Want money? Better be injured, Delaware court says in toxic tort class action
WILMINGTON, Del. (Legal Newsline) – Delaware law doesn’t allow people who think they will become sick to sue before it happens, the state’s highest court has ruled.
The Delaware Supreme Court on Aug. 24 answered a certified question from the federal Third Circuit that asked whether an increased risk of illness is a cognizable injury. The ruling is a blow to a proposed class action over residents who live near a chemical plant called Atlas Point that emits ethylene oxide.
Catherine Baker sued Croda Inc. over the emissions of EO, a carcinogen, at the Atlas Point plant in New Castle. The Environmental Protection Agency estimated class members are up to four times more likely to develop cancer.
But that isn’t an injury – yet – the Delaware Supreme Court found.
“(A)n increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease,” the court found. “It is axiomatic that all tort claims require an injury.”
The court started by revisiting a U.S. Supreme Court case involving asbestos exposure to a so-far-unharmed railroad worker. SCOTUS said an exposed plaintiff can recover medical monitoring damages if and when they develop symptoms.
A similar case in Delaware asked for expenses for medically required surveillance and compensation for mental anguish, but those claims were rejected.
“To hold otherwise would constitute a significant shift in our tort jurisprudence,” the Baker ruling says.
“As it stands, the statute of limitations for toxic tort claims starts to run when a plaintiff begins to experience physical effects. In addition, toxic tort plaintiffs are permitted to bring separate claims for separate diseases caused by one exposure.
“Accordingly, a future risk of illness without any present injury does not constitute an injury-in-fact in tort under Delaware law.”
The firm Grant & Eisenhofer represents the plaintiff, while the defense was handled by Morris, Nichols, Arsht & Tunnell of Wilmington and Quinn Emanuel Urquhart & Sullivan.
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