In the News Corporate Counsel

Reduced Exposure

In the state-by-state battle over medical monitoring for toxic exposure, the tide finally seems to be turning in favor of companies. Individuals who have been exposed to a toxin but are currently healthy have filed a host of suits since the eighties in which they've tried to force the producer of the toxin to pay for their ongoing medical testing. Though these "worried well" individuals have won significant victories in the past, the last four state supreme courts to rule on medical monitoring have all sided with the corporate defendants.

The most recent decision, handed down by the Michigan Supreme Court in July, focused on dioxin allegedly released into the Tittabawassee River by The Dow Chemical Company's plant in Midland, Michigan. Approximately 180 individuals who live near the river filed suit against Dow in 2003. Though the plaintiffs are currently healthy, they fear that they may eventually develop health problems from their exposure to dioxin, which they claim Dow has been emptying into the river since at least 1984. Because studies have shown that dioxin can cause cancer, immune deficiencies, and birth defects, the plaintiffs wanted Dow to pay for medical testing that, they argued, would be necessary for the rest of their lives.

Though the Tittabawassee residents initially prevailed on their monitoring claims at the trial and appellate levels, they lost at the Michigan Supreme Court by a 5-to-2 vote. Writing for the majority, Justice Maura Corrigan explained, "At best, the only injury from which plaintiffs suffer at present is a fear of future illness. This fear, however reasonable, is not enough to state a claim of negligence." As a result, Dow isn't liable for the costs of the Tittabawassee residents' monitoring, the court ruled.

Michael Glackin, an in-house counsel at Midland, Michigan--based Dow, says the decision is "the best-reasoned opinion on medical monitoring" to date. Because the Michigan Supreme Court's ruling is "more thorough than most law review articles I've read on the subject," Glackin thinks it "will be given serious consideration in other courts."

Plaintiffs lawyers are quick to disagree, of course. Teresa Woody of Kansas City, Missouri's Stueve Siegel Hanson Woody, who represents the Tittabawassee residents, says the Michigan ruling doesn't have any more precedential value than the decisions in other states. Plus, Woody says the Michigan majority got it wrong--the issue isn't the lack of a present health injury. Rather, the Tittabawassee residents are suffering from an economic injury because they're forced to undergo continual testing due to their dioxin exposure. Woody also maintains that it's less expensive for defendants such as Dow to pay for medical monitoring now, rather than have to pay for the health care of exposure victims who develop catastrophic ailments down the road.

These arguments have found a more receptive audience in other states. The top courts in six states, and the lower courts in another four, have allowed plaintiffs to sue for the cost of medical monitoring. (A 1998 ruling by the Louisiana Supreme Court was later partially overturned by that state's legislature.) Defense attorneys consider a 1999 ruling by West Virginia's top court to be the most expansive medical monitoring decision in the country.

Plaintiffs haven't won a monitoring claim at the state supreme court level since the West Virginia decision, however. The high courts in Alabama, Kentucky, Nevada, and now Michigan have all ruled for the defendants in monitoring cases.

In-house lawyers hope this signals a move back to the principle that recovery is possible only when there's a provable injury. According to John Childs, there's "less emphasis on new theories and less emphasis on fashioning a tort to afford a new remedy." Childs is chief litigation counsel at Atlanta's Georgia-Pacific Corporation, which has not been sued in a monitoring case. In his view, "The pendulum seems to be swinging back to traditional torts."