802 N.W.2d 212
Wis. Ct. App.2011Background
- Alsteen and about 69 others sued Wauleco and Sentry for injuries and medical-monitoring expenses from alleged Penta exposure at Crestline site (1940–1987) in Wausau.
- Crestline operated with preservative Penta containing carcinogens; over decades Penta allegedly contaminated air, soil, water near River Street neighborhood.
- Plaintiffs claim exposure increased future cancer risk but no present health problems; Alsteen seeks future medical monitoring damages.
- May 2008: six neighborhood residents sued; by November 2009 the fourth amended complaint included over 140 plaintiffs in three groups.
- Alsteen belongs to the third group, asserting increased cancer risk but no current injury; circuit court dismissed for lack of actual injury.
- Wisconsin courts require actual injury for tort recovery; the court relied on Buckley and other authorities to dismiss medical-monitoring claims absent present injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether medical monitoring damages require present injury | Alsteen argues increased future risk can support claim. | Wauleco contends no present injury exists, so no claim. | Yes; absent present injury, claim is not cognizable. |
| Whether mere exposure to toxic substances constitutes actual injury | Exposure itself is an injury under Babich's contaminated-source theory. | Exposure without present disease is not an injury; no recovery for medical monitoring. | No; mere exposure is not present injury; must have actual damage. |
| Does Buckley support recognizing medical monitoring claims in Wisconsin | Buckley supports some form of medical monitoring damages for asymptomatic exposure. | Buckley rejects medical monitoring damages absent actual injury and is applicable here. | Buckley supports dismissal of medical monitoring absent present injury. |
Key Cases Cited
- Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (U.S. 1997) (rejects medical monitoring damages absent present injury; warns of unlimited liability)
- Meracle v. Children's Service Society of Wisconsin, 149 Wis. 2d 19 (Wis. 1989) (no recovery for future risk absent present injury; adopts 'mere possibility' concept)
- Babich v. Waukesha Memorial Hospital, Inc., 205 Wis.2d 698 (Ct. App. 1996) (contaminated-source rule; focused on needle-stick context and not general environmental exposure)
- Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 803 (Wis. App. 2008) (environmental exposure cases; contaminated-source rule not applicable to toxic tort)
- Henry v. Dow Chem. Co., 701 N.W.2d 684 (Mich. 2005) (rejected medical monitoring absent present injury; cautioned legislative role)
- Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 859 (Ky. 2002) (rejects medical monitoring absent present injury; cites traditional tort principles)
- Paz v. Brush Eng'd Materials, Inc., 949 So.2d 1 (Miss. 2007) (rejects medical monitoring absent present injury)
- Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918 (Wis. 1991) (asbestos case; physical injury to property; distinguishes from mere exposure)
- Tietsworth v. Harley-Davidson, Inc., 270 Wis.2d 146 (Wis. 2004) (actual injury required for tort claims)