HENRY v THE DOW CHEMICAL COMPANY
Docket No. 125205
Supreme Court of Michigan
July 13, 2005
473 Mich 63 | 2005] HENRY v DOW CHEMICAL CO 63
Argued October 6, 2004 (Calendar No. 4).
In an opinion by Justice CORRIGAN, joined by Chief Justice TAYLOR, and Justices YOUNG and MARKMAN, and joined by Justice WEAVER in its result and reasoning, the Supreme Court held:
The plaintiffs failed to establish the element of injury or damages for their medical monitoring claim. The alleged economic losses the plaintiffs will suffer as they are forced to monitor their medical condition do not satisfy the damages requirement of a negligence claim. Actual harm, an injury that is manifest in the present, is required in order to state a viable negligence claim.
1. Mere exposure to a toxic substance and the increased risk of physical injury do not constitute an “injury” for tort purposes. Present physical injury to person or property, not fear of injury in the future, gives rise to a cause of action for negligence. The plaintiffs failed to establish a cognizable injury and also failed to establish causation.
2. In recognition of the separation of powers provided in
3. The plaintiffs’ medical monitoring claim is not cognizable under current Michigan law, and recognizing this claim would require both a departure from fundamental tort principles and a disregard of the principle of separation of powers. Regardless of whether the relief sought by the plaintiffs is equitable or legal in nature, the defendant is entitled to summary disposition of the plaintiffs’ claim for medical monitoring because the plaintiffs have not stated a valid cause of action.
Justice WEAVER concurred in the majority opinion‘s result and reasoning, but wrote separately because she did not join in the majority‘s citations of a law review article. Because binding Michigan case law exists for the propositions for which the article was cited, Justice WEAVER found that the citations of the article written by one of the justices signing the majority opinion could at best be described as inappropriate and unnecessary.
Further, she found the article unworthy of citation because of its tone and its clumsy and crude analogy mocking the common law. The common law was adopted by the people of Michigan in
Reversed and remanded for entry of an order of summary disposition in favor of the defendant with regard to the medical monitoring claim.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that the plaintiffs presented a reasonable claim for medical monitoring costs. The plaintiffs have suffered actual harm and damages inasmuch as the heightened exposure to dioxin they received because of the defendant‘s acts is akin to an injury. Were it not for the acts of the defendant, the plaintiffs would not be obliged to incur the expenses involved in additional testing for early detection of any illnesses caused by the increased dioxin exposure. The exposure itself and the need for medical monitoring constitute the injury. The plaintiffs can also offer facts sufficient to establish causation.
The plaintiffs’ claim for medical monitoring warrants equitable relief because there is no adequate legal remedy for the plaintiffs. Principles of equity are firmly entrenched in our justice system, and allowing the plaintiffs to seek a court-supervised medical monitoring program does not stray from tort principles or the
The remedy offered by the Natural Resources and Environmental Protection Act (NREPA) does not preclude the plaintiffs’ cause of action. While the Department of Environmental Quality may take responsive action pursuant to the NREPA, it is not required to take action. The fact that the department may choose to take responsive action to minimize injury to the public health does not absolve the defendant of its responsibility to the plaintiffs or prevent the plaintiffs from seeking a court-supervised medical monitoring program funded by the defendant. What the department may deem appropriate to protect the public as a whole is not necessarily what may be in an individual plaintiff‘s best medical interest.
The majority has presented a false choice between an equitable remedy for the plaintiffs and the economic viability of the defendant and of our state. By its decision, the Supreme Court has shirked its duty to protect the injured plaintiffs and the people of this state, thereby leaving the defendant‘s practices and interests unassailed.
NEGLIGENCE - ACTIONS - TOXIC SUBSTANCES - MEDICAL MONITORING COSTS.
Mere exposure to a toxic substance and the increased risk of physical injury do not constitute an “injury” for purposes of a tort action based on negligent release of the toxic substance; present physical injury to person or property, not the fear of future injury, gives rise to a cause of action for negligence; a negligence claim seeking the costs of medical monitoring for disease cannot be sustained where the costs are derived not from actual harm, but from fear of future harm.
Trogan and Trogan P.C. (by Bruce F. Trogan), Stueve Siegel Hanson Woody LLP (by Teresa A. Woody and Todd M. McGuire), and Spencer Fane Britt & Browne LLP (by Carl H. Helmstetter and Michael F. Saunders) for the plaintiffs.
Dickinson Wright PLLC (by Kathleen A. Lang and Barbara H. Erard), Braun Kendrick Finkbeiner, PLC (by John A. Decker), Kirkland & Ellis, LLP (by Douglas
Amici Curiae:
Warner Norcross & Judd LLP (William K. Holmes, Thomas J. Manganello, and John J. Bursch) (Hugh F. Young, Jr., of counsel) for the Product Liability Advisory Council, Inc.
Law Offices of Robert June, P.C. (by Robert B. June), for the Ecology Center, American Public Health Association, Endometriosis Association, American Lung Association of Michigan, Genesee County Medical Society, Physicians for Social Responsibility, Science and Environmental Health Network, Lone Tree Council, Public Interest Research Group in Michigan, Sierra Club, and the Center for Civil Justice.
Plunkett & Cooney, P.C. (by Mary Massaron Ross and Camille T. Horne), for the Defense Research Institute and the Michigan Defense Trial Counsel.
Clark Hill PLC (by F. R. Damm and Paul C. Smith) for Michigan Manufacturers Association.
Shook, Hardy & Bacon, L.L.P. (by Victor E. Schwartz, Nicholas C. Gladding, Leah Lorber, Cary Silverman, and Emily Laird), and Clark Hill PLC (by Frederick R. Damm and Paul C. Smith) (Robin S. Conrad, Sherman Joyce, Jan S. Amundson, Quentin Riegel, Paul W. Kalish, Mark D. Plevin, David F. Zoll, Donald D. Evans, Ann W. Spragens, and Robert J. Hurns, of counsel), for Chamber of Commerce of the United States, American Tort Reform Association, National Association of Manufacturers, American Chemistry Council, Coalition
CORRIGAN, J. The 173 plaintiffs in this matter have asked to represent a putative class of thousands in an action against defendant, The Dow Chemical Company. Their core allegation is that Dow‘s plant in Midland, Michigan, negligently released dioxin, a synthetic chemical that is potentially hazardous to human health,1 into the 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. Instead, they allege that defendant‘s negligence has 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.
We now reverse the circuit court order denying the motion and remand for entry of summary disposition in favor of defendant on plaintiffs’ medical monitoring claim. Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan‘s common law.
Although we recognize that the common law is an instrument that may change as times and circumstances require, we decline plaintiffs’ invitation 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.
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. Indeed, the Legislature has already established policy in this arena by delegating the responsibility for dealing with health risks stemming from industrial pollution to the Michigan Department of Environmental Quality (MDEQ). As a matter of prudence, we defer in this case to the people‘s representatives in the Legislature, who
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, and various pesticides including Chlorpyrifos, Dursban and 2, 4, 5-trichlorophenol.” Michigan Department of Community Health, Division of Environmental and Occupational Epidemiology, Pilot Exposure 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 operations in Midland have had a deleterious effect on the local environment. In 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. Further investigation by the MDEQ indicated that defendant‘s Midland plant was the likely source of the dioxin. Michigan Department of Environmental Quality, Remediation and Redevelopment Division, Final Report, Phase II Tittabawassee/Saginaw River Dioxin Flood Plain Sampling Study, June 2003, p 42 (identi-
In March 2003, plaintiffs moved for certification of two classes in the Saginaw Circuit Court. 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 in value because of the dioxin contamination. The second group consisted of individuals who have resided in the Tittabawassee flood plain area at some point since 1984 and who seek a court-supervised program of medical monitoring for the possible negative health effects of dioxin discharged from Dow‘s Midland plant. This latter class consists of 173 plaintiffs and, by defendant‘s estimation, “thousands” of putative members.
Defendant moved under
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 for leave to appeal.2 Henry v Dow Chemical Co, 470 Mich 870 (2004).3
STANDARD OF REVIEW
We review de novo the circuit court‘s denial of defendant‘s motion for summary disposition under
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.
Here, defendant argues that plaintiffs have not established any present physical injuries, and have therefore failed to state a valid negligence claim. We agree. 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 law requires more than a merely speculative injury. 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 proposition that mere exposure to a toxic substance and the increased risk of
Here, it is clear that plaintiffs do not claim that they have suffered any present physical harm because of defendant‘s allegedly negligent contamination of the Tittabawassee flood plain. Indeed, plaintiffs in 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. Nor, indeed, does the dissent.5 We can therefore reach only one conclusion: if the alleged damages cited by plaintiffs were incurred in 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.
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 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 As 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 tech-
nical 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).]
While the courts of this state may not have always clearly articulated this injury requirement, nor finely delineated the distinction between an “injury” and the “damages” flowing therefrom, the injury requirement has always been present in our negligence analysis. It has simply always been the case in our 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 common-law jurisprudence by concluding that the traditional four-part 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. We therefore reaffirm the principle that a plaintiff must demonstrate a present physical injury to person or property in addition to economic
This requirement does not constitute a change in the common law of this state. While we have from time to time allowed for the 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 injury, the fact-finder need not engage in speculations about the extent to which a plaintiff possesses a cognizable legal claim. See Prosser & Keeton, Torts (5th ed), § 30, p 165. Second, such a requirement reduces the risks of fraud, 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
Finally, and perhaps most significantly, the requirement of a present physical injury avoids compromising the judicial power. The exercise of the “judicial power” by this Court,
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.” Thus, plaintiffs have arguably stated a present financial injury, i.e., damages. From 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
It is no answer to argue, as plaintiffs have, that the need to pay for medical monitoring is itself a present injury sufficient to sustain a cause of 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. A financial “injury” is simply not a present physical injury, and thus not cognizable under our tort system. 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 malpractice, in which a plaintiff may recover for economic losses without showing present physical harm. In a cause of action for libel, a plaintiff must show an injury to his reputation.7 In a cause of action for legal malpractice, a plaintiff must show an injury to the fiduciary relationship between the attor-
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 a claim of negligence. Even if we were to construe plaintiffs’ claim broadly as one for emotional distress, our common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can 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 requirements of a negligence action in Michigan. In reality, plaintiffs propose a transformation in tort law that will require the courts of this state - in this case and the thousands that would inevitably follow - to make decisions that are more characteristic of those made in the legislative, executive, and administrative processes. For reasons that we discuss more fully in part II, we are not prepared to acquiesce in this transformation.
Plaintiffs maintain that this Court implicitly recognized a medical monitoring cause of action in Meyerhoff v Turner Constr Co, 456 Mich 933 (1998). In Meyerhoff, a number of construction workers were exposed to asbestos on the job. The Court of Appeals held that “medical-monitoring expenses are a compensable item 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 monitoring claim, but included language in our order that, quite understandably, led to confusion regarding the viability of a medical monitoring claim in Michigan: “The factual record is not sufficiently developed to allow a [sic] medical monitoring damages. Accordingly, that portion of the Court of Appeals decision which holds that medical monitoring expenses are a compensable item of damages is vacated.” 456 Mich 933.
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 Court of Appeals opinion that had held precisely that. Rather, Meyerhoff should properly be read to hold that 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
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.
With respect to the plaintiffs’ medical monitoring claims, 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 of warranty. Thus, as with our order in Meyerhoff, Gasperoni does not provide any 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 to permit their medical monitoring claim to proceed.This Court is the principal steward of Michigan‘s common law. See, e.g., Adkins v. Thomas Solvent Co., 440 Mich. 293, 317; 487 N.W.2d 715 (1992); Sizemore v. Smock, 430 Mich. 283, 285; 422 N.W.2d 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 have asked us to recognize a cause of action that departs drastically from our traditional notions of a valid negligence claim. 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 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 awards for medical monitoring, attorneys representing plaintiffs could virtually begin recruiting people off the street to serve as 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 is less than obvious, therefore, that the benefits of a medical monitoring cause of action would outweigh the burdens imposed on plaintiffs with manifest injuries, our judicial system, and those responsible for administering and financing medical care. Because such a balancing process would necessarily require extensive fact-finding and the weighing of important, and sometimes conflicting, policy concerns, and because here we lack sufficient information to assess intelligently and fully the potential consequences of our decision, we do not believe that the instant question is one suitable for resolution by the judicial branch.13 We 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.
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
[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 S.W.3d 849, 857 (Ky, 2002) (citing the policy concerns raised in Buckley); Hinton v. Monsanto Co., 813 So. 2d 827, 831 (Ala, 2001) (same).15
We share the concerns raised by the United States Supreme Court in Buckley. Simply put, judicial recognition 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 U.S. at 443-444.
Even if this Court were institutionally equipped to gauge the potential costs and benefits of sanctioning a
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?
Plaintiffs’ Counsel: I don‘t [think] there is a particular discussion in our brief on what costs Michigan will bear.
Justice YOUNG: Do you have any idea what that might be?
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’
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’ pro-
Ours, after all, is a government founded on the principle of separation of powers.18 In certain instances, the principle of separation of powers is an affirmative constitutional bar on policy-making by this Court.19 In other cases, however, the separation of powers 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
Of equal concern would be the administration of such a program.23 The day-to-day operation of a medical
The propriety of judicial deference to the legislative branch in expanding common-law causes of action is further underscored where, as here, the Legislature has already created a body of law that provides plaintiffs with a remedy. Were we to create an alternate remedy in such 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. And we would be doing so without the benefit of the many resources that inform legislative judgment.24
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,
(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. (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
evaluation, 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
“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 has authorized the MDEQ to address precisely the sort of environmental and health risks occasioned by Dow‘s alleged emission of dioxin into the Tittabawassee flood plain. Not only is the MDEQ specifically authorized under the
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 would prefer.25 It is apparent, therefore, that the plaintiffs are asking this Court to create a new remedy—a cause of action for medical monitoring—where the Legislature has already signaled its preference with respect to the appropriate form a remedy should take. In deference to the policymaking branch of our government, we decline to create this alternative remedial regime.26
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 decision-making. For these reasons, defendant is entitled to summary disposition of plaintiffs’ medical monitoring claim. We need address only one remaining argument: plaintiffs’ contention that their request for a medical monitoring program is not subject to summary disposition under
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 whether that remedy is supported by a valid claim. As the Kentucky Supreme Court recently observed, “It is not the remedy that supports the cause of action, but rather the cause of
As shown above, plaintiffs’ claim is not cognizable under our current law of negligence and is not within a permissible expansion of the common law. Neither, perforce, is the claim based in equity. A court cannot “create substantive rights under the guise of doing equity,” or “confer rights” where none exists. Stein v. Simpson, 37 Cal. 2d 79, 83; 230 P.2d 816 (1951); Lathrop Co. v. Lampert, 583 P.2d 789, 790 (Alas, 1978). Therefore, regardless of whether the relief plaintiffs seek is equitable or legal in nature, defendant was entitled to summary disposition regarding plaintiffs’ medical 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 ap-
First, the dissent argues that our holding makes “plaintiffs’ physical health . . . secondary to defendant‘s economic health.” Post at 105. But our opinion does no such thing. We take no position on whether defendant should or should not pay for the costs of monitoring for dioxin-related 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. But what we as individuals prefer is not necessarily what we as justices ought to impose upon the people. 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 delicate balancing of competing societal interests. In our representative democracy, 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. See post at 122 (“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.“). 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
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 first-come, first-served basis. He may be comfortable with the notion that such a regime runs the risk of diverting limited resources from those devastated by cancer, birth defects, and other dioxin-related diseases to those who have yet to manifest dioxin-related illness.30 He is entitled to these beliefs. But his beliefs are 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 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. . . . [p]laintiffs 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 113-114 (emphasis in original).]
The dissent asserts, in effect, that we need not trouble ourselves about recognizing plaintiffs’ proposed cause of action because they seek a medical monitoring program rather than a cash payment. 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. 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 to consider the possible human toll of its approach. 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 these 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 117-118 (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. 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 exposure alone gives rise to a claim for asbestos exposure. The opinion concluded with a 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
Our nation‘s experience with asbestos litigation has shown that this concern was well-founded.31 It is therefore quite puzzling that our dissenting 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 that the trial court erred in denying defendant‘s motion for summary disposition regarding plaintiffs’ medical monitoring claim. The cause of action proposed by plaintiffs is not cognizable under Michigan law. 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’ medical monitoring cause of action.
TAYLOR, C.J., and WEAVER, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, J.
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 drawing of lines reflecting considerations of public policy. Ante at 83, 88.
Rather than an out-of-state, nonbinding law review article, real and binding Michigan authority for these propositions is found in our case law. 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 Because there is binding case law for these
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.
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.
At its core, this case is about rights and responsibilities. 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 are owners and residents of property located within the one-hundred-year flood plain of the Tittabawassee River in Saginaw County. The Michigan Department of Environmental Quality (MDEQ) found as much as 7,300 parts per trillion (ppt) of dioxin in the flood plain, which substantially exceeds Michigan‘s cleanup standard of ninety ppt for direct residential
“Dioxin” is the term used to identify a number of similar toxic chemicals. Dioxin is a known human carcinogen and, as the majority notes, ” ‘a potent carcinogen.’ ” Ante at 67 n 1 (citation omitted). Exposure to dioxin can cause cancer, liver disease, birth defects, miscarriages, and reproductive damage, as well as other illnesses. Children are more significantly affected by dioxin than adults. Dioxins do not break down easily. Once dioxin is released into the environment, it stays in the 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’ counsel stated at oral argument that a pilot study of the community conducted by the Michi-
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 earliest. Plaintiffs simply seek to minimize the devastating effects of illnesses caused by defendant‘s acts.
The majority, ante at 72, 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 actually violated and they have suffered no injuries and, therefore, no damages. With this, I vehemently disagree. Plaintiffs have 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. Plaintiffs were advised that routine activities, such as flower gardening and lawn work, could further increase their risk of dioxin exposure. Tittabawassee/Saginaw River Flood Plain, Environmental Assessment Initiative, June 2003. Plaintiffs were further advised that they should avoid allowing their children to play in the soil to avoid further contamination. If it were not for defendant‘s acts, plaintiffs would not be obliged to incur the expenses
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 River flood plain soils.’ ” Ante at 70 (citation omitted). Given the facts, it is 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. To argue that there are insufficient facts to support plaintiffs’ argument is a willful avoidance of the record.
Notably, my belief that these plaintiffs should be allowed to seek equitable relief does not mean that I advocate that any exposure allows a person to bring a claim for medical monitoring costs. That position would indeed be imprudent. However, in this case, a candid review of the facts indicates that plaintiffs’ heightened exposure 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. For example, according to reasonably accepted medical practice, doctors do not generally prescribe testing to determine a
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 law. Ante at 83, 89.3 Medical monitoring is recognized in a number of jurisdictions. See, e.g., In re Paoli R Yard PCB Litigation, 916 F2d 829, 852 (CA 3, 1990); Stead v FE 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
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).]
See also Friends for All Children, Inc v Lockheed Aircraft Corp, 241 US App DC 83, 92; 746 F2d 816 (1984).
It is within the sound discretion of the courts whether to offer equitable relief. Youngs v West, 317 Mich 538, 545; 27 NW2d 88 (1947). 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,
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 98. 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 have the inherent power to provide equitable remedies. “Every equitable right or 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 longstanding principles fun-
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 economy to support its decision. But the 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. “A medical monitoring claim compensates a plaintiff for diagnostic treatment, a tangible and quantifiable item of damage caused by a defendant‘s tortious conduct.” Cook I, supra at 1478; see also Paoli, supra at 850. Notably, these plaintiffs would receive no money whatsoever. Payments for doctor-prescribed testing would be made through a court-supervised fund. This fund would only compensate plaintiffs for medical monitoring costs actually incurred after the monitoring was ordered by a qualified health professional. The only “benefit” that a
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 professionals would provide early detection to plaintiffs and likely lessen the fiscal damages that defendant would be liable for if dioxin-related illnesses are discovered later. 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. See Bower, supra at 140. “It is common knowledge early diagnosis of many serious conditions promotes en-
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.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.
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 fear of medical malpractice should certainly not result in the position that plaintiffs should forgo necessary medical testing. While the majority states that it does not cite these viewpoints to endorse them, but merely to note their existence, the majority‘s citation at the very least indicates that it deems them relevant considerations. I, however, do not believe that the possibility of medical malpractice should be used 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 should be refused merely because administering the remedy may be inconvenient or even difficult. “Rather, the true principle [of equitable relief] seems to be that the hardship of the plaintiff is balanced against the inconveniences and difficulties anticipated by the court, which principle is sometimes called the
Finally, not content to merely present this case as one in which allowing plaintiffs to seek an equitable remedy would devastate the economy of Michigan, the majority also seeks to pit plaintiffs against “those devastated by cancer, birth defects, and other dioxin-related diseases....” Ante at 99. While the majority accuses the dissent of countless 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 most unforgivable—refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an equitable remedy is well
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. Defendant contaminated the environment with dioxin. 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 must pay the costs. Because plaintiffs only require medical monitoring as a result of defendant‘s conduct, it seems clear that it is reasonable that defendant pay the costs.6 This is not meant to punish defendant; it merely 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, 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
Whatever its intent, the majority‘s result protects a wrongdoing corporation at the expense of the health of the people wronged. But we cannot turn a blind eye to defendant‘s repeated contamination of our state‘s environment because holding defendant accountable may negatively affect its profits. 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 perpetu-
While no one can say with certainty which plaintiffs will contract illnesses, suffer, and die because of their increased exposure to dioxin, this does not mean that plaintiffs cannot seek an equitable remedy. The unfortunate reality is that dioxin causes cancer, birth defects, and other illnesses. The prolonged exposure of plaintiffs to such high levels of dioxin puts them at a vastly increased risk. When a qualified health professional believes that it is in a patient‘s 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.
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 with a remedy because the “Natural Resources and Environmental Protection Act (NREPA),
As a case in point, a small pilot study is being conducted by the state that includes a study of residential soil at approximately twenty-five properties within the Tittabawassee River flood plain and an investigation of dioxin levels in twenty-five adults who are currently living on the flood plain and have lived there for at least five years. This Pilot Exposure Investigation is inadequate to address the concerns of the individual plaintiffs. But plaintiffs do not, as the majority asserts, bring this claim merely because the MDEQ is not
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 of an exposure investigation (EI) are “site-specific and applicable only to the community involved in EI; they are not generalizable to other individuals or populations.” 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. 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
“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. One of the first duties of government is to afford 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 of our state, thereby leaving defendant‘s practices and interests unassailed. As such, I must respectfully dissent.
KELLY, J., concurred with CAVANAGH, J.
Notes
The article is based on remarks Justice YOUNG made at a joint Federalist Society/Ave Maria Law School symposium. 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.[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 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.
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 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.“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, 542; 273 NW2d 829 (1979).”
[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 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.”
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.]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.
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 N.W.2d 15 (1999) (citations and quotations omitted).]
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.]
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).
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 108 (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.
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 information-gathering 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 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).]