A Model for Enhanced Risk Recovery in Tort

Abstract

In this article, I discuss whether a plaintiff can maintain a tort action based on a toxic exposure before she becomes ill. At first glance, this suggestion may seem illogical. But toxic tort cases often involve long latency periods between exposure and illness. That makes it difficult ? if not impossible ? for plaintiffs to succeed in their claims if they wait until after illness becomes manifest. To address this difficulty, courts have recognized "pre-manifestation" claims in several narrow contexts. First, courts have recognized claims for fear of disease, in which plaintiffs seek compensation for injury to their mental well-being. Second, courts have recognized claims for medical monitoring, in which plaintiffs seek recovery for the cost of detecting the onset of disease. But courts rarely have permitted plaintiffs to maintain the one claim that addresses the heart of the issue. This is the claim in which plaintiffs seek recovery for the very fact of living with an enhanced risk of disease.

In my article, I propose a new model for the recognition of enhanced risk claims. The model is premised on a clear standard: Tort law should permit proportional enhanced risk recovery, but only when a plaintiff can prove that the toxic exposure has more than doubled her risk of contracting future disease. I justify this "doubling of the risk" standard as consistent with the traditional tort requirement of actual causation. I also argue that the standard can serve the goals of deterrence and corrective justice -- the two major theories that scholars use to justify modern tort doctrine. Finally, I set forth a series of examples of how the standard would work, both on its own and in conjunction with other pre-manifestation causes of action. In the end, the article suggests that the proposed standard would represent a step forward in the law's effort to fairly and efficiently resolve toxic tort claims.