Abstract

Comment: Torts
The victim of toxic torts has traditionally faced a number of hurdles in attempting to obtain full compensation for injuries resulting from exposure to hazardous chemicals. A particularly difficult situation arises when the exposure causes immediate injuries as well as increasing the risk of developing cancer in the future. Because the immediate injuries are patent, the applicable statute of limitation begins to run and the victim must sue within the statutory period. In order to recover for the increased risk of contracting cancer, the plaintiff must show that it is more probable than not that cancer will develop. This is the only chance for recovery because courts applying the doctrine of res judicata strictly construe the claims for potential cancer and the claim for immediate injuries as one cause of action. Thus, the plaintiff is precluded from bringing a subsequent suit if and when cancer actually does develop.

The Fifth Circuit Court of Appeals addressed this problem in Hagerty v. L. & L. Marine Services, Inc. Plaintiff William Hagerty was soaked with toxic chemicals in the course of employment as a barge tankerman. He brought suit against his employers and the barge charterer for injuries allegedly resulting from the exposure. The Fifth Circuit found the plaintiff's immediate injuries—dizziness, leg cramps, and stinging in his extremities—sufficient to give rise to an immediate cause of action. As to his claim for the increased risk of developing cancer, the court reaffirmed the common law rule requiring the plaintiff to prove that it is more probable than not that cancer will develop in the future. Since Hagerty had not alleged this was so, the court held he stated no claim for increased risk of cancer.

The Hagerty opinion is most significant, however, for its suggestion that the claim for the present injuries and the claim for cancer should be two separate causes of action. Under such a scheme, the statute of limitations on the cancer claim will begin to run when the cancer is discovered, and any previous recoveries for other injuries will not bar recovery on the cancer claim. This Comment will examine the Hagerty court's innovative suggestions regarding increased risk of cancer claims. It will also discuss the possible acceptance of such an approach in Arizona.

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