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From Products Liability Law Daily, November 8, 2016

Damages for ‘cancerphobia’ available in chemical dumping action against du Pont

By Pamela C. Maloney, J.D.

In the first non-bellwether case in a multidistrict litigation involving the dumping of toxic chemicals by E.I. du Pont de Nemours (DuPont) at its manufacturing facility in Wood County, West Virginia, a federal district court in Ohio determined that a resident who was diagnosed with and treated for testicular cancer allegedly as a result of his exposure to those chemicals could seek damages for emotional distress over contracting cancer in the future. However, the resident was not entitled to recover emotional distress damages based on his alleged anxiety or fear of developing other probable diseases that had been linked to C-8 exposure because those diseases could not be linked to his cancer (In re: E.I. du Pont de Nemours & Co. C-8 Personal Injury Litigation (Vigneron v. E.I. du Pont de Nemours & Co., November 7, 2016, Sargus, E.).

This MDL action arose out of allegations that DuPont’s discharge, venting, and/or release of perfluorooctanoic acid (PFOA) and/or ammonium perflourooctanoate (a/k/a C-8/APFO/PFOA) in connection with its manufacturing operations caused the contamination of the drinking water at the Little Hocking PSD water district. The underlying complaint charged that the dumping of these chemicals began as early as the 1950s, and that DuPont knew as early as 1954 that there were concerns about the potential toxicity of C-8. The underlying complaint in one of the bellwether actions also provided a detailed history of the studies done on human blood samples and female employees, along with other available data, all of which suggested that there was a causal connection between occupational exposure to C-8 and various health and pregnancy issues.

In this case, one of the residents who developed testicular cancer and whose treatments included surgery and three rounds of chemotherapy followed by approximately 10 years of cancer surveillance sought to recover damages for mental distress and anxiety over contracting—in the future—cancer related to his testicular cancer and treatment regimen. DuPont moved for summary judgment, contending that the resident could not recover for "cancerphobia" because Ohio does not recognize a stand-alone negligent infliction of emotional distress claim when there is a contemporaneous injury, and allowing the resident to recover these damages would present a risk of duplicative damages.

DuPont argued further that even if the resident could pursue an independent claim for cancerphobia damages, summary judgment was warranted because (1) there was no reliable scientific evidence that the resident was at an increased statistical likelihood of developing a future cancer, much less that he was aware of such an increased statistical risk, and that the resident could not recover for any alleged fear of developing other, undiagnosed diseases with a probable link to exposure to these chemicals.

Cancerphobia damages. Contrary to the manufacturer’s argument, permitting damages for cancerphobia would not invite duplicative damages, the court opined. Ohio law clearly requires that to recover damages for emotional distress directly related to his testicular cancer, the resident must show that he was aware of the fact that he possessed an increased statistical likelihood of developing cancer and that this knowledge caused him reasonable apprehension that manifested itself as emotional distress. To do this, the court instructed, the resident must be allowed to offer evidence of his claimed cancerphobia so that the jury could determine whether he proved he was entitled to those damages.

The court went on to explain that the resident’s evidentiary burden was not, as the manufacturer suggested, to simply offer evidence that he suffered from emotional distress because he was fearful of potential future cancer. Instead, the resident was required to show, by a preponderance of the evidence, that he was aware that he possessed an increased statistical likelihood of developing cancer and that from this knowledge, he developed an apprehension that manifested itself as emotional distress. The court clarified further that the resident was not required to show that he suffered from a "phobia" in order to be compensated for his emotional distress.

Evidence of cancerphobia. In this case, the resident’s own testimony and the testimony and expert report of the resident’s specific causation expert overcame the manufacturer’s argument that there was no admissible evidence of the resident’s distress based on cancerphobia. It also met the preponderance of evidence standard necessary to overcome the manufacturer’s motion for summary judgment.

Specifically, the resident’s testimony reflected his awareness that because of his diagnosis of testicular cancer, and the fact his testicular cancer has metastasized to his lungs and his treatment regime could lead to the development of other cancers, he was at a statistically increased likelihood of developing cancer in the future when compared to the general population or to his pre-cancer self. This evidence raised a genuine issue of fact as to whether he was aware that he was statistically more likely to suffer a recurrence of his testicular cancer or to develop a new cancer. The resident’s testimony regarding his claimed fear of developing cancer in the future also was sufficient to raise a question for the jury because his fear was based on the fact that he actually had suffered from cancer which had metastasized.

Other probable linked diseases. The court granted the manufacturer’s motion for summary judgment with regard to the resident’s claim for emotional distress damages based on his fear of developing other diseases linked to exposure to the toxic chemicals. According to the court, Ohio law requires that alleged mental distress and anxiety be connected directly to the physical injury. However, the resident offered no evidence to show that his alleged anxiety or fear of developing any other diseases that had been linked to exposure to the toxic chemicals was related to the physical injuries for which he sought to hold the manufacturer liable, i.e., his testicular cancer.

The case is Civil Action No. 2:13-md-2433 (related document is case No. 2:13-CV-136).

Attorneys: David John Butler (Taft Stettinius & Hollister LLP) for Kenneth Vigneron, Sr. Damond R. Mace (Squire Patton Boggs), Clifford F. Kinney, Jr. (Spilman Thomas & Battle, PLLC) and Kevin T. Van Wart (Kirkland & Ellis LLP) for E. I. du Pont de Nemours & Co.

Companies: E. I. du Pont de Nemours & Co.

MainStory: TopStory DamagesNews ChemicalNews OhioNews

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