Meyerhoff v. Turner Construction Co.

509 N.W.2d 847, 202 Mich. App. 499
CourtMichigan Court of Appeals
DecidedNovember 15, 1993
DocketDocket 133316
StatusPublished
Cited by11 cases

This text of 509 N.W.2d 847 (Meyerhoff v. Turner Construction Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyerhoff v. Turner Construction Co., 509 N.W.2d 847, 202 Mich. App. 499 (Mich. Ct. App. 1993).

Opinions

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.

[502]*502Plaintiffs 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 [503]*503Paoli 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. [504]*504Therefore, 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 [505]*505individual, 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.

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Meyerhoff v. Turner Construction Co.
509 N.W.2d 847 (Michigan Court of Appeals, 1993)

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Bluebook (online)
509 N.W.2d 847, 202 Mich. App. 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyerhoff-v-turner-construction-co-michctapp-1993.