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Saturday, November 2, 2024

Want money? Better be injured, Delaware court says in toxic tort class action

State Supreme Court
Bookgavel

WILMINGTON, Del. (Legal Newsline) - Delaware law doesn't allow people who think they will become sick to sue before it happens, the state's highest court has ruled.

The Delaware Supreme Court on Aug. 24 answered a certified question from the federal Third Circuit that asked whether an increased risk of illness is a cognizable injury. The ruling is a blow to a proposed class action over residents who live near a chemical plant called Atlas Point that emits ethylene oxide.

Catherine Baker sued Croda Inc. over the emissions of EO, a carcinogen, at the Atlas Point plant in New Castle. The Environmental Protection Agency estimated class members are up to four times more likely to develop cancer.

But that isn't an injury - yet - the Delaware Supreme Court found.

"(A)n increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease," the court found. "It is axiomatic that all tort claims require an injury."

The court started by revisiting a U.S. Supreme Court case involving asbestos exposure to a so-far-unharmed railroad worker. SCOTUS said an exposed plaintiff can recover medical monitoring damages if and when they develop symptoms.

A similar case in Delaware asked for expenses for medically required surveillance and compensation for mental anguish, but those claims were rejected.

"To hold otherwise would constitute a significant shift in our tort jurisprudence," the Baker ruling says.

"As it stands, the statute of limitations for toxic tort claims starts to run when a plaintiff begins to experience physical effects. In addition, toxic tort plaintiffs are permitted to bring separate claims for separate diseases caused by one exposure.

"Accordingly, a future risk of illness without any present injury does not constitute an injury-in-fact in tort under Delaware law."

The firm Grant & Eisenhofer represents the plaintiff, while the defense was handled by Morris, Nichols, Arsht & Tunnell of Wilmington and Quinn Emanuel Urquhart & Sullivan.

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