17 June 2011
Addressing an issue of first impression in the state that has divided courts in other jurisdictions, the Wisconsin Court of Appeals recently held that plaintiffs cannot recover medical monitoring expenses based on a claim that exposure to harmful chemicals increased their risk of future injury. Alsteen v. Wauleco, Inc., 2011 WL 2314988 (Wis. Ct. App. June 14, 2011).
The complaint in Alsteen alleged that owners of a window factory treated wood products with a preservative called “Penta,” which contains chemicals that are harmful to human health. Over a 40-year period, the factory owners purportedly spilled Penta into the environment, contaminating the neighboring air, soil, and water. Plaintiff, who lived near the factory, alleged that exposure to Penta increased her risk of contracting cancer. Plaintiff did not allege that she suffers any current physical injuries, but sought medical monitoring to screen for the types of diseases caused by Penta.
The Wisconsin Court of Appeals affirmed the trial court’s judgment dismissing plaintiff’s claim, citing three principal reasons for doing so. First, “Wisconsin law requires actual injury before a plaintiff may recover in tort.” In ruling that neither an increased risk of contracting cancer nor mere exposure to a dangerous substance satisfies the actual injury requirement, the court explained that “most people are exposed to a wide variety of environmental contaminants, including carcinogens, on a daily basis.” Therefore, “if mere exposure” to dangerous chemicals “were sufficient to state an actual injury in the toxic tort context, the number of potential claimants would be enormous.” The court also rejected plaintiff’s argument that a need for medical monitoring is itself an injury, explaining that plaintiff’s argument “turns tort law on its head by using the remedy sought—compensation for future medical monitoring—to define the alleged injury.”
Second, the court found persuasive Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997), where the US Supreme Court rejected a claim for medical monitoring brought under the Federal Employees’ Liability Act by an asymptomatic railroad worker who alleged exposure to asbestos.
Third, the Court of Appeals noted that although post-Buckley decisions have reached divergent results, most such decisions have rejected medical monitoring claims absent present physical injury. The court agreed with this post-Buckley trend, concluding that “allowing a medical monitoring claim absent present injury would constitute a marked alteration in the common law.”
The Wisconsin Court of Appeals’ opinion is of obvious import to product manufacturers. As the court recognized, adopting medical monitoring as a claim or remedy without requiring a present physical injury would make virtually everyone a plaintiff, dramatically expanding potential tort liability. Although the Wisconsin Supreme Court will have the last word, the Court of Appeals’ decision should require dismissal of medical monitoring claims brought by asymptomatic plaintiffs under Wisconsin law.
For more information about medical monitoring claims, please see the article written by Mayer Brown partners Herbert L. Zarov, Craig A. Woods, and Stephen J. Kane, “A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?,” 12 De Paul J. Health Care L. 1 (2009).
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