text:
MI Supreme Court
HENRY et al. v. THE DOW CHEMICAL COMPANY
Jul 19, 2005
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
No. 125205
GARY and KATHY HENRY, et al.,
The 173 plaintiffs in this matter have asked to represent a putative class of thousands in an action against defendant, The Dow Chemical Company. Their core allegation is that Dow's plant in Midland, Michigan, negligently released dioxin, a synthetic chemical that is potentially hazardous to human health,[1] into the Tittabawassee flood plain where the plaintiffs and the putative class members live and work.
This situation appears, at first blush, to have the makings of a standard tort cause of action. But closer inspection of plaintiffs' motion for class certification reveals that one of plaintiffs' claims is premised on a novel legal theory in Michigan tort law and thus raises an issue of first impression for this Court.
In an ordinary "toxic tort" cause of action, a plaintiff alleges he has developed a disease because of exposure to a toxic substance negligently released by the defendant. In this case, however, the plaintiffs do not allege that the defendant's negligence has actually caused the manifestation of disease or physical injury. Instead, they allege that defendant's negligence has created the risk of disease—that they may at some indefinite time in the future develop disease or physical injury because of defendant's allegedly negligent release of dioxin.
Accordingly, the plaintiffs have asked the circuit court to certify a class that collectively seeks the creation of a program, to be funded by defendant and supervised by the court, that would monitor the class and their representatives for possible future manifestations of dioxin-related disease. The defendant moved for summary disposition, arguing that plaintiffs' medical monitoring claim was not cognizable under Michigan law. The circuit court denied this motion, and the Court of Appeals denied defendant's interlocutory application for leave to appeal.
We now reverse the circuit court order denying the motion and remand for entry of summary disposition in favor of defendant on plaintiffs' medical monitoring claim. Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan's common law.
Although we recognize that the common law is an instrument that may change as times and circumstances require, we decline plaintiffs' invitation to alter the common law of negligence liability to encompass a cause of action for medical monitoring. Recognition of a medical monitoring claim would involve extensive fact-finding and the weighing of numerous and conflicting policy concerns. We lack sufficient information to assess intelligently and fully the potential consequences of recognizing a medical monitoring claim.
Equally important is that plaintiffs have asked this Court to effect a change in Michigan law that, in our view, ought to be made, if at all, by the Legislature. Indeed, the Legislature has already established policy in this arena by delegating the responsibility for dealing with health risks stemming from industrial pollution to the Michigan Department of Environmental Quality (MDEQ). As a matter of prudence, we defer in this case to the people's representatives in the Legislature, who are better suited to undertake the complex task of balancing the competing societal interests at stake.
We therefore remand this matter to the circuit court for entry of summary disposition in defendant's favor on plaintiffs' medical monitoring claim.
Defendant, The Dow Chemical Company, has maintained a plant on the banks of the Tittabawassee River in Midland, Michigan, for over a century. The plant has produced a host of products, including, to name only a few, "styrene, butadiene, picric acid, mustard gas, Saran Wrap, Styrofoam, Agent Orange, and various pesticides including Chlorpyrifos, Dursban and 2, 4, 5-trichlorophenol." Michigan Department of Community Health, Division of Environmental and Occupational Epidemiology, Pilot Exposure Investigation: Dioxin Exposure in Adults Living in the Tittabawassee River Flood Plain, Saginaw County, Michigan, May 25, 2004, p 4.
According to plaintiffs and published reports from the MDEQ, defendant's operations in Midland have had a deleterious effect on the local environment. In 2000, General Motors Corporation was testing soil samples in an area near the Tittabawassee River and the Saginaw River when it discovered the presence of dioxin, a hazardous chemical believed to cause a variety of health problems such as cancer, liver disease, and birth defects. By spring 2001, the MDEQ had confirmed the presence of dioxin in the soil of the Tittabawassee flood plain. Further investigation by the MDEQ indicated that defendant's Midland plant was the likely source of the dioxin. Michigan Department of Environmental Quality, Remediation and Redevelopment Division, Final Report, Phase II Tittabawassee/Saginaw River Dioxin Flood Plain Sampling Study, June 2003, p 42 (identifying Dow's Midland plant as the "principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils").
In March 2003, plaintiffs moved for certification of two classes in the Saginaw Circuit Court. The first class was composed of individuals who owned property in the flood plain of the Tittabawassee River and who alleged that their properties had declined in value because of the dioxin contamination. The second group consisted of individuals who have resided in the Tittabawassee flood plain area at some point since 1984 and who seek a court-supervised program of medical monitoring for the possible negative health effects of dioxin discharged from Dow's Midland plant. This latter class consists of 173 plaintiffs and, by defendant's estimation, "thousands" of putative members.
Defendant moved under MCR 2.116(C)(8) for summary disposition of plaintiffs' medical monitoring claim. The Saginaw Circuit Court denied this motion, and denied defendant's subsequent motions for reconsideration and for a stay of proceedings.
After the Court of Appeals denied defendant's motion for peremptory reversal and emergency application for leave to appeal, the defendant sought emergency leave to appeal in this Court. Discovery and other preliminary proceedings on plaintiffs' motion for class certification continued in the Saginaw Circuit Court until, on June 3, 2004, we stayed the proceedings below and granted defendant's application for leave to appeal.[2] Henry v Dow Chemical Co, 470 Mich 870 (2004).[3]
We review de novo the circuit court's denial of defendant's motion for summary disposition under MCR 2.116(C)(8). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A movant is entitled to summary disposition under MCR 2.116(C)(8) if "[t]he opposing party has failed to state a claim on which relief can be granted." MCR 2.116(C)(8). In determining whether a movant has met this standard, we "'accept[] as true all well-pleaded facts.'" Radtke v Everett, 442 Mich 368, 373; 501 NW2d 155 (1993), quoting Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984).
The question presented by this appeal is whether, in seeking a court-supervised medical monitoring program for future dioxin-related illnesses, plaintiffs have stated a claim on which relief may be granted. MCR 2.116(C)(8). Plaintiffs' theory is that Dow negligently released dioxin into the Tittabawassee flood plain and that, as a result, plaintiffs must incur the costs of intensive medical monitoring for the possible health effects of elevated exposure to dioxin. Thus, at its core, plaintiffs' medical monitoring claim is one of negligence.
In order to state a negligence claim on which relief may be granted, plaintiffs must prove (1) that defendant owed them a duty of care, (2) that defendant breached that duty, (3) that plaintiffs were injured, and (4) that defendant's breach caused plaintiffs' injuries. See Haliw v Sterling Hts, 464 Mich 297, 309-310; 627 NW2d 581(2001); Schultz v Consumers Power Co, 443 Mich 445, 459; 506 NW2d 175 (1993). These elements of an action for negligence are traditionally summarized, in a formula that ought to be familiar to any first-year law student, as "duty, breach of that duty, causation, and damages." Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004). See also Prosser & Keeton, Torts (5th ed), § 30, pp 164-165 (describing this "traditional formula").
The logic behind this formula—and, indeed, the very logic of tort law—is that of "giv[ing] security to the rights of individuals by putting within their reach suitable redress whenever their rights have been actually violated." Cooley on Torts (4th ed), § 32, p 57. Accordingly, an individual is typically entitled to relief under a tort theory only when he has suffered a present injury.[4] As Prosser and Keeton have explained:
Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff's case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered. [Prosser & Keeton, Torts (5th ed), § 30, p 165 (emphasis added).]
Here, defendant argues that plaintiffs have not established any present injuries, and have therefore failed to state a valid negligence claim. We agree. As an initial matter, it is abundantly clear that plaintiffs do not claim that they suffered any physical harm because of defendant's allegedly negligent contamination of the Tittabawassee flood plain. Indeed, plaintiffs in their arguments to this Court expressly denied having any manifest physical injuries.[5]
The only injury alleged by the putative representatives of the medical monitoring class—and, consequently, the only injury that might satisfy the damages requirement of a negligence claim—is "the losses they have and will suffer as they are forced to monitor closely their health and medical condition because of their exposure to Dow's Dioxin [sic] pollution." From this description, however, it is apparent that plaintiffs do not claim that they suffer from present injuries. Rather, they allege that they may develop dioxin-related illnesses in the future. At best, then, the only injury from which plaintiffs suffer at present is a fear of future illness. They seek an "equitable remedy" of a medical monitoring program not in order to redress actual or present injury to their persons, but instead to screen for possible future injury. In this way, plaintiffs' claims depart from the principles articulated by Justice Cooley and by Prosser and Keeton.
It is unsurprising, then, that plaintiffs' claims are also fundamentally different from any other negligence-based claim now cognizable under Michigan law. In our tort jurisprudence, actual harm—an injury that is manifest in the present—is required in order to state a viable negligence claim. See, e.g., Daley v LaCroix, 384 Mich 4, 12-13; 179 NW2d 390 (1970). Whatever the context—whether it is negligent infliction of emotional distress,[6] libel,[7] or legal malpractice,[8] for example—Michigan law permits recovery in a negligence-based tort only when the plaintiff can demonstrate a present injury in addition to economic losses that result from that injury.
The requirement of present injury is no less applicable in the toxic tort context. In Larson v Johns-Manville Sales Corp, 427 Mich 301, 314; 399 NW2d 1 (1986), for example, we held that a cause of action for asbestosis, which typically manifests between ten and forty years after exposure, arises only when an injured party knows or should know that he has, in fact, developed asbestosis. Similarly, we held that a cause of action for asbestos-related lung cancer arises only when there has been a "discoverable appearance" of cancer. Id. at 319. Thus, Larson squarely rejects the proposition that mere exposure to a toxic substance and the increased risk of physical injury constitute an "injury" for tort purposes. It is a present injury, not fear of injury in the future, that gives rise to a cause of action under a negligence theory.
Plaintiffs have not cited an exception to the rule, recognized in Daley and Larson, that an actual injury is required in order to state a claim of negligence. Nor, indeed, does the dissent.[9] We can therefore reach only one conclusion: because the alleged economic losses cited by plaintiffs were incurred in anticipation of possible future injury rather than in response to present injuries, these pecuniary losses are not derived from an injury that is cognizable under Michigan tort law.
It is no answer to argue, as plaintiffs have, that the need to pay for medical monitoring is itself a present injury sufficient to sustain a cause of action for negligence. The fact remains that these economic losses are wholly derivative of a possible, future injury rather than an actual, present injury. Plaintiffs' medical monitoring claim is therefore distinguishable from other causes of action, such as libel or professional malpractice, in which a plaintiff may recover for economic losses without showing present physical harm. In a cause of action for libel, a plaintiff must show a present injury to his reputation.[10] In a cause of action for legal malpractice, a plaintiff must show a present breach of the fiduciary relationship between attorney and client.[11] In each case, our common law requires a present injury in addition to economic loss incurred as a result of that injury.
Here, the only noneconomic injury alleged by plaintiffs is their fear of future physical injury. This fear, however reasonable, is not enough to state a claim of negligence. Our common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can also establish physical manifestations of that distress.[12] Thus, even taking into account these economic losses, plaintiffs have not established a present, legally cognizable injury.
Because plaintiffs have failed to establish a present injury, it follows as a matter of logic that plaintiffs have also failed to establish causation. After all, without alleging an actual injury, plaintiffs cannot establish that their injuries were actually and proximately caused by defendant's negligence. In all, then, plaintiffs' medical monitoring claim lacks two of the four elements of a negligence claim and, therefore, is not cognizable under Michigan law.[13]
Plaintiffs maintain that this Court implicitly recognized a medical monitoring cause of action in M e yerhoff v Turner Constr Co, 456 Mich 933 (1998). In M e yerhoff, a number of construction workers were exposed to asbestos on the job. The Court of Appeals held that "medical-monitoring expenses are a compensable item of damages where the proofs demonstrate that such surveillance to monitor the effect of exposure to toxic substances . . . is reasonable and necessary." M e yerhoff v Turner Constr Co (On Remand), 210 Mich App 491, 495; 534 NW2d 204 (1995). We vacated the Court of Appeals opinion with respect to the medical monitoring claim, but included language in our order that, quite understandably, led to confusion regarding the viability of a medical monitoring claim in Michigan: "The factual record is not sufficiently developed to allow a [sic] medical monitoring damages. Accordingly, that portion of the Court of Appeals decision which holds that medical monitoring expenses are a compensable item of damages is vacated." 456 Mich 933.
Plaintiffs read the first sentence quoted above to suggest that a factual record may in some circumstances be "sufficiently developed" to support medical monitoring damages. Accordingly, they maintain that an action for medical monitoring may be sustainable with a sufficiently developed record.
However, while perhaps not a model of clarity, the language of Meyerhoff does not support such a conclusion. Meyerhoff does not affirmatively state that a cause of action for medical monitoring is cognizable under Michigan law. To the contrary, our order in Meyerhoff vacated the part of the Court of Appeals opinion that had held precisely that. Rather, Meyerhoff should properly be read to hold that the factual record in that case was insufficiently developed to support a medical monitoring claim if such a claim exists in Michigan. As we clarify today, such a claim does not exist in Michigan.[14]
Nor are we persuaded by the opinion of the United States District Court for the Eastern District of Michigan in Gasperoni v Metabolife , Int'l Inc, 2000 US Dist LEXIS 20879 (ED Mich, 2000). Plaintiffs assert that the district court in Gasperoni "concluded that Michigan would recognize a state law claim for medical monitoring and certified a class for such a claim." A careful reading of Gasperoni, however, reveals that this argument mischaracterizes the district court's opinion.
The plaintiffs in Gasperoni consumed Metabolife 356, an appetite suppressant manufactured and distributed by the defendant. They filed an action based on theories of fraudulent misrepresentation and breach of warranty, and sought a number of remedies—including medical monitoring. Id. at *3-*4. The defendant in that case did not challenge medical monitoring as a cause of action. Indeed, the defendant had no reason to do so. The plaintiffs sought medical monitoring only as a form of relief and did not claim that medical monitoring was, itself, a viable cause of action. Thus, the sole issue was whether the plaintiffs' proposed class met the requirements provided in Federal Rule of Civil Procedure 23(a).
With respect to the plaintiffs' medical monitoring claim, the district court held only that the plaintiffs' medical monitoring claims were not so individualized as to preclude class certification. Id. at *22. Whether a medical monitoring claim was viable under Michigan law—the central issue in this appeal—was neither raised by the defendant in Gasperoni nor addressed by the district court in its opinion. Far from holding that Michigan would "recognize a state law claim for medical monitoring," as asserted by plaintiffs, the district court merely suggested that medical monitoring may be a proper form of injunctive relief in an action based on fraudulent misrepresentation and breach of warranty. Thus, as with our order in M e yerhoff, Gasperoni does not provide any reason to conclude affirmatively that a cause of action for medical monitoring is cognizable under Michigan law.
Having determined that plaintiffs' claim cannot stand under our current law of negligence, we turn now to plaintiffs' core argument—that we should modify the common law of negligence in order to permit their medical monitoring claim to proceed.
This Court is the principal steward of Michigan's common law. See, e.g., Adkins v Thomas Solvent Co, 440 Mich 293, 317; 487 NW2d 715 (1992); Sizemore v Smock, 430 Mich 283, 285; 422 NW2d 666 (1988). Acting in this capacity, we have on occasion allowed for the development of the common law as circumstances and considerations of public policy have required. See, e.g., Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981). But as Justice Young has recently observed, our common-law jurisprudence has been guided by a number of prudential principles. See Young, A j udicial t raditionalist c onfronts the c ommon l aw, 8 Texas Rev L & Pol 299, 305-310 (2004). Among them has been our attempt to "avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable consequences," id. at 307, a principle that is quite applicable to the present case.
Plaintiffs have asked us to recognize a cause of action that departs drastically from our traditional notions of a valid negligence claim. Beyond this enormous shift in our tort jurisprudence, judicial recognition of plaintiffs' claim may also have undesirable effects that neither we nor the parties can satisfactorily predict. For example, recognizing a cause of action based solely on exposure—one without a requirement of a present injury—would create a potentially limitless pool of plaintiffs.[15] See, e.g., Schwartz , Medical monitoring: S hould tort law say yes?, 34 Wake Forest L R 1057, 1079-1080 (1999) ("Once a showing of present physical injury is eliminated, as is the case in awards for medical monitoring, attorneys representing plaintiffs could virtually begin recruiting people off the street to serve as medical monitoring claimants."). Litigation of these preinjury claims could drain resources needed to compensate those with manifest physical injuries and a more immediate need for medical care. It is less than obvious, therefore, that the benefits of a medical monitoring cause of action would outweigh the burdens imposed on plaintiffs with manifest injuries, our judicial system, and those responsible for administering and financing medical care. Because such a balancing process would necessarily require extensive fact-finding and the weighing of important, and sometimes conflicting, policy concerns, and because here we lack sufficient information to assess intelligently and fully the potential consequences of our decision, we do not believe that the instant question is one suitable for resolution by the judicial branch.[16] We are certainly not alone in our reluctance to engage in the delicate balancing of costs and benefits that plaintiffs' proposed expansion of the common law requires. Many of these concerns were noted by the United States Supreme Court in Metro-North Commuter R Co, supra at 442 (holding that the Federal Employers' Liability Act, 45 USC 51 et seq ., does not permit recovery of future medical monitoring costs).[17] There, the Court observed that judicial recognition of mere exposure to a toxic substance as a sufficient trigger for tort liability could lead to a stampede of litigation that would divert resources from more immediate and compelling claims, such as those brought by individuals with actual disease or injury, to less meritorious claims:
[T]ens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring. . . . And that fact, along with uncertainty as to the amount of liability, could threaten both a "flood" of less important cases . . . and the systemic harms that can accompany "unlimited and unpredictable liability . . . ." [ Metro-North Commuter R Co, supra at 442.]
See also Wood v Wyeth-Ayerst Labs, 82 SW3d 849, 857 (Ky, 2002) (citing the policy concerns raised in Buckley); Hinton v Monsanto Co, 813 So 2d 827, 831 (Ala, 2001) (same).[18] We share the concerns raised by the United States Supreme Court in Buckley. Simply put, judicial recognition of a medical monitoring cause of action may do more harm than good—not only for Michigan's economy but also for "other potential plaintiffs who are not before the court and who depend on a tort system that can distinguish between reliable and serious claims on the one hand, and unreliable and relatively trivial claims on the other." Buckley, 521 US at 443-444. Even if this Court were institutionally equipped to gauge the potential costs and benefits of sanctioning a medical monitoring cause of action, plaintiffs have done little to help us understand the ramifications that a decision in their favor might have for Michigan. When pressed at oral argument to address the potential costs and benefits of plaintiffs' proposed cause of action, for example, plaintiffs' counsel was unable to hazard a guess at how Michigan's economy might be affected: Justice Taylor: Where have you made note, or could you, of the kinds of suspected impact that monitoring will have on the business environment of this state. I don't think there's a word in your briefs about that. You just sort of assume it will be taken care of. . . . Plaintiffs ' Counsel: I think if you look at the criteria [for a valid medical monitoring claim] we propose we think it has safeguards for that. We think it does allow . . . Justice Taylor: Where in your brief is there any discussion of what cost this will bear on Michigan's business climate? Plaintiffs ' Counsel: I don't [think] there is a particular discussion in our brief on what costs Michigan will bear. Justice Young: Do you have any idea what that might be? Plaintiffs' Counsel: I don't think we have any particular specific dollar idea on what that will be, no. I don't think we have a specific dollar idea on what the cost to these people are. Justice Taylor: Doesn't this point out the problem with what you're asking us to do? We don't even know what the cost of this will be. This line of questioning goes to the heart of why we are reluctant to alter the common law of negligence in the manner proposed by plaintiffs: however much equity might favor lightening the economic burden now borne by parties exposed to dioxin in the Tittabawassee flood plain, we have no assurance that a decision in plaintiffs' favor—which would create a hitherto unrecognized cause of action with a potentially limitless class of plaintiffs—will not wreak enormous harm on Michigan's citizens and its economy. Such a decision necessarily involves a drawing of lines reflecting considerations of public policy, and a judicial body is ill-advised to draw such lines given the limited range of interests represented by the parties and the resultant lack of the necessary range of information on which to base a resolution.[19] See Young, supra at 307 ("Good intentions, unsupported by well informed policy choices, often result in bad law."). We would be unwise, to say the least, to alter the common law in the manner requested by plaintiffs when it is unclear what the consequences of such a decision may be and when we have strong suspicions, shared by our nation's highest court, that they may well be disastrous. III Although the caution engendered by our difficulty in identifying, much less weighing, the potential costs and benefits of a decision in plaintiffs' favor is an important factor militating against recognizing plaintiffs' proposed cause of action, there is a stronger prudential principle at work here: the judiciary's obligation to exercise caution and to defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.[20] Ours, after all, is a government founded on the principle of separation of powers.[21] In certain instances, the principle of separation of powers is an affirmative constitutional bar on policy-making by this Court.[22] In other cases, however, the separation of powers considerations may operate as a prudential bar to judicial policy-making in the common-law arena. This is so when we are asked to modify the common law in a way that may lead to dramatic reallocation of societal benefits and burdens.[23] As shown above, plaintiffs have sought a radical change in our negligence jurisprudence and have provided no guidance on how this proposed change might affect Michigan. In effect, we have been asked to craft public policy in the dark. This problem alone ought to make any reasonably prudent jurist extremely wary of granting the relief sought by the plaintiffs.[24] In addition to the problems presented by the legal question whether a medical monitoring cause of action exists, we are faced with the more practical questions of how such a monitoring program would work. For example, a threshold concern would likely be the determination of eligibility for participation in such a program.[25] Such a determination involves the consideration of a number of practical questions and the balancing of a host of competing interests—a task more appropriate for the legislative branch than the judiciary. Of equal concern would be the administration of such a program.[26] The day-to-day operation of a medical monitoring program would necessarily impose huge clerical burdens on a court system lacking the resources to effectively administer such a regime. Nor do the courts possess the technical expertise necessary to effectively administer a program heavily dependent on scientific disciplines such as medicine, chemistry, and environmental science. The burdens of such a system would more appropriately be borne by an administrative agency specifically created and empowered to administer such a program. The court system, in our view, is simply not institutionally equipped to establish, promulgate operative rules for, or administer such a program. The propriety of judicial deference to the legislative branch in expanding common-law causes of action is further underscored where, as here, the Legislature has already created a body of law that provides plaintiffs with a remedy. Were we to create an alternate remedy in such cases—one that may be pursued in lieu of the remedy selected by our Legislature—we would essentially be acting as a competing legislative body. And we would be doing so without the benefit of the many resources that inform legislative judgment.[27] In this case, the Legislature has already provided a method for dealing with the negligent emission of toxic substances such as dioxin. The Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., empowers the MDEQ to deal with the environmental and health effects of toxic pollution: The department shall coordinate all activities required under this part and shall promulgate rules to provide for the performance of response activities, to provide for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release, and to implement the powers and duties of the department under this part, and as otherwise necessary to carry out the requirements of this part. [MCL 324.20104(1) (emphasis added).]
Further, MCL 324.20118 provides, among other things: (1) The department may take response activity or approve of response activity proposed by a person that is consistent with this part and the rules promulgated under this part relating to the selection and implementation of response activity that the department concludes is necessary and appropriate to protect the public health, safety, or welfare, or the environment. (2) Remedial action undertaken under subsection (1) at a minimum shall accomplish all of the following: (a) Assure the protection of the public health, safety, and welfare, and the environment. These provisions authorize the MDEQ to undertake "response activity" and "remedial action" when the public health is threatened by pollution. "Response activity" is defined by the NREPA as [e]valuation, interim response activity, remedial action, demolition, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment or the natural resources. Response activity also includes health assessments or health effect studies carried out under the supervision, or with the approval of, the department of public health and enforcement actions related to any response activity. [MCL 324.20101(1)(ee).]
"Remedial action," which is included in the definition of "response activity," is defined under MCL 324.20101(1)(cc): "Remedial action" includes, but is not limited to, cleanup, removal, containment, isolation, destruction, or treatment of a hazardous substance released or threatened to be released into the environment, monitoring, maintenance, or the taking of other actions that may be necessary to prevent, minimize, or mitigate injury to the public health, safety, or welfare, or to the environment. Given this statutory framework, this much is clear: the Legislature has authorized the MDEQ to address precisely the sort of environmental and health risks occasioned by Dow's alleged emission of dioxin into the Tittabawassee flood plain. Not only is the MDEQ specifically authorized under the NREPA to undertake "health assessments" and "health effect studies," MCL 324.20101(1)(ee), but the department is also empowered to take "other actions that may be necessary to prevent, minimize, or mitigate injury to the public health, safety, or welfare, or to the environment." MCL 324.20101(1)(cc). Indeed, as plaintiffs' counsel acknowledged at oral arguments, the MDEQ has been involved in the remediation of the Tittabawassee dioxin contamination and has engaged in a pilot medical monitoring program of residents. Plaintiffs believe, however, that the MDEQ's response has been insufficient—that the department lacks the funding necessary to engage in medical monitoring on the scale they would prefer.[28] It is apparent, therefore, that the plaintiffs are asking this Court to create a new remedy—a cause of action for medical monitoring—where the Legislature has already signaled its preference with respect to the appropriate form a remedy should take. In deference to the policy-making branch of our government, we decline to create this alternative remedial regime.[29] IV We have established that plaintiffs' medical monitoring claim is not cognizable under our current law and that recognition of this claim would require both a departure from fundamental tort principles and a cavalier disregard of the inherent limitations of judicial decision-making. For these reasons, defendant is entitled to summary disposition of plaintiffs' medical monitoring claim. We need address only one remaining argument: plaintiffs' contention that their request for a medical monitoring program is not subject to summary disposition under MCR 2.116(C)(8) because it is a claim for equitable, as opposed to legal, relief.[30] Plaintiffs' reliance on the nature of the relief they seek essentially puts the cart before the horse. Regardless of what sort of remedy a plaintiff requests, we must nevertheless determine whether that remedy is supported by a valid claim. As the Kentucky Supreme Court recently observed, "It is not the remedy that supports the cause of action, but rather the cause of action that supports a remedy." Wood v Wyeth-Ayerst Labs, 82 SW3d 849, 855 (Ky, 2002). Here, plaintiffs have pleaded a cause of action based on a theory of negligence and have argued that we should expand the common law of torts in order to permit their medical monitoring claim to proceed.[31] Plaintiffs never attempt to characterize their claim as an equitable cause of action, and point to no case law where a similar tort-based claim is held to create an equitable cause of action. As shown above , plaintiffs' claim is not cognizable under our current law of negligence and is not within a permissible expansion of the common law. Neither, perforce, is the claim based in equity. A court cannot "create substantive rights under the guise of doing equity," or "confer rights" where none exists. Stein v Simpson, 37 Cal 2d 79, 83; 230 P2d 816 (1951); Lathrop Co v Lampert, 583 P2d 789, 790 (Alas, 1978). Therefore, regardless of whether the relief plaintiffs seek is equitable or legal in nature, defendant was entitled to summary disposition regarding plaintiffs' medical monitoring cause of action because plaintiffs have not stated a valid cause of action. V Although the dissenting opinion is passionately argued and, no doubt, well-intentioned, it is rooted in a number of fundamental misconceptions about the applicable law and about our majority opinion. Some of these errors have already been noted and need no further discussion. But three particular inaccuracies in the dissent warrant special mention. First, the dissent argues that our holding makes "plaintiffs' physical health . . . secondary to defendant's economic health." Post at 2. But our opinion does no such thing. We take no position on whether defendant should or should not pay for the costs of monitoring for dioxin-related disease. Rather, we hold that plaintiffs have not stated a claim under our current tort law and that the determination whether that law should change to accommodate plaintiffs' claims belongs, in our view, to the people's representatives in the Legislature. It may be desirable that our tort law should expand to allow a cause of action for medical monitoring. But what we as individuals prefer is not necessarily what we as j ustices ought to impose upon the people. Our decision in this case is driven not by a preference for one policy or another, but by our recognition that we must not impose our will upon the people in matters, such as this one, that require a delicate balancing of competing societal interests. In our representative democracy, it is the legislative branch that ought to chart the state's course through such murky waters. Second, the dissenting opinion casts our opinion as one leaving injured plaintiffs without a remedy. See post at 26 ("Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business."). But our opinion does not hold that a party who actually contracts a dioxin-related disease will be foreclosed from recovery. On the contrary, assuming such a person could show physical harm and causation, the four elements of a traditional negligence claim would be met. See p 8 of this opinion. Upon such a showing, that person would be entitled to full compensation for the injury in the same manner as any other person injured by another's negligence.[32] The dissent's overwrought rhetoric aside, the question is not whether an injured party should recover for Dow's contamination of the environment, but when a party may be considered "injured" under Michigan tort law and recover for Dow's negligence. Justice Cavanagh may prefer a system in which polluters' resources are doled out on a first-come, first-served basis. He may be comfortable with the notion that such a regime runs the risk of diverting limited resources from those devastated by cancer, birth defects, and other dioxin-related diseases to those who have yet to manifest dioxin-related illness.[33] He is entitled to these beliefs. But his beliefs are not reflected in our common law of negligence and, given the potential repercussions of his first-come, first-served notions of justice, his vision should be turned into law, if at all, by the Legislature. This point leads to the dissenting opinion's third and most troubling error: Justice Cavanagh's complete disregard for the effects that our decision may have on those other than the parties at bar. For example, the dissent asserts that our concerns about the effects that a decision in plaintiffs' favor might have are unfounded given the nature of the relief that plaintiffs request: [T]he majority's prediction of a ruined economy falters after examining the true nature of the equitable relief that plaintiffs are seeking. Notably, allowing plaintiffs to seek medical monitoring costs would not result in a windfall for plaintiffs. . . . Plaintiffs would receive no money whatsoever. . . . The only "benefit" that a plaintiff would receive is payment for tests ordered by a doctor that are above and beyond what would generally be ordered for that plaintiff. [ Post at 13-14.]
The dissent asserts, in effect, that we need not trouble ourselves about recognizing plaintiffs' proposed cause of action because they seek a medical monitoring program rather than a cash payment. What this argument ignores, of course, is that medical monitoring is not without cost. Moreover, the dissent overlooks the fact that recognizing a cause of action before manifest injury in this case will allow other causes of action for negligence before manifest injury. The dissent's disdain for our "concerns about financial impact" can be sustained only by disregarding the effect that these other preinjury actions might have on the state's economy. To recognize a medical monitoring cause of action would essentially be to accord carte blanche to any moderately creative lawyer to identify an emission from any business enterprise anywhere, speculate about the adverse health consequences of such an emission, and thereby seek to impose on such business the obligation to pay the medical costs of a segment of the population that has suffered no actual medical harm. Worse still is the dissenting opinion's failure to consider the possible human toll of its approach. Indeed, our dissenting colleague is offended at our suggestion that allowing these plaintiffs to recover might limit resources available to those who show manifest physical injury: I can think of no greater misdeed than to actually argue that allowing these plaintiffs to seek the equitable remedy of requiring this defendant to pay for the costs of necessary medical monitoring tests somehow would divert resources from children with birth defects. This is fabrication at its most unforgivable—refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an equitable remedy is well with the bounds of judicial discretion and will not devastate the economy or cause sick children to die. [ Post at 19 (emphasis in original).]
This is an argument that can be sustained only if one believes that we live in a world in which every tortfeasor has unlimited resources to compensate those affected by its negligence. Ours, of course, is not that sort of world. Those who do wrong necessarily have a limited capacity to compensate those who suffer from their wrongdoing. Justice Cavanagh himself recognized this reality in Larson v Johns-Manville Sales Corp, supra at 304 . There, he joined a majority opinion holding that manifest injury rather than exposure alone gives rise to a claim for asbestos exposure. The opinion concluded with a frank acknowledgement that this rule was necessary in light of the limited resources available to compensate injured parties: We believe that discouraging suits for relatively minor consequences of asbestos exposure will lead to a fairer allocation of resources to those victims who develop cancers. Rather than encouraging every plaintiff who develops asbestosis to recover an amount of money as compensation for the chance of getting cancer, we prefer to allow those who actually do develop cancer to obtain a full recovery. [ Id. at 319.]
Thus, the Larson Court recognized that a rule that created an incentive for plaintiffs to seek recovery for asbestosis would limit the resources available to compensate those whose asbestosis turned to cancer. Our nation's experience with asbestos litigation has shown that this concern was well-founded.[34] It is therefore quite puzzling that our dissenting colleague would show such a blithe disregard for the real-world effects of his invocation of equity in this case. Equity is indeed an instrument of justice. But when it is exercised without due regard for the interests of those who are not before the Court, its invocation can lead to great injustice. It is precisely because a decision in plaintiffs' favor may have sweeping effects for Michigan's citizens and its economy that we believe this matter should be handled by those best able to balance these competing interests: the people's representatives in the Legislature. CONCLUSION We conclude that the trial court erred in denying defendant's motion for summary disposition regarding plaintiffs' medical monitoring claim. The cause of action proposed by plaintiffs is not cognizable under Michigan law. Accordingly, we remand this matter to the Saginaw Circuit Court for entry of an order of summary disposition in defendant's favor with regard to plaintiffs' medical monitoring cause of action. Maura D. Corrigan Clifford W. Taylor Elizabeth A. Weaver Robert P. Young, Jr. Stephen J. Markman STATE OF MICHIGAN SUPREME COURT No. 125205 GARY and KATHY HENRY, et al., Plaintiffs-Appellees, v THE DOW CHEMICAL COMPANY Defendant-Appellant. _______________________________ Weaver, J. ( concurring). I concur and join in the majority opinion's result, and in its reasoning. I write separately because I do not join in the opinion's citations of an article in the Texas Review of Law & Politics, ante at 20, 27 .[35] There is better authority than a law review article to support the propositions for which the article is cited. The opinion cites the article for two propositions: (1) that "our common-law jurisprudence has been guided by a number of prudential principles. Among them has been our attempt to 'avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable consequences,'" and (2) that the judiciary is ill-advised to make decisions that involve a drawing of lines reflecting considerations of public policy. Ante at 20, 26-27. Rather than an out-of-state, nonbinding law review article, real and binding Michigan authority for these propositions is found in our case law. See Olmstead v Anderson, 428 Mich 1, 11; 400 NW2d 292 (1987),[36] and Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).[37] Because there is binding case law for these propositions, the citations of the article written by one of the justices signing the majority opinion can at best be described as inappropriate and unnecessary. Further, I do not agree with some of the article's tone, nor with its comparison of the common law to a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one's genteel garden party.[[38]]
An article containing such a clumsy and crude analogy that mocks the common law is unworthy of citation. The people of Michigan expressly adopted the common law, in addition to statutory laws, in the 1963 Constitution.[39] Therefore, I concur in the result and join in the majority opinion, except the citations of the Texas Review of Law & Politics article. Elizabeth A. Weaver S T A T E O F M I C H I G A N SUPREME COURT No. 125205 GARY and KATHY HENRY, et al, Plaintiffs-Appellees, v DOW CHEMICAL COMPANY, Defendant-Appellant. _______________________________ CAVANAGH, J. ( dissenting). The proper issue in this case is whether defendant must pay for plaintiffs' medical monitoring costs. However, rather than simply address this basic issue, the majority chooses to use this case as a vehicle to raise fears about the economy and hypothesize that providing medical monitoring to these plaintiffs would result in our state's economic disaster. The majority erroneously presents this case as one in which it must choose between an equitable remedy for plaintiffs and the economic viability of defendant and of our state. Because the dichotomy the majority has constructed is a false one, I must dissent. At its core, this case is about rights and responsibilities. Defendant is undeniably responsible for years of actively contaminating the air, water, and soil that surrounds plaintiffs' homes. Defendant is undeniably responsible for the suffering that plaintiffs must endure as they face years of wondering if the contamination that they and their children have been exposed to will result in devastating illnesses and their untimely deaths. Thus, the issue is who should pay for plaintiffs' medical monitoring costs under the unique circumstances of this case when it is clear that defendant is responsible for the wrong that prompted the need for plaintiffs to be medically monitored. Stated differently, where defendant has contaminated the environment, should plaintiffs, defendant, or the taxpayers of the state of Michigan pay plaintiffs' medical monitoring costs? Whatever the majority's intent, the result of disregarding the only question properly posed in this case is that plaintiffs' physical health is inexcusably deemed secondary to defendant's economic health. I. PLAINTIFFS PRESENT A REASONABLE CLAIM FOR MEDICAL MONITORING COSTS Plaintiffs are owners and residents of property located within the one-hundred-year flood plain of the Tittabawassee River in Saginaw County. The Michigan Department of Environmental Quality (MDEQ) found as much as 7,300 parts per trillion (ppt) of dioxin in the flood plain, which substantially exceeds Michigan's cleanup standard of ninety ppt for direct residential contact.[40] After the MDEQ conducted testing, it determined that defendant was the source of the pollution. Because of the health risks that plaintiffs may face, plaintiffs seek a court-supervised medical monitoring program that is administered by qualified health professionals. "Dioxin" is the term used to identify a number of similar toxic chemicals. Dioxin is a known human carcinogen and, as the majority notes, "'a potent carcinogen.'" Ante at 1 n 1 (citation omitted). Exposure to dioxin can cause cancer, liver disease, birth defects, miscarriages, and reproductive damage, as well as other illnesses. Children are more significantly affected by dioxin than adults. Dioxins do not break down easily. Once dioxin is released into the environment, it stays in the environment for an extremely long time.[41] When dioxin gets into a person's body, it stays indefinitely in the person's blood and body fat. Because dioxin stays in the body for a long time, the adverse effects of dioxin exposure may not be immediate. Plaintiffs' counsel stated at oral argument that a pilot study of the community conducted by the Michigan Department of Community Health found that fifty to eighty percent of the people tested have dioxin levels that put them in the 75th to the 95th percentile compared to the national average for their age and gender. II. PLAINTIFFS' CLAIM FOR MEDICAL MONITORING WARRANTS EQUITABLE RELIEF Plaintiffs' request for a court-supervised medical monitoring program that is administered by qualified health professionals is undoubtedly reasonable. Plaintiffs merely request that defendant pay the cost of medical monitoring to ensure that dioxin-related illnesses are caught at their earliest. Plaintiffs simply seek to minimize the devastating effects of illnesses caused by defendant's acts. The majority, ante at 8, notes that "any first-year law student" knows the principle for negligence—duty, breach, causation, and damages—and argues that plaintiffs' rights have not been actually violated and they have suffered no injuries and, therefore, no damages. With this, I vehemently disagree. Plaintiffs have suffered actual harm and damages—the heightened exposure to dioxin that they received because of defendant's acts is akin to an injury. Plaintiffs were exposed to dioxin at over eighty times the level deemed safe for direct residential contact. Plaintiffs were advised that routine activities, such as flower gardening and lawn work, could further increase their risk of dioxin exposure. Tittabawassee/Saginaw River Flood Plain, Environmental Assessment Initiative, June 2003. Plaintiffs were further advised that they should avoid allowing their children to play in the soil to avoid further contamination. If it were not for defendant's acts, plaintiffs would not be obliged to incur the expenses involved in additional testing for early detection of any illnesses caused by the increased dioxin exposure. In this case, the exposure itself and the need for medical monitoring constitute the injury. See, e.g., Petito v AH Robins Co, Inc, 750 So 2d 103, 105 (Fla App, 1999) ("One can hardly dispute that an individual has just as great an interest in avoiding expensive diagnostic examinations as in avoiding physical injury."). Plaintiffs can also offer facts sufficient to establish causation, contrary to the majority's assertion. As noted by the majority, defendant's Midland plant was identified as the "'principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils.'" Ante at 5 (citation omitted). Given the facts, it is entirely reasonable for plaintiffs to argue that they would not have to undergo medical monitoring tests for dioxin poisoning but for the actions of defendant. To argue that there are insufficient facts to support plaintiffs' argument is a willful avoidance of the record. Notably, my belief that these plaintiffs should be allowed to seek equitable relief does not mean that I advocate that any exposure allows a person to bring a claim for medical monitoring costs. That position would indeed be imprudent. However, in this case, a candid review of the facts indicates that plaintiffs' heightened exposure has caused them harm and plaintiffs have no adequate legal remedy. While plaintiffs may not have yet developed dioxin-related illnesses, the fact remains that they are at a much greater risk because of defendant's acts. As such, their long-term exposure to dioxin has caused a change in the medical monitoring that plaintiffs would otherwise be prescribed. For example, according to reasonably accepted medical practice, doctors do not generally prescribe testing to determine a patient's dioxin level. However, in this case, because of the prolonged exposure to high levels of dioxin, a doctor may, according to accepted scientific principles, find that such tests are reasonably necessary to best monitor and treat a patient. When these tests are ordered, defendant should be responsible for paying the costs of the tests because defendant is responsible for the need for the tests. Plaintiffs do not, as the majority asserts, advocate for "a cause of action that departs drastically from our traditional notions of a valid negligence claim" and seek a "radical change" in negligence law. Ante at 20, 28.[42] Medical monitoring is recognized in a number of jurisdictions. See, e.g., In re Paoli R Yard PCB Litigation, 916 F2d 829, 852 (CA 3, 1990); Stead v F E Myers Co, 785 F Supp 56, 57 (D Vt, 1990); Merry v Westinghouse Electric Corp, 684 F Supp 847, 849 (MD Pa, 1988); Bower v Westinghouse Electric Corp, 206 W Va 133, 135; 522 SE2d 424 (1999); Redland Soccer Club, Inc v Dep't of the Army, 548 Pa 178, 194; 696 A2d 137 (1997); Potter v Firestone Tire & Rubber Co, 6 Cal 4th 965, 974; 863 P2d 795; 25 Cal Rptr 2d 550 (1993); In re Fernald, 1989 US Dist LEXIS 17762 (SD Ohio, 1989) (appointing trustees and special masters to administer a medical monitoring program as part of a $78 million settlement). Moreover, because of the latent nature of most illnesses resulting from exposure to dioxin, plaintiffs may not be able to establish an immediate physical injury of the type contemplated by a traditional tort action. See, e.g., Paoli, supra at 852 ("Medical monitoring claims acknowledge t