May 17, 2018
The court in Dougan v. Sikorsky Aircraft Corp. was faced with the issue of whether Connecticut tort law permits, or should permit, recovery based on asbestos exposure in the absence of any present clinical injury or physical symptoms of an asbestos-related illness or disease. 2017 Conn. Super. LEXIS 5207 (Conn. Super. Ct. 2017).
In this case, defendant Sikorsky began to build a cogeneration plant in its manufacturing facilities in Stratford, Connecticut. Sikorsky hired Carrier as its general contractor, and Carrier in turn hired various subcontractors to perform the work. One of the projects involved renovating Sikorsky’s existing boiler house, which involved the removal of the existing pipes and the installation of new pipes. Despite asbestos abatement work having been done in the 1980s and 1990s, it turned out that a section of older pipe insulation in the basement of the boiler house remained unabated. The five plaintiffs who brought this action were involved in the cogeneration project and worked for two different subcontractors.
Plaintiffs conceded that they have not been diagnosed with mesothelioma, lung cancer, asbestosis or pleural plaques but nevertheless alleged they were entitled to medical monitoring for their alleged exposure to asbestos. Defendants, in turn, moved for summary judgment based on the principle that Connecticut law does not recognize a cause of action or remedy for medical monitoring following exposure to asbestos. In other words, defendants argued that plaintiffs’ claims were pre-symptomatic and that they only suffered “subclinical injury.” In response, the plaintiffs claimed that their alleged subclinical injuries or increased risk of developing an asbestos-related disease or illness were sufficient to support their claims.
The court (Moll, J.) referenced the Merriam-Webster Medical Dictionary definition of “subclinical,” which was defined as “not detectable or producing effects that are not detectable by the usual clinical tests.” The court concluded that plaintiffs failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact, i.e. whether any of the plaintiffs had suffered a legally identifiable injury under existing tort law in Connecticut. Connecticut law requires a present injury to recover in tort. In a recent case, the Connecticut Supreme Court stated: “[T]he law of Connecticut, and elsewhere, has limited tort liability to cases involving physical harm to person or property.” Lawrence v. O & G Industries, Inc., 319 Conn. 641, 646 (Conn. 2015).
Here, the court granted the defendants’ motions for summary judgment, finding that the medical monitoring remedy is not recognized in the absence of a manifestation of an asbestos-related disease. The court explained that to do otherwise would permit “tens of millions” of potential plaintiffs to recover monitoring costs, flooding the courts and depleting the purported tortfeasors’ resources for those who have actually been harmed. However, the court added that upon manifestation of symptoms causally related to asbestos exposure, the plaintiffs would then have remedy under law.
Thus, a plaintiff’s claim of exposure to asbestos in and of itself, without evidence of actual injury, is insufficient to bring a tort action, and defendants should be able to successfully defeat such actions by motions for summary judgment.