GARY HENRY V DOW CHEMICAL COMPANY
Annotate this Case
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 13, 2005
GARY and KATHY HENRY, et al.,
Plaintiffs-Appellees,
v
No. 125205
THE DOW CHEMICAL COMPANY
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
The
173
represent
a
plaintiffs
putative
in
class
this
of
matter
have
thousands
in
against defendant, The Dow Chemical Company.
allegation
is
that
Dow’s
plant
in
Midland,
asked
an
to
action
Their core
Michigan,
negligently released dioxin, a synthetic chemical that is
potentially
hazardous
to
human
health,1
into
1
the
According to the Attorneys’ Dictionary of Medicine, v
2, p D-145, dioxin is
[a] synthetic chemical that occurs as a byproduct
in the manufacturing of trichlorophenol.
Animal
studies have shown dioxin to be a potent
carcinogen.
It is also believed to have
Footnotes continued on following page.
Tittabawassee
flood
plain
where
the
plaintiffs
and
the
putative class members live and work.
This situation appears, at first blush, to have the
makings of a standard tort cause of action.
But closer
inspection of plaintiffs’ motion for class certification
reveals that one of plaintiffs’ claims is premised on a
novel legal theory in Michigan tort law and thus raises an
issue of first impression for this Court.
In
an
ordinary
“toxic
tort”
cause
of
action,
a
plaintiff alleges he has developed a disease because of
exposure to a toxic substance negligently released by the
defendant.
In this case, however, the plaintiffs do not
allege that the defendant’s negligence has actually caused
the manifestation of disease or physical injury.
they
allege
that
defendant’s
negligence
has
Instead,
created
the
risk of disease—that they may at some indefinite time in
the future develop disease or physical injury because of
defendant’s allegedly negligent release of dioxin.
Accordingly,
court
to
certify
the
a
plaintiffs
class
that
have
asked
collectively
the
circuit
seeks
teratogenic effects. Chloracne (a skin condition
similar in appearance to severe acne) is known to
be associated with exposure to dioxin; metabolic,
hepatic (liver) and neurological disturbances
have also been reported.
2
the
creation
of
a
program,
to
be
funded
by
defendant
and
supervised by the court, that would monitor the class and
their representatives for possible future manifestations of
dioxin-related disease.
disposition,
arguing
The defendant moved for summary
that
plaintiffs’
medical
claim was not cognizable under Michigan law.
monitoring
The circuit
court denied this motion, and the Court of Appeals denied
defendant’s interlocutory application for leave to appeal.
We now reverse the circuit court order denying the
motion and remand for entry of summary disposition in favor
of
defendant
Because
on
plaintiffs’
plaintiffs
do
medical
not
allege
monitoring
a
claim.
present
injury,
plaintiffs do not present a viable negligence claim under
Michigan’s common law.
Although
instrument
require,
we
we
that
recognize
may
decline
that
the
common
as
times
and
change
plaintiffs’
invitation
law
is
an
circumstances
to
alter
the
common law of negligence liability to encompass a cause of
action for medical monitoring.
Recognition of a medical
monitoring claim would involve extensive fact-finding and
the weighing of numerous and conflicting policy concerns.
We lack sufficient information to assess intelligently and
fully the potential consequences of recognizing a medical
monitoring claim.
3
Equally important is that plaintiffs have asked this
Court to effect a change in Michigan law that, in our view,
ought to be made,if at all,by the Legislature.
the
Legislature
arena
by
health
has
delegating
risks
already
the
stemming
established
responsibility
from
industrial
Indeed,
policy
for
in
this
dealing
with
pollution
to
Michigan Department of Environmental Quality (MDEQ).
the
As a
matter of prudence, we defer in this case to the people’s
representatives in the Legislature, who are better suited
to undertake the complex task of balancing the competing
societal interests at stake.
We therefore remand this matter to the circuit court
for entry of summary disposition in defendant’s favor on
plaintiffs’ medical monitoring claim.
FACTS AND PROCEDURAL HISTORY
Defendant, The Dow Chemical Company, has maintained a
plant on the banks of the Tittabawassee River in Midland,
Michigan, for over a century.
The plant has produced a
host of products, including, to name only a few, “styrene,
butadiene, picric acid, mustard gas, Saran Wrap, Styrofoam,
Agent
Orange,
Chlorpyrifos,
Michigan
and
various
Dursban
Department
of
and
2,
Community
pesticides
4,
including
5-trichlorophenol.”
Health,
Division
of
Environmental and Occupational Epidemiology, Pilot Exposure
4
Investigation:
Dioxin
Exposure
in
Adults
Living
in
the
Tittabawassee River Flood Plain, Saginaw County, Michigan,
May 25, 2004, p 4.
According to plaintiffs and published reports from the
MDEQ,
defendant’s
deleterious
operations
effect
on
the
in
local
Midland
have
environment.
had
In
a
2000,
General Motors Corporation was testing soil samples in an
area near the Tittabawassee River and the Saginaw River
when
it
discovered
the
presence
of
dioxin,
a
hazardous
chemical believed to cause a variety of health problems
such
as
cancer,
liver
disease,
and
birth
defects.
By
spring 2001, the MDEQ had confirmed the presence of dioxin
in the soil of the Tittabawassee flood plain.
investigation
Midland
plant
by
the
was
MDEQ
the
indicated
likely
that
source
of
Further
defendant’s
the
dioxin.
Michigan Department of Environmental Quality, Remediation
and
Redevelopment
Tittabawassee/Saginaw
Division,
River
Final
Dioxin
Report,
Flood
Phase
Plain
II
Sampling
Study, June 2003, p 42 (identifying Dow’s Midland plant as
the
“principal
source
of
dioxin
contamination
in
the
Tittabawassee River sediments and the Tittabawassee River
flood plain soils”).
In March 2003, plaintiffs moved for certification of
two classes in the Saginaw Circuit Court.
5
The first class
was composed of individuals who owned property in the flood
plain of the Tittabawassee River and who alleged that their
properties
had
declined
contamination.
in
value
because
of
the
dioxin
The second group consisted of individuals
who have resided in the Tittabawassee flood plain area at
some
point
program
health
plant.
of
since
1984
medical
effects
of
and
who
monitoring
dioxin
seek
for
a
the
discharged
court-supervised
possible
from
Dow’s
negative
Midland
This latter class consists of 173 plaintiffs and,
by defendant’s estimation, “thousands” of putative members.
Defendant
moved
under
MCR
2.116(C)(8)
for
summary
disposition of plaintiffs’ medical monitoring claim.
Saginaw
Circuit
Court
denied
this
motion,
and
The
denied
defendant’s subsequent motions for reconsideration and for
a stay of proceedings.
After the Court of Appeals denied defendant’s motion
for peremptory reversal and emergency application for leave
to appeal, the defendant sought emergency leave to appeal
in this Court.
Discovery and other preliminary proceedings
on plaintiffs’ motion for class certification continued in
the Saginaw Circuit Court until, on June 3, 2004, we stayed
the proceedings below and granted defendant’s application
6
for leave to appeal.2
Henry v Dow Chemical Co, 470 Mich 870
(2004).3
STANDARD OF REVIEW
We
review
defendant’s
de
novo
motion
for
the
circuit
summary
court’s
disposition
denial
under
of
MCR
2.116(C)(8).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999).
A movant is entitled to summary disposition
under MCR 2.116(C)(8) if “[t]he opposing party has failed
to state a claim on which relief can be granted.”
2.116(C)(8).
MCR
In determining whether a movant has met this
standard, we “‘accept[] as true all well-pleaded facts.’”
Radtke v Everett, 442 Mich 368, 373; 501 NW 2d 155 (1993),
quoting Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d
164 (1984).
2
Plaintiffs have since filed a motion for partial
relief from stay, accompanied by a motion for immediate
consideration.
In light of the issuance of this opinion,
we deny the motions because they are moot.
3
In January 2005, defendant entered into a settlement
agreement with the MDEQ regarding dioxin contamination in
the Tittabawassee River valley.
See Hugh McDiarmid, Jr.,
Dow, state OK plan on dioxin, Detroit Free Press (January
20, 2005).
The agreement, which was reached after months
of negotiation, provides that defendant will fund extensive
cleanup efforts aimed at minimizing residents’ exposure to
dioxin. Id.
7
ANALYSIS
I
The question presented by this appeal is whether, in
seeking a court-supervised medical monitoring program for
future dioxin-related illnesses, plaintiffs have stated a
claim on which relief may be granted.
MCR 2.116(C)(8).
Plaintiffs’ theory is that Dow negligently released dioxin
into the Tittabawassee flood plain and that, as a result,
plaintiffs
must
monitoring
for
incur
the
exposure to dioxin.
the
costs
possible
of
health
intensive
effects
of
medical
elevated
Thus, at its core, plaintiffs’ medical
monitoring claim is one of negligence. It is usually held
that in order to state a negligence claim on which relief
may be granted, plaintiffs must prove (1) that defendant
owed them a duty of care, (2) that defendant breached that
duty,
(3)
that
plaintiffs
were
injured,
and
defendant’s breach caused plaintiffs’ injuries.
(4)
that
See Haliw
v Sterling Hts, 464 Mich 297, 309-310; 627 NW2d 581(2001);
Schultz v Consumers Power Co, 443 Mich 445, 459; 506 NW2d
175 (1993).
These elements of an action for negligence are
traditionally summarized, in a formula that ought to be
familiar to any first-year law student, as “duty, breach of
that duty, causation, and damages.”
Fultz v Union-Commerce
Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
8
See also
Prosser
&
Keeton,
Torts
(5th
ed),
§
30,
pp
164-165
(describing this “traditional formula”).
Here,
defendant
established
any
argues
plaintiffs
physical
present
that
injuries,
have
and
have
therefore failed to state a valid negligence claim.
agree.
not
We
As an initial matter, it is necessary for us to
determine the exact nature of plaintiffs’ claim.
We must
decide whether plaintiffs are in fact seeking compensation
for
future
injuries
they
may
suffer,
or
for
present
injuries they have suffered.
If plaintiffs’ claim is for injuries they may suffer
in the future, their claim is precluded as a matter of law,
because
Michigan
speculative injury.
law
requires
more
than
a
merely
This Court has previously recognized
the requirement of a present physical injury in the toxic
tort context.
In Larson v Johns-Manville Sales Corp, 427
Mich 301, 314; 399 NW2d 1 (1986), for example, we held that
a
cause
of
action
for
asbestosis,
which
typically
is
manifest between ten and forty years after exposure, arises
only when an injured party knows or should know that he
has, in fact, developed asbestosis.
Similarly, we held
that a cause of action for asbestos-related lung cancer
arises only when there has been a “discoverable appearance”
of cancer.
Id. at 319.
Thus, Larson squarely rejects the
9
proposition that mere exposure to a toxic substance and the
increased risk of future harm constitutes an “injury” for
tort purposes.
It is a present injury, not fear of an
injury in the future, that gives rise to a cause of action
under negligence theory.
Here, it is clear that plaintiffs do not claim that
they have suffered any present physical harm because of
defendant’s
allegedly
Tittabawassee
flood
negligent
plain.
contamination
Indeed,
plaintiffs
of
in
the
their
arguments to this Court expressly deny having any present
physical injuries.4
Plaintiffs have not cited an exception to the rule
that a present physical injury is required in order to
state a claim based on negligence.
dissent.5
Nor, indeed, does the
We can therefore reach only one conclusion: if
the alleged damages cited by plaintiffs were incurred in
4
Specifically, plaintiffs argue that “[t]hey do not
seek compensation for physical injury or for the enhanced
risk of future physical injury.
Instead, they seek to
establish a judicially administered medical screening and
diagnostic program to supervise and fund the medical
monitoring regime that a reasonable physician would advise
for persons exposed to Dow’s dioxin in the way Plaintiffs
have been and are being exposed.”
5
See post at 9, citing a California case, Miranda v
Shell Oil Co, 17 Cal App 4th 1651, 1657; 26 Cal Rptr 2d 655
(1993).
10
anticipation
of
possible
future
injury
rather
than
in
response to present injuries, these pecuniary losses are
not
derived
from
an
injury
that
is
cognizable
under
Michigan tort law.
However, if plaintiffs’ claim is that by virtue of
their potential exposure to dioxin they have suffered an
“injury,” in that any person so exposed would incur the
additional expense of medical monitoring, then their claim
is also precluded as a matter of law, because Michigan law
requires
an
actual
injury
to
person
or
property
as
a
precondition to recovery under a negligence theory.
As noted in this opinion at 8, the elements that a
plaintiff in a negligence action must prove are usually
summed up in the familiar four-part test: (1) duty, (2)
breach, (3) causation, and (4) damages.
Although these
four elements are usually the primary focus of a negligence
analysis, it has always been implicit in this analysis that
in order to prevail, a plaintiff must also demonstrate an
actual injury to person or property.
Indeed, such injury
constitutes the essence of a plaintiff’s claim.
The logic behind this injury requirement—and, indeed,
the very logic of tort law—is that of “giv[ing] security to
the rights of individuals by putting within their reach
suitable redress whenever their rights have been actually
11
violated.”
Cooley
on
Torts
(4th
ed),
§
32
p
57.
Accordingly, an individual is entitled to relief under a
tort theory only when he has suffered a present injury.6
Prosser and Keeton have explained:
Since the action for negligence developed
chiefly out of the old form of action on the
case, it retained the rule of that action, that
proof of damage was an essential part of the
plaintiff’s case.
Nominal damages, to vindicate
a technical right, cannot be recovered in a
negligence action, where no actual loss has
occurred.
The threat of future harm, not yet
realized, is not enough.
Negligent conduct in
itself is not such an interference with the
interests of the world at large that there is any
right to complain of it, or to be free from it,
except in the case of some individual whose
interests have suffered.
[Prosser & Keeton,
Torts (5th ed, § 30, p 165 (emphasis added).]
6
See Cooley on Torts (4th ed), § 32, pp 57-58:
Before any violation has in fact taken
place, the law assumes that none will happen; but
that each individual will respect the rights of
all others. Therefore, it does not undertake in
general to provide preventive remedies; it gives
them in a few exceptional cases, which stand on
peculiar grounds, and in which the mischiefs
flowing from an invasion of rights might be such
as would be incapable of complete redress in the
ordinary methods, or perhaps in any manner.
In
most cases it is assumed that, if the law places
within the reach of every one a suitable remedy
to which he may resort when he suffers an injury,
it has thereby not only provided for him adequate
protection, but has given him all that public
policy demands.
The remedies that are aimed at
wrongs not yet committed but only threatened, are
so susceptible of abuse that they are wisely
restricted within very narrow limits.
12
As
While the courts of this state may not have always
clearly
articulated
delineated
“damages”
the
this
injury
distinction
flowing
requirement,
between
therefrom,
the
an
nor
“injury”
injury
and
the
requirement
has
always been present in our negligence analysis.
simply
always
been
the
case
in
our
finely
It has
jurisprudence
that
plaintiffs alleging negligence claims have also shown that
their claims arise from present physical injuries.
We are
not aware of any Michigan cases in which a plaintiff has
recovered on a negligence theory without demonstrating some
present
physical
injury.
Thus,
in
all
known
cases
in
Michigan in which a plaintiff has satisfied the “damages”
element of a negligence claim, he has also satisfied the
“injury” requirement.
Plaintiffs effectively urge us to expand our commonlaw jurisprudence by concluding that the traditional fourpart
test
can
be
met
without
also
satisfying
the
requirement of a present physical injury, no doubt aware
that we have never before been squarely presented with such
a claim.
Until now, there has never been a need for this
Court to articulate specifically the injury requirement.
But in light of the novel nature of plaintiffs’ claims,
however, it has become necessary for us to do so today.
13
We
therefore
reaffirm
the
principle
that
a
plaintiff
must
demonstrate a present physical injury to person or property
in addition to economic losses that result from that injury
in order to recover under a negligence theory.
This requirement does not constitute a change in the
common law of this state.
allowed
for
the
While we have from time to time
development
of
the
common
law
as
circumstances have required, see, e.g., Berger v Weber, 411
Mich 1; 303 NW2d 424 (1981), the injury requirement has
always been an implicit part of a negligence action in
Michigan.
Had we been presented in 1869 with an action
against a blacksmith by local residents alleging that the
blacksmith’s
emissions
caused
them
the
fear
of
physical
injury someday, we have little doubt that this Court would
have expressly articulated the injury requirement at that
time.
However, such a case has never before been presented
to this Court, so it falls to us today to articulate what
this Court has always assumed: present harm to person or
property is a necessary prerequisite to a negligence claim.
The requirement of a present physical injury to person
or property serves a number of important ends for the legal
system.
First, such a requirement defines more clearly who
actually possesses a cause of action.
In allowing recovery
only to those who have actually suffered a present physical
14
injury,
about
the
the
fact-finder
extent
congizable legal claim.
ed), § 30, p 165.
risks
of
fraud,
not
which
to
need
a
engage
in
plaintiff
speculations
possesses
a
See Prosser & Keeton, Torts (5th
Second, such a requirement reduces the
by
setting
a
clear
minimum
threshold—a
present physical injury—before a plaintiff can proceed on a
claim.
By requiring a prospective plaintiff to make a
showing of an actual physical injury, present tort law thus
excludes from the courts those who might bring frivolous or
unfounded suits.
In particular, the fact-finder need not
be left wondering whether a plaintiff has in fact been
harmed in some way, when nothing but a plaintiff’s own
allegations support his cause of action.
Finally,
and
requirement
of
compromising
the
perhaps
a
most
present
judicial
significantly,
physical
power.
The
injury
exercise
the
avoids
of
the
“judicial power” by this Court, Const 1963, art 6, § 1,
contemplates
that
there
will
be
standards—legally
comprehensible standards— that guide the judicial branch's
resolution of the matters brought before it.
The present
physical injury requirement establishes a clear standard by
which judges can determine which plaintiffs have stated a
valid claim, and which plaintiffs have not.
In the absence
of such a requirement, it will be inevitable that judges,
15
as
in
the
instant
case,
will
be
required
to
answer
questions that are more appropriate for a legislative than
a judicial body: How far from the Titibawassee River must a
plaintiff live in order to have a cognizable claim?
What
evidence of exposure to dioxin will be required to support
such a claim?
What level of medical research is sufficient
to support a claim that exposure to dioxin, in contrast to
exposure to another chemical, will give rise to a cause of
action?
Here, it is apparent that the only “injuries” alleged
by the putative representatives of the medical monitoring
class are “the losses they have and will suffer as they are
forced
to
monitor
closely
their
health
and
medical
condition because of their exposure to Dow’s Dioxin [sic]
pollution.”
present
Thus,
financial
plaintiffs
injury,
have
i.e.,
arguably
damages.
stated
From
a
this
description, however, it is apparent that plaintiffs do not
claim that they suffer from present physical injuries to
person or property.
Rather, plaintiffs allege that they
may develop dioxin-related illnesses in the future.
At
best, then, the only “injury” from which plaintiffs suffer
at present is a fear of future illness.
They seek an
“equitable remedy” of a medical monitoring program not in
order to redress actual or present injury to their persons
16
but instead to screen for possible future injury. In this
way,
plaintiffs’
claims
depart
from
the
principles
articulated earlier in this opinion by Justice Cooley and
by Prosser and Keeton.
It is no answer to argue, as plaintiffs have, that the
need to pay for medical monitoring is
injury
sufficient
to
sustain
a
itself
cause
of
a present
action
for
negligence.
In so doing, plaintiffs attempt to blur the
distinction
between
“injury”
and
“damages.”
While
plaintiffs arguably demonstrate economic losses that would
otherwise satisfy the “damages” element of a traditional
tort claim, the fact remains that these economic losses are
wholly derivative of a possible, future injury rather than
an actual, present injury.
not
a
present
physical
under our tort system.
A financial “injury” is simply
injury,
and
thus
not
cognizable
Because plaintiffs have not alleged
a present physical injury, but rather, “bare” damages, the
medical
expenses
plaintiffs
claim
to
have
suffered
(and
will suffer in the future) are not compensable.
Plaintiffs’
medical
monitoring
claim
is
also
distinguishable from other causes of action, such as libel
or
professional
recover
for
physical harm.
malpractice,
economic
losses
in
which
without
a
plaintiff
showing
may
present
In a cause of action for libel, a plaintiff
17
must show an injury to his reputation.7
action
for
legal
malpractice,
a
In a cause of
plaintiff
must
show
an
injury to the fiduciary relationship between the attorney
and
client.8
In
each
case,
our
common
law
requires
a
present injury in addition to economic loss incurred as a
result of that injury.
Here, as noted, the only noneconomic injury alleged by
plaintiffs
is
their
fear
of
future
physical
injury.
Plaintiffs’ fear, however reasonable, is still not enough
to
state
construe
a
claim
of
plaintiffs’
negligence.
claim
broadly
Even
as
if
one
we
for
were
to
emotional
distress, our common law recognizes emotional distress as
the basis for a negligence action only when a plaintiff can
7
. Locricchio v Evening News Ass’n, 438 Mich 84, 115116; 476 NW2d 112 (1991) (stating that the elements of
libel are “1) a false and defamatory statement concerning
the plaintiff, 2) an unprivileged communication to a third
party, 3) fault amounting to at least negligence on the
part of the publisher, and 4) either actionability of the
statement irrespective of special harm or the existence of
special harm caused by publication”).
8
Simko v Blake, 448 Mich 648, 655; 532 NW2d 842
(1995).
“In order to state a cause of action for legal
malpractice, the plaintiff has the burden of adequately
alleging the following elements: ‘(1) the existence of an
attorney-client relationship; (2) negligence in the legal
representation of the plaintiff; (3) that the negligence
was a proximate cause of an injury; and (4) the fact and
extent of the injury alleged.’”) (Citation omitted.)
18
also establish physical manifestations of that distress.9
Thus, plaintiffs have not established a present, legally
cognizable injury.10
Plaintiffs advance their claim as if it satisfies the
traditional
Michigan.
requirements
of
a
negligence
action
in
In reality, plaintiffs propose a transformation
in tort law that will require the courts of this state—in
9
See, e.g., Daley v LaCroix, 384 Mich 4, 12-13; 179
NW2d 390 (1970).
See also Hesse v Ashland Oil, 466 Mich
21, 34 (2002) (Kelly, J., dissenting) (noting that a cause
of action for negligent inflication of emotional distress
requires a showing of physical harm); Prosser & Keeton,
supra, § 54, p 361 (“Where the defendant’s negligence
causes
only
mental
disturbance,
without
accompanying
physical injury, illness or other physical consequences,
and in the absence of some other independent basis for tort
liability, the great majority of courts still hold that in
the ordinary case there can be no recovery.”).
10
Even assuming that the costs associated with
plaintiffs’ medical monitoring were sufficient to satisfy
the “damages” element and the injury requirement of a
negligence suit, we note that plaintiffs would still face
substantial evidentiary hurdles with respect to the
“causation” element.
Significantly, while plaintiffs seek
the imposition of a medical monitoring program for the
possible health effects of elevated exposure to dioxin,
they present no evidence that they themselves have elevated
levels of dioxin in their bloodstreams, that these elevated
levels are attributable in whole or in part to defendant’s
activities, and that these elevated levels will lead to
recognized physical injuries.
Further, even if plaintiffs
could show the likelihood of physical injuries like those
associated with exposure to elevated levels of dioxin, see
n 1 of this opinion, it is still unproven at this point
whether such injuries would in fact be attributable to
dioxin released by defendant, as opposed to some other
environmental or physiological cause.
19
this case and the thousands that would inevitably follow—to
make decisions that are more characteristic of those made
in
the
legislative,
processes.
II,
we
executive,
and
administrative
For reasons that we discuss more fully in part
are
not
prepared
to
acquiesce
in
this
transformation.
Plaintiffs
recognized
a
maintain
medical
that
this
monitoring
Court
cause
implicitly
of
action
Meyerhoff v Turner Constr Co, 456 Mich 933 (1998).
in
In
Meyerhoff, a number of construction workers were exposed to
asbestos
on
the
job.
“medical-monitoring
The
Court
expenses
are
of
a
Appeals
held
compensable
item
that
of
damages where the proofs demonstrate that such surveillance
to monitor the effect of exposure to toxic substances . . .
is reasonable and necessary.”
Meyerhoff v Turner Constr Co
(On Remand), 210 Mich App 491, 495; 534 NW2d 204 (1995).
We vacated the Court of Appeals opinion with respect to the
medical
order
monitoring
that,
claim,
quite
but
included
understandably,
language
led
to
in
our
confusion
regarding the viability of a medical monitoring claim in
Michigan:
developed
“The
to
allow
factual
a
record
[sic]
is
medical
not
sufficiently
monitoring
damages.
Accordingly, that portion of the Court of Appeals decision
20
which
holds
that
medical
monitoring
expenses
compensable item of damages is vacated.”
Plaintiffs
read
the
first
are
a
456 Mich 933.
sentence
quoted
above
to
suggest that a factual record may in some circumstances be
“sufficiently
damages.
developed”
to
support
medical
monitoring
Accordingly, they maintain that an action for
medical monitoring may be sustainable with a sufficiently
developed record.
However, while perhaps not a model of clarity, the
language of Meyerhoff does not support such a conclusion.
Meyerhoff
does
not
affirmatively
state
that
a
cause
of
action for medical monitoring is cognizable under Michigan
law.
To the contrary, our order in Meyerhoff vacated the
part
of
the
precisely that.
to
hold
that
Court
of
Appeals
opinion
that
had
held
Rather, Meyerhoff should properly be read
the
factual
record
in
that
case
was
insufficiently developed to support a medical monitoring
claim if such a claim exists in Michigan.
As we clarify
today, such a claim does not exist in Michigan.11
11
While, given the language in Meyerhoff, it was
certainly not unreasonable for the trial court in the
instant case to decline summary disposition, Meyerhoff
nonetheless is an exceedingly thin reed on which to rest
arguments in favor of a medical monitoring cause of action—
a reed that must give way under the vastly greater weight
Footnotes continued on following page.
21
Nor are we persuaded by the opinion of the United
States District Court for the Eastern District of Michigan
in Gasperoni v Metabolife, Int'l Inc, 2000 US Dist LEXIS
20879 (ED Mich, 2000).
Plaintiffs assert that the district
court in Gasperoni “concluded that Michigan would recognize
a state law claim for medical monitoring and certified a
class for such a claim.”
A careful reading of Gasperoni,
however, reveals that this argument mischaracterizes the
district court’s opinion.
The plaintiffs in Gasperoni consumed Metabolife 356,
an appetite suppressant manufactured and distributed by the
defendant.
They
filed
an
action
based
on
theories
of
fraudulent misrepresentation and breach of warranty, and
sought a number of remedies—including medical monitoring.
Id. at *3-*4.
medical
The defendant in that case did not challenge
monitoring
as
a
cause
of
defendant had no reason to do so.
action.
Indeed,
the
The plaintiffs sought
medical monitoring only as a form of relief and did not
claim that medical monitoring was, itself, a viable cause
of
action.
Thus,
the
sole
issue
was
whether
the
of Michigan precedent, which requires a manifest physical
injury in order to state a viable negligence claim.
Meyerhoff's Delphic allusion to a medical monitoring claim
was, at most, mere dictum.
The trial court thus erred in
allowing plaintiffs’ claim to proceed to trial.
22
plaintiffs’ proposed class met the requirements provided in
Federal Rule of Civil Procedure 23(a).
With
respect
to
the
plaintiffs’
medical
monitoring
claim, the district court held only that the plaintiffs’
medical monitoring claims were not so individualized as to
preclude
class
certification.
Id.
at
*22.
Whether
a
medical monitoring claim was viable under Michigan law—the
central
issue
in
this
appeal—was
neither
raised
by
the
defendant in Gasperoni nor addressed by the district court
in
its
opinion.
Far
from
holding
that
Michigan
would
“recognize a state law claim for medical monitoring,” as
asserted by plaintiffs, the district court merely suggested
that medical monitoring may be a proper form of injunctive
relief in an action based on fraudulent misrepresentation
and
breach
Meyerhoff,
of
warranty.
Gasperoni
Thus,
does
not
as
with
provide
our
any
order
in
reason
to
conclude affirmatively that a cause of action for medical
monitoring is cognizable under Michigan law.
II
Having determined that plaintiffs’ claim cannot stand
under
our
current
law
of
negligence,
we
turn
now
to
plaintiffs’ core argument—that we should modify the common
law
of
negligence
in
order
monitoring claim to proceed.
23
to
permit
their
medical
This
Court
common law.
is
the
principal
steward
of
Michigan’s
See, e.g., Adkins v Thomas Solvent Co, 440
Mich 293, 317; 487 NW2d 715 (1992); Sizemore v Smock, 430
Mich
283,
285;
422
NW2d
666
(1988).
Acting
in
this
capacity, we have on occasion allowed for the development
of the common law as circumstances and considerations of
public policy have required.
See, e.g., Berger, supra.
But as Justice Young has recently observed, our common-law
jurisprudence has been guided by a number of prudential
principles.
See Young, A judicial traditionalist confronts
the common law, 8 Texas Rev L & Pol 299, 305-310 (2004).
Among
them
has
been
our
attempt
to
“avoid
capricious
departures from bedrock legal rules as such tectonic shifts
might produce unforeseen and undesirable consequences,” id.
at 307, a principle that is quite applicable to the present
case.
Plaintiffs
action
that
have
asked
departs
us
to
recognize
drastically
from
notions of a valid negligence claim.
our
a
cause
of
traditional
Beyond this enormous
shift in our tort jurisprudence, judicial recognition of
plaintiffs’ claim may also have undesirable effects that
neither
we
nor
the
parties
can
satisfactorily
predict.
For example, recognizing a cause of action based solely on
exposure—one
without
a
requirement
24
of
a
present
injury—
would create a potentially limitless pool of plaintiffs.12
See, e.g., Schwartz, Medical monitoring: Should tort law
say yes?, 34 Wake Forest L R 1057, 1079-1080 (1999) (“Once
a showing of present physical injury is eliminated, as is
the
case
in
representing
people
off
awards
for
plaintiffs
the
street
medical
could
to
monitoring,
virtually
serve
as
attorneys
begin
recruiting
medical
monitoring
claimants.”). Litigation of these preinjury claims could
drain resources needed to compensate those with manifest
physical injuries and a more immediate need for medical
care.
It
benefits
of
is
a
less
than
medical
obvious,
monitoring
therefore,
cause
of
that
action
the
would
outweigh the burdens imposed on plaintiffs with manifest
injuries, our judicial system, and those responsible for
12
This was the precise situation that developed in
West Virginia after the West Virginia Supreme Court of
Appeals recognized a cause of action for medical monitoring
in Bower v Westinghouse Electric Corp, 206 W Va 133, 140;
522 SE2d 424 (1999).
Shortly after the Bower decision, a
classaction was filed against major cigarette manufacturers
on behalf of approximately 270,000 West Virginia smokers
who had not been diagnosed with any smoking-related
diseases. See In re Tobacco Litigation (Medical Monitoring
Cases), No. 00-C-6000 (W Va, Ohio County Cir Ct, 2001). In
another medical monitoring classaction filed in West
Virginia, healthy plaintiffs from seven states (Illinois,
Indiana, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia) are seeking medical monitoring on the basis of
alleged exposure to toxic materials. See Stern v Chemtall,
Inc, No. 03-C-49M (W Va, Kanawha County Cir Ct, 2001).
25
administering and financing medical care.
Because such a
balancing process would necessarily require extensive factfinding
and
the
conflicting,
weighing
policy
of
concerns,
important,
and
because
and
sometimes
here
we
lack
sufficient information to assess intelligently and fully
the
potential
believe
that
consequences
the
of
instant
our
question
decision,
is
one
we
do
not
suitable
for
resolution by the judicial branch.13We are certainly not
alone in our reluctance to engage in the delicate balancing
of costs and benefits that plaintiffs’ proposed expansion
of the common law requires.
Many of these concerns were
noted by the United States Supreme Court in Metro-North
Commuter
R
Co,
supra
at
442
(holding
Employers’ Liability Act, 45 USC
permit
recovery
of
future
medical
that
the
Federal
51 et seq., does not
monitoring
costs).14
13
It should not need explication that a balancing of
private interests is invariably present in all legislation
that establishes benefits and burdens. To name but a few:
worker’s
compensation,
unemployment
compensation,
and
occupational health and safety.
Such balancing is the
essence of representative government. It is for precisely
this reason that the decision whether and how to recognize
a medical monitoring cause of action should be made by the
people’s representatives in the legislative branch of our
government. See part III of this opinion.
14
Some legal scholars and commentators have also
noted the undesirability of judicially sanctioned medical
monitoring claims.
See, e.g., Guzelian, supra, p 100
Footnotes continued on following page.
26
There, the Court observed that judicial recognition of mere
exposure to a toxic substance as a sufficient trigger for
tort liability could lead to a stampede of litigation that
would divert resources from more immediate and compelling
(“Ill-considered
monitoring
can
also
deter
diseased
individuals who are erroneously proclaimed healthy from
returning promptly when symptoms do present, and can lead
to severe psychological harm.
In addition, the economic,
manpower, and time costs for such programs are usually
substantial.”); Martin & Martin, Tort actions for medical
monitoring: Warranted or wasteful?, 20 Colum J Envtl L 121,
142-143 (1995) (“[C]reating a new cause of action for
medical monitoring that eliminates one of the traditional
elements of tort actions does not seem warranted.
Its
deterrent value is negligible; its compensatory function
should be rendered moot by changes in the health care
system; and the costs of subsequent litigation will exceed
the benefits obtained.”).
We cite these studies not, as the dissent argues, to
endorse the authors’ views, post at 17-18, but to observe
that it is far from settled that judicially supervised
medical monitoring is an unmitigated benefit for all
concerned.
We also note that, while certification of a class
necessarily recognizes that common issues of law or fact
may predominate over individual questions at the time of
certification,
see
MCR
3.501(A)(1)(b),
there
is
no
guarantee that such common issues will continue over time
to predominate in the instant case, particularly in light
of the apparently perpetual duration of the proposed
monitoring program.
Rather, it is more likely that
increasingly competitive interests will arise within the
putative class of plaintiffs—interests that must be
carefully weighed against each other. The likelihood that
the interests of putative class members will diverge is yet
another reason for judicial deference to the Legislature in
this case.
27
claims, such as those brought by individuals with actual
disease or injury, to less meritorious claims:
[T]ens of millions of individuals may have
suffered
exposure
to
substances
that
might
justify some form of substance-exposure-related
medical monitoring. . . .
And that 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
. . . .”
[Metro-North Commuter R Co, supra at
442.]
See also Wood v Wyeth-Ayerst Labs, 82 SW3d 849, 857 (Ky,
2002)
(citing
Hinton
v
the
Monsanto
policy
Co,
813
concerns
So
2d
raised
827,
in
831
Buckley);
(Ala,
2001)
(same).15
We
share
the
concerns
raised
by
the
United
States
Supreme Court in Buckley. Simply put, judicial recognition
15
It is a reality of modern society that we are all
exposed
to
a
wide
range
of
chemicals
and
other
environmental influences on a daily basis. For that reason
alone, this Court should be wary of accepting plaintiffs’
invitation to venture down the slippery slope that a
medical monitoring cause of action would necessarily
traverse. As the Supreme Court noted in Buckley: “tens of
millions of individuals may have suffered exposure to
substances that might justify some form of substanceexposure-related medical monitoring.”
521 US at 442.
Thus, even if we were to create a medical monitoring cause
of action, in light of both the essentially limitless
number of such exposures and the limited resource pool from
which such exposures can be compensated, a “cutoff” line
would still inevitably need to be drawn.
The Legislature
is better suited to draw lines of this sort, because such
decisions are fraught with difficult policy determinations.
28
of a medical monitoring cause of action may do more harm
than
good—not
only
for
Michigan’s
economy
but
also
for
“other potential plaintiffs who are not before the court
and
who
depend
on
a
tort
system
that
can
distinguish
between reliable and serious claims on the one hand, and
unreliable
and
relatively
trivial
claims
on
the
other.”
Buckley, 521 US at 443-444.
Even if this Court were institutionally equipped to
gauge the potential costs and benefits of sanctioning a
medical monitoring cause of action, plaintiffs have done
little
to
help
us
understand
the
ramifications
that
decision in their favor might have for Michigan.
a
When
pressed at oral argument to address the potential costs and
benefits
of
plaintiffs’
proposed
cause
of
action,
for
example, plaintiffs’ counsel was unable to hazard a guess
at how Michigan’s economy might be affected:
Justice Taylor: Where have you made note, or
could you, of the kinds of suspected impact that
monitoring will have on the business environment
of this state.
I don’t think there’s a word in
your briefs about that. You just sort of assume
it will be taken care of. . . .
Plaintiffs' Counsel: I think if you look at
the criteria [for a valid medical monitoring
claim] we propose we think it has safeguards for
that. We think it does allow . . .
Justice Taylor:
Where in your brief is
there any discussion of what cost this will bear
on Michigan’s business climate?
29
Plaintiffs' Counsel:
I don’t [think] there
is a particular discussion in our brief on what
costs Michigan will bear.
Justice Young:
that might be?
Do you have any idea what
Plaintiffs' Counsel:
I don’t think we have
any particular specific dollar idea on what that
will be, no.
I don’t think we have a specific
dollar idea on what the cost to these people are.
Justice Taylor:
Doesn’t this point out the
problem with what you’re asking us to do?
We
don’t even know what the cost of this will be.
This line of questioning goes to the heart of why we are
reluctant to alter the common law of negligence in the
manner proposed by plaintiffs: however much equity might
favor lightening the economic burden now borne by parties
exposed to dioxin in the Tittabawassee flood plain, we have
no
assurance
that
a
decision
in
plaintiffs’
favor—which
would create a hitherto unrecognized cause of action with a
potentially limitless class of plaintiffs—will not wreak
enormous harm on Michigan’s citizens and its economy.
a
decision
necessarily
involves
a
drawing
of
Such
lines
reflecting considerations of public policy, and a judicial
body is ill-advised to draw such lines given the limited
range
of
interests
represented
by
the
parties
and
the
resultant lack of the necessary range of information on
30
which to base a resolution.16
See Young,
(“Good
by
intentions,
unsupported
well
supra
at 307
informed
policy
choices, often result in bad law.”).
We would be unwise, to say the least, to alter the
common law in the manner requested by plaintiffs when
it
is unclear what the consequences of such a decision may be
and when we have strong suspicions, shared by our nation’s
highest court, that they may well be disastrous.
III
Although the caution engendered by our difficulty in
identifying, much less weighing, the potential costs and
benefits of a decision in plaintiffs’ favor is an important
factor militating against recognizing plaintiffs’ proposed
16
We note that plaintiffs are in effect asking us to
create policy, not simply consider it. We have previously
cautioned against this Court acting as a policy-making
body:
As a general rule, making social policy is a
job for the Legislature, not the courts. This is
especially
true
when
the
determination
or
resolution requires placing a premium on one
societal interest at the expense of another: The
responsibility for drawing lines in a society as
complex
as
ours—of
identifying
priorities,
weighing the relevant considerations and choosing
between
competing
alternatives—is
the
Legislature’s, not the judiciary’s.
[Van v
Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1990))
(citations and quotations omitted).]
31
cause of action, there is a stronger prudential principle
at
work
here:
the
judiciary’s
obligation
to
exercise
caution and to defer to the Legislature when called upon to
make a new and potentially societally dislocating change to
the common law.17
Ours,
after
all,
is
a
government
principle of separation of powers.18
founded
on
the
In certain instances,
the principle of separation of powers is an affirmative
constitutional bar on policy-making by this Court.19
other
cases,
however,
the
separation
of
In
powers
17
In suggesting that the “only question” properly
posed in this case involves who should pay the costs of
medical monitoring and environmental cleanup, post at 2,
the dissent misapprehends the real question: what is the
appropriate venue for determining the answer to the
question?
It is this question, not that posited by the
dissent, that fundamentally divides the majority and the
dissenting opinions.
18
See Const 1963, art 3, § 2:
"The powers of
government are divided into three branches: legislative,
executive and judicial. No person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution."
19
See, e.g., Mayor of Lansing v Pub Service Comm, 470
Mich 154, 161; 680 NW2d 840 (2004) (“Our task, under the
Constitution, is the important, but yet limited, duty to
read and interpret what the Legislature has actually made
the law. We have observed many times in the past that our
Legislature is free to make policy choices that, especially
in controversial matters, some observers will inevitably
think unwise. This dispute over the wisdom of a law,
however, cannot give warrant to a court to overrule the
people's Legislature.”).
32
considerations may operate as a prudential bar to judicial
policy-making in the common-law arena.
This is so when we
are asked to modify the common law in a way that may lead
to dramatic reallocation of societal benefits and burdens.20
As shown above, plaintiffs have sought a radical change in
our negligence jurisprudence and have provided no guidance
on how this proposed change might affect Michigan.
In
effect, we have been asked to craft public policy in the
dark.
This problem alone ought to make any reasonably
prudent jurist extremely wary of granting the relief sought
by the plaintiffs.21
20
The Illinois Supreme Court recently expressed
precisely this concern while rejecting a nuisance claim
asserted by the city of Chicago and Cook County against
various gun manufacturers and distributors.
City of
Chicago v Beretta USA Corp, 213 Ill 2d 351; 290 Ill Dec
525; 821 NE2d 1099 (2004).
In rejecting the plaintiffs’
claim that nuisance law should be expanded to hold the
defendants responsible for the costs of gun violence, the
court concluded:
Any change of this magnitude in the law
affecting a highly regulated industry must be the
work of the legislature, brought about by the
political process, not the work of the courts.
In response to the suggestion of amici that we
are abdicating our responsibility to declare the
common law, we point to the virtue of judicial
restraint. [Id. at 433.]
21
Recent events in Louisiana reinforce the notion that
the decision whether to permit a cause of action for
medical monitoring is one that belongs to the Legislature.
Footnotes continued on following page.
33
In addition to the problems presented by the legal
question
whether
a
medical
monitoring
cause
of
action
exists, we are faced with the more practical questions of
how such a monitoring program would work.
threshold
concern
would
likely
be
the
For example, a
determination
of
In Bourgeois v AP Green Industries, Inc, 716 So 2d 355
(La, 1998), the Louisiana Supreme Court concluded that a
cause of action for medical monitoring was cognizable under
then-La Civ Code Ann, art 2315, which provided, “Every act
whatever of man that causes damage to another obliges him
by whose fault it happened . . . .”
Although the court
recognized that Louisiana law had not previously allowed
the recovery of medical expenses “[a]bsent a corresponding
physical injury,” Bourgeois, supra at 358, the court
decided to follow “a majority of state supreme courts faced
with the issue” in recognizing a medical monitoring cause
of action.
Id. at 359.
The court held, however, that
medical
monitoring
expenses
satisfied
the
“damage”
requirement of art 2315 only if seven criteria were met.
Id. at 360-361.
In response, the Louisiana legislature added the
following language to art 2315, clearly indicating its
disagreement with the Louisiana Supreme Court’s decision in
Bourgeois:
Damages do not include costs for future
medical treatment, services, surveillance, or
procedures of any kind unless such treatment,
services,
surveillance,
or
procedures
are
directly related to a manifest physical or mental
injury or disease.
[1999 La Acts 989, now
codified at La Civ Code Ann art 2315(B).]
See, generally, Comment, Implications of amending Civil
Code Article 2315 on toxic torts in Louisiana, 60 La L R
833 (2000).
34
eligibility for participation in such a program.22
determination
involves
practical
questions
competing
interests—a
the
and
consideration
the
task
balancing
more
of
of
a
a
appropriate
Such a
number
of
host
of
for
the
legislative branch than the judiciary.
Of equal concern would be the administration of such a
program.23
The day-to-day operation of a medical monitoring
22
An example of just a few of the questions facing a
court in determining eligibility for such a monitoring
program would include: How old does the applicant have to
be? How long must an applicant have lived in the affected
area?
Where, exactly, is the “affected area”?
Must the
applicant
have
measurable
levels
of
dioxin
in
the
bloodstream to qualify? If so, what is the threshold level
of dioxin an applicant must have for eligibility?
The dissent’s argument underscores the difficulty
presented by such an inquiry.
Justice Cavanagh does not
“advocate that any exposure allows a person to bring a
claim for medical monitoring costs.”
Post at 6 (emphasis
in dissent). But if “any” exposure is not enough on which
to rest such a claim, how much exposure is enough?
The
dissent apparently recognizes that a cutoff line must
necessarily be drawn, in light of the competing interests
at stake, but fails to offer any standards to be used in
locating that line. However, such a line, if it is to be
drawn at all, must be drawn not by this Court, but by the
Legislature—the branch of government best able to balance
the
relevant
interests
in
light
of
the
policy
considerations at stake.
23
An example of some of the questions facing a court
in administering the monitoring program would include: How
would claims be filed? How would claims be processed? Who
would do the processing—court staff or a private contract
firm? Would a claimant be free to receive testing from any
medical facility he chooses, or would a claimant’s choice
Footnotes continued on following page.
35
program would necessarily impose huge clerical burdens on a
court
system
lacking
the
administer such a regime.
resources
to
effectively
Nor do the courts possess the
technical expertise necessary to effectively administer a
program heavily dependent on scientific disciplines such as
medicine,
chemistry,
and
environmental
science.
The
burdens of such a system would more appropriately be borne
by
an
administrative
agency
specifically
empowered to administer such a program.
in
our
view,
is
simply
not
created
and
The court system,
institutionally
equipped
to
establish, promulgate operative rules for, or administer
such a program.
The propriety of judicial deference to the legislative
branch in expanding common-law causes of action is further
underscored
created
remedy.
a
where,
body
of
as
law
here,
the
that
Legislature
provides
has
plaintiffs
already
with
a
Were we to create an alternate remedy in such
of testing facility be limited? To keep down costs of the
program, could defendant be permitted to establish a
“preferred provider network” of medical professionals such
that claimants could only be tested within the network? In
the absence of such a network, would claimants be limited
to the usual and necessary costs for such services, or is
the sky the limit?
How would the system reconcile two
different physicians’ opinions of what is “reasonable” in
terms of medical testing?
Would there be a grievance
procedure? Would defendant be billed directly, or would it
periodically pay into a fund?
36
cases—one
that
may
be
pursued
in
lieu
of
the
remedy
selected by our Legislature—we would essentially be acting
as a competing legislative body.
without
the
benefit
of
the
And we would be doing so
many
resources
that
inform
legislative judgment.24
24
Legislators face a far different decision-making
calculus than judges face. As one scholarly work recently
observed:
Legislatures are in the best position to
consider far-reaching and complex public policy
issues. First, they can gather facts from a wide
range of sources to help lawmakers decide whether
the law should be changed and, if so, what sorts
of changes should be made.
Second, legislatures
make law prospectively, which gives the public
fair
notice
about
significant
legal
changes. . . .
Third, they must be sensitive to
the will of the public; if they are not, the
public can vote them out of office.
In our
democratic system, if far-reaching public policy
decisions are to be made, the public should have
the opportunity to evaluate those changes and
express their agreement or disagreement in the
voting booth.
Courts, on the other hand, are best suited
to make incremental changes over time.
Judges
decide cases one at a time.
Their informationgathering is limited to one set of facts in each
lawsuit, which is shaped and limited by arguments
from opposing counsel who seek to advance purely
private interests.
Second, judges “make law”
retroactively.
This creates notice and fairness
problems.
Third, there is no “public light”
placed on judicial lawmaking.
Judges in many
states are appointed, not elected.
The public
has no voice in and must accept judicial will.
When judges are elected, the public is generally
Footnotes continued on following page.
37
In this case, the Legislature has already provided a
method for dealing with the negligent emission of toxic
substances
such
as
dioxin.
The
Natural
Resources
and
Environmental Protection Act (NREPA), MCL 324.101 et seq.,
empowers the MDEQ to deal with the environmental and health
effects of toxic pollution:
The
department
shall
coordinate
all
activities required under this part and shall
promulgate rules to provide for the performance
of response activities, to provide for the
assessment of damages for injury to, destruction
of, or loss of natural resources resulting from a
release, and to implement the powers and duties
of the department under this part, and as
otherwise necessary to carry out the requirements
of this part.
[MCL 324.20104(1) (emphasis
added).]
Further, MCL 324.20118 provides, among other things:
(1)
The
department
may
take
response
activity or approve of response activity proposed
by a person that is consistent with this part and
the rules promulgated under this part relating to
the selection and implementation of response
activity
that
the
department
concludes
is
necessary and appropriate to protect the public
health, safety, or welfare, or the environment.
unaware of the legal opinions the judges have
written or the impact of those opinions on
society. [Schwartz & Lorber, State Farm v Avery:
State court regulation through litigation has
gone too far, 33 Conn L R 1215, 1219-1220
(2001).]
38
(2)
Remedial
action
undertaken
under
subsection (1) at a minimum shall accomplish all
of the following:
(a) Assure the protection of the public
health, safety, and welfare, and the environment.
These provisions authorize the MDEQ to undertake “response
activity” and “remedial action” when the public health is
threatened by pollution.
“Response activity” is defined by
the NREPA as
[e]valuation, interim response activity, remedial
action, demolition, or the taking of other
actions necessary to protect the public health,
safety, or welfare, or the environment or the
natural
resources.
Response
activity
also
includes health assessments or health effect
studies carried out under the supervision, or
with the approval of, the department of public
health and enforcement actions related to any
response activity. [MCL 324.20101(1)(ee).]
“Remedial action,” which is included in the definition of
“response activity,” is defined under MCL 324.20101(1)(cc):
“Remedial action” includes, but is not
limited
to,
cleanup,
removal,
containment,
isolation,
destruction,
or
treatment
of
a
hazardous substance released or threatened to be
released
into
the
environment,
monitoring,
maintenance, or the taking of other actions that
may be necessary to prevent, minimize, or
mitigate injury to the public health, safety, or
welfare, or to the environment.
Given this statutory framework, this much is clear:
the
Legislature
precisely
the
has
sort
authorized
of
the
environmental
MDEQ
and
to
health
address
risks
occasioned by Dow’s alleged emission of dioxin into the
39
Tittabawassee
specifically
“health
flood
plain.
authorized
assessments”
and
Not
under
only
the
NREPA
“health
effect
is
the
to
MDEQ
undertake
studies,”
MCL
324.20101(1)(ee), but the department is also empowered to
take
“other
actions
that
may
be
necessary
to
prevent,
minimize, or mitigate injury to the public health, safety,
or welfare, or to the environment.”
Indeed,
as
plaintiffs’
counsel
MCL 324.20101(1)(cc).
acknowledged
at
oral
arguments, the MDEQ has been involved in the remediation of
the Tittabawassee dioxin contamination and has engaged in a
pilot medical monitoring program of residents.
Plaintiffs believe, however, that the MDEQ’s response
has been insufficient—that the department lacks the funding
necessary to engage in medical monitoring on the scale they
prefer.25
would
It
is
apparent,
25
therefore,
that
the
We cite the NREPA not to comment on its adequacy as
a remedy for addressing environmental contamination or its
effectiveness in dealing with dioxin contamination in the
Tittabawassee flood plain, or to suggest that the NREPA
constitutes the only appropriate remedy in dealing with
“toxic tort” types of cleanups.
Rather, the Legislature
may, in due course, choose to enact additional legislation
dealing with such cleanups, and the MDEQ may, in due
course, decide that additional measures need to be taken to
address dioxin levels in the Tittabawassee flood plain. We
note the statutory framework merely to highlight that the
NREPA arises as a result of a balancing of competing policy
interests made by the people’s elected representatives, and
that the MDEQ, in administering the NREPA within the
Footnotes continued on following page.
40
plaintiffs are asking this Court to create a new remedy—a
cause
of
action
Legislature
has
for
already
medical
monitoring—where
signaled
its
preference
the
with
respect to the appropriate form a remedy should take.
In
deference to the policy-making branch of our government, we
decline to create this alternative remedial regime.26
IV
We
have
established
that
plaintiffs’
medical
monitoring claim is not cognizable under our current law
and that recognition of this claim would require both a
departure from fundamental tort principles and a cavalier
disregard of the inherent limitations of judicial decisionmaking.
summary
claim.
For
these
disposition
We
need
reasons,
of
address
defendant
plaintiffs’
only
one
is
entitled
to
medical
monitoring
remaining
argument:
executive branch, must undertake decisions grounded in its
own expertise.
26
We are aware that a number of courts in other
jurisdictions have allowed claims for medical monitoring to
proceed. See, e.g., Petito v AH Robins Co, Inc, 750 So 2d
103 (Fla App, 1999); Hansen v Mountain Fuel Supply Co, 858
P2d 970 (Utah, 1993); In re Paoli Railroad Yard PCB
Litigation, 916 F2d 829 (CA 3, 1990); Ayers v Jackson Twp,
106 NJ 557; 525 A2d 287 (1987); Burns v Jaquays Mining
Corp, 156 Ariz 375; 752 P2d 28 (Ariz App, 1987); Friends
for All Children, Inc v Lockheed Aircraft Corp, 241 US App
DC 83; 746 F2d 816 (1984). We find none of the rationales
in these cases persuasive.
41
plaintiffs’
contention
that
their
request
for
a
medical
monitoring program is not subject to summary disposition
under MCR 2.116(C)(8) because it is a claim for equitable,
as opposed to legal, relief.27
Plaintiffs’ reliance on the nature of the relief they
seek
essentially
puts
the
cart
before
the
horse.
Regardless of what sort of remedy a plaintiff requests, we
must
nevertheless
determine
supported by a valid claim.
whether
that
remedy
is
As the Kentucky Supreme Court
recently observed, “It is not the remedy that supports the
cause
of
action,
but
supports a remedy.”
855 (Ky, 2002).
rather
the
cause
of
action
that
Wood v Wyeth-Ayerst Labs, 82 SW3d 849,
Here, plaintiffs have pleaded a cause of
action based on a theory of negligence and have argued that
we should expand the common law of torts in order to permit
27
Amici have urged us to view plaintiffs’ medical
monitoring claim as a request for a preliminary injunction,
arguing that an injunction may be granted even if
irreparable harm or injury has not yet occurred. Michigan
Coalition of State Employee Unions v Civil Service Comm,
465 Mich 212, 228; 634 NW2d 692 (2001). But this argument
disregards
that,
in
order
to
obtain
a
preliminary
injunction, the movant must establish that he “is likely to
prevail on the merits . . . .”
Michigan State Employees
Ass'n v Dep’t of Mental Health, 421 Mich 152, 158; 365 NW2d
93 (1984).
Thus, a court’s prerogative to grant a
preliminary injunction is tempered by the need to determine
whether the movant has pleaded a claim on which he might
ultimately obtain relief.
42
their medical monitoring claim to proceed.28
Plaintiffs
never attempt to characterize their claim as an equitable
cause of action, and point to no case law where a similar
tort-based claim is held to create an equitable cause of
action.
As shown above, plaintiffs’ claim is not cognizable
under our current law of negligence and is not within a
permissible
expansion
of
the
common
perforce, is the claim based in equity.
“create
substantive
rights
under
the
law.
Neither,
A court cannot
guise
equity,” or “confer rights” where none exists.
of
doing
Stein v
Simpson, 37 Cal 2d 79, 83; 230 P2d 816 (1951); Lathrop Co v
Lampert,
regardless
583
of
P2d
789,
whether
790
the
(Alas,
1978).
relief
plaintiffs
Therefore,
seek
is
equitable or legal in nature, defendant was entitled to
summary
disposition
regarding
28
plaintiffs’
medical
For example, plaintiffs’ brief argues, “Plaintiffs
seek to certify a class of individuals who, as a result of
Dow’s negligence, have suffered substantially increased
risks of exposure to dioxin, and from this exposure,
increased risks of developing grave but latent diseases and
adverse health effects.”
(Emphasis added.)
They add,
“These innocent victims of Dow’s negligence should receive
periodic medical testing so that early detection and
treatment can minimize the impact of any resulting
illness.” (Emphasis added.)
43
monitoring
cause
of
action
because
plaintiffs
have
not
stated a valid cause of action.
V
Although the dissenting opinion is passionately argued
and, no doubt, well-intentioned, it is rooted in a number
of fundamental misconceptions about the applicable law and
about our majority opinion.
Some of these errors have
already been noted and need no further discussion.
three
particular
inaccuracies
in
the
dissent
But
warrant
special mention.
First,
the
dissent
argues
that
our
holding
makes
“plaintiffs’ physical health . . . secondary to defendant’s
economic health.”
thing.
Post at 2.
But our opinion does no such
We take no position on whether defendant should or
should not pay for the costs of monitoring for dioxinrelated disease.
Rather, we hold that plaintiff has not
stated a claim under our current tort law and that the
determination whether that law should change to accommodate
plaintiffs’ claims belongs, in our view, to the people’s
representatives in the Legislature.
It may be desirable that our tort law should expand to
allow a cause of action for medical monitoring.
we as
individuals
But what
prefer is not necessarily what we as
justices ought to impose upon the people.
44
Our decision in
this case is driven not by a preference for one policy or
another, but by our recognition that we must not impose our
will upon the people in matters, such as this one, that
require
a
interests.
delicate
In
our
balancing
of
representative
competing
democracy,
societal
it
is
the
legislative branch that ought to chart the state’s course
through such murky waters.
Second, the dissenting opinion casts our opinion as
one leaving injured plaintiffs without a remedy.
at
26
(“Today,
the
majority
holds
that
See post
defendant’s
egregious long-term contamination of our environment and
the
resulting
negative
health
effects
to
plaintiffs
just another accepted cost of doing business.”).
are
But our
opinion does not hold that a party who actually contracts a
dioxin-related disease will be foreclosed from recovery.
On the contrary, assuming such a person could show physical
harm
and
causation,
the
four
negligence claim would be met.
elements
of
a
traditional
See p 8 of this opinion.
Upon such a showing, that person would be entitled to full
compensation for the injury in the same manner as any other
person injured by another’s negligence.29
29
We also note that there would be no statute of
limitations problems for such a plaintiff.
Under the soFootnotes continued on following page.
45
The dissent’s overwrought rhetoric aside, the question
is not whether an injured party should recover for Dow’s
contamination of the environment but when a party may be
considered “injured” under Michigan tort law and recover
for Dow’s negligence.
Justice Cavanagh may prefer a system
in which polluters’ resources are doled out on a firstcome, first-served basis.
notion
that
such
a
He may be comfortable with the
regime
runs
the
risk
of
diverting
limited resources from those devastated by cancer, birth
defects,
have
yet
entitled
and
to
to
other
dioxin-related
manifest
these
diseases
dioxin-related
beliefs.
But
to
those
illness.30
his
beliefs
He
are
who
is
not
reflected in our common law of negligence and, given the
potential
repercussions
of
his
first-come,
first-served
notions of justice, his vision should be turned into law,if
at all,by the Legislature.
This point leads to the dissenting opinion’s third and
most troubling error: Justice Cavanagh’s complete disregard
called “discovery rule,” a cause of action “accrues” in the
toxic tort context when an injured party knows or should
have known of the manifestation of the injury.
See, e.g.
Larson, supra at 314.
Provided that the injured person
brings an action within three years of the date he knows or
should have known of a dioxin-related injury, the statute
of limitations would be satisfied. See MCL 600.5805(10).
30
See Metro-North Commuter R Co, supra at 442.
46
for the effects that our decision may have on those other
than the parties at bar.
For example, the dissent asserts
that our concerns about the effects that a decision in
plaintiffs’ favor might have are unfounded given the nature
of the relief that plaintiffs request:
[T]he majority’s prediction of a ruined
economy falters after examining the true nature
of the equitable relief that plaintiffs are
seeking.
Notably, allowing plaintiffs to seek
medical monitoring costs would not result in a
windfall for plaintiffs. . . . plaintiffs would
receive no money whatsoever. . . . The only
“benefit” that a plaintiff would receive is
payment for tests ordered by a doctor that are
above and beyond what would generally be ordered
for that plaintiff. [Post at 13-14.]
The dissent asserts, in effect, that we need not trouble
ourselves about recognizing plaintiffs’ proposed cause of
action
because
they
seek
a
rather than a cash payment.
medical
monitoring
program
What this argument ignores, of
course, is that medical monitoring is not without cost.
Moreover,
the
dissent
overlooks
the
fact
that
recognizing a cause of action before manifest injury in
this case will allow other causes of action for negligence
before
manifest
injury.
The
dissent’s
disdain
for
our
“concerns about financial impact” can be sustained only by
disregarding the effect that these other preinjury actions
might have on the state’s economy.
47
To recognize a medical
monitoring cause of action would essentially be to accord
carte blanche to any moderately creative lawyer to identify
an
emission
from
any
business
enterprise
anywhere,
speculate about the adverse health consequences of such an
emission, and thereby seek to impose on such business the
obligation to pay the medical costs of a segment of the
population that has suffered no actual medical harm.
Worse
still
is
the
dissenting
opinion’s
failure
consider the possible human toll of its approach.
to
Indeed,
our dissenting colleague is offended at our suggestion that
allowing these plaintiffs to recover might limit resources
available to those who show manifest physical injury:
I can think of no greater misdeed than to
actually argue that allowing these plaintiffs to
seek the equitable remedy of requiring this
defendant to pay for the costs of necessary
medical monitoring tests somehow would divert
resources from children with birth defects. This
is fabrication at its most unforgivable—refusing
to acknowledge that providing plaintiffs with the
opportunity to merely seek an equitable remedy is
well with the bounds of judicial discretion and
will not devastate the economy or cause sick
children to die.
[Post at 19-20 (emphasis in
original).]
This is an argument that can be sustained only if one
believes that we live in a world in which every tortfeasor
has unlimited resources to compensate those affected by its
negligence.
Ours, of course, is not that sort of world.
48
Those who do wrong necessarily have a limited capacity to
compensate those who suffer from their wrongdoing.
Justice Cavanagh himself recognized this reality in
Larson v Johns-Manville Sales Corp, supra at 304.
There,
he joined a majority opinion holding that manifest injury
rather
than
asbestos
exposure
exposure.
alone
The
gives
opinion
rise
to
concluded
a
claim
with
a
for
frank
acknowledgement that this rule was necessary in light of
the
limited
resources
available
to
compensate
injured
parties:
We believe that discouraging suits for
relatively
minor
consequences
of
asbestos
exposure will lead to a fairer allocation of
resources to those victims who develop cancers.
Rather than encouraging every plaintiff who
develops asbestosis to recover an amount of money
as compensation for the chance of getting cancer,
we prefer to allow those who actually do develop
cancer to obtain a full recovery. [Id. at 319.]
Thus, the Larson Court recognized that a rule that created
an incentive for plaintiffs to seek recovery for asbestosis
would
limit
the
resources
available
whose asbestosis turned to cancer.
49
to
compensate
those
Our nation’s experience with asbestos litigation has
shown that this concern was well-founded.31
quite
puzzling
that
our
dissenting
It is therefore
colleague
would
show
such a blithe disregard for the real-world effects of his
invocation of equity in this case.
Equity is indeed an instrument of justice.
But when
it is exercised without due regard for the interests of
those who are not before the Court, its invocation can lead
to great injustice.
It is precisely because a decision in
plaintiffs’ favor may have sweeping effects for Michigan’s
citizens and its economy that we believe this matter should
be handled by those best able to balance these competing
interests: the people’s representatives in the Legislature.
CONCLUSION
We
conclude
defendant’s
that
motion
the
for
trial
summary
court
disposition
plaintiffs’ medical monitoring claim.
31
erred
in
denying
regarding
The cause of action
See,
e.g.,
Schwartz
et
al.,
Addressing
the
“elephantine mass” of asbestos cases: consolidation versus
inactive dockets (pleural registries) and case management
plans that defer claims filed by the non-sick, 31 Pepp L R
271, 273-274 (2003) (noting that asbestos litigation has
led to “at least 78” bankruptcies, leading to “staggering”
effects on the economy and, worse, fewer resources for the
“truly sick”).
50
proposed
law.
by
plaintiffs
is
not
cognizable
under
Michigan
Accordingly, we remand this matter to the Saginaw
Circuit Court for entry of an order of summary disposition
in
defendant’s
favor
with
regard
to
plaintiffs’
monitoring cause of action.
Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
51
medical
S T A T E
O F
M I C H I G A N
SUPREME COURT
GARY and KATHY HENRY, et al.,
Plaintiffs-Appellees,
v
No. 125205
THE DOW CHEMICAL COMPANY
Defendant-Appellant.
_______________________________
WEAVER, J. (concurring).
I concur and join in the majority opinion’s result,
and in its reasoning.
I write separately because I do not
join in the opinion’s citations of an article in the Texas
Review of Law & Politics, ante at 24, 31.1
There is better authority than a law review article to
support the propositions for which the article is cited.
The opinion cites the article for two propositions: (1)
that “our common-law jurisprudence has been guided by a
number of prudential principles. . . .
Among them has been
our attempt to ‘avoid capricious departures from bedrock
legal
rules
as
such
tectonic
shifts
might
produce
unforeseen and undesirable consequences,’” and (2) that the
judiciary is ill-advised to make decisions that involve a
1
The article is based on remarks Justice Young made at
a joint Federalist Society/Ave Maria Law School symposium.
drawing
of
policy.
Ante at 24, 30-31.
Rather
article,
lines
than
real
reflecting
an
and
considerations
out-of-state,
binding
nonbinding
Michigan
authority
propositions is found in our case law.
of
public
law
review
for
these
See Olmstead v
Anderson, 428 Mich 1, 11; 400 NW2d 292 (1987),2 and Van v
Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).3
there
is
binding
case
law
for
these
Because
propositions,
the
citations of the article written by one of the justices
2
Olmstead noted approvingly that, in a prior case,
“[t]he
Court,
therefore,
applied
the
public
policy
exception to the lex loci doctrine, rather than making
sweeping
changes
[by
reappraising
Michigan’s
entire
conflict
of
laws
policy]
with
potential
unforeseen
consequences.”
3
In Van, supra at 327, the Court quoted the following
passage from the earlier Court of Appeals opinion in that
case, 227 Mich App 90, 95; 575 NW2d 566 (1997):
“As a general rule, making social policy is
a job for the Legislature, not the courts.
See
In re Kurzyniec Estate, 207 Mich App 531, 543;
526 NW2d 191 (1994).
This is especially true
when the determination or resolution requires
placing a premium on one social interest at the
expense of another: ‘The responsibility for
drawing lines in a society as complex as ours—of
identifying priorities, weighing the relevant
considerations and choosing between competing
alternatives—is
the
Legislature’s,
not
the
judiciary’s.’
O’Donnell v State Farm Mut
Automobile Ins Co, 404 Mich 524, 543; 273 NW2d
829 (1979).”
2
signing the majority opinion can at best be described as
inappropriate and unnecessary.
Further, I do not agree with some of the article’s
tone, nor with its comparison of the common law to
a drunken, toothless ancient relative, sprawled
prominently and in a state of nature on a settee
in the middle of one’s genteel garden party.[4]
An article containing such a clumsy and crude analogy that
mocks the common law is unworthy of citation.
The people
of Michigan expressly adopted the common law, in addition
to statutory laws, in the 1963 Constitution.5
Therefore, I concur in the result and join in the
majority opinion, except the citations of the Texas Review
of Law & Politics article.
Elizabeth A. Weaver
4
Young, A judicial traditionalist confronts the common
law, 8 Texas Rev L & Pol 299, 302 (2004).
5
Michigan’s Constitution adopted the common law that
was in force in 1963: “The common law and the statute laws
now in force, not repugnant to this constitution, shall
remain in force until they expire by their own limitations,
or are changed, amended or repealed.” Const 1963, art 3, §
7.
3
S T A T E
M I C H I G A N
O F
SUPREME COURT
GARY and KATHY HENRY, et al,
Plaintiffs-Appellees,
v
No. 125205
DOW CHEMICAL COMPANY,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
The proper issue in this case is whether defendant
must
pay
for
plaintiffs’
medical
monitoring
costs.
However, rather than simply address this basic issue, the
majority chooses to use this case as a vehicle to raise
fears
about
the
economy
and
hypothesize
that
providing
medical monitoring to these plaintiffs would result in our
state’s
economic
disaster.
The
majority
erroneously
presents this case as one in which it must choose between
an
equitable
viability
of
remedy
for
defendant
and
plaintiffs
of
our
and
state.
the
economic
Because
the
dichotomy the majority has constructed is a false one, I
must dissent.
At
its
core,
responsibilities.
this
case
is
about
rights
and
Defendant is undeniably responsible for
years of actively contaminating the air, water, and soil
that surrounds plaintiffs’ homes.
Defendant is undeniably
responsible for the suffering that plaintiffs must endure
as they face years of wondering if the contamination that
they and their children have been exposed to will result in
devastating illnesses and their untimely deaths.
Thus, the
issue is who should pay for plaintiffs’ medical monitoring
costs under the unique circumstances of this case when it
is clear that defendant is responsible for the wrong that
prompted the need for plaintiffs to be medically monitored.
Stated differently, where defendant has contaminated the
environment, should plaintiffs, defendant, or the taxpayers
of the state of Michigan pay plaintiffs’ medical monitoring
costs?
Whatever
the
majority’s
intent,
the
result
of
disregarding the only question properly posed in this case
is that plaintiffs’ physical health is inexcusably deemed
secondary to defendant’s economic health.
I. PLAINTIFFS PRESENT A REASONABLE CLAIM FOR MEDICAL
MONITORING COSTS
Plaintiffs
located
are
within
Tittabawassee
the
River
owners
and
residents
one-hundred-year
in
Saginaw
flood
County.
of
property
plain
The
of
the
Michigan
Department of Environmental Quality (MDEQ) found as much as
7,300
parts
per
trillion
(ppt)
2
of
dioxin
in
the
flood
plain,
which
standard
After
of
the
substantially
ninety
MDEQ
ppt
for
conducted
exceeds
direct
Michigan’s
residential
testing,
it
cleanup
contact.1
determined
defendant was the source of the pollution.
that
Because of the
health risks that plaintiffs may face, plaintiffs seek a
court-supervised
medical
monitoring
program
that
is
administered by qualified health professionals.
"Dioxin" is the term used to identify a number of
similar
toxic
carcinogen
chemicals.
and,
carcinogen.’”
as
the
Dioxin
majority
is
a
known
notes,
human
“‘a
potent
Ante at 1 n 1 (citation omitted).
Exposure
to dioxin can cause cancer, liver disease, birth defects,
miscarriages,
illnesses.
and
reproductive
Children
are
more
damage,
as
well
significantly
as
other
affected
dioxin than adults. Dioxins do not break down easily.
by
Once
dioxin is released into the environment, it stays in the
1
The Michigan Department of Community Health, the
Michigan Department of Environmental Quality, and the
Michigan Department of Agriculture state that “recent
studies suggest that dioxins may be far more harmful to
human health than was previously believed and these
standards [referring to standards for drinking water and
eating fish and shellfish] as well as others set for soil,
sediment, and food may change in the future.” Dioxins Fact
Sheet.
3
environment for an extremely long time.2
When dioxin gets
into a person’s body, it stays indefinitely in a person’s
blood and body fat.
Because dioxin stays in the body for a
long time, the adverse effects of dioxin exposure may not
be immediate.
Plaintiffs’
pilot
study
of
counsel
the
stated
community
at
oral
conducted
argument
by
the
that
a
Michigan
Department of Community Health found that fifty to eighty
percent of the people tested have dioxin levels that put
them in the 75th to the 95th percentile compared to the
national average for their age and gender.
II. PLAINTIFFS’ CLAIM FOR MEDICAL MONITORING WARRANTS
EQUITABLE RELIEF
Plaintiffs’
request
for
a
court-supervised
medical
monitoring program that is administered by qualified health
professionals is undoubtedly reasonable.
Plaintiffs merely
request that defendant pay the cost of medical monitoring
to ensure that dioxin-related illnesses are caught at their
2
The majority notes that defendant has entered into a
settlement
agreement
in
which
“defendant
will
fund
extensive cleanup efforts aimed at minimizing residents’
exposure to dioxin.” Ante at 7 n 3. The specifics of this
agreement indicate that defendant is willing to pay for
items such as landscaping some homes to cover exposed soil
and augmenting some ground cover in public parks; however,
defendant remains unwilling to pay for any necessary
medical monitoring costs as a result of its dioxin
contamination.
4
earliest.
Plaintiffs
devastating
effects
simply
of
seek
illnesses
to
minimize
caused
by
the
defendant’s
acts.
The majority, ante at 8, notes that “any first-year
law
student”
knows
the
principle
for
negligence—duty,
breach, causation, and damages—and argues that plaintiffs’
rights
have
not
been
suffered
no
this,
vehemently
I
injuries
actually
and,
violated
therefore,
disagree.
no
and
they
damages.
Plaintiffs
have
have
With
suffered
actual harm and damages—the heightened exposure to dioxin
that they received because of defendant’s acts is akin to
an
injury.
Plaintiffs
were
exposed
to
dioxin
at
over
eighty times the level deemed safe for direct residential
contact.
such
as
Plaintiffs were advised that routine activities,
flower
increase
gardening
their
and
risk
Tittabawassee/Saginaw
lawn
work,
of
River
dioxin
Flood
Assessment Initiative, June 2003.
could
Plain,
further
exposure.
Environmental
Plaintiffs were further
advised that they should avoid allowing their children to
play in the soil to avoid further contamination.
were
not
obliged
for
to
defendant’s
incur
the
acts,
expenses
plaintiffs
involved
would
in
If it
not
be
additional
testing for early detection of any illnesses caused by the
increased
dioxin
exposure.
In
5
this
case,
the
exposure
itself and the need for medical monitoring constitute the
injury.
See, e.g., Petito v AH Robins Co, Inc, 750 So 2d
103, 105 (Fla App, 1999) (“One can hardly dispute that an
individual
has
just
as
great
an
interest
in
avoiding
expensive diagnostic examinations as in avoiding physical
injury.”).
Plaintiffs
can
also
offer
facts
sufficient
to
establish causation, contrary to the majority’s assertion.
As noted by the majority, defendant’s Midland plant was
identified
as
the
“‘principal
source
of
dioxin
contamination in the Tittabawassee River sediments and the
Tittabawassee
(citation
River
flood
omitted).
plain
Given
the
soils.’”
facts,
Ante
it
is
at
5
entirely
reasonable for plaintiffs to argue that they would not have
to undergo medical monitoring tests for dioxin poisoning
but for the actions of defendant.
insufficient
facts
to
support
To argue that there are
plaintiffs’
argument
is
a
willful avoidance of the record.
Notably,
allowed
to
my
seek
belief
that
equitable
these
relief
plaintiffs
does
not
should
mean
that
be
I
advocate that any exposure allows a person to bring a claim
for medical monitoring costs.
be imprudent.
That position would indeed
However, in this case, a candid review of
the facts indicates that plaintiffs’ heightened exposure
6
has caused them harm and plaintiffs have no adequate legal
remedy.
While
plaintiffs
may
not
have
yet
developed
dioxin-related illnesses, the fact remains that they are at
a much greater risk because of defendant’s acts.
As such,
their long-term exposure to dioxin has caused a change in
the medical monitoring that plaintiffs would otherwise be
prescribed.
medical
For example, according to reasonably accepted
practice,
doctors
do
not
generally
testing to determine a patient’s dioxin level.
prescribe
However, in
this case, because of the prolonged exposure to high levels
of dioxin, a doctor may, according to accepted scientific
principles, find that such tests are reasonably necessary
to best monitor and treat a patient.
ordered,
defendant
should
be
When these tests are
responsible
for
paying
the
costs of the tests because defendant is responsible for the
need for the tests.
Plaintiffs do not, as the majority asserts, advocate
for “a cause of action that departs drastically from our
traditional notions of a valid negligence claim” and seek a
“radical
change”
in
negligence
3
law.
Ante
at
24,
33.3
Also, contrary to the majority’s assertion, Larson v
Johns-Manville Sales Corp, 427 Mich 301, 304-305; 399 NW2d
1 (1986), does not affect the decision before the Court
today.
Larson dealt with the statute of limitations for
Footnotes continued on following page.
7
Medical
monitoring
jurisdictions.
is
See,
recognized
e.g,
In
in
re
a
Paoli
number
of
Yard
PCB
R
Litigation, 916 F2d 829, 852 (CA 3, 1990); Stead v F E
Myers
Co,
785
F
Supp
56,
57
(D
Vt,
1990);
Merry
v
Westinghouse Electric Corp, 684 F Supp 847, 849 (MD Pa,
1988); Bower v Westinghouse Electric Corp, 206 W Va 133,
135; 522 SE2d 424 (1999); Redland Soccer Club, Inc v Dep’t
of the Army, 548 Pa 178, 194; 696 A2d 137 (1997); Potter v
Firestone Tire & Rubber Co, 6 Cal 4th 965, 974; 863 P2d
795; 25 Cal Rptr 2d 550 (1993); In re Fernald, 1989 US Dist
LEXIS
17762
(SD
Ohio,
1989)
(appointing
trustees
and
special masters to administer a medical monitoring program
as part of a $78 million settlement).
Moreover, because of
the latent nature of most illnesses resulting from exposure
to
dioxin,
plaintiffs
may
not
be
able
to
establish
an
immediate physical injury of the type contemplated by a
causes of action for asbestosis and cancer related to
asbestos exposure. This Court held that a cause of action
for asbestosis or cancer related to asbestos exposure
accrues when a person learns or should learn that he has
developed asbestosis or cancer, not when he was first
exposed to asbestos.
This was necessary because the
underlying claims in Larson were wrongful death actions
premised on asbestosis and cancer. A person cannot bring a
wrongful death claim for asbestosis until the victim
actually has asbestosis.
But Larson has no effect on
whether plaintiffs can seek an equitable remedy for a
court-supervised
medical
monitoring
program
that
is
administered by health professionals.
8
traditional tort action.
See, e.g., Paoli, supra at 852
(“Medical monitoring claims acknowledge that, in a toxic
age, significant harm can be done to an individual by a
tortfeasor,
notwithstanding
latent
manifestation
of
that
harm.”); Cook v Rockwell Int’l Corp (Cook I), 755 F Supp
1468,
1476
exposure
to
(D
Colo,
toxic
1991)
substances
(“injuries
resulting
from
are
latent”).
But
often
merely because an illness is latent does not mean that
plaintiffs have not been injured and suffered damages.4
A plaintiff who is involved in an automobile
accident and suffers no observable physical
injury
but
nevertheless
undergoes
medically
necessary diagnostic tests to determine whether
internal injuries exist is no doubt entitled to
recover the costs of the examination.
If
accepted
medical
practice
also
deemed
it
necessary to perform such tests in the future, in
order to detect the onset of any subsequently
developing injury caused by the accident, the
costs of the continued tests would be recoverable
. . . . The outcome should be the same when the
operative incident is toxic exposure rather than
collision and the potential future harm is
disease
rather
than
physical
impairment.
[Miranda v Shell Oil Co, 17 Cal App 4th 1651,
1657; 26 Cal Rptr 2d 655 (1993).]
4
“The ‘injury’ that underlies a claim for medical
monitoring--just as with any other cause of action sounding
in tort--is ‘the invasion of any legally protected
interest.’”
Bower, supra at 139, quoting Restatement
Torts, 2d, § 7(1) (1964).
9
See also Friends for All Children, Inc v Lockheed Aircraft
Corp, 241 US App DC 83, 92; 746 F2d 816 (1984).
Because
of
the
court-supervised
established
medical
facts
in
monitoring
this
program
case,
that
a
is
administered by qualified health professionals is a viable
and
equitable
remedy
for
plaintiffs
to
nonpreclusive of any future damages claim.
seek
that
is
See, e.g, Day v
NLO, Inc, 811 F Supp 1271, 1275 (SD Ohio, 1992) (“Because
of
ongoing
court
supervision,
any
medical
monitoring
awarded by this Court would constitute equitable relief.”).
An
equitable
adequate
remedy
legal
is
remedy
necessary
for
because
plaintiffs.
there
See
is
no
Multiplex
Concrete Machinery Co v Saxer, 310 Mich 243, 259-260; 17
NW2d 169 (1945); Powers v Fisher, 279 Mich 442, 447; 272 NW
737 (1937).
incident,
“The absence of precedents, or novelty in
presents
no
obstacle
to
the
exercise
of
the
jurisdiction of a court of equity, and to the award of
relief
in
a
proper
case.”
30A
CJS,
Equity,
Effect
of
Absence of Precedents, § 10, pp 171-172; see also 27A Am
Jur 2d, Equity, § 100, p 587 (“The appropriateness of the
equitable remedy is determined by current rather than past
conditions.”).
“The essence of a court’s equity power lies
in its inherent capacity to adjust remedies in a feasible
and practical way to eliminate the conditions or redress
10
the injuries caused by unlawful action.”
Freeman v Pitts,
503 US 467, 487; 112 S Ct 1430; 118 L Ed 2d 108 (1992).
It
is
within
the
sound
discretion
whether to offer equitable relief.
538, 545; 27 NW2d 88 (1947).
of
the
courts
Youngs v West, 317 Mich
Regardless of how plaintiffs
may have characterized their pleadings, “[t]he court has
equitable
jurisdiction
to
provide
a
remedy
where
none
exists at law, even if the parties have not specifically
requested
an
equitable
remedy,
whenever
the
pleadings
sufficiently give notice of a party’s right to relief and
demand for judgment.”
30A CJS, Equity, Lack of Remedy at
Law as Ground and Limit of Jurisdiction, § 18, p 180; see
also
27A
Am
Jur
2d,
Equity,
jurisdiction
nevertheless
claimant
pleaded
has
may
no
§
216,
arise
equitable
p
699
even
claims
(“Equity
though
and
has
the
not
pleaded inadequacy of the remedy at law.”); Parkwood Ltd
Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich
763, 774 n 8; 664 NW2d 185 (2003).
the
majority’s
equitable
Plaintiffs’
relief
assertion,
as
complaint
it
However, contrary to
plaintiffs
relates
states
that
to
indeed
medical
they
have
ask
for
monitoring.
no
adequate
remedy at law and they seek “equitable/injunctive relief in
the form of a medical monitoring program . . . .”
11
While
the
majority
argues
that
the
separation
of
powers precludes it from allowing plaintiffs to proceed, I
strongly disagree.
The majority’s framing of the issue and
its subsequent argument allow it to claim that “[w]e take
no position on whether defendant should or should not pay
for the costs of monitoring for dioxin-related disease.”
Ante at 44.
The majority’s argument is essentially that
its hands are tied because the Legislature has not acted.
But this argument ignores a basic tenet of our system of
jurisprudence–courts
equitable
remedies.
have
the
“Every
inherent
equitable
power
right
to
or
provide
interest
derives not from a declaration of substantive law, but from
the broad and flexible jurisdiction of courts of equity to
afford remedial relief, where justice and good conscience
so dictate.”
30A CJS, Equity, In general, § 93, p 289.
The majority’s steadfast insistence that it cannot allow
plaintiffs to proceed because the Legislature has not acted
allows
the
majority
to
sidestep
the
issue,
instead
of
explicitly stating and supporting its position that these
plaintiffs are unworthy of relief.
Because principles of equity are firmly entrenched in
our justice system, plaintiffs’ position would not require
this
Court
to
depart
from
fundamental to our justice system.
12
longstanding
principles
“The purpose of equity
is to do complete justice in a case where a court of law is
unable, because of the inflexibility of the rules by which
it
is
bound,
to
adapt
its
circumstances of the case.”
Purpose,
and
judgment
to
the
special
27A Am Jur 2d, Equity, Nature,
Distinguishing
Features,
§
2,
pp
520-521.
“[E]quity is the perfection of the law, and is always open
to those who have just rights to enforce where the law is
inadequate.”
Grand Lodge of the Ancient Order of United
Workmen of the State of Michigan v Child, 70 Mich 163, 172;
38 NW 1 (1888).
Allowing plaintiffs to merely proceed to
seek a court-supervised medical monitoring program under
equity
principles
certainly
does
not
stray
from
the
foundations of Anglo-American law.
III. EQUITABLE RELIEF PROPERLY PLACES THE
RESPONSIBILITY FOR ANY MEDICAL MONITORING COSTS ON
DEFENDANT, THE PARTY RESPONSIBLE FOR IMPOSING
THE COSTS ON PLAINTIFFS
Throughout its opinion, the majority invokes the fear
of
a
ruined
majority’s
examining
economy
to
prediction
the
true
of
support
a
nature
its
ruined
of
the
decision.
economy
But
falters
equitable
relief
the
after
that
plaintiffs are seeking.
Notably, allowing plaintiffs to
seek
costs
medical
windfall
monitoring
for
compensates
plaintiffs.
a
“A
plaintiff
for
13
would
medical
not
result
monitoring
diagnostic
in
a
claim
treatment,
a
tangible
and
quantifiable
item
defendant’s tortious conduct.”
also Paoli, supra at 850.
receive
no
money
of
damage
caused
by
a
Cook I, supra at 1478; see
Notably, these plaintiffs would
whatsoever.
Payments
for
doctor-
prescribed testing would be made through a court-supervised
fund.
This
medical
fund
monitoring
would
costs
only
compensate
actually
plaintiffs
incurred
after
for
the
monitoring was ordered by a qualified health professional.
The
only
“benefit”
that
a
plaintiff
would
receive
is
payment for tests ordered by a doctor that are above and
beyond what would generally be ordered for that plaintiff.5
5
This is in contrast to the relief sought in MetroNorth Commuter R Co v Buckley, 521 US 424, 439-441; 117 S
Ct 2113; 138 L Ed 2d 560 (1997).
In Metro-North, an
employee sought a change in the common law that would
permit a lump-sum damages award for medical monitoring
costs. The Court stated the following:
[W]e do not find sufficient support in the
common law for the unqualified rule of lump-sum
damages recovery that is, at least arguably,
before us here.
And given the mix of competing
general
policy
considerations,
plaintiff’s
policy-based arguments do not convince us that
the FELA [Federal Employers’ Liability Act]
contains
a
tort
liability
rule
of
that
unqualified kind.
This limited conclusion disposes of the
matter before us.
We need not, and do not,
express any view here about the extent to which
the FELA might, or might not, accommodate medical
Footnotes continued on following page.
14
Notably,
the
majority’s
concerns
about
financial
impact can actually be alleviated to a great degree by
allowing
plaintiffs’
practical,
proactive
approach.
A
court-supervised medical monitoring program administered by
qualified
health
detection
to
professionals
plaintiffs
damages
that
defendant
related
illnesses
are
and
would
would
likely
be
provide
lessen
liable
discovered
early
the
if
for
later.
fiscal
dioxin-
The
early
detection of illnesses may allow treatment to proceed in a
more reasonable manner, often with more options for the
person affected than if detection had been delayed.
Bower,
supra
at
140.
“It
is
common
knowledge
See
early
diagnosis of many serious conditions promotes enhanced cure
and survival rates.”
Miranda, supra at 1658.
“Harm in the
form of increased risk of future cancer attributable to
delay
in
diagnosis
and
treatment
has
become
so
widely
accepted by the medical community that the existence of
such
harm
could
be
reasonably
inferred
from
this
cost recovery rules more finely tailored than the
rule we have considered. [Id. at 444.]
As Justice Ginsburg, concurring in part and dissenting
in part, in Metro-North, supra at 455-456, noted, “If I
comprehend
the
Court’s
enigmatic
decision
correctly,
Buckley [the employee] may replead a claim for relief and
recover for medical monitoring, but he must receive that
relief in a form other than a lump sum.”
15
professional common knowledge.”
399, 424; 471 A2d 405 (1984).
Evers v Dollinger, 95 NJ
“[E]xperts continuously urge
vigilant detection as the most realistic means of improving
prognosis . . . .”
Id. at 426 n 2, citing Rubin, Clinical
Oncology for Medical Students and Physicians (3d ed, 19701971),
p
33.
facilitate
illness
The
early
caused
intent
diagnosis
by
a
of
and
medical
monitoring
treatment
plaintiff’s
of
exposure
is
disease
to
“to
or
toxic
substances as a result of a defendant’s culpable conduct.”
Miranda,
supra
at
1655.
Plaintiffs’
counsel
clearly
articulated just such an example of the benefits of medical
monitoring:
Let me give you a very clear example of how
medical monitoring would work in an instance like
this.
Say there’s a woman of child bearing age
and her blood is tested for high levels of dioxin
and she is found to have high levels of dioxin,
95th percentile or so in her body.
Medical
doctors
who
are
familiar
with
dioxin
contamination say well one of the possible
results
of
having
high
levels
of
dioxin
contamination in your blood is that you may have
depressed thyroid function.
So they do a very
simple test, a standard test for thyroid function
and find out that there is depression of thyroid
function. She is then treated and birth defects
that are linked to depressed thyroid function do
not happen to her [child].
She does not have a
child
with
a
birth
defect
because
that
preventative measure prevented that irreparable
harm.
16
The establishment of a court-supervised fund for medical
monitoring “encourages plaintiffs to detect and treat their
injuries as soon as possible.”
Paoli, supra at 852.
Notably, the majority fails to mention that plaintiffs
would not be forced to engage in medical monitoring tests
if
they
chose
not
to.
A
court-supervised
medical
monitoring program would allow plaintiffs to make a choice,
and
those
who
choose
to
be
monitored
and
who
meet
the
requirements set forth by qualified health professionals
could be monitored.
The majority also notes an argument—not often heard—
that monitoring for the early detection of illnesses can
actually be bad for plaintiffs because a person with an
illness who is erroneously proclaimed healthy may ignore
symptoms and, therefore, delay seeking necessary treatment,
possibly leading to severe psychological harm.
The only
logical import from stating these arguments is that because
plaintiffs may also be the victims of medical malpractice
they should consider not going to a doctor to determine if
defendant’s contamination of the environment poisoned them.
But
a
result
fear
of
in
the
medical
malpractice
position
necessary medical testing.
that
should
plaintiffs
certainly
should
not
forgo
While the majority states that
it does not cite these viewpoints to endorse them, but
17
merely to note their existence, the majority’s citation at
the
very
least
indicates
considerations.
possibility
I,
of
that
however,
medical
it
do
deems
not
malpractice
them
believe
should
be
relevant
that
used
the
to
support the notion that plaintiffs are not deserving of an
equitable remedy.
Also, contrary to the majority, I do not believe that
an
equitable
remedy
administering
difficult.
the
should
remedy
“Rather,
the
be
may
refused
be
true
merely
inconvenient
principle
[of
because
or
even
equitable
relief] seems to be that the hardship of the plaintiff is
balanced
against
the
anticipated
by
called
‘balance
the
the
inconveniences
court,
of
Equity, § 101, p 587.
which
and
difficulties
principle
convenience.’”
is
27A
Am
sometimes
Jur
2d,
Indeed, the desegregation of our
nation’s schools was certainly not an easy task, yet the
United
States
Supreme
Court
found
that
overseeing
this
process was an appropriate equitable remedy for the courts.
Brown v Bd of Ed of Topeka, 349 US 294, 300; 75 S Ct 753;
99
L
Ed
1083
characterized
(1955)
by
a
(“Traditionally,
practical
equity
flexibility
in
has
been
shaping
its
remedies and by a facility for adjusting and reconciling
public and private needs.”).
I certainly believe that a
court
courts
in
our
state,
just
as
18
have
done
in
other
states,
can
determine
a
suitable
medical monitoring program.
way
to
administer
a
See, e.g., Cook v Rockwell
Int’l Corp, 778 F Supp 512, 515 (D Colo, 1991) (Cook II);
Burns v Jaquays Mining Corp, 156 Ariz 375, 380-381; 752 P2d
28 (1987); 27A Am Jur 2d, Equity, § 103, p 588 (“[A] court
of equity is clothed with the authority to designate a
commission,
master,
receiver,
or
agent
of
the
court
to
effectuate and supervise compliance with its decrees and
orders.”).
Finally, not content to merely present this case as
one
in
remedy
which
allowing
would
devastate
majority
also
devastated
by
seeks
plaintiffs
to
cancer,
the
dissent
pit
birth
related diseases . . . .”
accuses
the
of
to
seek
economy
of
plaintiffs
defects,
countless
equitable
Michigan,
the
against
and
Ante at 46.
an
“those
other
dioxin-
While the majority
transgressions,
I
can
think of no greater misdeed than to actually argue that
allowing these plaintiffs to seek the equitable remedy of
requiring this defendant to pay for the costs of necessary
medical
monitoring
tests
somehow
would
divert
resources
from children with birth defects.
This is fabrication at
its
to
most
unforgivable–refusing
acknowledge
that
providing these plaintiffs with the opportunity to merely
seek
an
equitable
remedy
is
19
well
within
the
bounds
of
judicial discretion and will not devastate the economy or
cause sick children to die.
IV. A FURTHER REVIEW OF THE ECONOMIC CONSIDERATIONS OF
PLAINTIFFS’ CLAIM INDICATES THAT EQUITABLE RELIEF IS PROPER
At its core, this is not a complex case.
contaminated
the
environment
with
dioxin.
Defendant
Because
of
defendant’s conduct, plaintiffs require medical monitoring
to ensure that the negative effects of defendant’s acts can
be
best
countered.
Medical
monitoring
costs
money.
Plaintiffs, defendant, or the taxpayers of the state of
Michigan
require
must
pay
medical
conduct,
it
the
costs.
monitoring
seems
clear
as
that
defendant pay the costs.6
defendant;
it
merely
Because
a
result
it
is
plaintiffs
of
only
defendant’s
reasonable
that
This is not meant to punish
seeks
to
hold
defendant
to
the
reasonable standard that a polluter pays for the costs of
polluting.
“The mere fact that a wrongdoer may suffer,
6
The theory behind a claim for medical
monitoring is simple.
When a plaintiff is
exposed to a hazardous substance, it is often
sound medical practice to seek periodic medical
monitoring to ascertain whether the plaintiff has
contracted a disease.
Because this need for
medical monitoring was caused by a defendant’s
tortious acts or omissions, a defendant may be
required to pay the cost of monitoring. [Cook I,
supra at 1477.]
20
however, will not deter equity from granting relief to an
injured party.”
27A Am Jur 2d, Equity, § 102, p 588.
The majority’s decision that plaintiffs cannot seek
equitable relief is indefensible when one realizes that its
position leaves plaintiffs who cannot afford to pay for
doctor-prescribed
medical
monitoring
with
no
recourse.
“Special tests are available to measure dioxin levels in
body fat, blood, and breast milk, but these tests are very
expensive and are not routinely available to the public.”
Dioxins Fact Sheet, supra.
“Indeed, in many cases a person
will not be able to afford such tests, and refusing to
allow medical monitoring damages would in effect deny him
or
her
access
to
potentially
life-saving
treatment.”
Hansen v Mountain Fuel Supply Co, 858 P2d 970, 976 (Utah,
1993) (medical monitoring costs may be awarded even when
the plaintiffs have not yet suffered from any asbestosrelated
illnesses).
researchers
As
conducting
plaintiffs’
the
pilot
counsel
studies
stated,
“have
been
besieged by people begging to have their blood tested and
particularly begging to get their children tested because
it’s very difficult to do that by yourself. . . .
it’s
really,
done
really
hard
for
individuals
to
get
them
because it’s cost prohibitive and beyond that it’s just not
available to them as individuals.”
21
Whatever its intent, the majority’s result protects a
wrong-doing corporation at the expense of the health of the
people
wronged.
defendant’s
environment
But
repeated
because
we
cannot
turn
contamination
holding
negatively affect its profits.
defendant
a
of
blind
our
eye
to
state’s
accountable
may
If defendant cannot produce
its product without behaving responsibly, then it has no
business operating within our state.
The lives of the
people in the affected area are worth more than defendant’s
financial well-being, even if it were indeed at stake.
And
contrary to the majority’s position, I am fully aware of
the “real-world effects” of today’s decision, as plaintiffs
most certainly will be as well.
The “real-world effects”
are that defendant, the party responsible for plaintiffs’
need for medical monitoring, will not bear any of the costs
of
its
wrongdoing.
Rather,
the
burden
now
falls
on
plaintiffs’ shoulders.
The decision to turn our backs on plaintiffs because
we have not yet faced a case so egregious violates the
trust that the people of the state of Michigan have placed
in us.
“Our oath is to do justice, not to perpetuate
error.”
Montgomery v Stephan, 359 Mich 33, 38; 101 NW2d
227 (1960).
“Lack of precedent cannot absolve a common-law
court from responsibility for adjudicating each claim that
22
comes before it on its own merits.”
Mich 1, 12; 303 NW2d 424 (1981).
Berger v Weber, 411
“It is the distinguishing
feature of equity jurisdiction that it will apply settled
rules to unusual conditions and mold its decrees so as to
do equity between the parties.”
30A CJS, Equity, Effect of
Absence of Precedents, § 10, p 172.
Where a claim is
equitable in nature, exercising discretion may be necessary
to ensure that an unconscionable decree is not entered.
Kratze v Independent Order of Oddfellows, 442 Mich 136,
142;
500
NW2d
115
(1993).
And
that
discretion
most
certainly should be exercised in this case.
While no one can say with certainty which plaintiffs
will contract illnesses, suffer, and die because of their
increased
exposure
to
dioxin,
plaintiffs
cannot
seek
unfortunate
reality
is
an
that
this
does
equitable
dioxin
defects, and other illnesses.
not
mean
remedy.
causes
cancer,
that
The
birth
The prolonged exposure of
plaintiffs to such high levels of dioxin puts them at a
vastly
increased
professional
risk.
believes
that
When
it
is
a
qualified
in
a
patient’s
health
best
interest to administer medical testing that would not be
required if it were not for defendant’s acts, this Court
should not deny plaintiffs the ability to seek this modest
remedy.
23
V. THE “REMEDY” OFFERED BY THE NATURAL RESOURCES AND
ENVIRONMENTAL PROTECTION ACT DOES NOT PRECLUDE PLAINTIFFS’
CAUSE OF ACTION
The majority states that the Legislature has already
provided
plaintiffs
Resources
324.101
and
et
environmental
. . . .”
with
a
Environmental
seq.,
empowers
and
health
Ante at 38.
remedy
because
Protection
the
MDEQ
effects
the
Act
to
of
“Natural
(NREPA),
deal
toxic
with
MCL
the
pollution
While the MDEQ may take responsive
action, it is not required to take action.
Further, the
fact that the MDEQ may choose to take responsive action to
minimize
injury
to
the
public
health
does
not
defendant of its responsibility to plaintiffs.
absolve
While the
majority repeatedly claims to be concerned about the effect
on Michigan’s economy if plaintiffs are allowed to bring a
claim against defendant, the majority’s approach shifts the
costs
resulting
taxpayers.7
from
defendant’s
actions
to
Michigan
The majority distorts the fact that the MDEQ
has the ability to take responsive action.
7
Merely because
A shift in financial responsibility conflicts with
the NREPA.
MCL 324.20102(f) specifically provides, “That
liability for response activities to address environmental
contamination should be imposed upon those persons who are
responsible for the environmental contamination.” See also
MCL 324.20102(e).
24
the
MDEQ
has
plaintiffs’
this
sole
ability
does
remedy.
not
The
mean
NREPA
that
this
clearly
is
provides
“[t]hat there is a need for additional administrative and
judicial
remedies
to
supplement
common law remedies.”
existing
statutory
and
MCL 324.20102(d) (emphasis added).
The MDEQ’s ability to act does not eliminate defendant’s
responsibility
to
plaintiffs
or
eliminate
the
fact
that
plaintiffs can seek a court-supervised medical monitoring
program funded by defendant.
As
a
case
in
point,
a
small
pilot
study
is
being
conducted by the state that includes a study of residential
soil
at
approximately
Tittabawassee
dioxin
River
levels
in
twenty-five
flood
plain
twenty-five
properties
and
an
adults
within
the
investigation
who
are
of
currently
living on the flood plain and have lived there for at least
five
years.
inadequate
This
to
plaintiffs.
Pilot
address
the
But
Exposure
Investigation
concerns
plaintiffs
do
of
not,
the
as
is
individual
the
majority
asserts, bring this claim merely because the MDEQ is not
conducting
the
Plaintiffs
seek
program
based
study
a
on
on
the
court-supervised
tests
ordered
professionals;
plaintiffs’
nothing
with
to
do
scale
the
by
individual
tests
25
that
that
they
medical
prefer.
monitoring
qualified
preferences
will
be
health
have
ultimately
ordered.
placate
qualified
Medical monitoring tests would not be done to
plaintiffs’
health
fears;
they
professionals
would
using
be
accepted
done
when
scientific
principles order medical testing.
Finally, the concern of the MDEQ is public health, but
what the MDEQ may deem appropriate to protect the public as
a whole, even assuming sufficient funds were available in
the budget, is not necessarily what may be in an individual
plaintiff’s best medical interest.
Further, the MDEQ does
not purport that its study can be extrapolated to provide
relevant information to other people in the affected areas.
The MDEQ even states in its Pilot Investigation Fact Sheet
that
the
results
“site-specific
involved
in
of
and
EI;
an
exposure
applicable
they
are
only
not
individuals or populations.”
investigation
to
the
generalizable
(EI)
are
community
to
other
The majority’s insistent and
inexplicable refusal to hold defendant accountable for its
acts
allows
defendant
to
escape
responsibility
for
its
actions and leaves plaintiffs with no adequate remedy.
VI. CONCLUSION
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.
26
But as long as
defendant
is
not
held
responsible
for
the
decisions
it
makes, it behooves corporations like defendant to continue
with business practices that harm our residents because the
courts will shield them from liability by claiming that
they are powerless to act.
And it is the people of our
state who will pay the costs—with their money and with
their
lives—of
allowing
defendant
environment with no repercussions.
resorted
to
a
cost-benefit
to
contaminate
our
Sadly, this Court has
analysis
to
determine
and,
consequently, degrade the value of human life, and this is
an analysis that I cannot support.
“The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of
the laws, whenever he receives an injury.
duties
of
government
is
to
afford
One of the first
that
protection.”
Marbury v Madison, 5 US 137, 163; 2 L Ed 60 (1803).
Today,
our Court has shirked its duty to protect plaintiffs and
the
people
practices
of
and
our
state,
interests
thereby
unassailed.
leaving
As
defendant’s
such,
respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
27
I
must
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