Making the case against medical monitoring: has the shine faded on this trend? Three recent state supreme court cases have refused to recognize this novel extension of established tort law, and class certification looks dim.

• Author: Harbour, Laurel J.
• Position: Feature Articles

MEDICAL monitoring is a novel theory that is demanding more and more attention in product liability litigation. Plaintiffs seeking medical monitoring want defendants to pay the costs of diagnostic testing and medical surveillance to detect the possible future development of latent diseases. The idea is that it can take many years for disease to develop from an exposure, so medical monitoring purports to offer relief to plaintiffs for harms from exposure to toxic substances. It allows them to recover damages even though they may not have the present injury necessary to recover under traditional tort theories.

Courts that allow medical monitoring relief do so either as an independent cause of action or as a remedy attached to an established tort. Its chief appeal is that it provides some relief to sympathetic plaintiffs who have experienced exposures that might lead to future illnesses. It is becoming increasingly popular in the class action context, where large groups of people have been exposed to a toxic substance. However attractive this relief may be, it is important to remember that these claims are speculative at best because there is no guarantee that monitored plaintiffs actually will develop a disease from the exposure at issue or that medical monitoring will detect that disease if it develops. For those reasons, plus many others, the most recent judicial examinations of medical monitoring relief have found that the costs outweigh the benefits cited by plaintiffs.

PLAINTIFFS' THEORIES

Because most plaintiffs in the medical monitoring context do not have present injuries, they base their claims on innovative allegations of injury. They attempt to demonstrate some type of injury because traditional tort law requires that a plaintiff have a present injury in order to recover. For example, they may characterize an injury as the increase in potential for disease resulting from their exposure to harmful chemicals. They also may claim that an increased fear of developing an illness from exposure should be considered as an injury. In short, they argue that exposure to toxic materials requires them to spend money to receive diagnostic testing, and therefore their harm is the expense of paying for those tests.

Plaintiffs also take advantage of the fact that they often have very sympathetic fact patterns. When courts are reluctant to recognize medical monitoring as an extension of traditional tort law, plaintiffs encourage courts to create a new cause of action in response to perceived injustice. One argument is that it is unfair to place the economic burden of monitoring on the plaintiff when the defendant's negligence caused the exposure. Plaintiffs also suggest that making medical monitoring available will encourage people to seek early testing and treatment that they may otherwise avoid. This, plaintiffs argue, will help to mitigate the harmful effects of exposure related disease.

EVOLUTION OF MEDICAL MONITORING

Courts have noted a visceral reaction in support of the idea of medical monitoring. This gut-level reaction may be the reason that some state courts allowed medical monitoring, even in the face of potential problems. The early decisions of those courts allowing medical monitoring have prompted later courts to examine the law behind medical monitoring. Several courts that recently conducted such an examination have found that medical monitoring has no basis in the law and does not provide the answer to the problems that plaintiffs claim it solves.

1. In the Beginning

   The first state court of last resort to consider medical monitoring was the New Jersey Supreme Court in 1987 in Ayers v. Township of Jackson. (1) The residents of a town brought a nuisance claim against the township for water contamination caused by leakage of toxic substances from the township's landfill into its aquifer. They sought damages and medical surveillance costs for their "enhanced risk" of disease resulting from exposure to the toxic chemicals in the water supply. Although the court rejected a claim for enhanced risk, it recited its rationale for concluding that the record supported medical monitoring damages:

   As a result of the trial court's and Appellate Division's rulings, plaintiffs are left to await actual manifestation of physical injury attributable to their exposure to toxic chemicals before they can institute and sustain a damage claim for personal injuries against the defendant. Although the trial court observed that any such future suits could avoid the bar of the statute of limitation by virtue of our "discovery rule," the Appellate Division's characterization of that statement as non-binding dictum defers to this or another court the task of determining whether subsequent personal injury suits against this defendant may indeed be maintained. In the interim, under the Appellate Division ruling, any plaintiff who obtains regular or periodic medical surveillance for the express purpose of detecting adverse physical conditions attributable to exposure to toxic chemicals must personally bear the expense of that evaluation to the extent its cost is not covered by plaintiff's own health insurance. (2) The court began its determination by evaluating the "enhanced risk" cause of action proposed by the plaintiffs, none of whom had any present physical injury. The court noted first that "neither the statute of limitations nor the single controversy rule should bar timely causes of action in toxic-tort cases instituted after discovery of a disease or injury related to tortious conduct." This was true, it added, even if "there has been prior litigation between the parties of different claims based on the same tortious conduct."

   The court explained that its determination concerning enhanced risk required a choice between two alternatives, both of which had potentially unfair and problematic consequences.

   First, recognizing an enhanced risk cause of action created a burden on the tort system and courts to make determinations regarding damages in cases where injuries may never occur. Making those determinations in the absence of clear guidelines and the uncertainty involving the development of disease would introduce an arbitrary aspect to legal decision making. Awards for medical monitoring also would increase insurance rates and encourage vast numbers of claims for compensation of future, potential injury. Second, the court stated that rejecting the creation of a cause of action for enhanced risk might deny compensation to injured plaintiffs unable to establish a causal relationship between their exposure and disease.

   In the end, the court held that the legislative intent behind the law at issue in Ayers was undermined by the speculative nature and difficulties involved in creating an enhanced risk cause of action. For those reasons, it refused to recognize such a cause of action and instead invited the state legislature to act to resolve this "perplexing and serious problem."

   The Ayers court next considered plaintiffs' request for medical monitoring damages. It was persuaded that medical monitoring relief was "manifestly consistent with the public interest in early detection and treatment of disease." It explained that medical monitoring had several potential advantages, including: (1) prevention or mitigation of serious future illnesses and reduction of over-all costs, and (2) creation of a more equitable result by relieving the exposed person from bearing the burden of paying for medical tests when unable to prove that disease is likely.

   Building on that ground, the court held that medical monitoring

   is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. (3) To reach this holding, the court relied heavily on Friends for All Children Inc. v. Lockheed Aircraft Corp., (4) a U.S. Court of Appeals for the District of Columbia Circuit case involving Vietnamese orphans who survived a plane crash, cabin decompression and hypoxia. The survivors were awarded one-time medical testing to determine the extent of their neurological injuries--not an extensive medical monitoring program involving screening tests for years based on exposure to a hazardous substance.

   The court's reliance on Friends was misplaced. The U.S. Supreme Court has distinguished Friends from other medical monitoring cases because it involved the "special recovery-permitting circumstance" of a traumatic physical event. (5) Moreover, subsequent cases in the District of Columbia have rejected medical monitoring as either a remedy or cause of action in the absence of a present injury. (6)

   Even the hypothetical on which the courts in Friends and Ayers rely is flawed because it involves a traumatic physical impact:

   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. (7) This hypothetical situation is very different from that of plaintiffs who are completely asymptomatic and have sustained no traumatic physical impact. Although the imaginary Jones may not have internal head injuries from the accident, there is no question that the physical impact must have caused him some physical injury, slight as it may be.

2. Further Recognition

   Cases like Ayers that rely on Friends to allow...