I first came across this law review article in the Law Professors blog which included an abstract and I decided I had to read the article. Professors Ariel Porat and Alex Stein have written a compelling argument supporting liability for future harm in tort cases.
Historically, a plaintiff could not be compensated for the “chance” that illness might develop at a later time. A small example of this is a plaintiff who suffers a concussion in an auto accident. Obviously, the plaintiff will be compensated for the head injury, but it is well documented that concussions can occur more easily, and with greater severity, after the first one is suffered. The plaintiff, however, will not be compensated for the increased likelihood that he or she will suffer concussions in the future.
Professors Porat and Stein begin their argument with a relatively recent Supreme Court case, Norfolk & Western Railway Company v. Ayres. The plaintiff in that suit contracted asbestosis from exposure to asbestos along the railway. The plaintiff suffered emotional distress because he was aware that 1 in 10 people suffering from asbestosis eventually develop mesothelioma, a fatal form of cancer. Even though the plaintiff had not yet developed mesothelioma, the United States Supreme Court in a 5-4 decision, held that the plaintiff was allowed to recover if the distress was proven to be “genuine and serious.”
This case, while a step forward, is not far enough because the plaintiff had already contracted asbestosis, a very serious condition. Common law courts have often allowed recovery for emotional distress stemming from an illness or injury, in this case, asbestosis.
This article takes the next step and argues for liability for future harm without the necessity of a pre-existing condition. The authors propose a probability approach where the plaintiff should be compensated for the illness he or she has been exposed to multiplied by the probability of such illness manifesting.
Before I do any further disservice to the authors argument, I will stop and suggest that you read their article in the full. I was able to download it via SSRN here.