A Model for Enhanced Risk Recovery in Tort

I. Introduction Long ago, torts were simple. A defendant harmed a plaintiff. The plaintiff sought compensation. If the defendant refused to pay, a court resolved the dispute by applying the maxim of "he who breaks must pay."1 But society became more complex, and tort law changed. The industrial revolution, for example, ushered in a fault-based regime of "he who breaks must pay" - if he failed to behave as a reasonably prudent person.2 Later, the development of manufactured goods gave rise to strict products liability, or "he who breaks must pay" - especially if he can bear and distribute the loss.3 More recently, the emergence of "toxic torts" has forced courts again to rethink existing doctrine.4 Toxic torts are cases involving injuries caused by exposure to environmental toxins.5 These cases, however, involve an inherent problem: Long latency periods often precede exposure-related harm,6 making it difficult for plaintiffs to connect current illness to any specific exposure.7 Recently, some plaintiffs have worked around the latency problem by filing suit before they become sick.8 Courts have recognized "pre-manifestation" claims in three different contexts. First, courts have sustained actions for fear of disease, in which plaintiffs seek compensation for the invasion of their mental well-being.9 Second, courts have recognized claims for medical monitoring, in which plaintiffs seek recovery for the cost of medical surveillance to detect the onset of disease.10 At "the top of the pyramid," however, are cases in which plaintiffs seek recovery for the very fact of living with an enhanced risk of disease.11 Courts have not favored enhanced risk claims, and have placed significant barriers in front of those who have filed such actions.12 Several commentators have suggested ways in which courts might remove these barriers.13 However, no proposal has convinced courts that the tort system can adequately address enhanced risk recovery. This Article represents an effort to do so.14 The Article begins by describing the hurdles that enhanced risk plaintiffs face under existing doctrine. These hurdles prevent tort law from sufficiently deterring those who create risk by exposing others to environmental toxins.15 The Article then reviews proposals that seek to remedy this problem. In particular, the Article focuses on proposals that would award proportional recovery based on plaintiffs' level of increased risk.16 These proposals have strong appeal from a deterrence perspective. The Article asserts, however, that they are not sufficiently attentive to the role that corrective justice plays in tort law,17 nor do they sufficiently deal with the issue of administrative feasibility.18 The Article then sets forth a new standard: Tort law should permit enhanced risk recovery on a proportional basis, but only when a plaintiff can prove that the toxic exposure has more than doubled her risk of contracting disease in the future.19 The Article justifies this standard as logically consistent with toxic tort doctrine in other settings20 and as cognizant of the need for tort law to deter risky conduct. However, the standard also is attuned to the role that corrective justice should play in establishing tort law doctrine.21 The Article concludes by providing several examples of how the new standard realistically could work, both on its own and in conjunction with other causes of action.22 In the end, the Article suggests that the proposed standard represents a step forward in tort law's efforts to resolve toxic tort claims. III Traditional Doctrine A. Overview Courts have struggled with enhanced risk claims, in part because these claims do not fit neatly into existing tort paradigms.23 Assume, for example, that X negligently has introduced a toxic substance into Z's drinking water supply. Z does not exhibit any symptoms of disease, nor does she suffer from emotional distress because of a fear of future disease. …