Delaware Supreme Court Rules Manifestation of Physical Harm Required for Claim of Increased Risk of Illness - Maron Marvel
Environmental and Toxic Tort Advisor

Delaware Supreme Court Rules Manifestation of Physical Harm Required for Claim of Increased Risk of Illness

August 31, 2023

Donald R. Kinsley


Reaffirming Delaware’s position on medical monitoring claims apart from its neighboring states, the Delaware Supreme Court answered a question certified to it by the Third Circuit ruling that there must be a manifestation of physical harm for a claim to be made for an increased risk of illness under Delaware law. In Baker v. Croda, Inc., No.393, 2002 (Aug. 24, 2023), the Delaware high court ruled: “[A] risk of harm only constitutes a cognizable injury once it manifests in a physical disease.”

The question was certified to the Delaware high court from the Third Circuit in an appeal of the dismissal of a class action seeking medical monitoring for residents near a Delaware chemical plant that leaked ethylene oxide, a known carcinogen, into the environment. Catherine Baker v. Croda Inc., No. 393, 2022 (Del. 2022) (Certification of Question of Law from the U.S. Court of Appeals for the Third Circuit, Appeal Nos. 21-3360 & 22-1333, 2022 WL 19010312 (3d Cir. Oct. 21, 2022)).

Writing for the Delaware Supreme Court sitting en banc Justice N. Christopher Griffiths pointed to two asbestos cases, one decided by the U.S. Supreme Court (Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997)), and one Delaware case (Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del. 1984).  In Metro-North, the U.S. Supreme Court had rejected a claim for medical monitoring under a federal statute, highlighting the serious public policy concerns of a “flood” of litigation “that can accompany ‘unlimited and unpredictable’ liability.”  In Mergenthaler, the Delaware high court had previously held that present physical disease was required to state a claim, rejecting mental anguish claims by present and former asbestos workers and their spouses who could not show physical injury from asbestos exposure.

Plaintiff Baker had attempted to use prior decisions to argue that claims based on fear of disease when accompanied by “actual exposure” were permitted. The court, however, cited an additional precedent, Brzoska v. Olson, 668 A.2d 1355 (Del. 1995), in which the court found support that “damages for claims of emotional distress or mental anguish … are recoverable only if [an] underlying injury is shown,” then stated that to rule otherwise would “constitute a significant shift in our tort jurisprudence.”

This decision reaffirms Delaware’s distinctive position from its neighboring states which have recognized liability claims for increased risk of pollution-related illnesses: Pennsylvania (Redland Soccer Club, Inc., v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997)); New Jersey (Ayers v. Township of Jackson, 525 A.2d 287, 298 (N.J. 1987)); and Maryland (Exxon Mobil Corp. v. Albright, 433 Md. 303, 350, 71 A.3d 30, 59, on reconsideration in part, 433 Md. 502, 71 A.3d 150 (2013)). In Baker, the court mentions two other states that allow medical monitoring claims for those with increased risk of disease without a present illness: Massachusetts and California.

In the Baker opinion, the court lastly examined the public policy concerns: “[R]ecognizing an increased risk of illness, without more, as a cognizable injury could open the floodgates to ‘endless and limitless’ litigation.  Dispensing with the physical injury requirement could also diminish the resources that are presently used for those who have suffered physical injury.”  The Delaware General Assembly, the Court wrote, is better suited to address the complicated issues recognizing medical monitoring claims as a separate cause of action, such as when the limitations period would begin to run, whether a higher pleading standard might be required, the type of test to be utilized to determine who qualifies for medical monitoring, and whether medical monitoring costs would be provided by a court-supervised fund.

Baker v. Croda Inc., No. 393, 2022, 2023 WL 5517797 (Del. Aug. 24, 2023).