Under Oregon law, with regard to future medical harm, "[t]he general rule against possible but not probable future damages was modified in the case of Feist v. Sears, Roebuck &Co., 267 Or. 402, 517 P.2d 675 (1973)." Pelcha v. United Amusement Co., 606 P.2d 1168. 1168 (Or. Ct. App. 1980). In Feist, the Court held that an injury that creates a "predisposition to the contracting of some disease, i.e., a possibility" is evidence a jury may consider because, as a matter of "common sense," a jury can award larger damages for an injury that creates the susceptibility of future medical harm than an injury that does not have that risk. 517 P.2d at 680.

Defendants argue that damages for future medical harm are too speculative because they were not reasonably certain. Under Oregon law relating to future medical harm, however, "[t]he general rule against possible but not probable future damages was modified in the case of Feist . . . ." Pelcha v. United Amusement Co., 606 P.2d 1168, 1168 (Or. App. 1980) (rejecting the defendant's argument based "on the general rule at common law against recovery for future consequences that are not reasonably certain"); see also Zehr, 871 P.2d at 1012 (rejecting argument that as a matter of law alleged future medical harm was too speculative); Feist, 517 P.2d at 679-80 (trial court instruction to jury that it could consider susceptibility to meningitis in its award of damages was not erroneous). Under Oregon law, future medical harm that is "more than merely conceivable" is admissible for a jury to consider. Pelcha, 606 P.2d at 1169 (holding that evidence that there was a 30 to 45 percent chance that future surgery might be needed was admissible and its "degree of likelihood was the subject of evidence and was properly a subject for the jury to consider"); see also Feist, 517 P.2d at 680 (holding that an injury that creates a "predisposition to the contracting of some disease, i.e., a possibility" is evidence a jury may consider because, as a matter

In Feist v. Sears Roebuck Co., 267 Or. 402, 517 P.2d 675 (1973), the Supreme Court acknowledged that, although medical probability may be required to establish the necessary causal relationship to support recovery, the jury could, nevertheless, consider future possibilities in determining damages. In Pelcha v. United Amusement Co., 44 Or. App. 675, 606 P.2d 1168, rev den 289 Or. 275 (1980), this court held that where possibility of future surgery is more than merely conceivable, "the degree of likelihood was the subject of evidence and was properly a subject for the jury." 44 Or App at 678.

Henderson v. Hercules, Inc., 646 P.2d 658, 661 (Or. Ct. App. 1982); see Pelcha v. United Amusement Co., 606 P.2d 1168, 1169 (Or. Ct. App. 1980) (admitting evidence that future medical treatment was “more than merely conceivable” and submitting to the factfinder the question of “degree of likelihood”).

Plaintiff also cites cases holding that a jury may consider the possibility of future medical problems in calculating damage awards, even if there is a less than 50 percent chance that the problems will occur. See Feist v. Sears, Roebuck Co., 267 Or 402, 412, 517 P2d 675 (1973); Henderson v. Hercules, Inc., 57 Or App 791, 796-97, 646 P2d 658 (1982); Pelcha v. United Amusement Co., 44 Or App 675, 606 P2d 1168, rev den, 289 Or 275 (1980). Those decisions recognized, as did Harris, that the risk of harm itself may, in certain circumstances, be compensable.

If the cause of action is proven, the damages are awarded for a cancer caused by the identified toxic chemicals but proportionately reduced by the quantified probability that the plaintiff will not manifest cancer. See Gale Goyer, 15 Cumb.L.Rev. at 742; Note, An analysis of the Enhanced Risk Cause of Action (Or How I Learned to Stop Worrying and Love Toxic Waste), 33 Vill.L.Rev. 437, 456 (1988); Note, Increased Risk of Cancer as an Actionable Injury, 18 Ga.L.Rev. 563, 589 (1984); Restatement (Second) of Torts § 7 (1985); Pelcha v. United Amusement Co., 44 Or.App. 675, 606 P.2d 1168 (1980); Jordan v. Bero, 158 W. Va. 28, 210 S.E.2d 618, 640 (1974) (Neely, J., concurring). The proof of the cause of action under either theory, therefore, requires opinion of quantified probability of disease.

Both the Supreme Court and this court have held that a jury can consider future possibilities in determining damages and that evidence of the degree of likelihood should be admitted for the jury's determination. Feist v. Sears, Roebuck Co., supra; Henderson v. Hercules, Inc., 57 Or. App. 791, 646 P.2d 658 (1982); Pelcha v. United Amusement Co., 44 Or. App. 675, 606 P.2d 1168, rev den80 289 Or. 275 (1980). That is exactly what was done in this case.