Potter

I concur in the majority opinion to the extent it recognizes a cause of action in negligence for causing fear of cancer in the absence of a claim of physical injury or disease. I also concur in the majority opinion’s treatment of Firestone’s comparative fault claim, and I concur in the opinion to the extent it reverses the judgment of the Court of Appeal on the cause of action for medical monitoring costs.

I disagree with the majority in two respects. First, I agree with Justice George’s contention that when a defendant negligently exposes a plaintiff to carcinogenic toxins, plaintiff’s recovery for resulting fear of cancer should not depend on proof that it is probable the cancer will actually occur. As Justice George demonstrates, under settled tort principles, proof of the emotional damage flowing from defendant’s negligent act should not depend on proof of the probable occurrence of the disease.

*1013 I also agree with Justice Kennard that the majority err in creating an anomalous new cause of action in negligence requiring proof of malicious conduct. When it is shown that the defendant has acted with conscious disregard of the plaintiff’s health and safety in exposing the…

I concur in the judgment and in much of the reasoning of the majority opinion. In particular, I agree with the majority that recovery of fear-of-cancer damages in toxic exposure cases not involving immediate physical injury should be subject to the following conditions: When a defendant has caused the plaintiff to unknowingly ingest toxic chemicals by an act or omission that is merely negligent, the plaintiff may recover damages for emotional distress caused by fear of future cancer only upon proof of a more-than-even chance that cancer will actually develop. But when the defendant has acted with conscious disregard of the plaintiff’s health and safety—and thereby demonstrated a level of moral culpability significantly beyond mere negligence—then the plaintiff may recover fear-of-cancer damages whenever the plaintiff’s resulting emotional distress is genuine, serious, and reasonable.

My disagreement with the majority is only about the legal pigeonhole in which to situate the liability imposed in the latter situation. The majority places this liability within the tort of negligence, even though proof of malice will be indispensable to recovery for emotional distress, which may be…

I concur in the majority’s conclusion that plaintiffs may recover from Firestone for the emotional distress they have suffered as a result of their fear of developing cancer because of Firestone’s egregious misconduct in the disposal of its toxic waste. I dissent, however, from the majority opinion insofar as it holds that plaintiffs would not be entitled to recover for their emotional distress had defendant simply been negligent in contaminating plaintiffs’ water supply.

As I shall explain, I believe the majority opinion has departed from well-established tort principles—long recognized in California—in holding that, when a defendant negligently contaminates another person’s water supply, subjecting that person to the risk of personal injury or illness, the victim of this contamination may recover for the emotional distress reasonably suffered by the fear of incurring such injury or illness only if the victim can establish that he or she is "more likely than not” to develop the injury or illness.

As the majority opinion recognizes, a reasonable person who has consumed, cooked with, and bathed in water that has been contaminated by toxic waste is likely to sustain serious…

We granted review in this case to consider:

Our analysis of existing case law and policy considerations relevant to the availability of damages for emotional distress leads us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.

We also conclude, however, that an exception to this general rule is warranted if the toxic exposure that has resulted in the fear of cancer is caused by conduct amounting to “oppression, fraud, or malice,” as defined in Civil Code section 3294. In such cases, a plaintiff should be allowed to recover without having to show knowledge that it is more likely than not that the feared cancer will occur, so long as the plaintiff’s fear is otherwise serious, genuine and reasonable.

We find further that Christensen v. Superior Court, supra, 54 Cal.3d 868 , precludes any liability for intentional…

Wiley, Rein & Fielding, Thomas W. Brunner, Laura A. Foggan, Frederick S. Ansell, Stephen D. Goldman, Sullivan, Roche & Johnson, Cameron Kirk, Jr., James L. Kimble, Seyfarth, Shaw, Fairweather & Geraldson, Sue J. Scott, Randal L. Golden, David F. Zoll, Donald D. Evans, Robin S. Conrad, Jan S. Amundson, Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Pillsbury, Madison & Sutro, Sidney K. Kanazawa, Kevin M. Fong, Latham & Watkins, Ernest J. Getto, Cynthia H. Cwik, Charles F. Weiss, Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steve Merksamer, John E. Mueller, Peter Fullerton, John Montgomery, Daniel J. Popeo, Richard A. Samp, Fred J. Hiestand, Catherine I. Hanson, Alice P. Mead and Christiana Geffen as Amici Curiae on behalf of Defendant and Appellant.

Stemple & Boyajian, Gordon A. Stemple, Richard Amerian, Sharon Munson Swanson and Robert K. Crawford for Plaintiffs and Respondents.

Douglas Devries, Leonard Sachs, Bruce Broillet, Robert Steinberg, Roland Wrinkle, Harvey R. Levine, Ian Herzog, Evan D. Marshall, Rouda, Feder & Tietjen, Ronald H. Rouda, Macon Cowles, Priscilla Budeiri, Arthur Bryant and Anne Bloom as Amici Curiae on behalf of Plaintiffs and…