Order Michigan Supreme Court
Lansing, Michigan
May 5, 2006 Clifford W. Taylor,
Chief Justice
130054-130063 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DOROTHY CREECH, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 130054
COA: 237437
Jackson CC: 00-005650-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
JAY C. PORTER,
Plaintiff-Appellee,
v SC: 130055
COA: 237438
Jackson CC: 00-005711-NO
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
SARAH E. WILLIAMS, JOHN WALLACE, and
SHARON WALLACE,
Plaintiffs-Appellees,
v SC: 130056
COA: 237439
Jackson CC: 00-005740-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
2
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
JERRY RICHARD MOORE, SHEREE MOORE,
DENISE REYNOLDS, and GLEN REYNOLDS,
Plaintiffs-Appellees,
v SC: 130057
COA: 237440
Jackson CC: 00-005752-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________
JAY ANSON, DOUGLAS AYLESWORTH,
JANET BEILFUSS, CHARLES BELTZ,
THEODORE BREZINSKI, REBECCA BURT,
RENE CHAPA, DAVID CLAUCHERTY,
MAURINE CORYELL, MARY CRANDALL,
DIANE EMERY, LINDA FARLEY, JOLA
FARRELL, LESTER FIDLER, MARK E.
GORZEN, MARY GREEN, RUTH HALE,
SHAWN HAMLIN, BARBARA JEAN HARDEN,
HERBERT ISAACS, MARY JACOBSON, PAUL
KOZLOWICZ, RAY LEWIS, TERESA MAY,
DAVID CLYDE MEISTER, LUCILLE MEYER,
KEVIN MILLER, NICHOLAS MILLER,
DONALD MOON, RUBY MONTGOMERY,
CAROLINE MYERS, ARTHUR NASTALLY,
SUSAN PERRY, TERRY PHALEN, RONALD
RACER, ROBERT REESE, ROBERT
RICHARDSON, VALERIE RODERICK,
LUCILLE SEPTA, DANNY SMITH, FRED
STEWART, ROBERT THOMAS, ROY LEE
THOMASSON, JANET TODD, PATRICIA
TREFRY, TONE TRUSTY, KIMBERLY
TUCKER, CHARLES WALKER, STEPHANIE
WALSH, KATHLEEN WILSON, BERNARD
YAGER, SUSAN AYLESWORTH, LINDA
3
BREZINSKI, MRS. CLAUCHERTY, STEVEN D.
EMERY, WILLIAM A. FARLEY, JR., SHIRLEY
FIDLER, SUE GORZEN, EUGENE GREEN,
JOYCE ISAACS, LAWRENCE O. JACOBSON,
JOAN KOZLOWICZ, JAMES P. MAY,
PHYLLIS A. MEISTER, JAMES MEYER, DEE
MOON, EMILY NASTALLY, MARY PHALEN,
MARY E. RICHARDSON, JEAN STEWART,
PHYLLIS J. THOMAS, SANDRA F.
THOMASSON, MARIA TRUSTY, GENE T.
TUCKER, KIMBERLY WALKER, JASON
WALSH, JACK WHEELER, JOY YAGER, and
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v SC: 130058
COA: 237441
Jackson CC: 01-000755-NO
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS COPORATION,
Defendant-Appellee.
_________________________________________/
JERRY RICHARD MOORE, SHEREE L.
MOORE, DENISE REYNOLDS, GLEN
REYNOLDS, and ALL OTHERS SIMILARLY
SITUATED,
Plaintiffs-Appellees,
v SC: 130059
COA: 237442
Jackson CC: 00-005752-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________
DOROTHY CREECH and ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
4
v SC: 130060
COA: 237443
Jackson CC: 00-005650-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________
SARAH E. WILLIAMS, JOHN WALLACE,
SHARON WALLACE, and ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
v SC: 130061
COA: 237444
Jackson CC: 00-005740-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
JAY C. PORTER and ALL OTHERS SIMILARLY
SITUATED,
Plaintiffs-Appellees,
v SC: 130062
COA: 237445
Jackson CC: 005711-NH
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
JAY ANSON, DOUGLAS AYLESWORTH,
5
JANET BEILFUSS, CHARLES BELTZ,
THEODORE BREZINSKI, REBECCA BURT,
RENE CHAPA, DAVID CLAUCHERTY,
MAURINE CORYELL, MARY CRANDALL,
DIANE EMERY, LINDA FARLEY, JOLA
FARRELL, LESTER FIDLER, MARK E.
GORZEN, MARY GREEN, RUTH HALE,
SHAWN HAMLIN, BARBARA JEAN HARDEN,
HERBERT ISAACS, MARY JACOBSON, PAUL
KOZLOWICZ, RAY LEWIS, TERESA MAY,
DAVID CLYDE MEISTER, LUCILLE MEYER,
KEVIN MILLER, NICHOLAS MILLER,
DONALD MOON, RUBY MONTGOMERY,
CAROLINE MYERS, ARTHUR NASTALLY,
SUSAN PERRY, TERRY PHALEN, RONALD
RACER, ROBERT REESE, ROBERT
RICHARDSON, VALERIE RODERICK,
LUCILLE SEPTA, DANNY SMITH, FRED
STEWART, ROBERT THOMAS, ROY LEE
THOMASSON, JANET TODD, PATRICIA
TREFRY, TONE TRUSTY, KIMBERLY
TUCKER, CHARLES WALKER, STEPHANIE
WALSH, KATHLEEN WILSON, BERNARD
YAGER, SUSAN AYLESWORTH, LINDA
BREZINSKI, MRS. CLAUCHERTY, STEVEN D.
EMERY, WILLIAM A. FARLEY, JR., SHIRLEY
FIDLER, SUE GORZEN, EUGENE GREEN,
JOYCE ISAACS, LAWRENCE O. JACOBSON,
JOAN KOZLOWICZ, JAMES P. MAY,
PHYLLIS A. MEISTER, JAMES MEYER, DEE
MOON, EMILY NASTALLY, MARY PHALEN,
MARY E. RICHARDSON, JEAN STEWART,
PHYLLIS J. THOMAS, SANDRA F.
THOMASSON, MARIA TRUSTY, GENE T.
TUCKER, KIMBERLY WALKER, JASON
WALSH, JACK WHEELER, JOY YAGER, and
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v SC: 130063
COA: 237446
Jackson CC: 01-000755-NO
W.A. FOOTE MEMORIAL HOSPITAL, INC.,
6
Defendant-Appellant,
and
STERIS CORPORATION,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the October 28, 2005
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we VACATE the Court of Appeals order and REMAND this
case to the Court of Appeals for determination of the question whether plaintiffs have
presented valid tort claims. Contrary to the order of the Court of Appeals, consideration
of that issue does not require a remand to the Jackson Circuit Court for findings. In all
other respects, leave to appeal is denied, because we are not persuaded that the remaining
question presented should be reviewed by this Court.
CORRIGAN, J., concurs and states as follows:
I concur with the order vacating the Court of Appeals order and remanding to the
Court of Appeals for reconsideration of whether plaintiffs have presented valid tort
claims. I write separately because I agree with the dissenting Court of Appeals judge that
under Henry v Dow Chemical Co, 473 Mich 63 (2005), plaintiffs have failed to state
valid tort claims.
Plaintiffs underwent endoscopies at the defendant hospital in 2000. The hospital
later informed plaintiffs that the endoscopes used in the procedure may not have been
properly disinfected, potentially exposing them to disease. Plaintiffs filed suits alleging
negligence and claims of emotional distress. The hospital moved for summary
disposition, arguing, among other things, that plaintiffs had failed to state a claim because
they had alleged only potential, rather than actual, exposure to disease. The trial court
denied the hospital’s motion, ruling that plaintiffs had made viable claims for emotional
distress. The court determined that plaintiffs’ allegations of nervousness caused by
exposure to the unsterilized equipment were enough to state claims of physical injury,
and plaintiffs could recover for other compensable injury, including continued medical
monitoring.
In a split unpublished opinion issued June 8, 2004 (Docket Nos. 237437-237446),
the Court of Appeals majority held that because the parties had not yet conducted
discovery, it would not address whether summary disposition was appropriate where
7
plaintiffs had allegedly failed to claim any injury other than emotional distress.1 Judge
Murray, in his partial concurrence/dissent, opined that the trial court should have ruled as
a matter of law that plaintiffs cannot recover emotional distress or similar damages for
fear that they may have been exposed to disease. He opined that the law does not allow
for the recovery of such speculative damage claims.
Defendants applied for leave to appeal in this Court, and the case was held in
abeyance for Henry. 695 NW2d 68 (2005). After Henry was decided, this Court
remanded this case to the Court of Appeals for reconsideration of whether plaintiffs had
presented valid tort claims. 474 Mich 863 (2005). On remand, the Court of Appeals
majority, rather than reconsidering its decision, remanded to the trial court to develop the
record and “for specific findings as to whether plaintiffs have presented valid tort claims
in light of Henry, [supra].” Unpublished order of the Court of Appeals, entered October
28, 2005 (Docket Nos. 237437-237446). Judge Murray again dissented, repeating his
view that “plaintiffs’ claims, to the extent they were based upon the fear of future injury,
should be dismissed as uncognizable as a matter of law.” Id.
Judge Murray has correctly opined that plaintiffs’ claims should be dismissed. In
Henry, supra at 73, this Court held that “if the alleged damages 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.” Plaintiffs allege that they suffered from emotional distress caused by
the possibility of being exposed to infectious diseases from the improperly disinfected
endoscopes. In other words, plaintiffs allege that they suffered injury because of their
fear of infection. Plaintiffs do not allege that they actually contracted an infection from
exposure to the endoscopes. Thus, plaintiffs’ tort claims are based on a fear of possible
future injury and are precluded as a matter of law. Id. Further, plaintiffs are precluded
from claiming that by virtue of this potential exposure to infectious diseases, they have
suffered an “injury” in the form of the pain and expense of medical monitoring. Id.
CAVANAGH and KELLY, JJ., would deny leave to appeal.
1
The panel also held that the record was insufficient to determine whether plaintiffs’
negligence claims were based on medical malpractice or negligence.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 5, 2006 _________________________________________
p0502 Clerk