Companies in many industries face class action lawsuits by individuals who allegedly have been exposed to hazardous substances associated with the companies’ products. In many cases, plaintiffs allege that they have sustained injuries or developed illnesses as a result. But some plaintiffs sue before developing any injury or illness, based on simple exposure to a substance or product. These plaintiffs typically claim that they and others face an increased risk of developing an injury or illness in the future—and demand that the companies pay for “medical monitoring” programs to detect possible injuries and illnesses in the future.
Medical monitoring actions have been brought against companies involved in pharmaceutical manufacturing, chemical manufacturing, mining, energy production, tobacco and building materials. These actions are controversial and raise many questions about fundamental principles of tort law and how to weigh the costs and benefits of medical monitoring for groups of people who are not sick and may never become sick.
Courts have split about whether to allow such actions; however, the New York Court of Appeals’ recent decision in Caronia v. Philip Morris USA Inc. offers many lessons about how companies can effectively challenge such actions.
Courts Have Split
Courts have handled medical monitoring actions in a variety of ways. A majority have declined to permit plaintiffs to sue for medical monitoring absent allegations and evidence of a present injury or illness. Jurisdictions where medical monitoring claims have been rejected include Alabama, Georgia, Indiana, Kentucky, Michigan, Mississippi, Nevada, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, the Virgin Islands, Virginia, Washington and Wisconsin. Furthermore, the U.S. Supreme Court, in Metro-North Commuter R.R. Co. v. Buckley, ruled that a claim for medical monitoring, absent a present physical injury, was “beyond the bounds of the ‘evolving common law’” and thus not available under the Federal Employees’ Liability Act. Federal courts have extended Buckley to other federal statutory causes of action, including those under the Price-Anderson Act and CERCLA.
A minority of states have permitted some sort of medical monitoring claim, absent allegations and evidence of a present injury or illness, either as a new tort or a new “equitable” cause of action. Jurisdictions where medical monitoring claims have been permitted include Arizona, California, Colorado, the District of Columbia, Florida, Illinois, Maryland, Massachusetts, Missouri, Montana, Ohio, Pennsylvania, Utah, Vermont and West Virginia.
Caronia v. Philip Morris
Caronia was brought as a class action by longtime, heavy smokers who had never developed any injury or illness but who wanted an elaborate medical monitoring program to screen for possible illnesses in the future. Many lower courts had assumed that such plaintiffs could bring a medical monitoring class action because of statements that the New York Court of Appeals made in a 1936 case, Schmidt v. Merchants Desp. Trans. Co.
But the New York Court of Appeals ruled that the lower courts’ assumptions were wrong. The court held that plaintiffs could not sue based on allegations of simple exposure to a hazardous substance, before developing any injury or illness. Such a claim would require a radical change in the “physical harm requirement” that had been a part of tort law for centuries, the court ruled. It also would require state courts to make decisions about complicated and controversial questions of science and medicine concerning the risks people face in developing diseases in the future and the possible harms and benefits of various forms of medical monitoring. The Court of Appeals held that state courts were not well positioned to answer such questions of science, medicine and public policy, and that such matters were best left to the state legislature to study and address.
Defending Against Medical Monitoring Claims
Caronia provides valuable lessons for companies defending against medical monitoring claims. Here are a few:
1. Select Counsel with Experience Defending These Claims
Companies should look to hire outside counsel with specific experience defending against medical monitoring claims and challenging the premises of novel common law claims at trial and on appeal. Caronia shows that medical monitoring actions raise special questions about the recognition of new common law actions as well as science, medicine and public policy. Counsel with specific experience in such matters will be best positioned to develop a winning and cost-effective legal strategy. In particular, companies should consider engaging appellate specialists early, because they generally have experience with developing strategies to knock out the premises of medical monitoring claims at trial and on appeal.
2. Challenge the Pleadings Early
Whether a plaintiff who is not injured or sick can bring a claim for medical monitoring usually is a question of law that can be challenged early through motions on the pleadings or early summary judgments motions. By challenging the claims early, it may be possible to avoid many costs associated with pretrial discovery.
3. Pay Attention to Tort-Law “Fundamentals”
Caronia illustrates the importance of scrutinizing old cases very carefully. While many New York courts had assumed that plaintiffs could bring medical monitoring claims without alleging or proving present injury or illness, the defendant and its amici were able to show that those courts had misread old cases and underscore the importance of historical tort rules, like the requirement that a plaintiff have a present physical injury.
4. Support Legal Doctrine with Modern Policy Arguments
Challenges to novel common law actions, like medical monitoring actions, are especially effective when arguments about old cases and historical rules are supported with equally sophisticated arguments concerning (1) the difficulties of answering complicated scientific, medical, and policy questions through common law adjudication; and (2) the need for courts to defer to legislatures. In Caronia, the court expressed concern about a flood of medical monitoring class actions, the cost of litigation and unpredictable liability, and the way in which all costs ultimately would be borne by consumers. The court also was concerned about the way in which the proposed cause of action could reduce the resources available to provide relief to individuals who develop actual injuries and illnesses in the future as a result of proven tortious conduct. Ultimately, the court thought that the legislature was in the best position to study and develop public policy concerning these issues.
5. Emphasize the Lack of Consensus
While some states have allowed some form of medical monitoring, different states have established different standards and tests for an action. In some states a medical monitoring action has four elements, and in others it has eight. These formal differences reflect even deeper disagreements in these states about when to allow actions to proceed. The lack of consensus underscores the problems inherent in any medical monitoring action and has helped to persuade courts to reject medical monitoring as a matter of law.
6. Stress the Burdens Courts Will Face
Plaintiffs in medical monitoring actions typically seek elaborate court-supervised health programs, including outreach and ongoing communications with potential class members, hiring of medical staff, and the development of medical protocols for testing and treatment. Such programs could tie up judicial resources for years and possibly decades. As Caronia shows, courts are reluctant to engage in such work absent a clear legislative directive to do so.
Caronia is a great example of how to combine arguments based on careful analysis of formal legal doctrine with arguments based on sophisticated analysis of science, medicine and public policy. Companies facing medical monitoring claims in other jurisdictions or seeking to challenge other novel common law claims can use it as model for future litigation.
David J. Bird was one of the authors of the amicus curiae brief filed by the Product Liability Advisory Council Inc. in the Caronia case. He has specialized in appellate litigation for more than 10 years and is a partner Reed Smith. M. Patrick Yingling is an associate in Reed Smith’s appellate group.