State Justices Require Medical Evidence in Cancer Fear Claims : Supreme Court: Victims of toxic pollution must show they are likely to contract the disease, ruling holds. An exception is made for particularly egregious cases.

The California Supreme Court held Monday that victims of toxic pollution can generally recover damages for fear of cancer only if medical evidence shows they are more likely than not to contract the disease because of the exposure.

But the court also carved out an exception for particularly egregious cases. In a sharply divided ruling, the court held that victims need not prove they are likely to get cancer if they can show both that their fear is reasonable and that the polluter acted with a willful and conscious disregard of safety.

The decision represents a setback for victims of toxic pollution, who will have to show compelling evidence of substantial risk of disease or outrageous conduct by a polluter. It also has ramifications for other cases in which a victim alleges a fear of a disease but has not yet developed it.

The pollution case was brought by two Salinas couples who for years consumed well water contaminated by potentially cancer-causing toxics dumped by Firestone Tire and Rubber Co.

Although the couples have not contracted cancer, lower courts awarded them about $4 million in damages for the emotional distress they suffer because they fear they may get the disease.

Testimony during the trial indicated that the victims had an enhanced but unquantified risk of developing cancer because of their prolonged exposure to such chemicals as benzene and vinyl chloride, which are known to cause chromosomal damage and to have deleterious effects upon the central nervous and immune systems.

The state high court held that the couples can be compensated for medical monitoring but must go back to the lower courts to show that their fear of cancer was reasonable and that Firestone’s “extreme and outrageous conduct” was directed at them or undertaken with substantial certainty that they would suffer severe emotional injury.

In effect, the ruling reverses $3.4 million of the $4 million the couples had been awarded in fear-of-cancer and punitive damages, according to Robert Crawford, who represented the plaintiffs at trial.

But he said the victims still may recover those damages when the case returns to a trial court, which will examine their claims under the new guidelines set down by the state’s high court.

“The court invites us to go back,” Crawford said. “I feel comfortable that the trial court, when it gets a chance to review it again, will have sufficient evidence to support punitive damages and fear of cancer damages.”

Justice Marvin R. Baxter, who wrote the majority opinion, was joined by Justices Malcolm Lucas, Edward Panelli and Armand Arabian.

Baxter said that permitting damages for fear of cancer based only upon a significant increase in risk could invite “unreasonable claims based upon wholly speculative fears.”

However, he also said that Firestone’s conduct in dumping toxics in a landfill not licensed to accept them displayed a conscious disregard for the safety of others.

Justices Ronald George, Joyce Kennard and Stanley Mosk wrote separate opinions, agreeing with the majority in parts of the cases and dissenting in others.

Justice George, for instance, said he agreed that the plaintiffs should be allowed to recover damages for their emotional distress because of Firestone’s “egregious misconduct.”

However, he said victims should not be required to meet the stringent test for their chances of developing cancer.

Someone who has consumed, cooked with and bathed in contaminated water “is likely to sustain a serious emotional distress relating to the fear of developing a serious illness in the future,” regardless of whether their chance of getting cancer is more than 50% or only 25%, George wrote.

He complained that the majority opinion “eliminates an important legal protection to which all persons, including victims of toxic waste exposure, long have been entitled.”

Charles G. Warner, a Monterey attorney who represented Firestone during the trial, said he was generally pleased with the decision.

“I suppose what will change is that everybody who is contending fear of cancer will now contend egregious conduct,” he said.