June 14, 2011 – The District III Wisconsin Court of Appeals recently ruled that a litigant and 145 other plaintiffs failed to state a claim when seeking damages for future medical monitoring expenses as a result of dangerous chemical releases in Wausau.

The plaintiffs claimed that Wauleco, Inc. (Wauleco), corporate successor to the Crestline Millwork Company, was responsible for improper chemical discharges of “Penta” between 1946 and 1986 near the Crestline factory site. Penta chemicals, classified as possible carcinogens, are used to treat wood products and are capable of causing cancerous and noncancerous diseases.

As a result of these improper discharges, the plaintiffs did not allege current health problems, but alleged exposure “significantly increase their risk of contracting cancer” in the future.

However, in Alsteen v. Wauleco, Inc., 2010AP1643 (June 14, 2011), the three-judge panel (opinion by Judge Gregory Peterson) ruled that “a plaintiff does not have a personal injury claim until he or she has suffered ‘actual’ injury or damage” and “[i]ncreased risk of future harm is not an actual injury under Wisconsin law.”

The court noted that Wisconsin case law does not support an assertion of damages based on increased future harm. It distinguished Branter v. Jenson, 121 Wis. 2d 658, 360 N.W.2d 529 (1985), a case in which the Wisconsin Supreme Court concluded that an injured party could recover emotional distress damages for possible future back surgery.

The emotional distress damages stemmed from a present injury, the appeals court explained. “Nothing in Branter stands for the proposition that increased risk of future harm, without any present injury, is sufficient to state a claim for damages,” Judge Peterson wrote.

The appeals court also rejected the plaintiffs’ claim that mere exposure to a dangerous substance constitutes an actual injury under Babich v. Waukesha Memorial Hospital, Inc., 205 Wis.2d 698, 556 N.W.2d 144 (Ct. App. 1996), a case in which the plaintiff asserted emotional distress claims after being struck with a hypodermic needle left in her hospital bed.

The Babich court held that public policy would not bar the emotional distress claim if the plaintiff could prove exposure to a contaminated source.

“We did not hold [in Babich] that mere exposure to a contaminated source could satisfy the requirement of actual injury,” Judge Peterson explained. The court also noted that a Wisconsin appeals court in Dyer v. Blackhawk Leather LLC, 2008 WI App 128, 313 Wis.2d 803, 758 N.W.2d 167, rejected the Babich argument in toxic tort cases.

“[I]f mere exposure to a contaminated source were sufficient to state an actual injury in the toxic tort context, the number of potential claimants would be enormous,” wrote Judge Peterson, noting that many people are exposed to contaminants on a daily basis.

The court noted that other states have refused to identify future medical monitoring as an injury in a claim for damages, and rejected the notion that Wisconsin courts have abandoned the actual injury requirement.

Exposure to Penta might cause future harm, the court explained, but “the possibility of future harm is not a cognizable injury under Wisconsin law.”