By: WISCONSIN LAW JOURNAL STAFF//June 14, 2011//
Torts
Injury
Increased risk of future harm is not an actual injury under Wisconsin law.
“Here, the circuit court properly dismissed Alsteen’s claim because, even accepting the allegations in the fourth amended complaint as true, the complaint does not state a claim. We come to this conclusion for three reasons. First, Wisconsin law requires actual injury before a plaintiff may recover in tort, and Alsteen has not alleged any actual injury. Second, we are persuaded by the United States Supreme Court’s decision in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997), which held that an asymptomatic railroad worker who had been exposed to asbestos could not recover medical monitoring expenses under the Federal Employees’ Liability Act. Third, several other jurisdictions that have addressed the issue have articulated persuasive reasons for refusing to recognize medical monitoring claims in the absence of actual injury. We therefore affirm dismissal of Alsteen’s claim.”
Affirmed.
Recommended for publication in the official reports.
2010AP1643 Alsteen v. Wauleco, Inc.
Dist. III, Marathon County, Grau, J., Peterson, J.
Attorneys: For Appellant: St. John, Thomas W., Milwaukee; Tlusty, Jerome P., Schofield; Warpinski, Ted A., Milwaukee; Allen, Shannon A., Milwaukee; Tlusty, Jessica J., Schofield; For Respondent: Schrimpf, Thomas R., Milwaukee; Vogt, Heidi, Milwaukee; DeVougas, Steven Marcel, Milwaukee