Michigan’s Supreme Court will balance public health versus economic impact when it issues an opinion to deny or allow medical monitoring to be pursued in the state’s courts.
It’s a matter some say has the power to damage business and open floodgates for frivolous lawsuits. Others say the law needs to flex in this case – thousands have been exposed to a toxic substance and shouldn’t have to pay for medical testing to protect their health.
Plaintiffs who live within the Tittabawassee River flood plain are asking that courts make The Dow Chemical Co. pay for medical testing to detect diseases they might develop because of exposure to dioxin deposited on their property by the company’s past manufacturing processes.
Dow says there are no injuries and there is no cause of action for a lawsuit. The debate landed in the state Supreme Court after Dow appealed Saginaw Circuit Court Judge Leopold Borrello’s decision last year not to dismiss the medical monitoring claim that is one-half of a potential class-action suit involving flood plain property owners. Plaintiffs also are suing for the value of their property.
The panel of state Supreme Court justices fired questions at Dow and plaintiffs’ attorneys for 90 minutes: "Is the claim legitimate?" "Is risk evident?" and "Are lawmakers better equipped to tackle an issue with such potentially large consequences?"
Dow attorney Douglas Kurtenbach said the state’s resources are too scarce to handle an onslaught of cases that could be encouraged by the dismissal of the requirement that an injury be present in order for a person to sue. It’s a 100-year-old common law for which change should be left to the legislature, not the courts, he said.
"You have limited resources, limited time. That’s one of the principle reasons you have to have an injury before you can come to court," said Kathleen Lang, counsel for Dow.
Plaintiffs say frivolous cases would be deterred by the fact that the medical monitoring program could be administered by courts and wouldn’t include any monetary gain.
"I think that when you’re talking about one of the most toxic chemicals, it’s hard to say there’s any economic balance that would override those consequences," said Teresa Woody, lead counsel for the nearly 170 people signed onto the suit.
Justice Marilyn J. Kelly suggested that it’s about time the Supreme Court fully addressed the issue.
"Times have changed and we’re able to view diseases in their early stages. Why shouldn’t law reflect changes?" Kelly asked. Putting a value on human life is difficult, she added.
"To turn our back on this is not acceptable either. It sounds like we’re saying ‘Let someone else take care of the problem that we have before us,’" Kelly said.
The court will not decide if Dow should pay in this case; that decision would be left to Borrello’s courtroom. The matter at hand is only if his court erred when it denied dismissal of that portion of the suit.
Dow and backers from manufacturing, business and insurance sectors argue that if the Supreme Court allows a medical monitoring claim to move forward, virtually all people would be able to sue based on a potential risk caused by exposure to any number of products. Kurtenbach says plaintiffs are asymptomatic and that risks are uncertain.
Judges questioned whether increased levels of dioxin in blood constitute injury.
"If somebody has elevated levels of dioxin in their blood, do you consider that ‘asymptomatic?’" asked Justice Stephen J. Markman.
Kurtenbach answered that Dow’s position is "Yes."
But the results of a pilot Michigan Department of Community Health dioxin exposure study – which admittedly measured the potentially "worst first" – showed that some plaintiffs have been notified they have increased levels of dioxin in their blood, according to their attorney.
"If anything else, that would put any reasonable person on notice they better check themselves periodically," Markman said.
The panel probed further into Dow’s argument of nonexistent injury: If Kurtenbach’s own blood had high levels of the toxin, wouldn’t he want to monitor his health?
"No," Kurtenbach answered. "It would cause me to read the science, which is what I’ve done."
"Didn’t you say science is a big question?" Markman asked.
Kurtenbach answered that a man in Austria tried to "kill his wife with dioxin." It didn’t work.
Markman related dioxin blood levels to asbestos particles in lungs. The presence is recognized as a cause of action and people with the damage are known to be at increase risk for asbestosis.
Kelly said there are scientific tests that show dioxin is a dangerous poison. She also pointed out the high levels of dioxin found in eggs from chickens raised on flood plain soils. One plaintiff had been feeding those eggs to his children.
To avoid dismissal, Justice Robert P. Young Jr. said plaintiffs have to establish a cause of action.
"You can’t come into the court – unless we change the law – without first establishing physical injury," he said, asking Woody to rundown the list of required criteria.
She acknowledged there is no way to tell if plaintiffs have been injured.
"We don’t know if they do now – there isn’t medical monitoring," Woody said, adding that because plaintiffs are aware of risks posed by dioxin exposure they now carry the burden of expense for lifelong medical testing.
"The economic loss is in payment you would have to make to get yourself tested," Woody said.
Medical community backers, including the American Public Health Association, agree that risk for health problems related to the exposure is high.
Other risks are high too, said Justice Clifford W. Taylor.
He compared the problem to the struggle in creation legal remedies dating to a hundred years ago – workers’ compensation, wrongful death and auto no-fault laws.
"We need to be very careful," he said. "We are entering an area that may have a disastrous effect in Michigan’s economy."
Justice Maura Corrigan suggested that a solution to the dioxin problem may already exist – without involving courts. Power to require medical monitoring may already be vested in the Michigan Department of Environmental Quality, she said.