Henry v. Dow Chemical Company

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 13, 2005

GARY and KATHY HENRY, et al.,
Plaintiffs-Appellees,

v No. 125205

THE DOW CHEMICAL COMPANY
Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

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

1
According to the Attorneys’ Dictionary of Medicine, v
2, p D-145, dioxin is

[a] synthetic chemical that occurs as a byproduct
in the manufacturing of trichlorophenol. Animal
studies have shown dioxin to be a potent
carcinogen. It is also believed to have
Footnotes continued on following page.
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

teratogenic effects. Chloracne (a skin condition
similar in appearance to severe acne) is known to
be associated with exposure to dioxin; metabolic,
hepatic (liver) and neurological disturbances
have also been reported.

2

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.

3

 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.

FACTS AND PROCEDURAL HISTORY

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

4

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

5

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

6

for leave to appeal.2 Henry v Dow Chemical Co, 470 Mich 870

(2004).3

STANDARD OF REVIEW

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 NW 2d 155 (1993),

quoting Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d

164 (1984).

2
Plaintiffs have since filed a motion for partial
relief from stay, accompanied by a motion for immediate
consideration. In light of the issuance of this opinion,
we deny the motions because they are moot.
3
In January 2005, defendant entered into a settlement
agreement with the MDEQ regarding dioxin contamination in
the Tittabawassee River valley. See Hugh McDiarmid, Jr.,
Dow, state OK plan on dioxin, Detroit Free Press (January
20, 2005). The agreement, which was reached after months
of negotiation, provides that defendant will fund extensive
cleanup efforts aimed at minimizing residents’ exposure to
dioxin. Id.

7

 ANALYSIS

I

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. It is usually held

that 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

8

Prosser & Keeton, Torts (5th ed), § 30, pp 164-165

(describing this “traditional formula”).

Here, defendant argues that plaintiffs have not

established any present physical injuries, and have

therefore failed to state a valid negligence claim. We

agree. As an initial matter, it is necessary for us to

determine the exact nature of plaintiffs’ claim. We must

decide whether plaintiffs are in fact seeking compensation

for future injuries they may suffer, or for present

injuries they have suffered.

If plaintiffs’ claim is for injuries they may suffer

in the future, their claim is precluded as a matter of law,

because Michigan law requires more than a merely

speculative injury. This Court has previously recognized

the requirement of a present physical injury 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 is

manifest 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

9

proposition that mere exposure to a toxic substance and the

increased risk of future harm constitutes an “injury” for

tort purposes. It is a present injury, not fear of an

injury in the future, that gives rise to a cause of action

under negligence theory.

Here, it is clear that plaintiffs do not claim that

they have suffered any present physical harm because of

defendant’s allegedly negligent contamination of the

Tittabawassee flood plain. Indeed, plaintiffs in their

arguments to this Court expressly deny having any present

physical injuries.4

Plaintiffs have not cited an exception to the rule

that a present physical injury is required in order to

state a claim based on negligence. Nor, indeed, does the

dissent.5 We can therefore reach only one conclusion: if

the alleged damages cited by plaintiffs were incurred in

4
Specifically, plaintiffs argue that “[t]hey do not
seek compensation for physical injury or for the enhanced
risk of future physical injury. Instead, they seek to
establish a judicially administered medical screening and
diagnostic program to supervise and fund the medical
monitoring regime that a reasonable physician would advise
for persons exposed to Dow’s dioxin in the way Plaintiffs
have been and are being exposed.”
5
See post at 9, citing a California case, Miranda v
Shell Oil Co, 17 Cal App 4th 1651, 1657; 26 Cal Rptr 2d 655
(1993).

10

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.

However, if plaintiffs’ claim is that by virtue of

their potential exposure to dioxin they have suffered an

“injury,” in that any person so exposed would incur the

additional expense of medical monitoring, then their claim

is also precluded as a matter of law, because Michigan law

requires an actual injury to person or property as a

precondition to recovery under a negligence theory.

As noted in this opinion at 8, the elements that a

plaintiff in a negligence action must prove are usually

summed up in the familiar four-part test: (1) duty, (2)

breach, (3) causation, and (4) damages. Although these

four elements are usually the primary focus of a negligence

analysis, it has always been implicit in this analysis that

in order to prevail, a plaintiff must also demonstrate an

actual injury to person or property. Indeed, such injury

constitutes the essence of a plaintiff’s claim.

The logic behind this injury requirement—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

11

violated.” Cooley on Torts (4th ed), § 32 p 57.

Accordingly, an individual is entitled to relief under a

tort theory only when he has suffered a present injury.6 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).]

6
See Cooley on Torts (4th ed), § 32, pp 57-58:

Before any violation has in fact taken
place, the law assumes that none will happen; but
that each individual will respect the rights of
all others. Therefore, it does not undertake in
general to provide preventive remedies; it gives
them in a few exceptional cases, which stand on
peculiar grounds, and in which the mischiefs
flowing from an invasion of rights might be such
as would be incapable of complete redress in the
ordinary methods, or perhaps in any manner. In
most cases it is assumed that, if the law places
within the reach of every one a suitable remedy
to which he may resort when he suffers an injury,
it has thereby not only provided for him adequate
protection, but has given him all that public
policy demands. The remedies that are aimed at
wrongs not yet committed but only threatened, are
so susceptible of abuse that they are wisely
restricted within very narrow limits.

12

 While the courts of this state may not have always

clearly articulated this injury requirement, nor finely

delineated the distinction between an “injury” and the

“damages” flowing therefrom, the injury requirement has

always been present in our negligence analysis. It has

simply always been the case in our jurisprudence that

plaintiffs alleging negligence claims have also shown that

their claims arise from present physical injuries. We are

not aware of any Michigan cases in which a plaintiff has

recovered on a negligence theory without demonstrating some

present physical injury. Thus, in all known cases in

Michigan in which a plaintiff has satisfied the “damages”

element of a negligence claim, he has also satisfied the

“injury” requirement.

Plaintiffs effectively urge us to expand our common-

law jurisprudence by concluding that the traditional four-

part test can be met without also satisfying the

requirement of a present physical injury, no doubt aware

that we have never before been squarely presented with such

a claim. Until now, there has never been a need for this

Court to articulate specifically the injury requirement.

But in light of the novel nature of plaintiffs’ claims,

however, it has become necessary for us to do so today. We

13

therefore reaffirm the principle that a plaintiff must

demonstrate a present physical injury to person or property

in addition to economic losses that result from that injury

in order to recover under a negligence theory.

This requirement does not constitute a change in the

common law of this state. While we have from time to time

allowed for the development of the common law as

circumstances have required, see, e.g., Berger v Weber, 411

Mich 1; 303 NW2d 424 (1981), the injury requirement has

always been an implicit part of a negligence action in

Michigan. Had we been presented in 1869 with an action

against a blacksmith by local residents alleging that the

blacksmith’s emissions caused them the fear of physical

injury someday, we have little doubt that this Court would

have expressly articulated the injury requirement at that

time. However, such a case has never before been presented

to this Court, so it falls to us today to articulate what

this Court has always assumed: present harm to person or

property is a necessary prerequisite to a negligence claim.

The requirement of a present physical injury to person

or property serves a number of important ends for the legal

system. First, such a requirement defines more clearly who

actually possesses a cause of action. In allowing recovery

only to those who have actually suffered a present physical

14

injury, the fact-finder need not engage in speculations

about the extent to which a plaintiff possesses a

congizable legal claim. See Prosser & Keeton, Torts (5th

ed), § 30, p 165. Second, such a requirement reduces the

risks of fraud, by setting a clear minimum threshold—a

present physical injury—before a plaintiff can proceed on a

claim. By requiring a prospective plaintiff to make a

showing of an actual physical injury, present tort law thus

excludes from the courts those who might bring frivolous or

unfounded suits. In particular, the fact-finder need not

be left wondering whether a plaintiff has in fact been

harmed in some way, when nothing but a plaintiff’s own

allegations support his cause of action.

Finally, and perhaps most significantly, the

requirement of a present physical injury avoids

compromising the judicial power. The exercise of the

“judicial power” by this Court, Const 1963, art 6, § 1,

contemplates that there will be standards—legally

comprehensible standards— that guide the judicial branch's

resolution of the matters brought before it. The present

physical injury requirement establishes a clear standard by

which judges can determine which plaintiffs have stated a

valid claim, and which plaintiffs have not. In the absence

of such a requirement, it will be inevitable that judges,

15

as in the instant case, will be required to answer

questions that are more appropriate for a legislative than

a judicial body: How far from the Titibawassee River must a

plaintiff live in order to have a cognizable claim? What

evidence of exposure to dioxin will be required to support

such a claim? What level of medical research is sufficient

to support a claim that exposure to dioxin, in contrast to

exposure to another chemical, will give rise to a cause of

action?

Here, it is apparent that the only “injuries” alleged

by the putative representatives of the medical monitoring

class are “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.” Thus, plaintiffs have arguably stated a

present financial injury, i.e., damages. From this

description, however, it is apparent that plaintiffs do not

claim that they suffer from present physical injuries to

person or property. Rather, plaintiffs 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

16

but instead to screen for possible future injury. In this

way, plaintiffs’ claims depart from the principles

articulated earlier in this opinion by Justice Cooley and

by Prosser and Keeton.

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. In so doing, plaintiffs attempt to blur the

distinction between “injury” and “damages.” While

plaintiffs arguably demonstrate economic losses that would

otherwise satisfy the “damages” element of a traditional

tort claim, the fact remains that these economic losses are

wholly derivative of a possible, future injury rather than

an actual, present injury. A financial “injury” is simply

not a present physical injury, and thus not cognizable

under our tort system. Because plaintiffs have not alleged

a present physical injury, but rather, “bare” damages, the

medical expenses plaintiffs claim to have suffered (and

will suffer in the future) are not compensable.

Plaintiffs’ medical monitoring claim is also

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

17

must show an injury to his reputation.7 In a cause of

action for legal malpractice, a plaintiff must show an

injury to the fiduciary relationship between the attorney

and client.8 In each case, our common law requires a

present injury in addition to economic loss incurred as a

result of that injury.

Here, as noted, the only noneconomic injury alleged by

plaintiffs is their fear of future physical injury.

Plaintiffs’ fear, however reasonable, is still not enough

to state a claim of negligence. Even if we were to

construe plaintiffs’ claim broadly as one for emotional

distress, our common law recognizes emotional distress as

the basis for a negligence action only when a plaintiff can

7
. Locricchio v Evening News Ass’n, 438 Mich 84, 115-
116; 476 NW2d 112 (1991) (stating that the elements of
libel are “1) a false and defamatory statement concerning
the plaintiff, 2) an unprivileged communication to a third
party, 3) fault amounting to at least negligence on the
part of the publisher, and 4) either actionability of the
statement irrespective of special harm or the existence of
special harm caused by publication”).
8
Simko v Blake, 448 Mich 648, 655; 532 NW2d 842
(1995). “In order to state a cause of action for legal
malpractice, the plaintiff has the burden of adequately
alleging the following elements: ‘(1) the existence of an
attorney-client relationship; (2) negligence in the legal
representation of the plaintiff; (3) that the negligence
was a proximate cause of an injury; and (4) the fact and
extent of the injury alleged.’”) (Citation omitted.)

18

also establish physical manifestations of that distress.9

Thus, plaintiffs have not established a present, legally

cognizable injury.10

Plaintiffs advance their claim as if it satisfies the

traditional requirements of a negligence action in

Michigan. In reality, plaintiffs propose a transformation

in tort law that will require the courts of this state—in

9
See, e.g., Daley v LaCroix, 384 Mich 4, 12-13; 179
NW2d 390 (1970). See also Hesse v Ashland Oil, 466 Mich
21, 34 (2002) (Kelly, J., dissenting) (noting that a cause
of action for negligent inflication of emotional distress
requires a showing of physical harm); Prosser & Keeton,
supra, § 54, p 361 (“Where the defendant’s negligence
causes only mental disturbance, without accompanying
physical injury, illness or other physical consequences,
and in the absence of some other independent basis for tort
liability, the great majority of courts still hold that in
the ordinary case there can be no recovery.”).
10
Even assuming that the costs associated with
plaintiffs’ medical monitoring were sufficient to satisfy
the “damages” element and the injury requirement of a
negligence suit, we note that plaintiffs would still face
substantial evidentiary hurdles with respect to the
“causation” element. Significantly, while plaintiffs seek
the imposition of a medical monitoring program for the
possible health effects of elevated exposure to dioxin,
they present no evidence that they themselves have elevated
levels of dioxin in their bloodstreams, that these elevated
levels are attributable in whole or in part to defendant’s
activities, and that these elevated levels will lead to
recognized physical injuries. Further, even if plaintiffs
could show the likelihood of physical injuries like those
associated with exposure to elevated levels of dioxin, see
n 1 of this opinion, it is still unproven at this point
whether such injuries would in fact be attributable to
dioxin released by defendant, as opposed to some other
environmental or physiological cause.

19

this case and the thousands that would inevitably follow—to

make decisions that are more characteristic of those made

in the legislative, executive, and administrative

processes. For reasons that we discuss more fully in part

II, we are not prepared to acquiesce in this

transformation.

Plaintiffs maintain that this Court implicitly

recognized a medical monitoring cause of action in

Meyerhoff v Turner Constr Co, 456 Mich 933 (1998). In

Meyerhoff, 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.” Meyerhoff 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

20

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.11

11
While, given the language in Meyerhoff, it was
certainly not unreasonable for the trial court in the
instant case to decline summary disposition, Meyerhoff
nonetheless is an exceedingly thin reed on which to rest
arguments in favor of a medical monitoring cause of action—
a reed that must give way under the vastly greater weight
Footnotes continued on following page.

21

 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

of Michigan precedent, which requires a manifest physical
injury in order to state a viable negligence claim.
Meyerhoff's Delphic allusion to a medical monitoring claim
was, at most, mere dictum. The trial court thus erred in
allowing plaintiffs’ claim to proceed to trial.

22

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

Meyerhoff, Gasperoni does not provide any reason to

conclude affirmatively that a cause of action for medical

monitoring is cognizable under Michigan law.

II

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.

23

 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, supra.

But as Justice Young has recently observed, our common-law

jurisprudence has been guided by a number of prudential

principles. See Young, A judicial traditionalist confronts

the common law, 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—

24

would create a potentially limitless pool of plaintiffs.12

See, e.g., Schwartz, Medical monitoring: Should 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

12
This was the precise situation that developed in
West Virginia after the West Virginia Supreme Court of
Appeals recognized a cause of action for medical monitoring
in Bower v Westinghouse Electric Corp, 206 W Va 133, 140;
522 SE2d 424 (1999). Shortly after the Bower decision, a
classaction was filed against major cigarette manufacturers
on behalf of approximately 270,000 West Virginia smokers
who had not been diagnosed with any smoking-related
diseases. See In re Tobacco Litigation (Medical Monitoring
Cases), No. 00-C-6000 (W Va, Ohio County Cir Ct, 2001). In
another medical monitoring classaction filed in West
Virginia, healthy plaintiffs from seven states (Illinois,
Indiana, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia) are seeking medical monitoring on the basis of
alleged exposure to toxic materials. See Stern v Chemtall,
Inc, No. 03-C-49M (W Va, Kanawha County Cir Ct, 2001).

25

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.13We 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).14

13
It should not need explication that a balancing of
private interests is invariably present in all legislation
that establishes benefits and burdens. To name but a few:
worker’s compensation, unemployment compensation, and
occupational health and safety. Such balancing is the
essence of representative government. It is for precisely
this reason that the decision whether and how to recognize
a medical monitoring cause of action should be made by the
people’s representatives in the legislative branch of our
government. See part III of this opinion.
14
Some legal scholars and commentators have also
noted the undesirability of judicially sanctioned medical
monitoring claims. See, e.g., Guzelian, supra, p 100
Footnotes continued on following page.

26

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

(“Ill-considered monitoring can also deter diseased
individuals who are erroneously proclaimed healthy from
returning promptly when symptoms do present, and can lead
to severe psychological harm. In addition, the economic,
manpower, and time costs for such programs are usually
substantial.”); Martin & Martin, Tort actions for medical
monitoring: Warranted or wasteful?, 20 Colum J Envtl L 121,
142-143 (1995) (“[C]reating a new cause of action for
medical monitoring that eliminates one of the traditional
elements of tort actions does not seem warranted. Its
deterrent value is negligible; its compensatory function
should be rendered moot by changes in the health care
system; and the costs of subsequent litigation will exceed
the benefits obtained.”).

We cite these studies not, as the dissent argues, to
endorse the authors’ views, post at 17-18, but to observe
that it is far from settled that judicially supervised
medical monitoring is an unmitigated benefit for all
concerned.

We also note that, while certification of a class
necessarily recognizes that common issues of law or fact
may predominate over individual questions at the time of
certification, see MCR 3.501(A)(1)(b), there is no
guarantee that such common issues will continue over time
to predominate in the instant case, particularly in light
of the apparently perpetual duration of the proposed
monitoring program. Rather, it is more likely that
increasingly competitive interests will arise within the
putative class of plaintiffs—interests that must be
carefully weighed against each other. The likelihood that
the interests of putative class members will diverge is yet
another reason for judicial deference to the Legislature in
this case.

27

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).15

We share the concerns raised by the United States

Supreme Court in Buckley. Simply put, judicial recognition

15
It is a reality of modern society that we are all
exposed to a wide range of chemicals and other
environmental influences on a daily basis. For that reason
alone, this Court should be wary of accepting plaintiffs’
invitation to venture down the slippery slope that a
medical monitoring cause of action would necessarily
traverse. As the Supreme Court noted in Buckley: “tens of
millions of individuals may have suffered exposure to
substances that might justify some form of substance-
exposure-related medical monitoring.” 521 US at 442.
Thus, even if we were to create a medical monitoring cause
of action, in light of both the essentially limitless
number of such exposures and the limited resource pool from
which such exposures can be compensated, a “cutoff” line
would still inevitably need to be drawn. The Legislature
is better suited to draw lines of this sort, because such
decisions are fraught with difficult policy determinations.

28

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?

29

 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

30

which to base a resolution.16 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

16
We note that plaintiffs are in effect asking us to
create policy, not simply consider it. We have previously
cautioned against this Court acting as a policy-making
body:

As a general rule, making social policy is a
job for the Legislature, not the courts. This is
especially true when the determination or
resolution requires placing a premium on one
societal interest at the expense of another: The
responsibility for drawing lines in a society as
complex as ours—of identifying priorities,
weighing the relevant considerations and choosing
between competing alternatives—is the
Legislature’s, not the judiciary’s. [Van v
Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1990))
(citations and quotations omitted).]

31

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.17

Ours, after all, is a government founded on the

principle of separation of powers.18 In certain instances,

the principle of separation of powers is an affirmative

constitutional bar on policy-making by this Court.19 In

other cases, however, the separation of powers

17
In suggesting that the “only question” properly
posed in this case involves who should pay the costs of
medical monitoring and environmental cleanup, post at 2,
the dissent misapprehends the real question: what is the
appropriate venue for determining the answer to the
question? It is this question, not that posited by the
dissent, that fundamentally divides the majority and the
dissenting opinions.
18
See Const 1963, art 3, § 2: "The powers of
government are divided into three branches: legislative,
executive and judicial. No person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution."
19
See, e.g., Mayor of Lansing v Pub Service Comm, 470
Mich 154, 161; 680 NW2d 840 (2004) (“Our task, under the
Constitution, is the important, but yet limited, duty to
read and interpret what the Legislature has actually made
the law. We have observed many times in the past that our
Legislature is free to make policy choices that, especially
in controversial matters, some observers will inevitably
think unwise. This dispute over the wisdom of a law,
however, cannot give warrant to a court to overrule the
people's Legislature.”).

32

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.20

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.21

20
The Illinois Supreme Court recently expressed
precisely this concern while rejecting a nuisance claim
asserted by the city of Chicago and Cook County against
various gun manufacturers and distributors. City of
Chicago v Beretta USA Corp, 213 Ill 2d 351; 290 Ill Dec
525; 821 NE2d 1099 (2004). In rejecting the plaintiffs’
claim that nuisance law should be expanded to hold the
defendants responsible for the costs of gun violence, the
court concluded:

Any change of this magnitude in the law
affecting a highly regulated industry must be the
work of the legislature, brought about by the
political process, not the work of the courts.
In response to the suggestion of amici that we
are abdicating our responsibility to declare the
common law, we point to the virtue of judicial
restraint. [Id. at 433.]
21
Recent events in Louisiana reinforce the notion that
the decision whether to permit a cause of action for
medical monitoring is one that belongs to the Legislature.
Footnotes continued on following page.

33

 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

In Bourgeois v AP Green Industries, Inc, 716 So 2d 355
(La, 1998), the Louisiana Supreme Court concluded that a
cause of action for medical monitoring was cognizable under
then-La Civ Code Ann, art 2315, which provided, “Every act
whatever of man that causes damage to another obliges him
by whose fault it happened . . . .” Although the court
recognized that Louisiana law had not previously allowed
the recovery of medical expenses “[a]bsent a corresponding
physical injury,” Bourgeois, supra at 358, the court
decided to follow “a majority of state supreme courts faced
with the issue” in recognizing a medical monitoring cause
of action. Id. at 359. The court held, however, that
medical monitoring expenses satisfied the “damage”
requirement of art 2315 only if seven criteria were met.
Id. at 360-361.

In response, the Louisiana legislature added the
following language to art 2315, clearly indicating its
disagreement with the Louisiana Supreme Court’s decision in
Bourgeois:

Damages do not include costs for future
medical treatment, services, surveillance, or
procedures of any kind unless such treatment,
services, surveillance, or procedures are
directly related to a manifest physical or mental
injury or disease. [1999 La Acts 989, now
codified at La Civ Code Ann art 2315(B).]

See, generally, Comment, Implications of amending Civil
Code Article 2315 on toxic torts in Louisiana, 60 La L R
833 (2000).

34

eligibility for participation in such a program.22 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.23 The day-to-day operation of a medical monitoring

22
An example of just a few of the questions facing a
court in determining eligibility for such a monitoring
program would include: How old does the applicant have to
be? How long must an applicant have lived in the affected
area? Where, exactly, is the “affected area”? Must the
applicant have measurable levels of dioxin in the
bloodstream to qualify? If so, what is the threshold level
of dioxin an applicant must have for eligibility?

The dissent’s argument underscores the difficulty
presented by such an inquiry. Justice Cavanagh does not
“advocate that any exposure allows a person to bring a
claim for medical monitoring costs.” Post at 6 (emphasis
in dissent). But if “any” exposure is not enough on which
to rest such a claim, how much exposure is enough? The
dissent apparently recognizes that a cutoff line must
necessarily be drawn, in light of the competing interests
at stake, but fails to offer any standards to be used in
locating that line. However, such a line, if it is to be
drawn at all, must be drawn not by this Court, but by the
Legislature—the branch of government best able to balance
the relevant interests in light of the policy
considerations at stake.
23
An example of some of the questions facing a court
in administering the monitoring program would include: How
would claims be filed? How would claims be processed? Who
would do the processing—court staff or a private contract
firm? Would a claimant be free to receive testing from any
medical facility he chooses, or would a claimant’s choice
Footnotes continued on following page.

35

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

of testing facility be limited? To keep down costs of the
program, could defendant be permitted to establish a
“preferred provider network” of medical professionals such
that claimants could only be tested within the network? In
the absence of such a network, would claimants be limited
to the usual and necessary costs for such services, or is
the sky the limit? How would the system reconcile two
different physicians’ opinions of what is “reasonable” in
terms of medical testing? Would there be a grievance
procedure? Would defendant be billed directly, or would it
periodically pay into a fund?

36

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.24

24
Legislators face a far different decision-making
calculus than judges face. As one scholarly work recently
observed:

Legislatures are in the best position to
consider far-reaching and complex public policy
issues. First, they can gather facts from a wide
range of sources to help lawmakers decide whether
the law should be changed and, if so, what sorts
of changes should be made. Second, legislatures
make law prospectively, which gives the public
fair notice about significant legal
changes. . . . Third, they must be sensitive to
the will of the public; if they are not, the
public can vote them out of office. In our
democratic system, if far-reaching public policy
decisions are to be made, the public should have
the opportunity to evaluate those changes and
express their agreement or disagreement in the
voting booth.
Courts, on the other hand, are best suited
to make incremental changes over time. Judges
decide cases one at a time. Their information-
gathering is limited to one set of facts in each
lawsuit, which is shaped and limited by arguments
from opposing counsel who seek to advance purely
private interests. Second, judges “make law”
retroactively. This creates notice and fairness
problems. Third, there is no “public light”
placed on judicial lawmaking. Judges in many
states are appointed, not elected. The public
has no voice in and must accept judicial will.
When judges are elected, the public is generally
Footnotes continued on following page.

37

 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.

unaware of the legal opinions the judges have
written or the impact of those opinions on
society. [Schwartz & Lorber, State Farm v Avery:
State court regulation through litigation has
gone too far, 33 Conn L R 1215, 1219-1220
(2001).]

38

 (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

39

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.25 It is apparent, therefore, that the

25
We cite the NREPA not to comment on its adequacy as
a remedy for addressing environmental contamination or its
effectiveness in dealing with dioxin contamination in the
Tittabawassee flood plain, or to suggest that the NREPA
constitutes the only appropriate remedy in dealing with
“toxic tort” types of cleanups. Rather, the Legislature
may, in due course, choose to enact additional legislation
dealing with such cleanups, and the MDEQ may, in due
course, decide that additional measures need to be taken to
address dioxin levels in the Tittabawassee flood plain. We
note the statutory framework merely to highlight that the
NREPA arises as a result of a balancing of competing policy
interests made by the people’s elected representatives, and
that the MDEQ, in administering the NREPA within the
Footnotes continued on following page.

40

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.26

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:

executive branch, must undertake decisions grounded in its
own expertise.
26
We are aware that a number of courts in other
jurisdictions have allowed claims for medical monitoring to
proceed. See, e.g., Petito v AH Robins Co, Inc, 750 So 2d
103 (Fla App, 1999); Hansen v Mountain Fuel Supply Co, 858
P2d 970 (Utah, 1993); In re Paoli Railroad Yard PCB
Litigation, 916 F2d 829 (CA 3, 1990); Ayers v Jackson Twp,
106 NJ 557; 525 A2d 287 (1987); Burns v Jaquays Mining
Corp, 156 Ariz 375; 752 P2d 28 (Ariz App, 1987); Friends
for All Children, Inc v Lockheed Aircraft Corp, 241 US App
DC 83; 746 F2d 816 (1984). We find none of the rationales
in these cases persuasive.

41

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.27

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

27
Amici have urged us to view plaintiffs’ medical
monitoring claim as a request for a preliminary injunction,
arguing that an injunction may be granted even if
irreparable harm or injury has not yet occurred. Michigan
Coalition of State Employee Unions v Civil Service Comm,
465 Mich 212, 228; 634 NW2d 692 (2001). But this argument
disregards that, in order to obtain a preliminary
injunction, the movant must establish that he “is likely to
prevail on the merits . . . .” Michigan State Employees
Ass'n v Dep’t of Mental Health, 421 Mich 152, 158; 365 NW2d
93 (1984). Thus, a court’s prerogative to grant a
preliminary injunction is tempered by the need to determine
whether the movant has pleaded a claim on which he might
ultimately obtain relief.

42

their medical monitoring claim to proceed.28 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

28
For example, plaintiffs’ brief argues, “Plaintiffs
seek to certify a class of individuals who, as a result of
Dow’s negligence, have suffered substantially increased
risks of exposure to dioxin, and from this exposure,
increased risks of developing grave but latent diseases and
adverse health effects.” (Emphasis added.) They add,
“These innocent victims of Dow’s negligence should receive
periodic medical testing so that early detection and
treatment can minimize the impact of any resulting
illness.” (Emphasis added.)

43

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 plaintiff has 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

justices ought to impose upon the people. Our decision in

44

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.29

29
We also note that there would be no statute of
limitations problems for such a plaintiff. Under the so-
Footnotes continued on following page.

45

 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.30 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

called “discovery rule,” a cause of action “accrues” in the
toxic tort context when an injured party knows or should
have known of the manifestation of the injury. See, e.g.
Larson, supra at 314. Provided that the injured person
brings an action within three years of the date he knows or
should have known of a dioxin-related injury, the statute
of limitations would be satisfied. See MCL 600.5805(10).
30
See Metro-North Commuter R Co, supra at 442.

46

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

47

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 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 19-20 (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.

48

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.

49

 Our nation’s experience with asbestos litigation has

shown that this concern was well-founded.31 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

31
See, e.g., Schwartz et al., Addressing the
“elephantine mass” of asbestos cases: consolidation versus
inactive dockets (pleural registries) and case management
plans that defer claims filed by the non-sick, 31 Pepp L R
271, 273-274 (2003) (noting that asbestos litigation has
led to “at least 78” bankruptcies, leading to “staggering”
effects on the economy and, worse, fewer resources for the
“truly sick”).

50

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

51

 S T A T E O F M I C H I G A N

SUPREME COURT

GARY and KATHY HENRY, et al.,
Plaintiffs-Appellees,

v No. 125205

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 24, 31.1

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

1
The article is based on remarks Justice Young made at
a joint Federalist Society/Ave Maria Law School symposium.
drawing of lines reflecting considerations of public

policy. Ante at 24, 30-31.

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),2 and Van v

Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).3 Because

there is binding case law for these propositions, the

citations of the article written by one of the justices

2
Olmstead noted approvingly that, in a prior case,
“[t]he Court, therefore, applied the public policy
exception to the lex loci doctrine, rather than making
sweeping changes [by reappraising Michigan’s entire
conflict of laws policy] with potential unforeseen
consequences.”
3
In Van, supra at 327, the Court quoted the following
passage from the earlier Court of Appeals opinion in that
case, 227 Mich App 90, 95; 575 NW2d 566 (1997):

“As a general rule, making social policy is
a job for the Legislature, not the courts. See
In re Kurzyniec Estate, 207 Mich App 531, 543;
526 NW2d 191 (1994). This is especially true
when the determination or resolution requires
placing a premium on one social interest at the
expense of another: ‘The responsibility for
drawing lines in a society as complex as ours—of
identifying priorities, weighing the relevant
considerations and choosing between competing
alternatives—is the Legislature’s, not the
judiciary’s.’ O’Donnell v State Farm Mut
Automobile Ins Co, 404 Mich 524, 543; 273 NW2d
829 (1979).”

2

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.[4]
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.5

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

4
Young, A judicial traditionalist confronts the common
law, 8 Texas Rev L & Pol 299, 302 (2004).
5
Michigan’s Constitution adopted the common law that
was in force in 1963: “The common law and the statute laws
now in force, not repugnant to this constitution, shall
remain in force until they expire by their own limitations,
or are changed, amended or repealed.” Const 1963, art 3, §
7.

3

 S T A T E O F M I C H I G A N

SUPREME COURT

GARY and KATHY HENRY, et al,

Plaintiffs-Appellees,

v No. 125205

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

2

plain, which substantially exceeds Michigan’s cleanup

standard of ninety ppt for direct residential contact.1

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

1
The Michigan Department of Community Health, the
Michigan Department of Environmental Quality, and the
Michigan Department of Agriculture state that “recent
studies suggest that dioxins may be far more harmful to
human health than was previously believed and these
standards [referring to standards for drinking water and
eating fish and shellfish] as well as others set for soil,
sediment, and food may change in the future.” Dioxins Fact
Sheet.

3

environment for an extremely long time.2 When dioxin gets

into a person’s body, it stays indefinitely in a 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

2
The majority notes that defendant has entered into a
settlement agreement in which “defendant will fund
extensive cleanup efforts aimed at minimizing residents’
exposure to dioxin.” Ante at 7 n 3. The specifics of this
agreement indicate that defendant is willing to pay for
items such as landscaping some homes to cover exposed soil
and augmenting some ground cover in public parks; however,
defendant remains unwilling to pay for any necessary
medical monitoring costs as a result of its dioxin
contamination.

4

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

5

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

6

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 24, 33.3

3
Also, contrary to the majority’s assertion, Larson v
Johns-Manville Sales Corp, 427 Mich 301, 304-305; 399 NW2d
1 (1986), does not affect the decision before the Court
today. Larson dealt with the statute of limitations for
Footnotes continued on following page.

7

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

causes of action for asbestosis and cancer related to
asbestos exposure. This Court held that a cause of action
for asbestosis or cancer related to asbestos exposure
accrues when a person learns or should learn that he has
developed asbestosis or cancer, not when he was first
exposed to asbestos. This was necessary because the
underlying claims in Larson were wrongful death actions
premised on asbestosis and cancer. A person cannot bring a
wrongful death claim for asbestosis until the victim
actually has asbestosis. But Larson has no effect on
whether plaintiffs can seek an equitable remedy for a
court-supervised medical monitoring program that is
administered by health professionals.

8

traditional tort action. See, e.g., Paoli, supra at 852

(“Medical monitoring claims acknowledge that, in a toxic

age, significant harm can be done to an individual by a

tortfeasor, notwithstanding latent manifestation of that

harm.”); Cook v Rockwell Int’l Corp (Cook I), 755 F Supp

1468, 1476 (D Colo, 1991) (“injuries resulting from

exposure to toxic substances are often latent”). But

merely because an illness is latent does not mean that

plaintiffs have not been injured and suffered damages.4

A plaintiff who is involved in an automobile
accident and suffers no observable physical
injury but nevertheless undergoes medically
necessary diagnostic tests to determine whether
internal injuries exist is no doubt entitled to
recover the costs of the examination. If
accepted medical practice also deemed it
necessary to perform such tests in the future, in
order to detect the onset of any subsequently
developing injury caused by the accident, the
costs of the continued tests would be recoverable
. . . . The outcome should be the same when the
operative incident is toxic exposure rather than
collision and the potential future harm is
disease rather than physical impairment.
[Miranda v Shell Oil Co, 17 Cal App 4th 1651,
1657; 26 Cal Rptr 2d 655 (1993).]

4
“The ‘injury’ that underlies a claim for medical
monitoring--just as with any other cause of action sounding
in tort--is ‘the invasion of any legally protected
interest.’” Bower, supra at 139, quoting Restatement
Torts, 2d, § 7(1) (1964).

9

See also Friends for All Children, Inc v Lockheed Aircraft

Corp, 241 US App DC 83, 92; 746 F2d 816 (1984).

Because of the established facts in this case, a

court-supervised medical monitoring program that is

administered by qualified health professionals is a viable

and equitable remedy for plaintiffs to seek that is

nonpreclusive of any future damages claim. See, e.g, Day v

NLO, Inc, 811 F Supp 1271, 1275 (SD Ohio, 1992) (“Because

of ongoing court supervision, any medical monitoring

awarded by this Court would constitute equitable relief.”).

An equitable remedy is necessary because there is no

adequate legal remedy for plaintiffs. See Multiplex

Concrete Machinery Co v Saxer, 310 Mich 243, 259-260; 17

NW2d 169 (1945); Powers v Fisher, 279 Mich 442, 447; 272 NW

737 (1937). “The absence of precedents, or novelty in

incident, presents no obstacle to the exercise of the

jurisdiction of a court of equity, and to the award of

relief in a proper case.” 30A CJS, Equity, Effect of

Absence of Precedents, § 10, pp 171-172; see also 27A Am

Jur 2d, Equity, § 100, p 587 (“The appropriateness of the

equitable remedy is determined by current rather than past

conditions.”). “The essence of a court’s equity power lies

in its inherent capacity to adjust remedies in a feasible

and practical way to eliminate the conditions or redress

10

the injuries caused by unlawful action.” Freeman v Pitts,

503 US 467, 487; 112 S Ct 1430; 118 L Ed 2d 108 (1992).

It is within the sound discretion of the courts

whether to offer equitable relief. Youngs v West, 317 Mich

538, 545; 27 NW2d 88 (1947). Regardless of how plaintiffs

may have characterized their pleadings, “[t]he court has

equitable jurisdiction to provide a remedy where none

exists at law, even if the parties have not specifically

requested an equitable remedy, whenever the pleadings

sufficiently give notice of a party’s right to relief and

demand for judgment.” 30A CJS, Equity, Lack of Remedy at

Law as Ground and Limit of Jurisdiction, § 18, p 180; see

also 27A Am Jur 2d, Equity, § 216, p 699 (“Equity

jurisdiction nevertheless may arise even though the

claimant has pleaded no equitable claims and has not

pleaded inadequacy of the remedy at law.”); Parkwood Ltd

Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich

763, 774 n 8; 664 NW2d 185 (2003). However, contrary to

the majority’s assertion, plaintiffs indeed ask for

equitable relief as it relates to medical monitoring.

Plaintiffs’ complaint states that they have no adequate

remedy at law and they seek “equitable/injunctive relief in

the form of a medical monitoring program . . . .”

11

 While the majority argues that the separation of

powers precludes it from allowing plaintiffs to proceed, I

strongly disagree. The majority’s framing of the issue and

its subsequent argument allow it to claim that “[w]e take

no position on whether defendant should or should not pay

for the costs of monitoring for dioxin-related disease.”

Ante at 44. The majority’s argument is essentially that

its hands are tied because the Legislature has not acted.

But this argument ignores a basic tenet of our system of

jurisprudence–courts have the inherent power to provide

equitable remedies. “Every equitable right or interest

derives not from a declaration of substantive law, but from

the broad and flexible jurisdiction of courts of equity to

afford remedial relief, where justice and good conscience

so dictate.” 30A CJS, Equity, In general, § 93, p 289.

The majority’s steadfast insistence that it cannot allow

plaintiffs to proceed because the Legislature has not acted

allows the majority to sidestep the issue, instead of

explicitly stating and supporting its position that these

plaintiffs are unworthy of relief.

Because principles of equity are firmly entrenched in

our justice system, plaintiffs’ position would not require

this Court to depart from longstanding principles

fundamental to our justice system. “The purpose of equity

12

is to do complete justice in a case where a court of law is

unable, because of the inflexibility of the rules by which

it is bound, to adapt its judgment to the special

circumstances of the case.” 27A Am Jur 2d, Equity, Nature,

Purpose, and Distinguishing Features, § 2, pp 520-521.

“[E]quity is the perfection of the law, and is always open

to those who have just rights to enforce where the law is

inadequate.” Grand Lodge of the Ancient Order of United

Workmen of the State of Michigan v Child, 70 Mich 163, 172;

38 NW 1 (1888). Allowing plaintiffs to merely proceed to

seek a court-supervised medical monitoring program under

equity principles certainly does not stray from the

foundations of Anglo-American law.

III. EQUITABLE RELIEF PROPERLY PLACES THE
RESPONSIBILITY FOR ANY MEDICAL MONITORING COSTS ON
DEFENDANT, THE PARTY RESPONSIBLE FOR IMPOSING
THE COSTS ON PLAINTIFFS

Throughout its opinion, the majority invokes the fear

of a ruined economy to support its decision. But the

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. “A medical monitoring claim

compensates a plaintiff for diagnostic treatment, a

13

tangible and quantifiable item of damage caused by a

defendant’s tortious conduct.” Cook I, supra at 1478; see

also Paoli, supra at 850. Notably, these plaintiffs would

receive no money whatsoever. Payments for doctor-

prescribed testing would be made through a court-supervised

fund. This fund would only compensate plaintiffs for

medical monitoring costs actually incurred after the

monitoring was ordered by a qualified health professional.

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.5

5
This is in contrast to the relief sought in Metro-
North Commuter R Co v Buckley, 521 US 424, 439-441; 117 S
Ct 2113; 138 L Ed 2d 560 (1997). In Metro-North, an
employee sought a change in the common law that would
permit a lump-sum damages award for medical monitoring
costs. The Court stated the following:

[W]e do not find sufficient support in the
common law for the unqualified rule of lump-sum
damages recovery that is, at least arguably,
before us here. And given the mix of competing
general policy considerations, plaintiff’s
policy-based arguments do not convince us that
the FELA [Federal Employers’ Liability Act]
contains a tort liability rule of that
unqualified kind.

This limited conclusion disposes of the
matter before us. We need not, and do not,
express any view here about the extent to which
the FELA might, or might not, accommodate medical
Footnotes continued on following page.

14

 Notably, the majority’s concerns about financial

impact can actually be alleviated to a great degree by

allowing plaintiffs’ practical, proactive approach. A

court-supervised medical monitoring program administered by

qualified health professionals would provide early

detection to plaintiffs and likely lessen the fiscal

damages that defendant would be liable for if dioxin-

related illnesses are discovered later. The early

detection of illnesses may allow treatment to proceed in a

more reasonable manner, often with more options for the

person affected than if detection had been delayed. See

Bower, supra at 140. “It is common knowledge early

diagnosis of many serious conditions promotes enhanced cure

and survival rates.” Miranda, supra at 1658. “Harm in the

form of increased risk of future cancer attributable to

delay in diagnosis and treatment has become so widely

accepted by the medical community that the existence of

such harm could be reasonably inferred from this

cost recovery rules more finely tailored than the
rule we have considered. [Id. at 444.]

As Justice Ginsburg, concurring in part and dissenting
in part, in Metro-North, supra at 455-456, noted, “If I
comprehend the Court’s enigmatic decision correctly,
Buckley [the employee] may replead a claim for relief and
recover for medical monitoring, but he must receive that
relief in a form other than a lump sum.”

15

professional common knowledge.” Evers v Dollinger, 95 NJ

399, 424; 471 A2d 405 (1984). “[E]xperts continuously urge

vigilant detection as the most realistic means of improving

prognosis . . . .” Id. at 426 n 2, citing Rubin, Clinical

Oncology for Medical Students and Physicians (3d ed, 1970-

1971), p 33. The intent of medical monitoring is “to

facilitate early diagnosis and treatment of disease or

illness caused by a plaintiff’s exposure to toxic

substances as a result of a defendant’s culpable conduct.”

Miranda, supra at 1655. Plaintiffs’ counsel clearly

articulated just such an example of the benefits of medical

monitoring:

Let me give you a very clear example of how
medical monitoring would work in an instance like
this. Say there’s a woman of child bearing age
and her blood is tested for high levels of dioxin
and she is found to have high levels of dioxin,
95th percentile or so in her body. Medical
doctors who are familiar with dioxin
contamination say well one of the possible
results of having high levels of dioxin
contamination in your blood is that you may have
depressed thyroid function. So they do a very
simple test, a standard test for thyroid function
and find out that there is depression of thyroid
function. She is then treated and birth defects
that are linked to depressed thyroid function do
not happen to her [child]. She does not have a
child with a birth defect because that
preventative measure prevented that irreparable
harm.

16

The establishment of a court-supervised fund for medical

monitoring “encourages plaintiffs to detect and treat their

injuries as soon as possible.” Paoli, supra at 852.

Notably, the majority fails to mention that plaintiffs

would not be forced to engage in medical monitoring tests

if they chose not to. A court-supervised medical

monitoring program would allow plaintiffs to make a choice,

and those who choose to be monitored and who meet the

requirements set forth by qualified health professionals

could be monitored.

The majority also notes an argument—not often heard—

that monitoring for the early detection of illnesses can

actually be bad for plaintiffs because a person with an

illness who is erroneously proclaimed healthy may ignore

symptoms and, therefore, delay seeking necessary treatment,

possibly leading to severe psychological harm. The only

logical import from stating these arguments is that because

plaintiffs may also be the victims of medical malpractice

they should consider not going to a doctor to determine if

defendant’s contamination of the environment poisoned them.

But a fear of medical malpractice should certainly not

result in the position that plaintiffs should forgo

necessary medical testing. While the majority states that

it does not cite these viewpoints to endorse them, but

17

merely to note their existence, the majority’s citation at

the very least indicates that it deems them relevant

considerations. I, however, do not believe that the

possibility of medical malpractice should be used to

support the notion that plaintiffs are not deserving of an

equitable remedy.

Also, contrary to the majority, I do not believe that

an equitable remedy should be refused merely because

administering the remedy may be inconvenient or even

difficult. “Rather, the true principle [of equitable

relief] seems to be that the hardship of the plaintiff is

balanced against the inconveniences and difficulties

anticipated by the court, which principle is sometimes

called the ‘balance of convenience.’” 27A Am Jur 2d,

Equity, § 101, p 587. Indeed, the desegregation of our

nation’s schools was certainly not an easy task, yet the

United States Supreme Court found that overseeing this

process was an appropriate equitable remedy for the courts.

Brown v Bd of Ed of Topeka, 349 US 294, 300; 75 S Ct 753;

99 L Ed 1083 (1955) (“Traditionally, equity has been

characterized by a practical flexibility in shaping its

remedies and by a facility for adjusting and reconciling

public and private needs.”). I certainly believe that a

court in our state, just as courts have done in other

18

states, can determine a suitable way to administer a

medical monitoring program. See, e.g., Cook v Rockwell

Int’l Corp, 778 F Supp 512, 515 (D Colo, 1991) (Cook II);

Burns v Jaquays Mining Corp, 156 Ariz 375, 380-381; 752 P2d

28 (1987); 27A Am Jur 2d, Equity, § 103, p 588 (“[A] court

of equity is clothed with the authority to designate a

commission, master, receiver, or agent of the court to

effectuate and supervise compliance with its decrees and

orders.”).

Finally, not content to merely present this case as

one in which allowing plaintiffs to seek an equitable

remedy would devastate the economy of Michigan, the

majority also seeks to pit plaintiffs against “those

devastated by cancer, birth defects, and other dioxin-

related diseases . . . .” Ante at 46. While the majority

accuses the dissent of countless transgressions, 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 within the bounds of

19

judicial discretion and will not devastate the economy or

cause sick children to die.

IV. A FURTHER REVIEW OF THE ECONOMIC CONSIDERATIONS OF
PLAINTIFFS’ CLAIM INDICATES THAT EQUITABLE RELIEF IS PROPER

At its core, this is not a complex case. Defendant

contaminated the environment with dioxin. Because of

defendant’s conduct, plaintiffs require medical monitoring

to ensure that the negative effects of defendant’s acts can

be best countered. Medical monitoring costs money.

Plaintiffs, defendant, or the taxpayers of the state of

Michigan must pay the costs. Because plaintiffs only

require medical monitoring as a result of defendant’s

conduct, it seems clear that it is reasonable that

defendant pay the costs.6 This is not meant to punish

defendant; it merely seeks to hold defendant to the

reasonable standard that a polluter pays for the costs of

polluting. “The mere fact that a wrongdoer may suffer,

6
The theory behind a claim for medical
monitoring is simple. When a plaintiff is
exposed to a hazardous substance, it is often
sound medical practice to seek periodic medical
monitoring to ascertain whether the plaintiff has
contracted a disease. Because this need for
medical monitoring was caused by a defendant’s
tortious acts or omissions, a defendant may be
required to pay the cost of monitoring. [Cook I,
supra at 1477.]

20

however, will not deter equity from granting relief to an

injured party.” 27A Am Jur 2d, Equity, § 102, p 588.

The majority’s decision that plaintiffs cannot seek

equitable relief is indefensible when one realizes that its

position leaves plaintiffs who cannot afford to pay for

doctor-prescribed medical monitoring with no recourse.

“Special tests are available to measure dioxin levels in

body fat, blood, and breast milk, but these tests are very

expensive and are not routinely available to the public.”

Dioxins Fact Sheet, supra. “Indeed, in many cases a person

will not be able to afford such tests, and refusing to

allow medical monitoring damages would in effect deny him

or her access to potentially life-saving treatment.”

Hansen v Mountain Fuel Supply Co, 858 P2d 970, 976 (Utah,

1993) (medical monitoring costs may be awarded even when

the plaintiffs have not yet suffered from any asbestos-

related illnesses). As plaintiffs’ counsel stated,

researchers conducting the pilot studies “have been

besieged by people begging to have their blood tested and

particularly begging to get their children tested because

it’s very difficult to do that by yourself. . . . it’s

really, really hard for individuals to get them done

because it’s cost prohibitive and beyond that it’s just not

available to them as individuals.”

21

 Whatever its intent, the majority’s result protects a

wrong-doing corporation at the expense of the health of the

people wronged. But we cannot turn a blind eye to

defendant’s repeated contamination of our state’s

environment because holding defendant accountable may

negatively affect its profits. If defendant cannot produce

its product without behaving responsibly, then it has no

business operating within our state. The lives of the

people in the affected area are worth more than defendant’s

financial well-being, even if it were indeed at stake. And

contrary to the majority’s position, I am fully aware of

the “real-world effects” of today’s decision, as plaintiffs

most certainly will be as well. The “real-world effects”

are that defendant, the party responsible for plaintiffs’

need for medical monitoring, will not bear any of the costs

of its wrongdoing. Rather, the burden now falls on

plaintiffs’ shoulders.

The decision to turn our backs on plaintiffs because

we have not yet faced a case so egregious violates the

trust that the people of the state of Michigan have placed

in us. “Our oath is to do justice, not to perpetuate

error.” Montgomery v Stephan, 359 Mich 33, 38; 101 NW2d

227 (1960). “Lack of precedent cannot absolve a common-law

court from responsibility for adjudicating each claim that

22

comes before it on its own merits.” Berger v Weber, 411

Mich 1, 12; 303 NW2d 424 (1981). “It is the distinguishing

feature of equity jurisdiction that it will apply settled

rules to unusual conditions and mold its decrees so as to

do equity between the parties.” 30A CJS, Equity, Effect of

Absence of Precedents, § 10, p 172. Where a claim is

equitable in nature, exercising discretion may be necessary

to ensure that an unconscionable decree is not entered.

Kratze v Independent Order of Oddfellows, 442 Mich 136,

142; 500 NW2d 115 (1993). And that discretion most

certainly should be exercised in this case.

While no one can say with certainty which plaintiffs

will contract illnesses, suffer, and die because of their

increased exposure to dioxin, this does not mean that

plaintiffs cannot seek an equitable remedy. The

unfortunate reality is that dioxin causes cancer, birth

defects, and other illnesses. The prolonged exposure of

plaintiffs to such high levels of dioxin puts them at a

vastly increased risk. When a qualified health

professional believes that it is in a patient’s best

interest to administer medical testing that would not be

required if it were not for defendant’s acts, this Court

should not deny plaintiffs the ability to seek this modest

remedy.

23

 V. THE “REMEDY” OFFERED BY THE NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION ACT DOES NOT PRECLUDE PLAINTIFFS’

CAUSE OF ACTION

The majority states that the Legislature has already

provided plaintiffs with a remedy because 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

. . . .” Ante at 38. While the MDEQ may take responsive

action, it is not required to take action. Further, the

fact that the MDEQ may choose to take responsive action to

minimize injury to the public health does not absolve

defendant of its responsibility to plaintiffs. While the

majority repeatedly claims to be concerned about the effect

on Michigan’s economy if plaintiffs are allowed to bring a

claim against defendant, the majority’s approach shifts the

costs resulting from defendant’s actions to Michigan

taxpayers.7 The majority distorts the fact that the MDEQ

has the ability to take responsive action. Merely because

7
A shift in financial responsibility conflicts with
the NREPA. MCL 324.20102(f) specifically provides, “That
liability for response activities to address environmental
contamination should be imposed upon those persons who are
responsible for the environmental contamination.” See also
MCL 324.20102(e).

24

the MDEQ has this ability does not mean that this is

plaintiffs’ sole remedy. The NREPA clearly provides

“[t]hat there is a need for additional administrative and

judicial remedies to supplement existing statutory and

common law remedies.” MCL 324.20102(d) (emphasis added).

The MDEQ’s ability to act does not eliminate defendant’s

responsibility to plaintiffs or eliminate the fact that

plaintiffs can seek a court-supervised medical monitoring

program funded by defendant.

As a case in point, a small pilot study is being

conducted by the state that includes a study of residential

soil at approximately twenty-five properties within the

Tittabawassee River flood plain and an investigation of

dioxin levels in twenty-five adults who are currently

living on the flood plain and have lived there for at least

five years. This Pilot Exposure Investigation is

inadequate to address the concerns of the individual

plaintiffs. But plaintiffs do not, as the majority

asserts, bring this claim merely because the MDEQ is not

conducting the study on the scale that they prefer.

Plaintiffs seek a court-supervised medical monitoring

program based on tests ordered by qualified health

professionals; plaintiffs’ individual preferences have

nothing to do with the tests that will be ultimately

25

ordered. Medical monitoring tests would not be done to

placate plaintiffs’ fears; they would be done when

qualified health professionals using accepted scientific

principles order medical testing.

Finally, the concern of the MDEQ is public health, but

what the MDEQ may deem appropriate to protect the public as

a whole, even assuming sufficient funds were available in

the budget, is not necessarily what may be in an individual

plaintiff’s best medical interest. Further, the MDEQ does

not purport that its study can be extrapolated to provide

relevant information to other people in the affected areas.

The MDEQ even states in its Pilot Investigation Fact Sheet

that the results of an exposure investigation (EI) are

“site-specific and applicable only to the community

involved in EI; they are not generalizable to other

individuals or populations.” The majority’s insistent and

inexplicable refusal to hold defendant accountable for its

acts allows defendant to escape responsibility for its

actions and leaves plaintiffs with no adequate remedy.

VI. CONCLUSION

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 as long as

26

defendant is not held responsible for the decisions it

makes, it behooves corporations like defendant to continue

with business practices that harm our residents because the

courts will shield them from liability by claiming that

they are powerless to act. And it is the people of our

state who will pay the costs—with their money and with

their lives—of allowing defendant to contaminate our

environment with no repercussions. Sadly, this Court has

resorted to a cost-benefit analysis to determine and,

consequently, degrade the value of human life, and this is

an analysis that I cannot support.

“The very essence of civil liberty certainly consists

in the right of every individual to claim the protection of

the laws, whenever he receives an injury. One of the first

duties of government is to afford that protection.”

Marbury v Madison, 5 US 137, 163; 2 L Ed 60 (1803). Today,

our Court has shirked its duty to protect plaintiffs and

the people of our state, thereby leaving defendant’s

practices and interests unassailed. As such, I must

respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

27