Hagerty v. L & L Marine Services, Inc.

• Decision Date: 30 April 1986
• Docket Number: No. 85-3147,85-3147
• Citation: 788 F.2d 315
• Parties: William HAGERTY, Plaintiff-Appellant, v. L & L MARINE SERVICES, INC., and Union Carbide Corp., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 315

788 F.2d 315

54 USLW 2569

William HAGERTY, Plaintiff-Appellant, v. L & L MARINE SERVICES, INC., and Union Carbide Corp.,

Defendants-Appellees.

No. 85-3147.

United States Court of Appeals, Fifth Circuit.

April 30, 1986.

Jack C. Benjamin, New Orleans, La., for plaintiff-appellant.

Timothy F. Burr, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for L & L Marine & Globe Barge, Inc.

Robert M. Contois, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Jeanmarie Lococo, New Orleans, La., for Union Carbide.

Before BROWN, REAVLEY and HILL, Circuit Judges.

Appeal from the United States District Court for the Eastern District of Louisiana.

REAVLEY, Circuit Judge:

William L. Hagerty was accidently soaked with toxic chemicals while doing duty as a Jones Act seaman. He sues for his damages which include pain and suffering, mental anguish due to the fear of developing cancer, and the medical expense of regular checkups to monitor against that disease. The district court granted summary judgment for the defendants on the ground that no cause of action had accrued. We reverse and remand.

The traditional tort rules may be restated. A tortious cause of action accrues when the victim suffers harm caused by the defendant's wrong. The injury or harm may occur simultaneously with the tortious conduct in the case of a traumatic event or the injury may be latent and not manifested and discovered until some later date. When the fact of the injury does occur, if discovered by the victim, the cause of action accrues. The victim is then entitled to sue for his damages, past and present, as well as his probable future damages, and limitation also begins to run on the time within which suit may be instituted. The victim is entitled to only one cause of action and, if his injuries subsequently worsen, he has no further opportunity for recompense.

The present appeal raises, primarily, the question of whether a cause of action has accrued. We hold that Hagerty suffered physical injuries and was entitled to pursue this action. The element of fear of cancer and attendant medical costs will be urged upon remand, and we therefore address that issue. Finally, we volunteer our dissatisfaction with the single cause of action rule in face of the recurring problem of injured people facing the possibility of cancer. Those victims should be entitled to recover for present injuries and, also, for the cancer when and if it later develops; they should neither be entitled nor compelled to recover for cancer damages until those damages can be realistically assessed.

1. ACCRUAL OF CAUSE OF ACTION

Hagerty was employed by L & L Marine Service, Inc. and/or Globe Barge, Inc. in April 1982, when he served as a tankerman on a barge being loaded with chemicals at the Union Carbide plant in Guyanilla, Puerto Rico. Because of an alleged defect in the barge and/or equipment being used to load the chemicals, Hagerty was completely drenched with dripolene, a chemical containing benzene, toluene and xyolene. He doused his clothes and shoes with water immediately and then removed the clothes and took a shower several hours later. Hagerty was sprayed again with the chemical in a subsequent mishap at the same location, but he was not drenched to the same extent as in the first event. Aside from his ruined shoes, he suffered a brief period of dizziness, followed by leg cramps until he obtained his shower. The following day he felt a stinging in his extremities. Because of these symptoms, the extent of his emersion in the chemical, and his understanding of the carcinogenic effect of that chemical, he is now fearful that he will in time contract the disease. Clearly, he does not have the disease at the present time and has suffered no manifestations of any symptoms or ailments attributed to cancer. He has consulted with several doctors and, at the suggestion of his physician, he continues to undergo regular periodic medical examinations and laboratory tests.

The cause of action has accrued if Hagerty's injury was discernible on the occasion when he was drenched with the toxic chemical. Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir.1984). Dizziness, leg cramps, and a persistent stinging sensation in feet and fingers suggest some harm or injury. The prospects of cancer are of some significance only because that affected Hagerty's appraisal of the significance of what had occurred. Whether a person has suffered harm and whether it is nominal or significant may depend upon that person's own feelings and response. One person might ignore headaches and temporary lassitude, while another--possibly because of a lower pain threshold or because of a greater awareness of the potential consequences--might be so disturbed as to suffer injury and be charged by law with the accrual of a cause of action. In Albertson we held that limitations barred the Jones Act and general maritime law claims because the plaintiff's headaches and nausea and a subsequent loss of consciousness gave the plaintiff knowledge of the critical facts that he had suffered more than a minor injury. While the early effects of Hagerty's exposure may not have been as severe as those of Albertson, we hold that they suffice to present an issue of physical injury and to render summary judgment improper.

2. THE ELEMENTS OF DAMAGES

Upon trial the plaintiff is entitled to recover damages for all of his past, present and probable future harm attributable to the defendant's tortious conduct. Those damages include pain and suffering and mental anguish. The present fear or anxiety due to the possibility of contracting cancer constitutes a present fact of mental anguish and may be included in recoverable damages. The increase in the risk of his contracting cancer may not be included, however.

a. Cancerphobia

Defendants contend that a plaintiff's cancerphobia should not be considered a present injury unless accompanied by "physical manifestations." Only a physical injury requirement, they argue, will ensure against the proliferation of "unworthy claims." It would also deny worthy claims, perhaps that of Hagerty. We believe the courts have better devices with which to choose between the worthy and the unworthy.

Cancerphobia is merely a specific type of mental anguish or emotional distress. See, e.g., Gale & Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 Cum.L.Rev. 723, 725 (1985). Courts have long allowed plaintiffs to recover for psychic and emotional harm in Federal Employers' Liability Act or Jones Act/maritime cases. See, e.g., Erie R. Co. v. Collins, 253 U.S. 77, 85, 40 S.Ct. 450, 453, 64 L.Ed. 790, 794 (1920) ("shame and humiliation"); Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1167 n. 3, 1169 (5th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 947 (1983) (pain, suffering, mental anguish and loss of life's enjoyment); Bullard v. Central Vermont Railway, Inc., 565 F.2d 193, 197 (1st Cir.1977) (fright or mental suffering resulting from injury); see also Tampa Ship Repair & Dry Dock Co., Inc. v. Director, 535 F.2d 936 (5th Cir.1976) (upholding finding of permanent disability, under Longshoremen's and Harbor Workers' Compensation Act, for psychological condition). Indeed, these statutes are intended to provide broad coverage for all work-related "injuries," whether characterized as mental or physical. See Buell v. Atchison, Topeka & Santa Fe Railway, Co., 771 F.2d 1320, 1324 (9th Cir.1985) (recognizing claim for purely emotional injury resulting from employer's negligent and intentional harassment, threats, and intimidation). Furthermore, while neither the parties' nor our own research has uncovered any claims for cancerphobia under the Jones Act or FELA, courts have often recognized such claims in other contexts. E.g., Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 413-15 (5th Cir.1986) (en banc); Dartez v. Fibreboard Corp., 765 F.2d 456, 467-68 (5th Cir.1985); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138 (5th Cir.1985); Clark v. Taylor, 710 F.2d 4, 14 (1st Cir.1983); Wetherill v. University of Chicago, 565 F.Supp. 1553, 1559-61 (N.D.Ill.1983); Arnett v. Dow Chemical Co., SF Master File No. 729586, slip op. at 68-77 (Cal.Super.Ct. [S.F.Cty.] March 21, 1983); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351, 353 (La.1974) (Tate, J.); Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401 (1962); Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249, 176 N.Y.S.2d 996 (1958); cf. Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir.1986) (exclusion of cancerphobia evidence harmless error when plaintiff failed to make offer of proof); Plummer v. Abbott Laboratories, 568 F.Supp. 920 (D.R.I.1983) (DES mothers barred from claiming fear of future cancer in daughters); see also Galante, When the Mind is Hurt, Nat'l L.J., May 28, 1984, at 1, col. 1 (discussing trend towards courts recognizing merit of mental distress claims).

The physical injury requirement, like its counterpart, the physical impact requirement, ¹ was developed to provide courts with an objective means of ensuring that the alleged mental injury is not feigned. W. Prosser, The Law of Torts Sec. 54, at 330-33 (4th ed.1971). We believe that notion to be unrealistic. It is doubtful that the trier of fact is any less able to decide the fact or extent of mental suffering in the event of physical injury or impact. With or without physical injury or impact, a plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where his fear is reasonable and causally related to the defendant's negligence. The circumstances surrounding the fear-inducing occurrence may themselves supply sufficient indicia of genuineness. It is for the jury to decide questions such as the existence, severity and reasonableness of the fear.

Here, Hagerty has testified that he studied the characteristics of the chemicals...