The Delaware Supreme Court heard arguments on June 14, 2023, on a question certified to it from the Third Circuit of the U.S. Court of Appeals, as to whether medical monitoring claims can be made in Delaware without proof of any current physical harm.

The appeal to the Third Circuit was from the dismissal of a class action seeking medical monitoring for residents near a Delaware chemical plant that leaked ethylene oxide into the environment, a known carcinogen. In dismissing the class action at the federal trial court level, U.S. Circuit Judge Stephanos Bibas sitting by designation in the U.S. District Court for Delaware held: “[T]his class cannot recover damages for the risk of diseases that they do not yet have. … because each tort requires an injury, none of Baker’s torts survives this flaw.”  Catherine Baker is the first named Plaintiff representing the class of alleged affected residents.

In its Petition for Certification of Question of Law, the Third Circuit panel of judges cited several Delaware decisions, stating that: [While those decisions] “may serve as a bellwether of the requisite elements of an injury-in-fact in Delaware, they are not sufficiently clear to allow us to decide the issue. A substantive difference exists between an injury based on a fear of disease and an injury based on an increased risk of disease. We decline on our own to conflate the two.” The specific certified question from the Third Circuit panel to the Delaware high court was: Whether an increased risk of illness, without present manifestation of physical harm, is a cognizable injury under Delaware law? Or, put another way, does an increased risk of harm only constitute a cognizable injury once it manifests in a physical disease?

At the hearing, some of the issues addressed by the Court to Plaintiffs/Appellants’ counsel included:

• Chief Justice Collins J. Seitz, Jr. questioning as to how to limit the application of any medical monitoring – “How wide is the net cast for the plaintiffs? Is it everyone in the State of Delaware, is it New Castle County, is it residents surrounding the plant, and that leads to the public policy we are considering here, and that is where is the end of this?”
• Justice Gary F. Traynor questioning as to the policy concern about the amount of medical monitoring – “What’s the framework envisioned for determining what medical monitoring is related to the exposure as opposed to normal medical monitoring?” and
• Justice Abigail M. LeGrow questioning as to the effect of allowing such claims on the statute of limitations – “Currently the statute of limitations begins to run when an injured person feels the physical effects, if there are no physical effects but we are nevertheless saying there is a claim here, does that mean that later on, to the extent someone actually has one of these diseases, the statute has run?”

Other issues addressed included:

• whether recognizing such claims is a legislative issue rather than a judicial issue, and if such claims are to be recognized, should it be the legislature that does so, not the courts;
• what the Restatement of Torts says on the issue; and
• is it semantics, or is there a distinction between proven increased risk of illness and potential future harm.

Based on prior Delaware jurisprudence and the concerns expressed at oral argument by the Court, it is likely the Court will decline to recognize the medical monitoring claims asserted by the appellants/plaintiffs. The Court has taken the matter under advisement, and a decision is expected later this year.

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)).

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