Delaware Is Definitive On No-Injury Medical Monitoring

• Published date: 12 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Personal Injury, Biotechnology & Nanotechnology
• Law Firm: Reed Smith
• Author: Ms Lisa Baird

As a defense lawyer, one grows accustomed to clear judicial days on which the state court can foresee forever. See Thing v. La Chusa, 48 Cal. 3d 644, 668 (1989). On those clear judicial days, when the court catches a glimpse of the possibility of harm shimmering off in the distance, one can be assured that an expansion of liability soon will follow.

Not all state courts are quick to expand tort liability, however. In Baker v. Croda Inc., __ A.3d __, 2023 Del. LEXIS 282, 2023 WL 5517797 (Aug. 24, 2023), the Supreme Court of Delaware was asked to gaze into the future, and it decided to leave liability tied to an actual injury in the here-and-now.

The Baker opinion did not involve a pharmaceutical or medical device (it involved a chemical, ethylene oxide), but it did involve an issue of particular concern to the blog: Claims for medical monitoring brought by a class of plaintiffs who have no present injury, but who allege they are at an increased risk of developing cancer in the future. As a remedy, the plaintiffs requested money in the present, for the "cost of reasonably medically necessary diagnostic testing for the early detection of illness, disease or disease process."

In response, Delaware definitively rejected the liability for no-injury medical monitoring claims, for the straightforward reason that:

[A]n increased risk of illness without physical harm is not a cognizable injury under Delaware law. Stated differently, an increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease.

Baker, 2023 WL 5517797 at *2.

The first thing worth pointing out about Baker is that it came to the Supreme Court of Delaware by way of a certified question from the Third Circuit. Good on the Third Circuit for certifying the question instead of plowing ahead and making an expansive Erie prediction. But query whether the law actually was unsettled as the Third Circuit seemed to believe. At least three times before, Delaware had declared that "claims in tort require an actual or imminent injury"'something that doesn't exist when one has no present injury, but rather just an increased risk of maybe, perhaps experiencing an injury in the future. See Baker, 2023 WL 5517797 at *3, citing Mergenthaler v. Asbestos Corporation of America, 480 A.2d 647 (Del. 1984) (holding that present physical disease is required to state a claim under Delaware law); Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (rejecting claims for mental anguish and...