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For over a century, Dow Chemical’s Midland, Mich., plant has produced items ranging from consumer products such as SaranWrap to weapons such as Agent Orange. On July 13, it was the focus of the latest battle over “medical monitoring,” or legal compensation for future medical testing to detect ailments plaintiffs feel they may contract in the future. Although the Michigan Supreme Court continued a recent trend of rejecting such causes of action in the case against Dow alleging exposure to dioxins, some courts have gone the other way. Henry v. The Dow Chemical Co., No. 125205. In addition, a series of lawsuits filed last week against DuPont seeking medical monitoring for the users of Teflon indicates that the debate is far from over. Belmonte v. E.I. du Pont de Nemours and Co., No. 05-21921 (S.D. Fla.). In 2000, General Motors Corp. tested soil in the Tittabawassee River area near Dow’s world headquarters in Midland, and discovered the presence of dioxins: a group of chemicals known to cause various ailments, including cancer, liver disease and birth defects. By 2003, the Michigan Department of Environmental Quality determined that Dow’s Midland plant was the likely source of the dioxin contamination. Two groups of plaintiffs sought class certification against Dow over the alleged contamination in Michigan state court. One was a group of 173 plaintiffs who lived in the area and sought a court-supervised, Dow-funded program of medical monitoring for future dioxin-related illnesses. Case of first impression In a case of first impression for the Michigan Supreme Court, the court entered the nationwide debate, reversed a lower court, and rejected the plaintiffs’ argument that Dow should provide future medical testing. The court held that Michigan tort law required an actual, present injury for a plaintiff to recover damages and that compensation for medical monitoring was an issue that should be left to the state’s legislature. Although he conceded that the Henry decision “was not inconsistent” with U.S. Supreme Court precedent, Carlton Carl, vice president for policy and strategy at the Association of Trial Lawyers of America, called the Michigan high court’s decision, “an unfortunate ruling” with potential adverse consequences for public health and safety. “It’s a terrible situation, and the law should provide a remedy,” Carl said, adding, “The tragedy is that people will have to get sick and die before they have any remedy” against polluting companies that, as Carl put it, “are more interested in profits than people’s lives.” Dow spokesperson Scot Wheeler maintained that the Henry medical monitoring plaintiffs never claimed an actual injury. “People should not be able to potentially flood the courts when there is no injury or specified injury.” The Michigan Supreme Court became the fourth straight state high court to reject medical monitoring, following Alabama, Nevada and Kentucky. Leah Lorber of the Washington office of Shook, Hardy & Bacon, and co-counsel to the American Tort Reform Association, sees a national trend against medical monitoring causes of action. Although Lorber, who co-authored an amicus brief in support of Dow in Henry, acknowledged that 19 states have yet to consider the issue, she noted the recent defense decisions, adding that the high point for plaintiffs was a 1999 West Virginia Supreme Court ruling compensating plaintiffs for medical monitoring with lump sum payments. Bower v. Westinghouse Electric Corp., 522 S.E. 2d 424. Lorber said that the U.S. Supreme Court has rejected medical monitoring compensation in federal claims. Teresa Woody of Kansas City, Mo.’s Stueve Siegel Hanson Woody, who is counsel for the Henry plaintiffs, disagrees that there is a trend against medical monitoring. “These cases are very state-specific,” Woody said, adding that Henry was merely “another opinion in a very divided line of decisions.”

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