Recognition of 'medical monitoring' claims in Florida.

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Recognition of 'medical monitoring' claims in Florida.

On its shadow side, the social progress generated by the rapid advances in American industry and technology over the last century spawned a grim army of silent killers--latent industrial and occupational diseases often manifesting years after exposure to hazardous substances in the workplace or environment. The multitude of claims arising out of these insidious injuries presented unique challenges to the conventional tort system, which traditionally developed to provide a system of compensation for redress of individual, immediate wrongs.

Responding to society's altered industrial fabric, the tort common law formulated a new cause of action to provide redress in those situations where there is a sizable time lag between the wrong and manifestation of injury--the "medical monitoring" or "medical surveillance" claim. Distinct from the "enhanced risk" claim which seeks to recover lump sum damages for the possibility of future disease or condition materializing, discounted by the probability of its occurrence,(1) the "medical monitoring" claim contemplates recovery of costs of periodic future diagnostic testing to detect latent diseases or disorders caused by tortious exposure to hazardous substances. Cognizance of this claim finds its genesis in suits involving mass industrial or environmental contaminations such as asbestos exposure,(2) groundwater contamination,(3) landfill toxins,(4) PCBs and related organic chemicals,(5) petroleum product emissions,(6) and radioactive emissions.(7)

In a case of first impression in Florida, the Third District recently joined the growing number of jurisdictions recognizing a distinct cause of action for medical monitoring, extending its application to the field of pharmaceutical products liability in Petito v. AH Robins Co., Inc., 750 So. 2d 103 (Fla. 3d DCA 1999). The plaintiffs in Petito constituted a statewide class of persons who had used the much publicized combination of weight loss drugs Fenfluramine and Phentermine ("Fen-Phen"). While claiming no physical injury or current manifestation of disease, plaintiffs contended that their ingestion of the product placed them a...

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