Potter v. Firestone Tire and Rubber Co. 6 Cal.4th 965, 863 P.2d 795, 25 Cal.Rptr.2d 550 (1993)
Firestone was intentionally dumping toxic materials into an inappropriate landfill. The Potters lived near the landfill. The Potters ended up drinking contaminated water. They sued. o The Potters were suffering from no obvious health effects, but the chemicals they were exposed to were carcinogens. The Trial Court found for Potter and awarded $269k for psychiatric illness and the cost of treating them, $142k for medical monitoring, and $2.6M for punitive damages. The Appellate Court affirmed, although they modified the judgment a bit. Firestone appealed. The California Supreme Court reversed. o The California Supreme Court noted that if the Potters could show cell damage, they’d be able to recover for emotional distress because they could show physical injury, but they had no evidence for cell damage. The traditional rule for an emotional distress claim was that you had to be physically injured. o The Appellate Court recognized that everybody might get cancer, so being scared of getting cancer is not a recoverable claim. It would also expose companies to almost unlimited liability. o Also, if you allowed everybody who might get cancer to get money, there would not be much left to compensate the people who actually do get cancer. o The Court suggests that you can recover if you can prove that you were not only exposed, but you can also show that based on reliable medical opinion, there is a serious fear that exposure was of such magnitude and proportion as to likely result in cancer. Basically, you can only recover if there is a really good chance that you will get sick in the future. Does this make sense? Regardless of
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what the actually chance of getting cancer is, the Potter had a 100% chance of fearing cancer, which is what they are claiming in their lawsuit. o However, under California law, if the defendant is guilty of “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” then the bar is lowered and Potter can recover without demonstrating that cancer is probable. The case was remanded to get a jury to decide if Firestone's conduct amounted to “oppression, fraud, or malice. No other jurisdictions have followed the Potter Rule that there must be more of a chance that you'll get cancer than not.