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MERRY v. WESTINGHOUSE ELEC. CORP.

March 14, 1988

Linda Merry, et al., Plaintiffs
v.
Westinghouse Electric Corp., Defendant



The opinion of the court was delivered by: CALDWELL

 William W. Caldwell, United States District Judge.

 Pending for disposition is Westinghouse's motion for partial summary judgment on all cancer and injury-related claims. For the following reasons, the motion will be denied.

 
65. Plaintiffs have been exposed or will be exposed to the hazardous substances released into the environment by defendant. These substances are known or suspected of causing numerous illnesses, including, but not limited to: cancer, birth defects, damage to human cells, kidney, liver and brain damage, as well as damage to the human immune system.

 The plaintiffs claim that the exposures have resulted in inter alia, "emotional distress, and fear of injury and disease" as well as "increased risk of cancer and other diseases." Complaint, para. 66.

 Before addressing the substance of Westinghouse's motion, we note that a good portion of it has been mooted by the plaintiffs' concession that they are not pursuing a claim for increased risk of illness, per se. At page 2 of their brief the plaintiffs write that they "have not sought, and do not seek, damages for the treatment of diseases which they have not yet contracted." Instead, they "seek damages for emotional distress arising from their present demonstrable exposure to carcinogens and other toxic chemicals as well as the costs of diagnostic procedures necessitated by that exposure." Therefore, we will limit our consideration of Westinghouse's motion to the question of whether it is entitled to summary judgment on the plaintiffs' claims for emotional distress and fear of illness, and for the costs of future diagnostic medical tests.

 Summary judgment will be rendered only if it is shown that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). A material fact is one which might affect the outcome of a suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id., 106 S. Ct. at 2510, 91 L. Ed. 2d at 211-12. When the movant has supported its motion with affidavits, the opponent "may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "Any reasonable inferences from facts must be resolved in favor of the party against whom the judgment is entered." Peterson v. Lehigh Valley District Council, United Brotherhood of Carpenters and Joiners, 676 F.2d 81, 84 (3d Cir. 1982) (citation omitted). Westinghouse's motion will be considered in light of these standards.

 We will first address the plaintiffs' claims to damages for the costs of future medical monitoring. There is an apparent split of authority among Pennsylvania trial courts regarding such claims. Westinghouse directs the court to Peterman v. Techalloy Co., Inc., 29 Pa. D. & C.3d 104 (Montg. Co. 1982), in which the plaintiffs sought medical surveillance damages, on the ground that they had an increased risk of illness as a result of their use of TCE contaminated water. The plaintiffs' did not allege actual injury or damage, however, and the court held that the complaint failed to state a claim since it is a basic tenet of tort law that a plaintiff cannot recover without proof of actual injury or damage. A claim of "increased risk" was found to be insufficient to overcome that fundamental rule. "The mere breach . . . of duty . . . causing nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for negligence." Id. at 107 (quoting Schenkel v. Monheit, 266 Pa. Super. 396, 399, 405 A.2d 493, 494 (1979)). Westinghouse argues that although the plaintiffs in the present case have alleged injury, only seventeen have alleged any physical symptoms, and no medical evidence has been proffered to establish a causal link between the exposure to the chemicals and the symptoms in question.

 
Damages may be recovered for the prospective consequences of a tortious injury (cite omitted). It is not the reasonable probability of whether plaintiffs will suffer cancer in the future that should determine whether medical surveillance is necessary. Rather, it is whether it is necessary, based on medical judgment, that a plaintiff who has been exposed to known carcinogens at various levels should undergo annual medical testing in order to properly diagnose the warning signs of the development of the disease. If it is necessary, then the probability of the need for that medical surveillance is cognizable as part of plaintiffs' claim (cite omitted). If plaintiffs are deprived of any necessary diagnostic services in the future because they have no source of funds available to pay for the testing, the consequences may result in serious, if not fatal illness.

 To further muddy the waters, both the plaintiffs and Westinghouse cite Villari v. Terminix International, Inc., 663 F. Supp. 727 (E.D. Pa. 1987), as supporting their respective positions. The Villari court held as follows:

 
Under Pennsylvania law, a plaintiff seeking costs of medical surveillance as an element of damages must demonstrate that she has suffered some physical injury. See Greenberg v. McCabe, 453 F. Supp. 765, 773 (E.D.Pa.1978), aff'd mem., 594 F.2d 854 (3d Cir.1979); Peterman, supra, 29 Pa.D.&C.3d at 110. However, we do not understand Pennsylvania law to require that a plaintiff exhibit symptoms of the particular diseases for which medical surveillance is sought. We have found that there is sufficient medical evidence on record to permit a jury to conclude that the Villaris suffered physical injury ...

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