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No Medical Monitoring Without Physical Injury, Split Mich. High Court Rules

People who allege they were exposed to toxic substances must suffer a physical injury before they can force defendants to pay for medical monitoring, a divided Michigan Supreme Court has ruled in a highly anticipated ruling in a dioxin case.

"This ruling makes clear that in Michigan, merely being exposed to a substance does not give someone the right to sue for medical monitoring," the American Tort Reform Association said in a statement. The group filed an amicus curiae brief in the case supporting defendant Dow Chemical Co.'s arguments.

The case involves almost 200 residents of Saginaw County, Mich., who filed a class-action suit against Dow in state court, alleging that high levels of dioxin emissions — allegedly from Dow's factory on the banks of the Tittabawassee River — left their properties worthless and endangered their health.

The plaintiffs sought the establishment of a court-supervised medical monitoring program for those individuals whose health was determined by qualified medical experts to be at risk from dioxin exposure.

The plaintiffs said exposure to dioxin, an ingredient in the defoliant Agent Orange, can cause cancer, liver damage, hormone changes, reproductive damage, miscarriages and birth defects. They wanted their health monitored for any illnesses that may result from their alleged chemical exposure.

In August 2003 the trial court denied Dow's motion for summary judgment on the medical monitoring claim. After the Michigan Court of Appeals denied leave to appeal on the medical monitoring claim, Dow petitioned the state Supreme Court with an emergency appeal.

In its petition, Dow asked the high court to decide if there is a basis under state law to recognize a medical monitoring claim in the absence of a physical injury.

Additionally, many groups such as the American Tort Reform Association, the U.S. Chamber of Commerce and the National Association of Manufacturers filed friend-of-the-court briefs in the case on behalf of Dow, arguing that the highest courts of Alabama, Kentucky and Nevada all rejected medical monitoring claims related to a wide range of alleged exposures, from environmental tobacco smoke to groundwater pollution to prescription drugs.

Writing for the 5-2 majority, Justice Maura Corrigan said that under Michigan law, a plaintiff must demonstrate a present injury in addition to economic losses that result from that injury to recover in a negligence-based tort action.

"Because plaintiffs have failed to establish a present injury, it follows as a matter of logic that plaintiffs have also failed to establish causation," Justice Corrigan wrote.

The high court declined the plaintiffs' request to change the common law of negligence liability to include a cause of action for medical monitoring. Justice Corrigan said that was up to the Michigan Legislature.

"Indeed, the Legislature has already established policy in this arena by delegating the responsibility for dealing with health risks stemming from industrial pollution to the Michigan Department of Environmental Quality," Justice Corrigan wrote.

Therefore, the high court remanded the case to the trial court for entry of summary judgment to Dow on the plaintiffs' medical monitoring claims.

Dissenting, Justice Michael Cavanagh said Dow should be accountable for its actions.

"Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business," Justice Cavanagh wrote. "Sadly, this court has resorted to a cost-benefit analysis to determine and consequently degrade the value of human life, and this is an analysis that I cannot support."

Justice Marilyn Kelly also joined Justice Cavanagh in the dissent.