No medical monitoring if it won't do any good.

Seamen who alleged exposure to asbestos but had no asbestos-related illness failed to convince the Ninth Circuit that they were entitled to medical monitoring in In re Marine Asbestos Cases (Bravo v. American Hawaii Cruises Inc.), 2001 WL 1028293 (September 10, 2001).

The 174 seamen had worked on the S.S. Independence and the S.S. Constitution. They sought medical monitoring under the Jones Act and theories of unseaworthiness, maintenance and cure, as well as the intentional torts of assault and battery and intentional infliction of emotional distress. Just for good measure, they also wanted punitive damages. The form of medical monitoring sought was a court-supervised program that would provide each with a single baseline medical examination.

The district court granted summary judgment to the defendants on the ground that the Jones Act does not permit recovery for medical monitoring for people who have not yet developed symptoms of disease, and that even if it did, these seamen didn't present the evidence to raise a triable issue as to causation and damages. The Ninth Circuit affirmed, but on the ground that the plaintiffs had not shown they would benefit from a single baseline examination where no abnormalities are yet apparent.

Chief Judge Schroeder conceded that the Ninth Circuit recognized the availability of medical monitoring damages without a present injury or disease in Abaun v. General Electric Co., 3 F.3d 329 (1993), in which it adopted in which it adopted the four necessary elements formulated by the Third Circuit in In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829, 852 (1990):

1. Plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendant.

2. As a proximate result of exposure, plaintiff suffers a significantly increased risk of contracting a serious latent...