Fear of Disease and the Puzzle of Futures Cases in Tort

40 Pages Posted: 1 Jan 2011

See all articles by Andrew R. Klein

Andrew R. Klein

Indiana University School of Law

Date Written: April 2, 2002


This article addresses the framework on which courts have developed emotional distress doctrine in toxic tort cases. This preliminary description focuses on two cases: the United States Supreme Court’s decision in Metro-North Commuter Railroad Co., and the California Supreme Court’s decision in Potter v. Firestone Tire & Rubber Co. These cases represent a doctrine that permits emotional distress recovery based on two factors: (1) whether a defendant’s conduct has caused the plaintiff to suffer from a physical consequence; and (2) whether the plaintiff demonstrates that she is likely to manifest disease in the future. The article then considers these factors in the pre-manifestation setting. Here, the Article suggests that the factors are too restrictive. Instead, the Article asserts that courts should permit futures plaintiffs to recover emotional distress damages whenever a fact finder deems fear of disease to be reasonable. In so doing, however, the article’s proposal contains an important catch: when considering fear of disease cases in the pre-manifestation context, courts should vigorously apply the single action rule. In other words, courts should recognize futures actions, and they should liberally permit emotional distress damages in such claims. But once a court has resolved the claim, a plaintiff should have no further opportunity to seek damages related to the exposure even if disease later manifests. This proposal runs counter to much of the case law and literature that discusses the single action rule in toxic tort cases. In the context of pre-manifestation claims, however, the proposal would improve the judicial system’s approach to toxic tort litigation.

Suggested Citation

Klein, Andrew R., Fear of Disease and the Puzzle of Futures Cases in Tort (April 2, 2002). UC Davis Law Review, Vol. 34, p. 965, 2002, Available at SSRN: https://ssrn.com/abstract=1733131

Andrew R. Klein (Contact Author)

Indiana University School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-274-2099 (Phone)

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