Plaintiff. a neighbor of a chemical plant in Delaware, sued the plant alleging that it had released carcinogenic ethylene oxide gas into the air; plaintiff proposed a class action, asserting claims for strict liability, negligence, and private and public nuisance. The United States District Court for the District of Delaware granted plant’s motion to dismiss, 2021 WL 7209363, and plaintiff appealed. The Third Circuit, 2022 WL 19010312, certified a question to the Delaware Supreme Court: under Delaware law, is an increased risk of illness without physical harm a cognizable “injury” actionable in tort?
The court in Baker v. Croda Inc., No. 393, 2022, 2023 WL 5517797 (Del. Aug. 24, 2023), answered with a clear “NO.” An increased risk of illness without physical harm is not a cognizable injury under Delaware law. Stated differently, an increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease. It is axiomatic that all tort claims require an injury. Under Delaware law, an “injury in fact” is defined as an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. An increased risk of illness, without more, is not “actual or imminent,” and thus does not constitute an injury.
The court offered both established precedent and public policy concerns underpinning this answer. In Metro-North Commuter Railroad Company v. Buckley, a case involving a railroad worker who was exposed to asbestos but had not been afflicted by disease, the United States Supreme Court rejected a claim for medical monitoring under a federal statute. It also highlighted the serious public policy concerns that could follow if it adopted “a traditional, full-blown ordinary tort liability rule,” observing that “tens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring.” This fact, “along with uncertainty as to the amount of liability, could threaten both a flood of less important cases … and the systemic harms that can accompany unlimited and unpredictable liability.”
Similarly, in Mergenthaler v. Asbestos Corporation of America, 480 A.2d 647 (Del. 1984), a case involving claims by present or former asbestos workers and their spouses, the court addressed “[w]hether a claim for the expenses of medically required surveillance and related mental anguish of the plaintiffs’ wives fails to state a claim upon which relief can be granted where there is no present physical injury.” The court held that present physical disease was required to state a claim under Delaware law. Plaintiff tried to read this and similar cases as adopting an “actual exposure” test permitting plaintiffs to recover for claims based on fear of disease when accompanied by “actual exposure” to a disease-causing agent. But as to a negligence action the precedent concurred with the finding that the plaintiffs could not recover in the absence of a physical injury.
The holding that an increased risk of illness, without more, cannot be a cognizable injury under Delaware law comports with the established principle that claims in tort require an actual or imminent injury. To hold otherwise would constitute a significant shift in state tort jurisprudence. Further, the District Court’s observation that “Delaware tort law presupposes that plaintiffs will bring suits after they suffer physical symptoms, not before” is apt. As it stands, the statute of limitations for toxic tort claims starts to run when a plaintiff begins to experience physical effects. In addition, toxic tort plaintiffs are permitted to bring separate claims for separate diseases caused by one exposure.
As the Third Circuit noted, “the decision to recognize an increased risk of disease as a cognizable injury is significant, and its implications are far reaching.” Contacts, even extensive contacts, with serious carcinogens are common. Indeed, millions of individuals have suffered exposure to substances that will never result in any harm. Recognizing an increased risk of illness, without more, as a cognizable injury could open the floodgates to “endless and limitless” litigation. Dispensing with the physical injury requirement could also diminish resources that are presently used for those who have suffered physical injury.
As is often noted, this policy issue belongs in the legislature; if Delaware’s General Assembly ever decides to recognize medical monitoring as a separate cause of action, it is much better suited to address the complicated issues that would arise such as when the limitations period would begin to run, whether a higher pleading standard might be required, what type of test should be utilized to determine whether someone qualifies for medical monitoring, or whether medical monitoring costs would be provided by a court-supervised fund, among others. Baker v. Croda Inc., No. 393, 2022, 2023 WL 5517797, at *2–4 (Del. Aug. 24, 2023).