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Increased Risk of Illness is Not Cognizable Injury Under Delaware Law, Delaware Supreme Court Holds
On August 24, 2023, in Catherine Baker v. Croda Inc., No. 393, 2022 (Del. 2023), the Delaware Supreme Court held that an increased risk of illness, without present manifestation of physical harm, is not a cognizable injury under Delaware law.
The question arose in the context of a toxic tort class action brought by residents of New Castle, Delaware. The residents lived close to Croda Inc. (“Croda”), whose chemical facility in 2018 experienced a significant leak for which thousands of pounds of ethylene oxide, a known carcinogen, escaped into the environment. The 2018 leak forced residents living near the facility to shelter in their homes and it caused the temporary closure of the Delaware Memorial Bridge. The Complaint alleged that, because of their exposure to the chemical, the class members were up to four times more likely to develop cancer than the average American, according to an EPA study.
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