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Courts have long struggled with the question of whether a compensable tort has occurred when the claimant has no present physical injury, but has been exposed to a substance that might (or might not) cause disease in the future. Various creative legal theories have been asserted in such situations: e.g., fear of cancer, increased risk of disease and medical monitoring. Medical monitoring appears to have had the most traction, probably because it is the theory that-at least on its face-appears most capable of being litigated in a class action. Although it has been around for more than 20 years, surprisingly few state supreme courts actually have ruled on whether to recognize medical monitoring. Five states have expressly adopted medical monitoring: California, New Jersey, Pennsylvania, Utah and West Virginia. Five, however, have expressly rejected it: Alabama, Delaware, Kentucky, Michigan and Nevada. One state, Mississippi, may be poised to answer the question soon. See Paz v. Brush Engineered Materials Inc., 445 F.3d 809 (5th Cir. 2006) (certifying question to Mississippi Supreme Court). Since 2000, each state supreme court to consider the question anew has rejected the theory. Notably, the proposed final draft of the new Restatement (Third) of Torts: Physical Harm, � 4, cmt. c, does not take a position on medical monitoring because it is not a “physical” harm. But a reporter for the Restatement (Third) of Torts: Products Liability opined that such “aggregative torts”-including medical monitoring-”are inherently lawless and unprincipled,” and that “what is happening in the minority of . . . jurisdictions that have allowed these claims to proceed is not in the long-range best interests of this country.” James A. Henderson Jr., “The Lawlessness of Aggregative Torts,” 34 Hofstra L. Rev. 329, 337 (2005). Medical monitoring claims are forward-looking One of the bedrocks of tort law has been the requirement that the plaintiff have a present physical injury to person or property. This requirement serves to define clearly who actually possesses a cause of action, reduce the risk of fraudulent claims and constrain judicial power to areas where there are clear legal standards. See Henry v. The Dow Chemical Co., 701 N.W.2d 684, 690-91 (Mich. 2005). But this basic rule deprives people of recovery when they are exposed to a known carcinogen, but have suffered no present physical injury. The courts that first adopted medical monitoring found this to be unfair, particularly when medical tests could monitor whether a disease developed in the future. At common law, future medical expenses plainly were available to the physically injured plaintiff. Some courts reasoned that the exposure-only plaintiff was really no different; he simply had a present need to expend money on future medical monitoring as a result of his exposure. Thus, they created a medical monitoring claim. These courts understood, however, that this expansion of tort law presented potential problems. First, defendants could be deluged by liability if they were liable for medical tests that people should take as a normal part of their health routine. Second, the utility of medical screening would be much less if there were no means to treat the condition the screening test would identify. Third, many plaintiffs could be expected to drop out of long-term programs, and would be tempted to expend medical-monitoring damages on things other than medical monitoring. See generally Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 440-43 (1997). Accordingly, these courts fashioned special rules or elements to recovery that sought to avoid these problems. Each state’s factors differ, but an example is Utah, which requires exposure to a toxic substance that was caused by the defendant’s negligence and resulted in an increased risk of serious illness, for which a medical test for early detection exists. Also required is that early detection is beneficial because there is a treatment that can alter the course of the illness, and the test has been prescribed by a qualified physician according to contemporary scientific principles. Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993). Expert testimony is required, and the Hansen court expressed its preference for a court-supervised fund, rather than a lump-sum award, so that whatever money is not spent on monitoring can go back to the defendant. Many courts have denied class certification to medical-monitoring claims for a variety of reasons, including conflicts of law and the predominance of individual issues. For example, in Chemtall Inc. v. Madden, 607 S.E.2d 772 (W.Va. 2004), coal-preparation plant workers who had been exposed to polyacrylamide flocculants claimed that, as a result, they were at an increased risk of nervous system deficits, various cancers and genetic abnormalities. The trial court certified a class involving plants in seven states. The West Virginia Supreme Court of Appeals reversed class certification, in part, because the trial court failed to “conduct a meaningful analysis of variations in the laws of the several states included in the proposed class action,” some of which did not recognize medical monitoring. Id. at 781. This presented “typicality” problems under West Virginia Rule of Civil Procedure 23(a). Moreover, even for the claims of class members from states that recognize medical monitoring, the trial court had the responsibility of comparing the elements of the causes of action “in a detailed and specific fashion” to determine whether “variations exist that preclude certification.” Id. at 784. Even when the same law applies to all class members, individual issues may preclude class certification. For example, in Lockheed Martin Corp. v. Superior Court, 63 P.3d 913 (Calif. 2003), residents alleged that the defendant had contaminated part of the city’s groundwater from 1955 to the present. They sought a court-supervised program of medical monitoring and punitive damages. The court held that class certification was inappropriate because individual issues predominated on the element of whether medical monitoring is a “reasonably necessary” response to exposure. The class members had not received identical dosages; indeed, the duration and severity of exposure varied widely among class members. This was relevant to at least two elements of medical monitoring: the need for future monitoring as a “reasonably certain consequence” of the toxic exposure, and that the plaintiff faces a “significant” likely risk of serious disease. Individual issues also predominated because there were at least 12 toxic substances at issue, and the medical conditions that they allegedly cause were numerous. The court observed that “each individual plaintiff’s chances of developing that particular disease, had he or she not been exposed as alleged, may not be” susceptible to common proof. Id. at 922. Similarly, the Supreme Court of Ohio affirmed a refusal to certify a medical monitoring class action for workers’ exposure to beryllium because the individual issues predominated and the class was not “cohesive” when it spanned “46 years, multiple contractors, and multiple locations within the plant.” Wilson v. Brush Wellman Inc., 817 N.E.2d 59, 66 (Ohio 2004); see also Snow v. Atofina Chemicals Inc., 2006 WL 1008002, at 8 (E.D. Mich. March 31, 2006). Even when the plaintiffs all have been exposed to the same product, their individual medical histories and conditions can affect whether medical monitoring beyond their normal medical care is required. This fact caused the 8th U.S. Circuit Court of Appeals to reverse certification of a class of individuals who had received one type of heart valve. See In re St. Jude Medical Inc. Silzone Heart Valve Prods. Liab. Litig., 425 F.3d 1116, 1122 (8th Cir. 2005); but see In re West Virginia Rezulin Litig., 585 S.E.2d 52, 73 (W.Va. 2003) (when future harm allegedly was not related to dose, but due to an idiosyncratic reaction that resulted in testable injuries, medical monitoring class was appropriate). Why the theory is not more widely recognized Those state supreme courts that have refused to recognize a new tort of medical monitoring have done so largely out of deference to legislatures. For example, in Henry, Michigan’s high court recognized that basing a cause of action on mere exposure to a toxic substance would create a potentially limitless pool of plaintiffs and would risk draining resources needed to compensate those with subsequent physical injuries. It also would saddle the judiciary with administering a medical-monitoring program-something it is ill-equipped to do. The court chose to be guided by “the judiciary’s obligation to exercise caution and to defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.” 701 N.W.2d at 697; see also Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849, 857-58 (Ky. 2002); Southern Bakeries Inc. v. Kipp, 852 So. 2d 712, 718 (Ala. 2002). Notably, the Louisiana Supreme Court did not exercise deference when it recognized a new medical-monitoring cause of action. See Bourgeois v. A.P. Green Indus. Inc., 716 So. 2d 355, 359 (La. 1998). In 1999, the legislature passed a statute precluding medical monitoring damages unless they are “directly related to a manifest physical or mental injury or disease.” La. Civ. Code Ann. Art. 2315. Many federal courts approach the medical-monitoring issue with a deference similar to that in Henry, leaving such “radical” extensions of substantive law to the legislature or the state’s highest court. See, e.g., Norwood v. Raytheon Co., 414 F. Supp. 2d 659, 667-68 (W.D. Texas 2006). Others, however, have exhibited less reticence. For example, in In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 2006 WL 928997, at 11-12 (S.D.N.Y. April 7, 2006), the court denied a motion to dismiss, finding that Maryland would recognize a medical monitoring claim even though its highest court had been presented with the issue and ruled on different grounds. J. Russell Jackson is a partner in the complex mass torts group of New York’s Skadden, Arps, Slate, Meagher & Flom, and an adjunct professor at Brooklyn Law School.

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