Medical monitoring: pay me now or pay me later.

• Author: Bloom, Laurie

Writing in the July newsletter of the Toxic and Hazardous Substances Committee, Laurie Bloom, Susan Roney and Joseph Leghorn (assisted by Andrew M. Burns and John W. Weinholtz), all of Nixon Peabody, LLP, Buffalo, survey the medical monitoring scene:

Medical monitoring claims were largely unheard of 20 years ago. Now, they occupy a prominent place in plaintiffs' toxic tort/mass tort arsenal.

By means of medical monitoring claims, plaintiffs seek to recover the costs of periodic, future medical examinations intended to detect the onset of latent injuries or diseases caused by exposure to toxic substances. The claim is often pleaded both as a request for equitable relief to establish a judicially administered fund and as a request for money damages. In re Diet Drugs Products Liability Litigation, 1999 U.S. Dist. Lexis 13228 (E.D. Pa. 1999) (equitable relief); Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987). One of the criticisms of lump-sum monetary awards is that there is little evidence to suggest they are actually used for medical testing and are often treated as found money by plaintiffs.

Grappling with issues

While medical monitoring claims are on the increase, courts faced with these claims continue to grapple with basic issues, such as whether the claim is an independent cause of action or simply an element of damages, whether a present physical injury is required, whether the claim is appropriate for treatment as a class action, and what are the proper accrual and limitations periods.

Recent trends in medical monitoring law reveal a tightening of the availability of the remedy, with several states recently declining to recognize it as an independent cause of action. Other states have limited relief to instances in which plaintiffs are suffering a present physical injury. Class action treatment has been granted in some instances, but only if a well-defined and narrowly drawn class is presented.

Cause of action or damages?

A series of recent cases reveals an emerging trend away from recognizing medical monitoring claims as an independent cause of action. For instance, in Anello v. Shaw Industries Inc., 2000 U.S. Dist. Lexis 6835, 2000 WL 1609831 (D. Mass. 2000), the court held that medical monitoring claims are "an aspect of plaintiffs' damages, as opposed to an independent cause of action." The Nevada Supreme Court rejected a contention that medical monitoring claims were a standalone cause of action in Badillo v. American Brands Inc., 16 P.3d 425 (Nev. 2001). See also Trimble v. Asarco Inc., 232 F.3d 946, 963 (8th Cir. 2000) (applying Nebraska law); Wood v. Wyeth-Ayerst Laboratories Division of American Home Products Corp., 2000 Ky.App. Lexis 130, 2000 WL 1610658 (Ky.App. 2000), rehearing granted, 2001 Ky. Lexis 104 (Ky. 2001). But see Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W.Va. 1999) (plaintiffs could assert claims for medical monitoring).

Whether presented as an independent cause of action or as a request for damages, to prevail on a claim, plaintiffs must establish a significant exposure to a toxic substance due to the negligence of defendants; that the exposure caused the plaintiffs to be put at an increased risk of contracting a serious latent disease or injury; that such increased risk warrants periodic testing or examination; and that procedures exist that would allow for early detection and treatment of the disease or condition. See In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 852 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991).

Present injury?

One of the issues dividing courts is whether the plaintiff must be suffering a present physical injury in order to recover. One of the earliest cases discussing this issue was Friends for All Children Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984), in which suit was brought on behalf of 149 Vietnamese orphans who survived an airplane crash. Although the orphans did not display any physical symptoms, the plaintiffs alleged that they suffered from a neurological disorder as a result of cabin decompression and the impact of the crash. They sought to establish a monitoring fund. Lockheed argued that the claim was not cognizable without proof of actual physical injury.

Rejecting Lockheed's thesis, the D.C. Circuit hypothesized the following simple, everyday accident:

Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations. [746 F.2d at 825] The court concluded that even in the absence of a physical injury, Jones should be entitled to recover the cost for the various diagnostic examinations proximately caused by Smith's negligent action. So in the Lockheed case, the court accepted the plaintiffs' evidence that the orphans were at increased risk of brain damage as a result of the crash, and that they had a need for periodic diagnostic tests. The court ordered Lockheed to pay the costs of the tests.

Present physical injury required

Not all courts have followed the reasoning of Friends of All Children. Indeed, a substantial number have rejected medical monitoring claims when plaintiffs are asymptomatic.

In Metro-North Commuter Railroad Co. v. Buckley, 521 U.S....