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Michigan rejects medical monitoring

In a case arising from charges that Dow Chemical polluted the Tittabawassee River, the Michigan Supreme Court has ruled that the state's law affords no cause of action by which residents showing no physical harm can sue Dow for the costs of future "medical monitoring". (Detroit Free Press/Saginaw News). Attorney (and occasional PoL guestblogger) Leah Lorber, whose law firm of Shook, Hardy & Bacon filed an amicus brief on behalf of various business groups, writes as follows (excerpt):

This is the fourth case in a row in which a state supreme court has rejected medical monitoring. The earlier rulings came in Nevada, Kentucky and Alabama...

(1) The Court ruled that it was for the Michigan Legislature, not the Court, to decide whether to allow a cause of action for medical monitoring absent physical injury, a claim the Court termed "fundamentally different from any other negligence-based claim now cognizable under Michigan law." The Court said: "the people's representatives in the Legislature ... are better suited to undertake the complex task of balancing the competing societal interests at stake."

(2) The Court recognized that a cause of action based solely on exposure would create a potentially limitless pool of plaintiffs, "drain[ing] resources needed to compensate those with manifest physical injuries and a more immediate need for medical care." The Court ruled that "[i]n our tort jurisprudence, actual harm -- an injury that is manifest in the present -- is required in order to state a viable claim."

(3) The Court noted the huge burden on court finances and employees that would stem from administering a medical monitoring trust fund.

See also Mar. 8. The 5-2 decision (Justices Michael Cavanagh and Marilyn Kelly dissenting) was written by Justice Maura Corrigan, who's being mentioned as a possible nominee for Sandra O'Connor's seat on the U.S. Supreme Court.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.