Michigan's highest court has rejected a class action lawsuit by persons without signs of illness seeking medical monitoring because of possible exposure to the poisonous chemical dioxin.

The Supreme Court's 5-2 decision came in a case in which the American Tort Reform Association (ATRA) filed a "friend of the court" brief in support of the defendant in the case.

Titled Henry et al. vs. the Dow Chemical Company, the case involved allegations that Dow's plant in Midland, Mich., negligently released dioxin, a synthetic chemical that is potentially hazardous to human health, into the Tittabawassee flood plain where the plaintiffs lived and worked.

The plaintiffs asked the circuit court to certify a class that collectively sought the creation of a program, to be funded by defendant and supervised by the court, which would monitor the area for possible future occurrences of dioxin-related disease.

Justice Maura Corrigan said, "Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan's common law."

According to Michigan common law a present injury and economic loss incurred as a result of that injury are required for the basis of a negligence lawsuit.

The court acknowledged that the only noneconomic injury alleged by plaintiffs is their fear of future physical injury which, in its opinion, was not sufficient.

In its decision the court also mentioned that the 173 plaintiffs and their counsel when questioned could not gauge the potential costs and benefits of sanctioning a medical monitoring cause of action.

ATRA said additional states that have rejected medical monitoring as a cause of action include Kentucky, Nevada and Alabama.

Special Reports /

Mich. High Court Tosses Medical Monitoring Suit

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