Brief Fact Summary.
Plaintiffs sued Defendants for future damages related to his contracting cancer. The jury awarded Plaintiff $7,500 and he appealed. The appellate court affirmed the trial court’s judgment. Plaintiff appealed to the state’s supreme court.
Synopsis of Rule of Law.
In New Jersey, prospective damages are recoverable only if they are reasonably probable to occur.
Roger Mauro participated in tests conducted by the New Jersey Department of Health to determine the prevalence of asbestos-related disease among plumbers and steamfitters in state institutions. During this time, Plaintiff was informed by a physician that he had bilateral thickening of both chest walls and calcification of the diaphragm. The physician told Plaintiff that his exposure to asbestos had been “significant” and that there was evidence that this exposure may increase his risk of developing lung cancer. Plaintiff was very upset upon hearing the news and subsequently consulted a pulmonary specialist every six months to find out if and when he was going to get cancer. Mauro and his wife Lois (Plaintiffs) sued Raymark Industries, Inc. (Defendant) and other manufacturers of asbestos products for future damages related to his contracting cancer. The trial court instructed the jury that there was no evidence at that time to suggest that Plaintiff would absolutely get cancer and that they could not award damages for the future, enhanced risk of developing cancer. The trial court did permit the jury to consider Plaintiff’s claims for damages caused by emotional distress related to his fear of developing cancer and for damages caused by his present medical condition and the cost for future medical surveillance. The jury awarded Plaintiff $7,500 and he appealed. The appellate court affirmed the trial court’s judgment. Plaintiff appealed to the state’s supreme court.
Whether in New Jersey, prospective damages are recoverable if they are reasonably probable to occur.
Yes. The court of appeals’ ruling is affirmed. In New Jersey, prospective damages are recoverable only if they are reasonably probable to occur.
The majority’s position that prospective damages are not recoverable unless they are reasonably probable to occur can no longer be reconciled with the knowledge and experience that has emerged in recent years related to asbestos-causing medical conditions. There is a genuine, substantial, and palpable risk that Plaintiff will incur cancer as a result of his exposure to asbestos. Here, there is no valid reason why Plaintiff’s enhanced risk of cancer should not be considered an element of a present injury caused by defendant and compensated for now.
In New Jersey, it is well settled that prospective damages are not recoverable unless they are reasonably probable to occur. However, there are policy considerations against imposition of the rule. First, deferring an enhanced-risk claim may result in a plaintiff unable to recover damages due to a defendant’s claim that “intervening events or causes” were the cause of a plaintiff’s injury. Second, recognition of a claim for significantly enhanced risk of disease might allow courts and companies to deter the improper use of toxic chemicals and substances, thereby addressing the claim that tort law cannot deter polluters who view the cost of proper use or disposal as exceeding the risk of tort liability. The downside, however, is that proof of future disease may result in damages awarded for diseases that will never occur. Such results exact a societal cost in the form of higher insurance premiums and higher product costs. A line must be drawn. Allowing plaintiffs to bring actions for a present injury, not a speculative claim for future injury, allows juries to better award damages in an amount that fairly reflects the severity of a plaintiff’s injury.