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.

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