Although conventional damage awards do not restrict plaintiffs in the use of money paid as compensatory damages, mass-exposure toxic-tort cases involve public interests not present in conventional tort litigation. The public health interest is served by a fund mechanism that encourages regular medical monitoring for victims of toxic exposure. Where public entities are defendants, a limitation of liability to amounts actually expended for medical surveillance tends to reduce insurance costs and taxes, objectives consistent with the legislature's admonition to avoid recognition of novel causes of action.
The compensability of an enhanced risk claim depends upon the likelihood of an event that has not yet occurred and may never occur -- the contracting of one or more diseases the risk of which has been enhanced by defendant's conduct. It is the highly contingent and speculative quality of an unquantified claim based on enhanced risk that renders it novel and difficult to manage and resolve. If such claims were to be litigated, juries would be asked to award damages for the enhanced risk of a disease that may never be contracted, without the benefit of expert testimony sufficient to establish the likelihood that the contingent event will ever occur.
Plaintiff residents filed suit against defendant township for damages sustained as the result of the contamination of their well water by pollutants from a landfill established and operated by the defendant. The trial court awarded damages for plaintiffs’ enhanced risk of disease and also their medical surveillance expenses. The intermediate appellate court reversed the decision of the trial court regarding the enhanced risk of disease and medical surveillance expenses.
Did a plaintiffs’ award for enhanced risk of disease, possibly for a disease which may never be contracted, violate the New Jersey Tort Claims Act?
The court affirmed the decision of the lower court in part and reversed in part. It held that the plaintiffs’ award for damages for enhanced risk of disease disobeyed the New Jersey Tort Claims Act. The court reasoned that the speculative nature of an unquantified enhanced risk claim, the difficulties inherent in adjudicating such claims, and the policies underlying the Tort Claims Act argued against the recognition of this cause of action. Additionally, the court held that the cost of medical surveillance was a compensable item of damages where the proofs demonstrated that surveillance to monitor the effect of exposure to toxic chemicals was reasonable and necessary.