As a defense lawyer, one grows accustomed to clear judicial days on which the state court can foresee forever. See Thing v. La Chusa, 48 Cal. 3d 644, 668 (1989). On those clear judicial days, when the court catches a glimpse of the possibility of harm shimmering off in the distance, one can be assured that an expansion of liability soon will follow.
Not all state courts are quick to expand tort liability, however. In Baker v. Croda Inc., __ A.3d __, 2023 Del. LEXIS 282, 2023 WL 5517797 (Aug. 24, 2023), the Supreme Court of Delaware was asked to gaze into the future, and it decided to leave liability tied to an actual injury in the here-and-now.
The Baker opinion did not involve a pharmaceutical or medical device (it involved a chemical, ethylene oxide), but it did involve an issue of particular concern to the blog: Claims for medical monitoring brought by a class of plaintiffs who have no present injury, but who allege they are at an increased risk of developing cancer in the future. As a remedy, the plaintiffs requested money in the present, for the “cost of reasonably medically necessary diagnostic testing for the early detection of illness, disease or disease process.”
In response, Delaware definitively rejected the liability for no-injury medical monitoring claims, for the straightforward reason that:
[A]n increased risk of illness without physical harm is not a cognizable injury under Delaware law. Stated differently, an increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease.
Baker, 2023 WL 5517797 at *2.
The first thing worth pointing out about Baker is that it came to the Supreme Court of Delaware by way of a certified question from the Third Circuit. Good on the Third Circuit for certifying the question instead of plowing ahead and making an expansive Erie prediction. But query whether the law actually was unsettled as the Third Circuit seemed to believe. At least three times before, Delaware had declared that “claims in tort require an actual or imminent injury”—something that doesn’t exist when one has no present injury, but rather just an increased risk of maybe, perhaps experiencing an injury in the future. See Baker, 2023 WL 5517797 at *3, citing Mergenthaler v. Asbestos Corporation of America, 480 A.2d 647 (Del. 1984) (holding that present physical disease is required to state a claim under Delaware law); Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (rejecting claims for mental anguish and medical monitoring because “damages for claims of emotional distress or mental anguish … are recoverable only if [an] underlying injury is shown”), and United States v. Anderson, 669 A.2d 73 (Del. 1995) (“requirement of a preceding physical injury prohibits plaintiffs from claiming that exposure to toxic substances, for instance, has created an increased risk of harm not yet manifested in a physical disease”).
Picking that apart a bit more, the Delaware Supreme Court explained that it is “axiomatic that all tort claims require an injury,” and that injury is defined in a way that excludes mere “increased risk” because, in Delaware, an injury in fact must be “actual or imminent, not conjectural or hypothetical.”
Turning to policy issues, the Baker opinion echoed the concerns expressed in the key federal opinion rejecting no-injury medical monitoring, Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997). Not unreasonably, both Metro-North and Baker recognized that allowing “traditional, full-blown tort liability” in the absence of an actual injury threatens “unlimited and unpredictable liability” and a “flood” of less important cases that could swamp the claims of those with injuries that do manifest, particularly because exposure to even toxic substances (fortunately) may never result in any harm.
Both opinions also recognized that there is a competing policy concern, namely the injustice in having “economically disadvantaged persons” bear the cost of paying for their own diagnostic testing. Baker did so to highlight complexities raised by the prospect of allowing no-injury medical monitoring claims, should Delaware’s General Assembly ever choose to take up legislation allowing such claims. But to that, we can’t help but wonder why “more litigation” tied to a particular alleged toxic exposure —with all the resulting inefficiencies and transaction costs, yet ultimately limited scope—would be a better solution than making health care that broadly covers medically appropriate preventative care and diagnostic testing more widely available. But we digress.
And so we will leave Baker at that. Bexis can add another case to his no-injury medical monitoring 50-state survey.