American Law Institute Proposes Controversial Medical Monitoring Rule in Final Part of Torts Restatement.

• Author: Behrens, Mark A.

The American Law Institute (ALI) is nearing the end of a two decades-long undertaking to "restate" the common law of torts for the third time. The final part of this effort is a project called the Restatement (Third) of Torts: Concluding Provisions. (1) The project was initiated in 2019 to address significant tort issues not covered in other parts of the Third Restatement of Torts.

One of the Concluding Provisions recommends that courts allow recovery for medical monitoring expenses, "even absent present bodily harm." (2) This approach is controversial because the existence of a physical injury has traditionally been a fundamental tort law requirement. The United States Supreme Court, for example, rejected medical monitoring claims for asymptomatic railroad workers exposed to asbestos. The Court expressed concern about the "threat of 'unlimited and unpredictable liability'" that could result from allowing unimpaired claimants to obtain tort recoveries. (3)

This article examines the Restatement's medical monitoring proposal and discusses how it might be improved. (4) The article encourages defense lawyers in the ALI to become engaged to help bring about constructive improvements.

1. Why the ALI's Proposed Rule Matters

   The ALI is one of the most influential private organizations in the development of American law due in large part to the role Restatements have played for nearly a century. The ALI was founded in 1923 to promote clarity and uniformity in the law and has sought to accomplish this mission primarily through the development of educational resources for judges and other policymakers. The ALI leverages the collective expertise of a membership comprised of many of the nation's most distinguished judges, law professors, and practitioners to develop a variety of works with different objectives and audiences. (5) The ALI is perhaps best known for developing Restatements--works that are cited countless times each year by courts.

   Restatements set forth "clear formulations of common law... as it presently stands or might appropriately be stated by a court." (6) The ALI instructs the law professors who author Restatements (called Reporters) to survey case law and restate the "best" legal rules in existing common law. (7)

   Reporters do not have to adopt the majority view on an issue, but are directed to thoroughly explain the rationale for recommending a minority approach. The ALI cautions Reporters against recommending "[w]ild swings" in the law. (8)

   The significant influence Restatements enjoy means that judges may view the ALI's treatment of medical monitoring as well-accepted, even though it is problematic. The proposal could have a significant impact on the future availability of medical monitoring recoveries in the United States because plaintiffs' lawyers will argue for the adoption of the Restatement's approach in jurisdictions where the common law presently requires a physical injury to support a tort claim.

2. The Restatement's Proposed Rule

   The draft Restatement's medical monitoring proposal states:

   A person can recover for medical monitoring expenses, even absent present bodily harm, if:

   (a) an actor's tortious conduct has exposed a person to a significant risk of serious future bodily harm;

   (b) the exposure makes medical monitoring reasonable and necessary in order to prevent or mitigate the future bodily harm;

   (c) the person has incurred the monitoring expense, will incur the monitoring expense, or would incur the monitoring expense if he or she could afford it; and;

   (d) the actor's liability is not indeterminate. (9)

   A threshold consideration with respect to this Restatement is whether the ALI should endorse any rule permitting a tort recovery in the absence of a present physical injury. The ALI does not appear to have previously adopted a Restatement provision allowing a tort recovery for asymptomatic claimants in its nearly 100-year history.

   The case law regarding the availability of medical monitoring absent present bodily harm is divided. Many courts have rejected recovery without injury because of the serious public policy implications, including the potential that payments to the non-sick could deplete resources needed to compensate sick claimants in the future. (10) The bankruptcy of some 120 companies in the asbestos litigation illustrates the problem of scarcity of assets in mass exposure cases. By comparison, there is far greater consensus with respect to the availability of medical monitoring in present physical injury cases.

   The topic of medical monitoring warrants restraint. The existence of a present physical injury is a bedrock tort law principle, and its erosion can have serious impacts on defendant companies and future claimants with actual injuries. Abandoning the physical injury rule in a Restatement would be a major departure from the previous two Restatements of Torts, which are among the most celebrated Restatements in the ALI's history.

   In the Restatement (Third) of Torts: Apportionment of Liability (2000), the ALI took a neutral approach on the topic of joint and several liability, providing detailed explanations of competing approaches. The ALI would be wise to follow a similar approach on medical monitoring.

3. The Case Law on Medical Monitoring is Mixed with Many States Undecided

   According to the Reporters of the proposed Restatement, a "slim majority" of jurisdictions allow medical monitoring absent present injury of the "states that have expressly considered and taken a discernable stance on the issue." (11) An Appendix to the medical monitoring section of the draft Restatement lists sixteen states and the District of Columbia as states that "authorize or appear to authorize medical monitoring absent present injury." (12)

   This "head count" appears to be inflated to support the Restatement's proposed rule. The list includes several states where federal courts made a prediction as to state law. (13) The list also includes states (Minnesota and Massachusetts) that "require the plaintiff to submit proof of cellular, subcellular, or subclinical injury or the clinically demonstrable presence of toxins in the plaintiff's bloodstream." (14) The Appendix fails to address case law from Minnesota rejecting medical monitoring as an independent tort action. (15)

   A case law survey appended to this article supplements the Restatement's Appendix with significant additional case law. As the included case law survey demonstrates, there are only ten states in which a state appellate court has adopted medical monitoring absent present physical injury. (16) At least as many states reject medical monitoring absent present injury. (17)

   In most states, neither a state appellate court nor the legislative branch has decided the availability of medical monitoring absent a present bodily harm. The murkiness of the law in this area is yet another reason for the ALI to exercise restraint and offer competing approaches with explanations rather than advance a controversial approach.

4. Medical Monitoring as a Cause of Action

   The initial draft Restatement medical monitoring section recommended that courts adopt medical monitoring as a stand-alone tort cause of action. (18) This approach proved too controversial and was changed in the current draft to give courts flexibility to use "[w]hichever terminology a court uses or approach a court chooses" that will allow asymptomatic plaintiffs to recover medical monitoring expenses. (19)

   Most states that permit medical monitoring claims absent present injury do so as an item of recoverable damages. (20) Only five states have adopted medical monitoring absent present injury as an independent cause of action. (21)

   Several Advisers to the Restatement project expressed the view that the treatment of medical monitoring as an element of damages versus an independent tort action can have significant ramifications. Adviser and U.S. District Court Judge Dave Campbell explained that the distinction has "practical litigation consequences" in areas such as jury instructions. (22) The Reporters also acknowledged that a separate medical monitoring cause of action would raise issues regarding the proper statute of limitations governing a claim and that there may be other important issues implicated that are not readily apparent because few courts have adopted such an approach. (23)

   By freeing courts to choose their approach with respect to the adoption of medical monitoring, the draft Restatement glosses over the important damages versus independent tort action distinction and continues to support recognition of "stand-alone causes of action." (24) The draft Restatement should make clear just how far out of the mainstream recognition of a stand-alone medical monitoring cause of action is so that judges are not misled into believing that this approach is widely accepted.

5. Other Areas for Improvement

   The draft Restatement's treatment of medical monitoring would further benefit from greater clarity with regard to the scope of a monitoring remedy.

   To the Reporters' credit, the draft Restatement includes several safeguards to address concerns raised by the United States Supreme Court and other courts about the potential for unlimited or unpredictable liability. Comments supporting the Restatement's medical monitoring proposal state that "negligible or insignificant" risks of serious bodily harm will not subject an actor to liability, nor will liability be imposed if it would be "highly unpredictable or virtually unlimited." (25) The draft also explains the "reasonable and necessary" limitation on any recoverable medical monitoring expenses. (26) These efforts to set forth reasonable limitations on the scope of a medical monitoring recovery are helpful, but suggest the need for even further development.

   1. Any Medical Monitoring Remedy Should Incorporate a More Demanding Liability Standard

      As currently stated, the draft Restatement permits recovery of medical...