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Increased Risk of Illness is Not Cognizable Injury Under Delaware Law, Delaware Supreme Court Holds

On August 24, 2023, in Catherine Baker v. Croda Inc., No. 393, 2022 (Del. 2023), the Delaware Supreme Court held that an increased risk of illness, without present manifestation of physical harm, is not a cognizable injury under Delaware law.

The question arose in the context of a toxic tort class action brought by residents of New Castle, Delaware.  The residents lived close to Croda Inc. (“Croda”), whose chemical facility in 2018 experienced a significant leak for which thousands of pounds of ethylene oxide, a known carcinogen, escaped into the environment. The 2018 leak forced residents living near the facility to shelter in their homes and it caused the temporary closure of the Delaware Memorial Bridge.  The Complaint alleged that, because of their exposure to the chemical, the class members were up to four times more likely to develop cancer than the average American, according to an EPA study.

On August 24, 2022, plaintiffs filed a class action lawsuit in the District of Delaware alleging that Croda was liable for public and private nuisance, negligence, willful conduct, and sought damages for the costs of a medical monitoring program. However, the District Court granted Croda’s motion to dismiss the complaint and held that each tort required an injury and the class could not recover damages for “fearing an increased risk of disease.”

Plaintiffs appealed to the Third Circuit, but the federal appellate court ultimately sought input from the Delaware Supreme Court on the central Delaware law issue. In deciding to certify the question, the Third Circuit surveyed a number of cases applying Delaware law and opined that there was “a substantive difference . . . between an injury based on a fear of a disease and an injury based on an increased risk of disease,” the latter of which was the issue presented by plaintiffs’ complaint.  The Supreme Court of Delaware, however, had not yet addressed whether an increased risk of disease, without present manifestation of physical harm, could be a cognizable injury. The Third Circuit therefore certified the question to the Delaware Supreme Court.  

In answering the certified question, the Delaware Supreme Court reviewed two key cases that involved tort liability. First, the court addressed the United States Supreme Court’s decision in Metro-North Commuter Railroad Company v. Butler, 521 U.S. 424 (1997), where a railroad worker was exposed to asbestos but had not been afflicted by disease. There, the Supreme Court rejected a medical monitoring claim under federal law and observed that the states authorizing recovery for medical monitoring in the absence of physical injury “do not endorse a full-blown, traditional tort law cause of action for lump-sum damages” but rather “have suggested, or imposed, special limitations on that remedy.” The Supreme Court also determined that negligent exposure to a toxic substance that would cause an exposed person to incur medical costs was not a sufficient basis for tort recovery under federal law.

The Delaware Supreme Court also turned to an earlier Delaware case, Mergenthaler v. Asbestos Corporation of America, 480 A.2d 647 (Del.1984), which involved present and former asbestos workers and their spouses.  There, the Delaware Supreme Court addressed whether the plaintiffs’ wives could state a claim for mental anguish where there was no present physical injury to the husbands. The court found that a present physical disease was required because an essential element of a mental anguish claim required a physical injury.

The Delaware Supreme Court concluded based on these decisions and others that tort claims in Delaware require an “injury in fact.” Pursuant to Delaware law, an “injury in fact” is defined as “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.”

In light of this principle, the Delaware Supreme Court ultimately agreed with the District of Delaware’s affirmative ruling on the motion to dismiss and concluded that in order to bring a cognizable action, the plaintiffs must first demonstrate an actual or imminent manifestation of physical symptoms from their alleged exposure to ethylene oxide. A future risk of illness without any present injury will not constitute an “injury in fact.” Having answered the certified question, the Delaware Supreme Court directed the Clerk to transmit the opinion to the Third Circuit.   

With this ruling, Delaware is an outlier in the region, as both New Jersey and Pennsylvania allow for liability under the common law for increased risk of pollution related illnesses.  Likely understanding the divide with its neighboring states, the Delaware Supreme Court stressed the public policy concerns with permitting a cause of action to continue without an “injury in fact” which could lead to “tens of millions of individuals [who] may have suffered exposure to substances that may never result in any harm” and emphasized that Delaware’s General Assembly was much better positioned to address the complicated issues associated with recognizing medical monitoring as a separate cause of action.