OHIO STATE LAW JOURNAL VOLUME 65, NUMBER 4, 2004 Liability & Fear CHRISTOPHER P. GUZELIAN* Fear of physical harm or death has been compensable for a century. Fear, unlike other injuries, is subjective, difficult to quantify, and could lead to limitless liability. Courts seek to balance the amount offear liability (if there should be any at all) against a perceived need to address and deter fear-relatedharms. Judges' decisions in fear lawsuits, however, rely upon scientifically baseless guidelines. Courts place allfear liability on creators or perpetuatorsof risks of physical harm-physicians, environmental polluters, product manufacturers, government (including regulatory and law enforcement agencies), and so forth. This liability assignment does not reflect fear's etiology. The courts are simplistically impugning that where a person or entity has created or increased another's risk ofphysical harm, the victim suffers fears either contemporaneous with a harm or in anticipation of a future harm. Scientific and sociological research indicates that most fears in America's electronic age are instead predominantly results of risk information (whether correct or false) that is communicatedto society by varioussources (most notably the media), not simply products of being at scientifically known ("epistemic") risk(s). This article rejects currentfear liability allocations.Instead, consistent with settled general principles of liability, it proposes that the media and others who negligently or * John M. Olin Fellow in Law & Economics, Stanford Law School ([email protected]). A litany of extraordinary individuals gave kind advice, well-reasoned criticisms, and appreciated encouragement. Invariably I will omit by accident names of some who deserve singular recognition. Without fear of the inevitable, I thank my family, Afsheen Afshar, Cary Coglianese, Mariano-Florentino Cudllar, Marc Franklin, Joseph Grundfest, Christine Halmes, Lawrence Lessig, Eugene Mazo, Jay Neukom, Armen Panossian, Robert Rabin, Robert Sapolsky, Nathan Schachtman, Michael Victeroff, Eugene Volokh, Robert Weisberg, the Stanford Daily, and the Stanford University Statistics Department Consulting Group. All of you gave the appreciated courtesy-and some of you offered much more---of supporting or critiquing this work. Statements and, more important, errors remain mine alone. This article's use of the first person plural follows the convention of mathematicians. They believe, as do I, that publications are a collective effort-which includes participation by the reader-to come closer to truth. Use of generalized masculine pronouns follows my convention of invoking the gender of the first-author (or in this case, the sole author), and is done only to avoid linguistic gymnastics and gross grammatical error, not to offend. I gratefully acknowledge generous financial support (and the intellectual independence that it affords) by the John M. Olin Foundation at Stanford Law School. I extend my appreciation to Olin director Mitchell Polinsky and Olin administrative assistant Randy Mont-Reynaud, as well as Stanford Law School Dean Kathleen Sullivan. Last, I thank my family and R. Kent Goodrich. My family taught me how to chase dreams. Kent taught me how to stay within epsilon of them. OHIO STATE LA WJOURNAL [Vol. 65: 713 intentionally skew public risk perceptions must share liability for clinically seriousfears ofphysical harm or death. TABLE OF CONTENTS 1. IN TRODUCTION ..................................................................................... 715 A. Casualty andRisk .................................................................. 719 B. Fearand Risk Communication............................................. 719 C. Free Speech? .......................................................................... 720 II. CASUALTY, RISK, AND FEAR'S CAUSES ............................................. 726 A . Casualty .................................................................................. 726 B . R isk ......................................................................................... 732 C. Risk Perception= Fear......................................................... 750 D. Risk Communication: The Major Modem Cause of F ear ........................................................................................755 III. LAW'S FOUR OLD-FASHIONED RESTRICTIONS ON EMOTIONAL HA RM S ..................................................................................................766 A. PhysicalImpact ...................................................................... 767 B . F right ...................................................................................... 77 1 C. Genuine & Serious Fear....................................................... 774 D. Risk Perception From Personal Experience (Bystanders Only) .................................................................. 777 IV. How TO ASSIGN FEAR LIABILITY IN A COMMUNICATIONS- BASED WORLD ..................................................................................... 804 A. Definitions:Proximate Risk, Negligence, Duty.................... 806 B. Establishing Objective Fear Liability for Physical Injurers................................................................................... 8 14 1. "Significant" Risk ofFear ....................................... 816 2. Excusing "Significant" Risks of Fear: DecisionAnalysis .................................................... 822 C. Enabling Tort: Liabilityfor Multiple Tortfeasors ................ 827 D. Traditional,Enabling, and Leapfrogging Liability .............. 836 E. Allocating FearLiability ....................................................... 841 1. Traditional-StyleFear Liability .............................. 843 2. EnablingFear Liability ........................................... 847 3. LeapfroggingFear Liability .................................... 848 F. The Problem of FearAmplification ...................................... 848 V . C ON CLUSION ........................................................................................ 850 2004] LIABILITY & FEAR I. INTRODUCTION On March 10, 2003, the United States Supreme Court decided Norfolk & Western Railway Co. v. Ayers ("Ayers").1 With the fanfare of affirmative action 2 and homosexual equal protection cases 3 decided the same term, commentators and the public gave Ayers little notice. Yet Ayers reflects an urgent need for dramatic legal and social changes that will outweigh the impacts of those instant- fame cases. Ayers seems bland enough on first inspection; the case was another of thousands of asbestos-related litigations. Former railroad employees sued their employer under the Federal Employers' Liability Act (FELA)4 in West Virginia state court. The plaintiffs alleged that the railroad had negligently exposed them to asbestos in their workplaces and that they had each resultantly contracted a non- cancerous lung disease, asbestosis. 5 The plaintiffs demanded, among other things, special mental anguish damages. These were sought to compensate fear the plaintiffs claimed they had suffered or were currently suffering because of an undisputed increase in their risk of contracting mesothelioma, a form of lung 6 cancer. Ayers ruled in the plaintiffs' favor on the fear claim.7 On its face, this outcome may not seem controversial. Such "negligent infliction of emotional 8 distress" ("NIED") claims are well-established, stand-alone causes of actions. 1 538 U.S. 135 (2003). 2 Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). 3 Lawrence v. Texas, 539 U.S. 558 (2003). 4 45 U.S.C. §§ 51-60 (2003). 5 Asbestosis is a chronic, progressive scarring of the lungs caused by long-term exposure to asbestos particles. In exceedingly rare instances, asbestosis can be fatal. Asbestosis is evidence of being at higher risk of contracting lung cancer, but asbestosis itself is not a form of cancer. See U.S. DEPT. OF HEALTH AND HUMAN SERVICES, AGENCY FOR Toxic SUBsTANCEs AND DISEASE REGISTRY, ASBESTOS ToxicITY 20 (2000). See generally VICTOR L. ROGGLI ET AL., PATHOLOGY OF ASBEsTOs-ASSOCIATED DISEASES (1992). 6 The Ayers Court reported that asbestosis sufferers have a one in ten risk of dying from mesothelioma and that the defendant's expert had confirmed this risk to be "nine or ten percent." Ayers, 538 U.S. at 142. 7 The Court held: "[M]ental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos." Id. at 141. 8 The Supreme Court has defined NIED as mental or emotional injury apart from the tort law concepts of pain and suffering. Although pain and suffering are technically mental harms, these terms traditionally have been used to describe sensations stemming directly from a physical injury or condition. OHIO STATE LA WJOURNAL [Vol. 65: 713 And although the asbestosis victims did not yet have cancer, they allegedly had fear of cancer. The Court's decision seized on these current fears of future cancer so that the case would conform to ancient tort dogma: there can be no recovery without present injury. But if one digs a little deeper, questions arise whether this holding is as passable as Ayers tried to make it seem. The Court references tens, if not hundreds, of previous state and federal decisions, insisting its holding conforms to the spirit of those cases.9 One citation is to Dempsey v. Hartley, a Pennsylvania