Whither medical monitoring claims? Last few years give reasons for optimism: courts are critically examining whether these claims can be independent actions or remedies and whether they are suitable for class action status.

• Author: Copeland, Jr., Morgan L.

THE reporters on the Restatement of Torts (Third): Product Liability, James A. Henderson Jr. and Aaron D. Twerski, wrote in 2002:

To respond to [medical monitoring] claims, it is necessary to provide medical surveillance for all plaintiffs who have only a slight increase in risk of developing malignancies in the future. The specter of a massive, never-ending que [sic] of claimants is very real. Moreover, as the massive number of uninjured claimants presenting anticipatory claims devours the defendants' resources, those defendants are forced into bankruptcy leaving nothing for those whose ills, as they eventually manifest themselves, are not the least bit speculative. This problem has already pitted lawyers who represent the seriously injured against their cohorts who represent the unimpaired. The asbestos saga has been a tragic chapter in American social history. It need not have become a tragic chapter in American jurisprudence. But it has and it will remain so unless courts put an end to the madness. (1) The July 2001 newsletter of the IADC Toxic and Hazardous Substances Litigation Committee, which also was published in this journal, examined the inception and growth of medical monitoring claims, by which plaintiffs seek to recover the costs of ongoing medical examinations necessitated by chemical/toxic exposure. (2) Three years later, the status of these claims continues to change quite rapidly. Academic commentators have begun to weigh in, and concomitantly, the debate over whether such claims should be recognized and how they should be managed continues. A survey of the current trends regarding medical monitoring claims is, if not overdue, certainly warranted.

The 2001 article completed much of the legwork in explaining the inception of medical monitoring claims, including exposition of the seminal cases that recognized those claims. (3) Therefore, this article will pick up where the previous one left off, by examining several of the most heated debates within the medical monitoring paradigm.

These debates generally can be categorized into (1) substantive questions regarding the nature of the medical monitoring claim itself and (2) questions regarding the propriety of class actions and class remedies for such claims. Since 2001, three state supreme courts and one federal district court have addressed medical monitoring claims and have decided substantive questions regarding them. There generally are two questions that typically are addressed by courts in analyzing medical monitoring claims as a question of first impression: (1) Are the claims independent causes of action or requests for damages? (2) Must plaintiffs have present injuries to assert a claim? Also since 2001, numerous courts have grappled with the question of whether medical monitoring claims are an appropriate subject for class treatment.

One should begin by addressing the case analyses of the substantive questions and proceed to examine treatment of the class questions. A quick summary of the trends, stated in very general terms, is that the last two years reflect heightening resistance both to medical monitoring claims in general and to their fitness for class treatment.

SUBSTANTIVE PROPRIETY

Courts have increased their scrutiny of the substantive propriety of medical monitoring claims. There are again the two main questions: first, are medical monitoring claims independent causes of action or simply a type of remedy, and second, even if they are simply a remedy, must a plaintiff manifest present physical injury to recover?

In 2002, the Supreme Court of Kentucky answered both questions in Wood v. Wyeth-Ayerst Laboratories. (4) First, it is noteworthy that the plaintiff in this case sought recognition as a class representative. The same is true of the plaintiffs in each of the state supreme court cases addressing medical monitoring claims since July 2001. (5) The significance of this is that, as time goes on, it seems less and less tenable to scrutinize medical monitoring claims outside of the auspices of class questions. As Henderson and Twerski have observed.

medical monitoring claims may turn out to be uniquely suited to class action treatment ... advocates favoring expansion of class action practice continue to insist that even medical monitoring claims seeking monetary recoveries are inherently susceptible to class treatment. essentially on the ground that factual variations among claimants and variations in applicable law are not so troubling here as in other areas of tort. (6) Wood emanated from the fen-phen or diet drug litigation. The plaintiff sought, on behalf of the proposed class, court-supervised medical monitoring, the creation of a fund to pay for that monitoring, reimbursement of the cost of medications needed to maintain health, and punitive damages. The...