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Devlin v. Johns-Manville Corp.

Decided: March 8, 1985.

RICHARD DEVLIN AND CATHERINE DEVLIN, HIS WIFE, PLAINTIFFS,
v.
JOHNS-MANVILLE CORPORATION, ET ALS., DEFENDANTS. DOMINIC FRANKLIN AND JOSEPHINE FRANKLIN, HIS WIFE, PLAINTIFFS, V. JOHNS-MANVILLE CORPORATION, ET ALS., DEFENDANTS. CARMEN COSENTINO AND OLGA COSENTINO, HIS WIFE, PLAINTIFFS, V. JOHNS-MANVILLE CORPORATION, ET ALS., DEFENDANTS. WILLIAM KENNY AND JOAN KENNY, HIS WIFE, PLAINTIFFS, V. JOHNS-MANVILLE CORPORATION, ET ALS., DEFENDANTS. PAUL EYPPER, PLAINTIFF, V. FEDERAL SHIPBUILDING & DRY DOCK, CO., ET AL., DEFENDANTS. VICTOR FIORINO AND LOUISE FIORINO, HIS WIFE, PLAINTIFFS, V. FEDERAL SHIPBUILDING & DRY DOCK, CO., ET AL., DEFENDANTS



Keefe, J.s.c.

Keefe

[202 NJSuper Page 559] The issues presented by this motion are whether plaintiffs,*fn1 who claim to be suffering from asbestosis, can recover damages for the enhanced risk of cancer to which asbestosis gives rise and, for the concomitant fear of cancer (cancerphobia) from which plaintiffs now claim to suffer as a result of their enhanced risk. None of plaintiffs are currently suffering from any form of cancer. Counsel for plaintiffs acknowledge that their experts cannot state, to a reasonable medical probability, that any one of plaintiffs will get cancer in the future.*fn2 As

such, it is noted at the outset that plaintiffs do not assert a claim for prospective cancer since the available medical testimony will not meet the reasonable medical probability standard required in this State. See Coll v. Sherry, 29 N.J. 166, 175 (1959).

RECOVERY FOR FEAR OF CANCER (CANCERPHOBIA)

Plaintiffs in this action assert that they are suffering from anxiety and related symptoms due to their fear of developing cancer. This fear has been caused in part, by their having been told by their physicians that they are currently at a greatly increased risk of developing cancer. This increased risk creates the need for continuing medical surveillance in order to monitor for any cancerous developments.

The courts of this state have clearly recognized that "mental and emotional distress is just as 'real' as physical pain, and that its valuation is no more difficult." Berman v. Allen, 80 N.J. 421, 433 (1979). In Portee v. Jaffe, 84 N.J. 88 (1980), it was noted "[s]ince Falzone, this court's decisions have shown no hostility to the imposition of liability for negligently caused mental or emotional distress even without an attendant risk of physical harm." Id. at 95. In ascertaining whether liability can be imposed the standard to be applied:

[i]s one of reasonable foreseeability, [citation omitted] more directly stated, we must determine whether the defendants owed a duty to the plaintiff that was violated. . . . [ Ibid. ]

Utilizing foreseeability to determine whether liability can be found requires that the emotional harm which has occurred be foreseeable in a "person normally constituted" who was within the "zone of risk" of those people who could potentially

be affected by the defendant's conduct. Caputzal v. Lindsay Co., 48 N.J. 69, 76-77 (1966). As such, in ascertaining whether a claim for emotional harm shall be allowed it is not the severity or consequence of the particular emotional harm suffered which is solely determinative. Instead, the applicable test is one of reasonable foreseeability analyzed in the context of the defendant's legal duty to the plaintiff. See Portee, supra at 95.

The duty of manufacturers and distributors of asbestos has been addressed in detail in Beshada v. Johns-Manville Products Corp., 90 N.J. 191 (1982). The obligation of defendants is to market a product that is fit, suitable and safe for its foreseeable purpose. In discharging this duty the law presumes that defendants are aware of the dangers inherent in their products. Clearly plaintiffs were foreseeable users of defendants' products and therefore they come within the zone of risk discussed in Caputzal.

Further, the fear complained of by plaintiffs, in light of all the facts and circumstances, cannot be deemed to be idiosyncratic or unexpected in "normally constituted people." Plaintiffs have been told by their doctors of the increased risk and the need for medical surveillance to monitor for potential cancerous developments. All plaintiffs claim to be suffering from physical manifestations as a result of their exposure. Further, many have seen friends and co-workers suffer often fatal consequences as a result of exposure to asbestos. As such plaintiffs here fall within the boundaries of the law set forth in both Portee and Caputzal.

Recovery for the fear of future cancer is not without precedent in this State. In Lorenc v. Chemirad, 37 N.J. 56 (1962) plaintiff was burned by a corrosive chemical which was improperly packaged. The area of his hand which was injured was chronically ulcerated and intermittently broke down. During these periods plaintiff, who was a doctor, became concerned that he was developing a malignancy. On appeal, the Supreme

Court implicitly allowed recovery for the fear of future cancer under such circumstances by holding:

So, although, if we were acting as original triers of the fact, we might have rejected the claim of probably resulting cancer, as distinguished from a neurosis based on a fear of development of that disease, we cannot say there was no justification for a finding favorable to plaintiff regarding its probable future onset. In addition, there is no way of knowing from the verdict whether the jury accepted the suggestion of probable future cancer, or simply allowed some compensation for the plaintiff's fear of development of that disease. [ Id. at 76; emphasis supplied]

More recently, in Evers v. Dollinger, 95 N.J. 399 (1984) the Supreme Court expressly recognized a cause of action for emotional harm based on the fear of future cancer. In Evers the defendant doctor failed to properly treat and diagnose a lump in plaintiff's breast which thereafter increased in size and was eventually removed in an extensive mastectomy. Plaintiff asserted that the delay in properly diagnosing her condition caused the tumor to grow, increased her risk of future cancer and caused emotional harm. The Court held that on retrial plaintiff should be permitted to present her claims for mental and emotional injury.

[p]laintiff was prepared to show that she suffered anxiety, emotional anguish and mental distress. These were attributable not solely to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that defendant's delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease. [ Id. at 406; emphasis supplied]

[C]ourts have come to recognize that mental and emotional distress is just as 'real' as physical pain, and that its valuation is no more difficult. Berman v. Allen, 80 N.J. 421, 433 (1979); see Schroeder v. Perkel, 87 N.J. 53 (1981). Such distress could well encompass concerns over the anticipated future consequences of malpractice. [ Id. at 410; emphasis supplied]

The recent case of Ayers v. Jackson Twp., 189 N.J. Super. 561 (Law Div.1983) in which plaintiffs were denied recovery for their fear of future cancer is clearly distinguishable from the case at bar. None of the plaintiffs in Ayers were presently suffering from physical illness as a result of their ingestion of

pollutants. The experts in that case conceded that there was no way to ascertain if any of the plaintiffs would in fact ever suffer from any illness in the future. The emotional injury of which plaintiffs in this case complain stems from the substantial bodily harm they have already suffered as a result of ingesting asbestos over an extended period of time. In this case there has been "[i]mmediate and direct ...


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