concludes that the Dassions had actual knowledge of their property damage claim prior to January 12, 1990. There is far less evidence that the Carey and Bozidurevic plaintiffs had actual knowledge prior to January 12, 1990. Nevertheless, the "obsession" of the West Chicago community with the thorium tailings problem, and the pervasive media coverage and publicity surrounding the issue, beginning in 1976 and continuing into 1991, leads the court to the inescapable conclusion that a reasonable person in their situation should have known of their claim.
In the instant case, the undisputed evidence clearly demonstrates that the residents of the City knew or reasonably should have known prior to January 12, 1990, that their property values had been damaged as a result of the thorium tailings problem directly caused by the Facility. A reasonable person in plaintiffs' position could not have avoided knowing of the presence of the thorium tailings and of its potential and actual harm to their property values. Indeed, although short lived, the Thomas Falwell class action in 1982 alleged diminished property values. Accordingly, the property damage claims in Counts III, IV and V are dismissed as untimely.
Counts I and II, however, allege the continuing torts of trespass and nuisance. When a tort involves a continuing or repeated injury, the statute of limitations does not begin to run until the date of the last injury or when the tortious act ceases. Hyon Waste Management Services, Inc. v. City of Chicago, 214 Ill. App. 3d 757, 762, 158 Ill. Dec. 335, 574 N.E.2d 129 (1st Dist. 1991). A continuing violation, however, is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation. Id. The focus is on whether the defendants' conduct continues, not whether the effects continue. Counts I and II incorporate by reference all the previous factual allegations, and then allege that defendants have committed trespass and nuisance by "depositing radioactive thorium on their properties without the Owners' permission or invitation. This trespass is ongoing and continuous." Neither count is specific as to whether the depositing of the thorium continues, or simply that the thorium remains deposited.
In their briefs, plaintiffs argue that defendants had a huge uncovered pile of thorium tailings (referred to by residents as "Mt. Thorium") on its property as late as 1995, and that the wind continued to deposit tailings onto residential properties up until that date. The allegations of the amended complaint, however, are not so specific. Paragraph 37 indicates that between 1930 through 1950 residents hauled off contaminated tailings for use as landfill, and paragraph 39 makes reference to "Mt. Thorium" but does not indicate when it existed or when the winds blew thorium from it, except to state in a footnote that in 1995 the NRC found the tailings cover to be in disrepair.
Such allegations are insufficient to support a claim of continuing trespass or nuisance. It appears, however, that the plaintiffs may be able to properly plead a claim for continuing tort, at least up to 1995. Accordingly, the court grants plaintiff leave to file an amended complaint with respect to Counts I and II only, mindful of their obligations under Fed. R. Civ. P. 11, alleging continuing trespass or nuisance.
In their request for relief plaintiffs seek certification of a "medical monitoring class" and an order creating a court supervised fund to pay for medical monitoring for the class. Defendants have moved first to dimiss the medical monitoring claim for failure to state a claim purusuant to Fed. R. Civ. P. 12(b)(6), and in the event the court denies that motion, for summary judgment against the adult plaintiffs based again on expiration of the statute of limitations.
In their motion to dismiss, defendants characterize plaintiffs' complaint as seeking damages for alleged future injuries without any claim of present injury or that the future injury is "reasonably certain" to occur. Citing Morrissy v. Eli Lilly and Co., 76 Ill. App. 3d 753, 32 Ill. Dec. 30, 394 N.E.2d 1369 (1st Dist. 1979), defendants argue that Illinois law does not provide a remedy for claimants who have not suffered a present compensable injury. In Morrissy, plaintiffs brought a putative class action on behalf of women whose mothers had ingested a drug known as DES during pregancy. As a result, daughters born to those mothers allegedly had an increased risk of contracting cancer and other diseases. The plaintiffs sought a court administered fund to provide class members with medical monitoring for the rest of their lives. In an effort to establish the propriety of a class action, the plaintiff had argued that the principle remedy sought was equitable in nature and resulted from exposure to DES rather than the present occurrence of a specific injury. The Illinois Appellate Court noted that the plaintiff did not seek "personal injury damages in the traditional sense, but rather compensation for the heightened risk of contracting one or more named diseases as a consequence of DES exposure." 76 Ill. App. 3d at 759. The court went on to state:
Plaintiff here . . . is essentially alleging the existence of latent disease as a present injury to herself and the proposed classes. The nexus thus suggested between exposure to DES in utero and the possibility of developing cancer or other injurious conditions in the future is an insufficient basis on which to recognize a present injury. In Illinois, possible future damages in a personal injury action are not compensable unless reasonably certain to occur.
Id. at 761.
Relying on Morrissy, the court in Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6, 157 Ill. Dec. 251, 572 N.E.2d 320 (4th Dist. 1991), held that it was reversible error to admit evidence of the plaintiff's increased risk of cancer due to his exposure to asbestos. The court concluded that the plaintiff had not established that it was a reasonable medical probability that he would contract cancer, and that damages could not be awarded on the basis of conjecture or speculation and must be proved to be the proximate result of the complained of wrong. Id. at 34.
Defendants, relying principally on the reasoning of Morrissy and Wehmeier, argue that under Illinois law, plaintiffs must plead either that they have already suffered a physical injury, or there is a reasonable medical certainty that they will contract any of the specified diseases. They have done neither.
In response, plaintiffs argue that defendants have mischaracterized their claim as one for an "increased risk" of contracting disease which requires proof of a "reasonable certainty," when they have actually alleged a claim for medical monitoring, which has no such requirement because it does not seek future damages. Plaintiffs recognize that no Illinois court has as yet accepted such a claim in the absence of any present physical injury, but argue that the modern trend is to accept such claims and that states that have recently examined the issue have allowed medical monitoring claims on public policy grounds.
The difference between a claim for an increased or enhanced risk and one for the reasonable costs of medical monitoring or surveillance is best described in In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829, 850, (3rd. Cir. 1987), in which the court instructed that:
An action for medical monitoring seeks to recover only qualified costs of periodic medical examinations necessary to detect the onset of physical harm, whereas an enhanced risk claim seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur. We think that this distinction is particularly important because the Pennsylvania Supreme Court has expressed some reluctance to recognize claims for enhanced risk of harm. In Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), the Court made clear that a plaintiff in an at-risk suit must prove that the future consequences of an injury are reasonably probable, not just possible. Martin does not lead us to believe that Pennsylvania would not recognize a claim for medical monitoring, however. First, the injury that the Court was worried about finding with reasonable probability in Martin is different from the injury involved here. The injury in an enhanced risk claim is the anticipated harm itself. The injury in a medical monitoring claim is the cost of the medical monitoring that will, one hopes, detect that injury. The former is inherently speculative because courts are forced to anticipate the probability of a future injury. The latter is much less speculative because the issue for the jury is the less conjectural question of whether the plaintiff needs medical surveillance. Second, the Pennsylvania Supreme Court's concerns about the degree of certainty required can easily be accommodated by requiring that a jury be able reasonably to determine that medical monitoring is probably, not just possibly, necessary. (Citations omitted).