Meyerhoff v. Turner Construction Co. , 202 Mich. App. 499 ( 1993 )

Jansen, J.

Plaintiffs are twenty-one construction workers who allege that they were exposed to asbestos and asbestos-containing products from February 1987 through April 1988 in the course of their employment while working on the City of Detroit’s Cobo Hall expansion project. Although plaintiffs have not suffered any presently identifiable physical injuries resulting from the alleged exposure, they brought suit against defendants seeking damages for medical monitoring or surveillance, emotional distress due to the fear of contracting cancer, and their increased risk of contracting cancer.

Defendants moved for summary disposition, alleging that plaintiffs failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). The trial court granted defendants’ motion on the basis that plaintiffs did not allege an underlying injury. The court stated that "inasmuch as there is no allegation that they [plaintiffs] have an injury now, I feel that their claim is premature.” The trial court entered an order on September 10, 1990, granting defendants’ motion for summary disposition. Plaintiffs appeal as of right from the trial court’s September 10, 1990, order. We affirm in part, reverse in part, and remand to the trial court for further proceedings.

Plaintiffs first claim that the trial court erred in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), because they stated a legally cognizable claim seeking damages for medical monitoring in order to detect and seek early treatment of asbestos-related diseases. Specifically, plaintiffs claim that they face an increased risk of contracting cancer because of their exposure to asbestos and that they will need to undergo periodic medical testing in order to detect any signs of cancer as early as possible, thereby improving their chances of survival should they contract cancer.

A motion under MCR 2.116(C)(8) tests the legal basis for the complaint. Ashley v Bronson, 189 Mich App 498, 501; 473 NW2d 757 (1991). The court must accept as true all well-pleaded factual allegations, as well as any conclusions that can reasonably be drawn therefrom. Id. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Id.

In ruling on defendants’ motion, the trial court stated that "there needs to be some kind of an actionable injury before you get medical monitoring” damages. The court was of the opinion that there must exist some underlying injury or manifestation of disease in order to advance a claim for medical monitoring damages. We disagree with the trial court’s conclusion. Because this question presents an issue of first impression in Michigan, we turn for guidance to other jurisdictions that have addressed this issue.

Medical monitoring is one of a growing number of nontraditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances. In re Paoli Railroad Yard PCB Litigation, 916 F2d 829, 849 (CA 3, 1990). Often, the diseases or injuries caused by this exposure are latent. Id., pp 849-850. A claim for medical monitoring expenses seeks to recover the cost of periodic medical examinations intended to monitor the plaintiffs’ health and facilitate early diagnosis and treatment of diseases caused by the plaintiffs’ exposure to toxic substances. Ayers v Jackson Twp, 106 NJ 557, 599; 525 A2d 287 (1987). Therefore, an action for medical monitoring expenses seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm. Paoli, p 850; Mauro v Raymark Industries, Inc, 116 NJ 126, 136; 561 A2d 257 (1989).

In Friends For All Children, Inc v Lockheed Aircraft Corp, 241 US App DC 83, 93; 746 F2d 816 (1984), the court, quoting from 1 Restatement Torts, 2d, § 7, p 12 defined injury as " 'the invasion of any legally protected interest of another.’ ” See also Ayers, supra, p 601. The court in Friends, p 93, held that a reasonable need for medical examinations is itself compensable without proof of other injury:

It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.

See Ayers, pp 601-602.

Similarly, as the court held in Paoli, supra, p 852, a plaintiff need not exhibit symptoms of a disease, nor is a physical injury required, before a claim for medical monitoring can be maintained. Therefore, we find error to the extent that the trial court in the present case required the presence of an underlying injury or manifestation of disease before recognizing a claim for medical monitoring damages.

There exists a number of policy reasons for recognizing a claim for medical monitoring damages. "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.” Id., p 852. Recognizing this tort does not require courts to speculate about the probability of future injury; rather, it merely requires courts to ascertain the probability that the less costly remedy of medical supervision is appropriate. Id. Allowing plaintiffs to recover medical monitoring expenses deters the irresponsible discharge of toxic substances by defendants and encourages plaintiffs to detect and treat their injuries as soon as possible. Id. See also Ayers, supra, p 603 (compensation for reasonable and necessary medical expenses is consistent with the important public health interest in fostering access to medical testing for individuals whose exposure to toxic substances creates an enhanced risk of disease); Askey v Occidental Chemical Corp, 102 AD2d 130, 137; 477 NYS2d 242 (1984) (such a remedy would permit the early detection and treatment of maladies and, as a matter of public policy, the tortfeasor should bear the cost).

Permitting recovery for reasonable presymptom medical monitoring expenses subjects defendants to significant liability when proof of the causal connection between the tortious conduct and plaintiffs’ exposure is likely to be most readily available. Ayers, supra, p 604. Another consideration compelling recognition of a presymptom medical monitoring claim is that it is inequitable for an individual, wrongfully exposed to dangerous toxic substances but unable to prove that disease is likely, to have to pay the expense of medical intervention that is clearly reasonable and necessary. Id., pp 604-605.

Accordingly, we hold 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, such as asbestos, is reasonable and necessary. Id., p 606; Mauro, supra, pp 136-137. In determining whether such medical monitoring damages are reasonable and necessary, the following factors must be considered: the significance and extent of the exposure; the toxicity of the substance; the seriousness of the diseases for which individuals are at risk; the relative increase in the chance of onset of disease in those exposed; and the value of early diagnosis. Ayers, supra, p 606; Mauro, supra, pp 136-137. The need for medical diagnostic examinations must be supported by competent, reliable expert testimony. Ayers, supra, p 606; Mauro, supra, p 136; Friends, supra, p 93, n 15.

In light of the above holding that medical monitoring constitutes a viable legal claim, plaintiffs have stated a claim upon which relief may be granted. The trial court, therefore, erred in granting defendants’ motion for summary disposition on the basis that plaintiffs failed to allege an underlying injury or some manifestation of disease. Such an allegation was not required.

Plaintiffs also claim that the trial court erred in granting defendants’ motion for summary disposition of their claim for damages resulting from emotional distress due to their fear of contracting cancer in the future. In ruling on defendants’ motion, the trial court stated that "the fear of cancer is a viable claim in my judgment as long as there is some underlying injury.” The court then acknowledged that plaintiffs do not have any manifestation of underlying injury.

In applying Michigan law, the court in Stites v Sundstrand Heat Transfer, Inc, 660 F Supp 1516 (WD Mich, 1987), addressed the plaintiffs’ claim based on fear of cancer, stating as follows:

Under [Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970)], plaintiffs can recover for physical injury "produced as a result of emotional distress proximately caused by defendant’s negligent conduct” if such injury is "definite and objective.” To recover on their fear of cancer claim, plaintiffs must establish (1) that they have suffered emotional distress as a proximate result of defendant’s negligent conduct; (2) that this emotional distress has manifested itself in definite and objective physical injury; and (3) that their emotional distress is not "about a completely fictitious, vague, fanciful or imagined consequence, having no reasonable basis.” [Stites, supra, p 1526; citations omitted.]

The Stites court noted that Michigan courts are very lenient in finding allegations of physical harm sufficient to satisfy the "definite and objective physical injury” standard. Id., p 1527. Although general claims of physical distress, pain, and suffering are insufficient, in Daley, the Michigan Supreme Court indicated that a plaintiffs burden in this regard is minimal. Daley, supra, p 15; Stites, supra, p 1527. Daley indicated that claims of nervousness may satisfy the physical injury requirement. Id., p 15.

Assuming, without deciding, that the state courts in Michigan would recognize a cause of action for emotional distress resulting from a fear of cancer, we are of the opinion that plaintiffs presently cannot succeed on this claim. We reach this conclusion in light of the fact that plaintiffs have not alleged that their emotional distress has manifested itself in a definite and objective physical injury. Stites, supra, p 1526; Daley, supra, p 12. In fact, plaintiffs admit in their brief on appeal that "there is no claim by plaintiffs that they have as yet suffered any objective physical injury due to their fear of cancer.”

Plaintiffs further contend that they alleged that defendants deliberately and intentionally exposed them to a highly toxic substance, asbestos, and therefore that they have stated a viable claim of intentional infliction of emotional distress due to their fear of contracting cancer. Plaintiffs did not raise the claim of intentional infliction of emotional distress resulting from a fear of cancer in response to defendants’ motion for summary disposition, nor did the trial court address the issue. An issue not raised before and considered by the trial court is not preserved for appellate review. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992).

In any event, we find plaintiffs’ complaint to be lacking in material allegations. While plaintiffs allege that defendants’ deliberate and intentional conduct resulted in emotional distress due to the fear of contracting cancer, they do not allege what emotional reactions they suffered from or whether such emotional distress is in fact severe and extreme. Roberts v Auto-Owners Ins Co, 422 Mich 594, 608-609; 374 NW2d 905 (1985).

It is our opinion, given the above holdings, that the trial court did not err in granting defendants’ motion for summary disposition of plaintiffs’ claim for emotional distress due to the fear of contracting cancer. On remand, however, plaintiffs shall be given an opportunity to amend their complaint to state a claim for emotional distress due to the fear of contracting cancer, unless the trial court determines that such an amendment would be futile. MCR 2.118(A)(2).

We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

Sullivan, P.J., concurred.