Recently, the US Court of Appeals from the Third Circuit submitted to the Delaware Supreme Court this unsettled question of Delaware law: “[D]oes an increased risk of harm only constitute a cognizable injury once it manifests in a physical disease?”

Physical Disease Necessary
The Delaware Supreme Court answered: “an increased risk of illness without present manifestation of a physical harm is not a cognizable injury under Delaware law.”

Increased Cancer Risk but No Physical Disease
The question from the 3rd Circuit came in a case brought by people living near a chemical plant that had a significant ethylene oxide leak. EPA estimated that because of the exposure, the neighbors are “up to four times more likely to develop cancer than the average American.” However, none of the neighbors claimed to have contracted cancer or any other physical disease from the exposure.

Legislature Should Decide
The Delaware Court acknowledged that some states allow recovery for medical surveillance, which can “promote early diagnosis and treatment…and… help to ameliorate the injustice of having economically disadvantaged persons pay for diagnostic testing.” However, those states that allow this recovery “do not utilize a standard framework to determine who is eligible for monitoring.”

The Delaware Court said its legislature “is much better suited to address the complicated issues that would arise such as when the limitations period would begin to run, whether a higher pleading standard might be required, what type of test should be utilized to determine whether someone qualifies for medical monitoring, or whether medical monitoring costs would be provided by a court-supervised fund, among others.”

To see the opinion https://courts.delaware.gov/Opinions/Download.aspx?id=352330