Medical monitoring: Missouri's welcomed acceptance.

• Author: Patel, Anita J.

Meyer ex rel. Coplin v. Fluor Corp. (1)

1. INTRODUCTION

   One of the fundamental principles of tort law is that a plaintiff cannot recover without a present physical injury. (2) As society evolved and latent injuries became more prevalent, tort law failed to provide relief because of its present injury requirement. (3) The consequence of this gap in recovery meant that plaintiffs who were exposed to toxic chemicals but could not afford to undergo periodic testing to detect latent injuries would have to wait until the injury manifested itself in order for plaintiffs to bring claims for recovery. Unfortunately, this passage of time can have detrimental effects on the plaintiff and result in a more severe outcome than if the injury were detected in its early stages. (4) Policy considerations regarding the benefit of early detection and diagnosis of disease and the deterrent effects of imposing liability on defendants convinced some states to adopt medical monitoring. (5) Medical monitoring allows plaintiffs to receive compensation for future diagnostic testing that is reasonably necessary to detect latent injuries that may develop after exposure to toxic substances. (6) Medical monitoring can be viewed as a cause of action or a form of relief. (7) In both instances, the goal is to allow plaintiffs who have been exposed to toxins that enhance the plaintiffs' risk of disease to be compensated for periodic diagnostic testing in order to detect disease early. (8)

   In Meyer v. Fluor Corp., the Missouri Supreme Court was the first court in Missouri to hold that medical monitoring was available as a form of damages in the state. (9) By allowing recovery for medical monitoring without a present injury, Missouri has joined several states in allowing for an expansion of traditional tort law. (10) Critics argue that this expansion of tort law will lead to a flood of litigation and should be left to the legislature. (11) However, the Meyer court correctly decided to allow relief on the basis that the underlying principles of tort law and medical monitoring are the same and plaintiffs whose interests were invaded should be able to recover.

2. FACTS AND HOLDING

   Fluor Corporation operates a lead smelter in Herculaneum, Missouri, which emits large quantities of lead into the environment. (12) Lani Meyer is the representative of a class of children who were exposed to the smelter's toxic emissions. (13) Meyer filed a petition against Fluor Corporation alleging negligence, strict liability, private nuisance, and trespass. (14) Due to the latent injuries that lead can cause, Meyer also requested compensatory damages in order to fund the establishment of a medical monitoring program. (15) The program would monitor the effects of the toxic lead and other chemicals in order to determine whether it has caused or is causing injury or illness to the members of the class. (16)

   Meyer filed for class certification pursuant to Missouri Supreme Court Rule 52.08(b)(3) claiming that the proposed class members' common issues predominated over the individual issues, which included level of exposure and age at which exposure occurred. (17) The Missouri Supreme Court stated, "'when one or more of the central issues in the action are common to the class and can be said to predominate,' the case may properly proceed as a class action, even though other important matters will have to be tried separately." (18) In order to be certified as a class, the plaintiff must not only meet at least one of the requirements of 52.08(b), but must also meet all of the requirements of rule 52.08(a). (19) The circuit court found that the numerosity requirement of rule 52.08(a) was met, but the court did not make any determinations regarding the commonality and typicality requirements. (20) The circuit court denied class certification, stating that the class members' individual issues predominated and the claim "could not be efficiently addressed on a class-wide basis." (21) The Court of Appeals for the Eastern District of Missouri affirmed the circuit court's ruling. (22)

   On appeal, the Missouri Supreme Court reversed and remanded the denial of class certification. (23) The court found that the lower court improperly applied factors used to assess personal injury cases, which require a present physical injury, to a claim of medical monitoring. (24) The court held that in order for a class to recover under a medical monitoring claim, there was no need to show a present physical injury and that individual issues may be present so long as the common issues predominate in the action. (25)

   Judge Price's dissent in this case noted that the predominance requirement was met; however, he believed that class certification was inappropriate because Meyer was not typical of the class. (26) The dissent reached this conclusion because Meyer, unlike the other class members, suffered from a present physical injury. (27) Meyer also filed her own lawsuit, which was an "undeniable admission that the interest of the class and her own interests are not the same, but are in conflict." (28)

3. LEGAL BACKGROUND

   1. Medical Monitoring

      Traditional tort law does not properly address new forms of injuries created by the industrialization of the United States. (29) In toxic tort cases, the plaintiffs often suffer from latent injuries that manifest years down the road. Medical monitoring is a theory of recovery designed to address the latent injuries that often occur in toxic tort cases. (30) Medical monitoring allows plaintiffs to receive compensation for future diagnostic testing that is reasonably necessary to detect latent injuries or diseases that may develop as a result of exposure to toxic substances. (31) Because medical monitoring departs from the well-founded physical injury requirement of tort law, some states refuse to recognize the claim. (32) States that do recognize the claim base the justification on policy considerations. (33)

      In In re Paoli Railroad Yard PCB Litigation, a Pennsylvania court called the need for medical monitoring "obvious" due to the potential for toxic torts to cause latent injuries. (34) The court found that tort law and medical monitoring have the same root policy consideration of deterring the defendant's tortious conduct by imposing liability for the plaintiff's medical expenses. (35) However, the difference with medical monitoring claims is that there is generally not a cognizable present injury. (36) Other states have cited similar policy considerations for adopting medical monitoring claims. (37)

      In Ayers v. Jackson Township, the New Jersey Supreme Court acknowledged "the difficulty that both law and science experience in attempting to deal with the emerging complexities of industrialized society and the consequent implications for human health." (38) In Ayers, medical surveillance was granted to a class of plaintiffs who were exposed to contaminated water. (39) The court stated that medical monitoring costs were compensable damages if plaintiffs could show through medical testimony that "monitor[ing] the effect of the exposure to the toxic chemicals was reasonable and necessary." (40) According to the court, tort recovery is premised on the notion that people have an interest in being free from personal injury. (41) Similarly, people have an interest in being free from expenses relating to medical testing and diagnostics exams. (42)

      The court explained its reasoning by citing Friends for All Children, Inc. v. Lockheed Aircraft Corp. (43) In Friends for All Children, a class of children involved in a plane crash requested funds for medical monitoring after decompression of the plane and impact of the crash allegedly caused minimal brain dysfunction to the children. (44) The court granted medical monitoring costs on the basis that the crash "'proximately caused the need for comprehensive diagnostic examination'" and the children would not need medical examinations and testing "'but for the fact that these children endured explosive decompression and hypoxia.'" (45)

      The policy considerations underlying the acceptance of medical monitoring appear to be consistent throughout the jurisdictions. (46) However, the states' views of medical monitoring vary greatly. (47) For example, some states require a present injury while others do not. (48) Also, some states view the claim as a new cause of action, while other states view it as a form of relief. (49) Further, some states view medical monitoring as a claim for damages while others view it as equitable relief. (50) The way that a state views medical monitoring impacts the procedural elements of the case. (51) Since medical monitoring is generally desired in mass tort cases, the plaintiffs often seek class certification. (52) Therefore, whether the jurisdiction views the tort as a claim for equitable relief or compensatory damages is an essential element in determining how to seek certification.

   2. Class Certification and Medical Monitoring

      Since toxic tort cases often involve potential harm to a large class of people, plaintiffs generally have...