Title: 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. (Feature Articles)
Abstract: 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. A. 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. …
Publication Year: 2003
Publication Date: 2003-07-01
Language: en
Type: article
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