Henry v. Dow Chemical Company
701 N.W.2d 684, 473 Mich. 63 (2005)
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Rule of Law:
Under Michigan common law, a negligence claim requires a present, manifest physical injury to person or property. A claim for the costs of future medical monitoring based on exposure to a hazardous substance, absent a present physical injury, is not a cognizable cause of action.
Facts:
- For over a century, The Dow Chemical Company (Dow) has operated a chemical plant on the banks of the Tittabawassee River in Midland, Michigan.
- Operations at Dow's plant released dioxin, a hazardous synthetic chemical and potent carcinogen, into the local environment.
- The Michigan Department of Environmental Quality (MDEQ) confirmed the presence of dioxin in the soil of the Tittabawassee flood plain.
- The MDEQ identified Dow's Midland plant as the principal source of the dioxin contamination.
- A group of 173 plaintiffs have resided in the Tittabawassee flood plain area and have been exposed to the dioxin.
- The plaintiffs do not allege that they have manifested any present disease, physical injury, or adverse health effects from the dioxin exposure.
- Plaintiffs fear they may develop dioxin-related illnesses in the future as a result of the exposure.
Procedural Posture:
- 173 plaintiffs moved for class certification for a medical monitoring claim against The Dow Chemical Company in the Saginaw Circuit Court, a state trial court.
- Dow filed a motion for summary disposition, arguing that a claim for medical monitoring without a present physical injury is not a valid cause of action in Michigan.
- The Saginaw Circuit Court denied Dow's motion for summary disposition.
- The Michigan Court of Appeals, an intermediate appellate court, denied Dow's application for leave to appeal.
- Dow, as appellant, sought leave to appeal to the Michigan Supreme Court, the state's highest court.
- The Michigan Supreme Court granted Dow's application for leave to appeal to decide the issue.
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Issue:
Does a negligence claim seeking the creation of a court-supervised medical monitoring program, absent an allegation of a present physical injury, state a valid cause of action under Michigan law?
Opinions:
Majority - Corrigan, J.
No. A negligence claim seeking medical monitoring costs without a present physical injury does not state a valid cause of action because Michigan tort law requires a plaintiff to demonstrate a present, manifest physical injury to person or property. The traditional elements of negligence—duty, breach, causation, and damages—implicitly require an underlying physical injury, which is distinct from the economic damages that flow from it. The cost of medical monitoring is a financial loss derived from a fear of a possible future injury, not a response to an actual present injury, and is therefore not compensable. Expanding the common law to recognize such a claim involves complex policy decisions regarding resource allocation and potential for limitless litigation, which are better suited for the Legislature, not the judiciary. The Legislature has already created a regulatory framework under the Natural Resources and Environmental Protection Act (NREPA) for the MDEQ to address such public health risks.
Dissenting - Cavanagh, J.
Yes. The claim for a court-supervised medical monitoring program should be allowed to proceed as a viable and equitable remedy. The dissent argues that the significant, heightened exposure to a known carcinogen, and the resulting need for medical monitoring, constitutes a sufficient injury and damages for which defendant is responsible. Because defendant's actions created the need for the medical tests, defendant should bear the cost. The dissent contends that there is no adequate remedy at law for plaintiffs, making an equitable remedy appropriate, and criticizes the majority for prioritizing defendant's economic health over the physical health of plaintiffs and for abdicating its judicial responsibility to provide a remedy for a clear wrong.
Concurring - Weaver, J.
No. The author joins the majority's result and reasoning but writes separately to object to the majority opinion's citation of a law review article written by one of the justices who signed the opinion. The concurrence argues that there is binding Michigan case law that supports the same principles of judicial restraint, making the citation to the article inappropriate and unnecessary. The author also criticizes the tone of the cited article as mocking the common law.
Analysis:
This decision solidifies the traditional 'present physical injury' rule as a prerequisite for negligence claims in Michigan, particularly in the context of toxic torts. It explicitly rejects the trend in some other jurisdictions that recognize medical monitoring as a standalone cause of action or as a form of recoverable damages without a manifest injury. The ruling creates a significant barrier for plaintiffs exposed to harmful substances who cannot yet prove a developed disease, effectively closing the courthouse doors to pre-injury claims. By deferring to the Legislature, the Court reinforces a philosophy of judicial restraint in matters of significant public policy and economic impact.
