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]
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