Boryla v. Pash

ROTHENBERG, Judge,

concurring in part, and dissenting in part.

I respectfully dissent as to the majority’s ruling in regard to permitting damages for fear of developing cancer in the future. I would hold that such recovery is permissible only if plaintiff pleads and proves that: 1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, she has incurred damages arising from her fear of an increased risk that her cancer will recur; and 2) plaintiffs fear stems from a knowledge, supported by reliable medical or scientific opinion, that it is more likely than not her cancer will recur because of defendant’s negligence. Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993).

Adoption of the “more likely than not” threshold in fear of cancer cases balances the interests of injured litigants while precluding speculative or unquantifiable emotional distress awards. It also establishes a “a sufficiently definite and predictable threshold for recovery to permit consistent application from ease to case.” Potter v. Firestone Tire and Rubber Co., supra, 25 Cal.Rptr.2d 550, 863 P.2d at 813.

I concur in the majority’s reversal of the judgment based on the risk of cancer. However, because plaintiff concedes here, that the delay in diagnosis had no effect on her treatment or recovery from cancer, I also would reverse the judgment entered in her favor for damages based upon fear of an increased risk of cancer, and I would remand with directions to enter judgment in favor of defendant.