MEMORANDUM AND ORDER
These consolidated cases are before the Court on defendants’ motion to exclude from plaintiffs’ opening statements any rеference to fear or increased risk of cancer. At the pretrial conference, held March 6, 1986, the Court informed counsеl that our ruling on this issue would depend on the Court’s ultimate decision regarding the admissibility of such evidence. This order therefore exceeds thе scope of the motion before us, but also clarifies issues we anticipate will arise at trial.
Since Maine courts have not squаrely decided the issue, we must predict how the Maine Supreme Judicial Court would decide the issue should it arise.
As an initial matter, it is necessary to define the exact question before the Court. Plaintiffs do not wish to prove that they will contract cancer in the future as a result of their exposure to asbestos. Nor do they wish to prove that the increased risk alone provides a sufficient predicate for the award of damages. They are completely foreclosed from this approach by the rule that only damages provable to a reasonable probability are available in a personal injury action.
See Michaud v. Steckino,
Plaintiffs are seeking damages for a present injury. That is, the present anxiety or fear they experience that they will contract cancer in the future. This fear derives from the fact that asbestos is a known carcinogen, thаt they have had prolonged exposure to asbestos, and that their co-workers are dying at a higher than normal rate from asbestos-related cancer. See Plaintiffs’ Memorandum in Support of the Admissibility of Evidence Bearing Upon the Risk of Cancer, at 7.
Although not explicitly discussed as such, we have found that the cases deal with mental distress damages in two different ways. One group has analyzed the claim of anxiety damages as a separate cause of action for emotional distress. Various jurisdictions have divergent requirements for recоvery under such a cause of action. Thus, for example, in
Eagle-Picher Industries, Inc. v. Cox Sr.,
Under Mississippi law, damage awards for mental distress mаy be rendered when either of two conditions is satisfied: when the plaintiff’s mental suffering is accompanied by a physical injury, or when the plaintiff establishes the defendant’s misconduct to have been wilful, gross, wanton.
The other group has taken the position that mental distress damages are a normal element of damages available in a personal injury action. This line of cases includes
Ward Baking Co. v. Trizzino,
There is no question that courts have been very cautious in their award of damages asserted under an indeрendent cause of action for emotional distress. Courts have feared a flood of litigation if plaintiffs are permitted to assert a separate cause of action for emotional distress in the absence of some accompanying physical mаnifestation of injury (with the exception that damages have been available absent physical manifestation when the anxiety was сaused by “outrageous” conduct.
See Restatement (Second) of Torts,
§ 46 (1965).)
See, e.g., Ward v. West Jersey & S.R. Co.,
In Maine, “[p]rior to 1970, a plaintiff could not recover damages for negligently inflicted mental suffering, except in connection with recovery of damages for physical injury caused by the same negligent act.”
Vicnire v. Ford Motor Credit Co.,
Despite its earlier reluctance to recognize a separate cause of action for emotional distress in the absence of some physical manifestation of harm, Maine has recently greatly liberalized its approach to this aspect of the law. The recent trend has culminated in
Culbert v. Sampson’s Supermarkets, Inc.,
Given Maine’s liberal recognition of an independent cause of action for emotional distress in an area of law that has bеen typified by judicial caution, and also its longstanding recognition of damages for anxiety of future consequences, see Davis, supra, we conclude that under Maine law, fear of cancer is a recoverable element of damages in the instant actions. Any such recovery wоuld be for present damages, and we do not believe that a plaintiff’s cause of action for cancer, should it ultimately develop, would be necessarily foreclosed by res judicata under our ruling.
It goes without saying that the following are prerequisites to any recovery of anxiety damages. First, that аny anxiety must have been proximately caused by plaintiff’s exposure to asbestos. Moreover, the anxiety must be reasonable. Finаlly, defendants must be legally responsible for the plaintiff’s exposure to asbestos. See, Valori v. Johns-Manville, et al, No. 82-2686 (D.N.J. Dec. 11,1985).
We hold therefore, that based on Maine law and thе Federal Rules of Evidence plaintiff may discuss anxiety of cancer during opening statement, as well as offer evidence on this issue during triаl.
We are mindful that such evidence has the potential to be highly prejudicial. However, our previous experience in similar asbеstos cases convinces us that the jury is capable of sorting out the evidence, understanding the instructions on this issue and placing canсer evidence in the proper perspective.
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We nevertheless admonish plaintiff that the Court will be wary of any efforts to “overshadow” the case by the “the dread specter of. cancer.”
Lohrmann v. Johns-Manville, et al.,
ORDER
For the foregoing reasons, it is accordingly ordered that defendants’ motion in limine to exclude from opening statements any discussion of fear or increased risk of cancer is denied. With this order we also hold that such evidence is admissible in the case in chief.
SO ORDERED.
Notes
Honorable David S. Porter, United States Senior District Judge, Southern District of Ohio, sitting by designation.