For over 25 years, healthy plaintiffs have been filing lawsuits based upon their “fear” of developing a future illness.[FOOTNOTE 1] These plaintiffs are typically symptom-free and exhibit no indications of disease related to an alleged product exposure, but they seek to recover medical monitoring costs — essentially millions of dollars to pay for expensive, long-term diagnostic tests and medical examinations. In the last two years, federal and state courts have issued over 40 decisions involving medical monitoring. Two trends have emerged from this recent case law.

First, the viability of medical monitoring claims remains far from certain, and if anything, continues to wane. In 2008 and 2009, at least four jurisdictions considered the availability of medical monitoring for the first time. All four jurisdictions refused to recognize medical monitoring claims absent present physical harm or physiological changes caused by the allegedly negligent conduct. Consequently, in three of the four jurisdictions — interpreting Oregon, Oklahoma and Rhode Island law respectively — claims for medical monitoring summarily failed. The fourth locale, Massachusetts, permitted a medical monitoring claim to move forward, but only because the tobacco plaintiffs in that lawsuit presented expert evidence regarding “subcellular” or other physiological changes. The impact of this decision in Massachusetts outside the tobacco context remains unclear, particularly given the limitations in scientific knowledge surrounding subcellular analyses. Overall, plaintiffs without present physical injury or changes increasingly are unable to seek recoveries.[FOOTNOTE 2]

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]