MBE Rules · Torts
Fear and Monitoring Claims
Fear of disease / medical monitoring
The rule
Toxic-exposure plaintiffs may recover fear-of-disease damages only with corroborating likelihood (California: more likely than not, absent malice) and medical-monitoring costs where surveillance is medically necessary due to significantly increased risk.
In plain English
In California, if someone is exposed to toxic substances, they can claim damages for fear of getting sick only if there's a strong chance (more than 50%) that they will actually develop a disease. Additionally, they can seek costs for medical monitoring if their risk of illness is significantly higher and the monitoring is necessary.
Worked example
A group of workers was exposed to a chemical spill at their job site. They fear developing cancer but have no medical evidence indicating they will get sick, and the likelihood of developing cancer is only 40%. They cannot recover for fear-of-disease damages. However, if a doctor recommends regular check-ups due to a significantly increased risk, they may recover the costs for that medical monitoring.
Memory hook
Fear without proof is just noise; show the risk to claim the cost.
The trap
Exams often present scenarios where plaintiffs have fear but lack sufficient evidence of increased risk, leading students to mistakenly believe they can recover damages.
How examiners test it
Questions typically involve fact patterns where plaintiffs are exposed to toxins and must assess their ability to claim damages based on the likelihood of disease and the necessity of medical monitoring.
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