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Article: Standard of proof for increased risk of disease or injury.
- Article from:
- Defense Counsel Journal
- Article date:
- January 1, 1994
- Author:
CopyrightCOPYRIGHT 1994 International Association of Defense Counsels. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group. (Hide copyright information)
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CLAIMS for the increased risk of future disease often are predicated on the assertion that the plaintiff has been exposed to a carcinogen and, as a result, has an increased risk of contracting some form of cancer. Historically, courts did not recognize claims for increased or enhanced risk of future disease by themselves, holding that there was no injury.(1) As Dean Prosser stated, "the threat of future harm, not yet realized, is not enough."(2)
TRADITION GIVES WAY
Under traditional tort principles, claimants did not have causes of action until they contracted the disease. This rule avoided the problem of trying to prove highly speculative damages.(3) ...