Potter v. Firestone Tire and Rubber Co.
6 Cal.4th 965, 863 P.2d 795, 25 Cal.Rptr.2d 550 (1993)

  • Firestone was intentionally dumping toxic materials into an inappropriate landfill. The Potters lived near the landfill. The Potters ended up drinking contaminated water. They sued.
    • The Potters were suffering from no obvious health effects, but the chemicals they were exposed to were carcinogens.
  • The Trial Court found for Potter and awarded $269k for psychiatric illness and the cost of treating them, $142k for medical monitoring, and $2.6M for punitive damages. Firestone appealed.
  • The Appellate Court affirmed, although they modified the judgment a bit. Firestone appealed.
  • The California Supreme Court reversed.
    • The California Supreme Court noted that everybody might get cancer, so being scared of getting cancer (without anything more) is not a recoverable claim.
      • Allowing fear of cancer by itself to be a recoverable claim would expose companies to almost unlimited liability.
      • Also, if you allowed everybody who might get cancer to get money, there would not be much left to compensate the people who actually do get cancer.
    • The Court found that the Potters couldn’t recover for emotional distress because they couldn’t show any actual injuries.
      • The Court noted that if the Potters could show cell damage, theyÕd be able to recover for emotional distress because they could show physical injury, but they had no evidence for cell damage.
      • The traditional rule for an emotional distress claim was that you had to be physically injured.
      • The Court suggested that in order to recover, the Potters would have to show that not only were they exposed, but that based on a reliable medical opinion, there is “a serious fear that exposure was of such magnitude and proportion as to likely result in cancer.”
    • The Court found that, under California law, if the defendant is guilty of “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” then the bar is lowered and Potter can recover without demonstrating that cancer is probable.
      • The case was remanded to get a jury to decide if Firestone’s conduct amounted to “oppression, fraud, or malice.”
  • Basically, this case said that you can only win on an emotional distress claim if you can show there is a really good chance that you will get sick in the future.
    • Does this make sense? Regardless of what the actual chance of getting cancer is, the Potter had a 100% chance of fearing cancer, which is what they were claiming in their lawsuit.
  • No other jurisdictions have followed the Potter Rule that there must be more of a chance that you’ll get cancer than not.