California Civil Jury Instructions (CACI)
1622. Negligent Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/her] to suffer serious emotional distress by exposing [name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or AIDS]. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was exposed to [insert applicable carcinogen, toxic substance, HIV, or AIDS] as a result of [name of defendant]’s negligence;
2. That [name of plaintiff] suffered serious emotional distress from a fear that [he/she] will develop [insert applicable cancer, HIV, or AIDS] as a result of the exposure;
3. That reliable medical or scientific opinion confirms that it is more likely than not that [name of plaintiff] will develop [insert applicable cancer, HIV, or AIDS] as a result of the exposure; and
4. That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.
Directions for Use
There may be other harmful agents and medical conditions that could support this cause of action.
If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice, then CACI No. 1623, Negligent Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct, should be read.
Sources and Authority
- “ ‘[D]amages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact …’ ” (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 986 [25 Cal.Rptr.2d 550, 863 P.2d 795], internal citation omitted.)
- “[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases where the feared cancer is at best only remotely possible, is to require a showing of the actual likelihood of the feared cancer to establish its significance.” (Potter, supra, 6 Cal.4th at p. 990.)
- “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6 Cal.4th at p. 997.)
- The California Supreme Court has acknowledged the Hawaii Supreme Court’s definition of “serious emotional distress”: “ ‘[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927—928 [167 Cal.Rptr. 831, 616 P.2d 813], quoting Rodrigues v. State (1970) 52 Haw. 156, 173 [472 P.2d 509].)
- “[W]e hold that the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable.” (Potter, supra, 6 Cal.4th at p. 1009.)
- Courts have applied the reasoning of Potter, supra, to cases alleging that defendant’s conduct caused plaintiff emotional distress based on fear of contracting AIDS. (See Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1073—1075 [33 Cal.Rptr.2d 172]; Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 785—788 [31 Cal.Rptr.2d 709].)
- Comparative fault principles may be applied to reduce amount of recovery for emotional distress based on fear of developing cancer when plaintiff’s smoking is negligent and a portion of the fear of cancer is attributable to the smoking. (Potter, supra, 6 Cal.4th at pp. 965, 974.)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.02 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.11[c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress, § 153.38 (Matthew Bender)