover cost of unsuc-cessful sterilization procedure, cost of second steril-ization procedure, wife’s lost earning capacity, medi-cal expense of delivering child, loss of consortium,and emotional distress); Szekeres v. Robinson, 715P.2d 1076, 1078 (Nevada 1986) (no tort liability forany expenses incurred due to negligent sterilizationprocedure). See also Melissa K. Smith-Groff,Wrongful Conception: When an Unplanned Child


In a recent Massachusetts case, a plain-tiff father brought a breach of contractclaim against a fertility clinic for impreg-nating his estranged wife with a frozen em-bryo created with the plaintiff’s sperm. Theplaintiff alleged that the defendant clinicand its doctors performed the fertilizationprocedure without his knowledge or con-sent. A jury exonerated the doctors but re-turned an award of $98,000 for the cost ofraising the healthy child and $10,000 forthe father’s emotional distress.48

Although liability was based on the con-tract between the plaintiff and the fertilityclinic, the case presents interesting ques-tions regarding the nature of harm, if any,arising from the unwanted or unexpectedbirth of a healthy child.

FEAR: SUBSTITUTE FOR INJURY?

A. Toshiba

In 1999, a number of subsidiaries ofToshiba Corp., one of the world’s leadinghigh technology companies, announcedthat it would pay more than $2.1 billion tosettle claims involving alleged defectivefloppy disk controllers. This announcementcaused a stir in light of Toshiba’s previ-ously announced intention to defend theclaims vigorously and because none of thepurported class members had yet sufferedany harm.49 Toshiba’s decision appears tohave been motivated by a fear of anti-cor-porate bias and by a desire to protect itsreputation and avoid the risks of litigation.Unspoken, however, was a lack of confi-dence in the American judicial system’sability to turn away claims involving noinjury.

The case began as Shaw v. ToshibaAmerica Information Systems Inc. in theU.S. District Court for the District ofTexas, Beaumont Division.50 The actionwas brought under the Computer Fraud andAbuse Act (CFAA), 18 U.S.C. § 1030, andit included causes of action for injunctiverelief, breach of contract and breach ofwarranty. In order to recover under theCFAA, a plaintiff must establish that thedefendant caused damage to the integrityor availability of data, a program, a system,or information of at least $5,000 in value.51

The Toshiba plaintiffs alleged that aflaw in the floppy disk controller theoreti-cally could have resulted in undetecteddata loss or corruption. Toshiba denied li-ability and contended that damages werenon-existent, as none of the plaintiffs suf-fered actual property loss.

The Toshiba settlement represented an“odd twist” in American product liabilitylaw by requiring only “proof of flaw” butnot harm or damage. Critics argue that thesettlement will result in higher productprices to the consumer. Bugs and flaws areendemic to the computer industry, so law-suits will drain money from the industrywithout improving the technology, accord-ing to an article in PC Magazine.52

The settlement also raises questionsabout the importance of proving causationbefore establishing liability. It should benoted that Toshiba has not been able to rec-reate the problem alleged in the lawsuit un-der normal usage conditions.53

An article in Electronic EngineeringTimes states that some people believe thistype of flaw surfaces only under the mostunlikely circumstances. Duncan Walker, a

Has a Birth Defect, Who Should Pay the Cost?, 61MO. L. REV. 135, 138-40 (1996) (“unsettled andcontroversial area of wrongful conception” involvesdetermination of damages).

48. Gladu v. Boston IVF Inc., MiddlesexSuper.Ct., No. 98-4189 (January 30, 2004). SeeSperm Used for In Vitro Fertilization WithoutFather’s Permission, 32 M.L.W. 1565 (March 22,2004); Thanassis Cambanis, Father Wins CaseAgainst Fertility Clinic, BOSTON GLOBE, January 31,2004.

49. Lee L. Bennett, Defense Community Issues:New Liabilities and How to Respond to the Plain-

tiffs’ Bar, 69 DEF. COUNS. J. 273, 278 and n.10 (July2002). See www.consumeraffairs.com/small_defect.htm.

50. 91 F.Supp.2d 926 (E.D. Tex. 1999).51. 18 U.S.C. §§ 1030(e)(8) and (a)(5)(B)(i).52. Bill Machrone, Hang the Lawyers—

Again, available at http://www.pcmag.com/article2/0,1759,30340,00.asp, January 16, 2001).

53. Adam Bisby, Toshiba Sparks Legal Frenzy,COMPUTER DEALER NEWS, November 12, 1999,Vol. 15, No. 43, available at http://www.plesman.com/index.asp?theaction=61&sid=39281.


member of the Computer Sciences Depart-ment at Texas A&M University believes“it would be very difficult to verify such abug because of its rare and seeminglyrandom nature, and the fact that it wouldbe hidden by the noise of all those othersystem bugs.” According to ShankarHemmady, chief executive officer ofPharmQuest.com, an Internet startup,“when a system fails two or three yearsafter it is manufactured, it is hard to dis-cover whether it was a chip or electrome-chanical subsystem, or what.”54

Following the Toshiba settlement, copy-cat lawsuits were brought against computercompanies under the CFAA in 2001. Thefocus of the plaintiffs’ claims was an al-leged defect in computer-related productsor software. These claims generally werenot successful because the plaintiffs failedto prove the requisite damage elements un-der the CFAA.55 The irony of this outcomewas presumably not lost on Toshiba.

B. Genetically-modified Corn

In the 1990s, a North American com-pany called Aventis CropScience inventeda technological method of creating a typeof corn called StarLink and licensed thetechnology to the Garst Seed Co.. StarLinkcorn is genetically modified to poisonsmall inchworm-like pests called corn bor-ers. Regulators approved the use ofStarLink corn for animal and industrialuses only.56

However, in September 2000, the ge-netically modified corn began appearing inhuman food products such as taco shells,corn chips and muffin mix. According toan article in the Boston Globe, more than300 food products were recalled because ofthe fear of contamination and the possibleadverse affects on human consumers.StarLink corn began showing up in TacoBell brand taco shells and in grocery mar-kets. Taco Bell restaurants experienced adramatic drop in customers. Crop pricesdropped dramatically. In mid October2000, Aventis voluntarily withdrew itsU.S. registration of StarLink corn.57

Although there was no evidence of seri-

ous harm resulting from human consump-tion of StarLink corn, several lawsuitswere filed against Aventis and Garst forplaintiffs who suspected they had con-sumed the genetically modified corn orwho had distributed it to consumers. In re-sponse, Aventis paid $9 million to settle aclass action brought by consumers who hadpurchased the recalled corn products.Aventis also paid a settlement to a group ofcrop farmers, some of whom had grownStarLink corn and some of whom had not.The settlement compensated the farmersfor the cost of diverting and separatingcontaminated crops for use as animal feed.

Despite the recalls and the lack of anyevidence of serious harm resulting fromcontamination, many American food pro-ducers replaced domestic corn with im-ported corn that was free from any possiblecontamination. Some foreign countries,like South Korea and Japan, stopped im-porting corn from the United States, andtransport providers mandated expensivetesting on all corn shipments.

The StarLink corn litigation is an ex-ample of how fear can drive potentially ru-inous lawsuits even though there is little orno evidence of any harm associated withthe defendant’s product. According to onedefense lawyer involved in the case, therewas little evidence of any economic injuryto the crop farmers who had never usedStarLink corn. This was because of an in-creased demand for non-contaminated cornin the wake of the recalls. Taco Bell’sclaim that its restaurants were stigmatizedwas belied by the fact that StarLink corn

54. Stan Runyon, Lawsuits Snowball overFlawed Disk Controllers, ELECTRONIC ENGINEEER-ING TIMES, November 9, 1999, available at http://www.eetimes.com/showArticle.jhtml? articleID=18303155.

55. Hayes v. Packard Bell NEC Inc., 193F.Supp.2d 910, 912 (E.D. Tex. 2001); Thurmond v.Compaq Computer Corp., 171 F.Supp.2d 667, 675-82 (E.D. Tex. 2001); In re America Online Inc., 168F.Supp.2d 1359, 1372-375 (S.D. Fla. 2001).

56. For information on StarLink corn, seeStarLink Information Center at http://www.starlinkcorn.com/starlinkcorn.htm.

57. Naomi Aoki, Biotech’s Warrior: Lawyer ofFen-Phen Fame Defending Maker of EngineeredCorn, BOSTON GLOBE, October 16, 2002, at C1, C6.


was never found inside a Taco Bell restau-rant. In addition, as defense counsel pointout, the difficulties encountered by Aventisand Garst were a discouraging example topharmaceutical companies looking to bringnew products into the market.58

If fear of harm is a substitute for an ac-tual injury, as the StarLink corn cases sug-gest, a host of lawsuits against pharmaceu-tical and other manufacturing companiesare possible. For example, recent reportshave surfaced regarding the possibility thatcertain everyday products containing achemical called “phthalates” may causeharm to unborn babies. Plastic toy manu-facturers, medical suppliers, and cosmeticand shampoo manufacturers could be thenext target in a fear-driven litigation overwhether chemical softeners found in theseproducts may cause human birth defects.59

C. Irrigation

A recent Ninth Circuit decision maygive comfort to those who advocate relax-ing the actual injury requirement. In Cen-tral Delta Water Agency v. United States,60

two farming corporations and two Califor-nia state agencies sued the federal govern-ment over a plan to release water from areservoir in order to sustain a fish habitat.The federal district court rejected most ofthe plaintiffs’ claims, finding that no “in-jury in fact” had taken place given the fed-eral government’s assurances that the di-version would not deprive the plaintiffs ofsuitable water for irrigation purposes.

The Ninth Circuit reversed and rein-stated all the plaintiffs’ claims. It held that“threatened” harm was sufficient to conferstanding on both groups of plaintiffs so

that they could succeed, even in the ab-sence of any quantifiable injury. The plain-tiffs had not even demonstrated that the di-version was likely to reduce the amount ofsuitable water available to irrigate theircrops. Nonetheless, because of an expan-sive view of standing requirements, theNinth Circuit permitted the case to pro-ceed. As the dissenting opinion observed,the majority had conferred standing on agroup whose rights were not “affected atall” and whose antagonist insisted that itfully intended to respect those rights.

In addition to the Ninth Circuit, othercourts have found that a mere increasedrisk of future harm is sufficient to satisfystanding requirements. Generally, thesetypes of cases involve threats of harm tothe environment or to the health and safetyof individuals. For example, the SecondCircuit recently has held that an increasedrisk of the transmission of “mad cow” dis-ease constituted an “injury-in-fact” suffi-cient for standing purposes. In Bauer v.Veneman,61 the individual plaintiff allegedthat human consumption of “downedcattle” increased the risk of “mad cow”disease in humans. “Downed cattle” is anindustry term used to describe animals thatare too weak to walk or stand prior toslaughter. Under current U.S. Departmentof Agriculture regulations, meat from“downed cattle” is deemed safe for humanconsumption, provided a veterinary officerhas approved the meat product following apost-mortem inspection.

The district court dismissed the com-plaint, finding that the alleged risk of dis-ease transmission was too hypothetical andspeculative to establish a cognizable injuryfor standing purposes. It noted that a fullyprogressed case of “mad cow” diseasenever had been detected either in a cow orin food products within the United States.

But the Second Circuit reversed, findingthat “an enhanced risk of disease transmis-sion may qualify as injury-in-fact in con-sumer food and drug safety suits.” To sup-port its decision, the court cited other casesallowing a threat of future harm to consti-tute an injury-in-fact. As the dissentingjudge pointed out, a concern for changing

58. Id. (noting Centers for Disease Control foundno evidence of allergic reaction in human consumerswho allegedly ate StarLink corn). See In re StarLinkCorn Prods. Liab. Litig., 2002 WL 31236304 (N.D.Ill. 2002); 212 F.Supp 2d 828 (N.D. Ill. 2002); 211F.Supp.2d 1060 (N.D. Ill. 2002).

59. Sally Jacobs, Scent of Trouble SurroundsCosmetics: Women Shun Products with ChemicalLinked to Birth Defects, BOSTON GLOBE, October16, 2002, at D1, D7.

60. 306 F.3d 938 (9th Cir. 2002).61. 352 F.3d 625, 633 (2d Cir. 2003)


what the plaintiff viewed as “misguidedpublic health policy [should have] no bear-ing on the question of whether he has es-tablished injury in fact.”

BEYOND THE FRONTIER:TOXICOGENOMICS

Although fear-related claims are increas-ing, science has offered new theories fordefending against them. As the Restate-ment (Third) recognizes, tort cases oftenpose difficult problems of proof with re-spect to factual causation.62 Toxico-genomics is a new scientific theory on howa particular toxin causes a gene’s expres-sion to change on both a cellular and mo-lecular level. The science is based on DNAmicroarrays or chips, which simulta-neously monitor the gene’s expression.Toxicogenomics may be used to determinewhether a particular gene sequence haschanged in a way that is associated withcancer or disease. In theory, toxico-genomics could be used to prove or dis-prove causation in toxic tort cases.63

Defense practitioners may be able to usetoxicogenomics to show that the absence ofspecific changes in a gene’s expression dis-proves any connection between exposureto a particular toxin and harm. Genetic test-ing of a plaintiff also might negate causa-tion by revealing that the plaintiff’s geneexpressions are consistent with other car-cinogens, not just the defendant’s product.Defense practitioners may be able to usetoxicogenomics to show that a plaintiff ispredisposed to a certain disease, thus ne-gating causation. Finally, by comparing aplaintiff’s DNA test results before and afterexposure to a particular toxin, defensepractitioners may determine whether theplaintiff’s cancer or disease pre-dated aparticular exposure.

While toxicogenomics may seem to be apromising tool, it still is a new scientifictheory, and its reliability has not beenestablished. Critics point out that narrow

testing of one or two genes ignores envi-ronmental or additive factors that may con-tribute to the onset of cancer or disease.Stress and other external factors could af-fect gene expression, and many changes ingene expression have nothing to do withtoxicity. For example, consumption ofBrussels sprouts and exposure to the drugdioxin have the same effect on gene ex-pression. In addition, Comment c to Sec-tion 28 of the Restatement (Third), referredto in footnote 63, cautions that “scientificstandards for the sufficiency of evidence toestablish a proposition may be inappropri-ate for the law.”

In any event, toxicogenomic evidencerequires expert testimony, and therefore itmust satisfy the test for reliability ofDaubert v. Merrell Dow PharmaceuticalsInc.64 before it may become a useful toolfor proving causation and existence of anactual injury.

CONCLUSION

The dramatic loosening of the commonlaw’s requirement of an actual injury haschanged the tort law landscape. Whollyspeculative and unprovable “injuries” nowform the basis of potentially ruinousclaims. Manufacturers of the most ad-vanced products and developers of theworld’s boldest technology face the uncer-tainties and distraction of litigating in situ-ations never imagined before. Health careproviders and their insurers must now ex-pect and plan for claims unrelated to anyactual loss or harm.

This is a trend that should concern alldefense lawyers and their clients.

62. § 28, cmt. c (Tentative Draft No. 3) (2003).63. This discussion of toxicogenomics is based

on John C. Childs, Toxicogenomics: New Chapter inCausation and Exposure in Toxic Tort Litigation, 69DEF. COUNS. J. 441 (October 2002), and referencestherein.

64. 509 U.S. 579 (1993).

Documents

The Uninjured Plaintiff: New Frontiers of Liability · The Restatement (Second) of Torts de- ... harm” as set out in the Restatement (Sec-ond). It remains the case that an injury