By Haroon Anwar and Kip S.M. McDonald
For well over 30 years, plaintiffs have been filing lawsuits based upon their “fear” or alleged risk of developing a future illness. These plaintiffs are usually symptom-free and show no signs of disease related to the alleged product exposure at issue, but they seek to recover medical monitoring costs, which often run to millions of dollars to pay for expensive, long-term diagnostic tests and medical examinations.
In recent years, federal and state courts have issued numerous decisions involving medical monitoring. The results of these decisions make a couple of things clear. The first is that the viability of medical monitoring claims continues to decrease, and the second is that both federal and state courts overwhelmingly deny certification in medical monitoring class actions. Christine G. Rolph et al., Medical Monitoring: 25 Years Later, Law.Com (Apr. 19, 2010). As other writers have noted, “If not yet dead, the medical monitoring claim itself is hooked up to monitors and the prognosis is not good.” John Sullivan, Monitoring the Death of Medical Monitoring, Drug and Device Law Blog (Aug. 17, 2017), https://www.druganddevicelawblog.com/2017/08/monitoring-the-death-of-medical-monitoring.html.
Nevertheless, medical monitoring claims have not completely disappeared. As recently as October 2018, a class action lawsuit was filed in Ohio federal district court against manufacturers of a nonstick chemical compound widely used for decades in firefighting foams, Teflon, Scotchgard, and other products, seeking payment from companies for nationwide medical studies to measure the chemical’s health impact on hundreds of millions of people allegedly exposed to the chemical. Josephine Marcotty, Lawsuit demands 3M pay for PFC medical studies nationwide, Star Tribune (Oct. 8, 2018), http://www.startribune.com/lawsuit-demands-3m-pay-for-pfc-medical-studies/496015851/. Because medical monitoring actions are still clinging to life, this article briefly revisits the origins of medical monitoring claims and defending medical monitoring class actions.
I. What Is Medical Monitoring?
Medical monitoring, also sometimes referred to as medical surveillance or medical screening, is a cause of action or a claim for relief asserted by plaintiffs who allege exposure to a harmful substance or product and contend that the exposure increased their risk of future illness. Steven J. Boranian & Kevin M. Hara, Medical Monitoring: Innovative New Remedy or Money for Nothing?, Washington Legal Foundation, Critical Legal Issues, Working Paper Series No. 136, Jan. 2006. The main goal of a medical monitoring claim is to recover the costs of medical testing for health problems allegedly caused by exposure to a hazardous substance. Debra M. Perry & Zane C. Riester, Turning the Tide: The Viability of Medical Monitoring Class Actions, DRI, Drug & Medical Device, July 2009. As one court explained, “A claim for medical monitoring seeks to recover the anticipated costs of long-term diagnostic testing necessary to detect latent diseases that may develop as a result of tortious exposure to toxic substances.” Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 429 (W. Va. 1999).
Recovering future medical expenses as compensation is by no means a novel idea or proposition; personal injury plaintiffs often can recover provable future medical costs upon sufficient proof of injury. The critical distinction in many medical monitoring cases is that the plaintiffs have sustained no discernible injury. By allowing “non-injured” plaintiffs to bring medical monitoring causes of action, plaintiffs may recover damages without proving that they sustained any actual injury. Nor are they held to the same standard of proving medical causation as are traditional personal injury claimants. It should come as no surprise that the popularity of medical monitoring action grew significantly among plaintiffs and their lawyers over the past 30 years, especially in medical device and pharmaceutical cases. See supra, Boranian & Hara.
II. The Origin of Medical Monitoring Claims
The landmark Friends for All Children, Inc. v. Lockheed Aircraft, 746 F.2d 816, 819 (D.C. Cir. 1984), is usually cited as the origin of the medical monitoring tort. In Friends for All Children, the plaintiffs sued on behalf of children who survived an “explosive” airplane decompression, a loss of oxygen, and an airplane crash in which hundreds died. The court held that diagnostic testing was recoverable for the survivors under the circumstances, even though the survivors (unlike those who died) suffered no discernible physical injury. Id. at 824-25. The court ruled that plaintiffs had stated a cause of action because it found that, when a defendant negligently invades a plaintiff’s interest in avoiding “expensive diagnostic examinations” and when injury to that interest is “neither speculative nor resistant to proof,” a defendant should compensate the plaintiff. Id. Numerous courts have cited the Friends for All Children decision for the proposition that a defendant who, through tortious conduct, has caused the plaintiff to be exposed to a known hazard, can be liable for the medical expenses plaintiff incurred, even though there has been no actual injury. See supra, Boranian & Hara.
Medical monitoring has been controversial since the beginning and in recent years, the idea has fallen out of favor, particularly in federal courts. Many courts have rejected the notion that someone who has no (and may never develop) clinical illness or injury could nevertheless be compensated for damages based on a purported need for prepaid medical care. Moreover, due to the inherent challenges in establishing that a plaintiff with no apparent injury is, in fact, “injured,” courts have struggled to articulate the notion of medical monitoring. As a result, there is no consensus on how to handle medical monitoring claims, and states have treated medical monitoring claims in varying ways. Id.
III. Medical Monitoring In Indiana and Other States
Unlike other tort claims (e.g., negligence or strict liability claims), medical monitoring cannot be easily characterized from jurisdiction to jurisdiction. Some states recognize medical monitoring as a stand-alone cause of action and absent any proof of injury (e.g., Arizona, Florida, New York, Pennsylvania, Utah, and West Virginia). Other states appear to view medical monitoring only as a remedy for an underlying tort such as negligence or strict liability (e.g., Alaska, California, the District of Columbia, Louisiana, Missouri, New Jersey, Virginia, and Washington). Other states allow no medical monitoring in any form, whether as a cause of action or a remedy because they do not recognize a tort claim without an actual injury (e.g., Alabama, Kentucky, Michigan, and Nevada.) Finally, some states have not considered medical monitoring at all. Id.
Notably, Indiana has reached no definitive resolution on the issue of medical monitoring. Multiple Indiana court decisions have rejected medical monitoring clams. See Hunt v. American Wood Preservers Inst., 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002) (“The Court GRANTS that portion of Defendant’s, Universal Forest Products, Motion to Dismiss addressed to the Plaintiffs’ medical monitoring claim, as such a claim is not cognizable in the State of Indiana.”); Johnson v. Abbott Labs., 2004 WL 3245947 (Ind. Cir. Dec. 31, 2004) (“Moving Plaintiffs suggest a medical monitoring class as an alternative to meeting the predominance requirement of T.R. 23(B)(3). Indiana does not recognize medical monitoring as a cause of action . . . nor have Moving Plaintiffs referred to a single Indiana case in which such relief was granted.”). However, at least one Indiana court has denied a motion to dismiss medical monitoring claims. Allgood v. General Motors Corp., 2005 WL 2218371, at *6-8 (S.D. Ind. Sept. 12, 2005) (“For now, it is enough to say that the limited evidence from Gray supports a provisional prediction that the Indiana courts are likely to recognize a claim for medical monitoring damages as part of the remedy for a nuisance claim even if there is no evidence of a present physical injury.”).
IV. Medical Monitoring Class Actions
Plaintiffs have filed multistate and national medical monitoring class actions against medical device and pharmaceutical manufacturers with increased frequency. Medical monitoring class actions provide some potential advantages for plaintiffs, most compelling of these is the potential for recovering substantial amounts of money for an entire class of plaintiffs, such as prescription drug users or medical device patients who have no apparent injury. See supra, Boranian & Hara. Not surprisingly, medical monitoring claims are expensive to litigate and typically depend on complex scientific proof and expert testimony. Yet the medical testing costs that a single plaintiff can recover are often rather small. As a result, it typically makes economic sense for plaintiffs who are not otherwise injured to pursue aggregated medical monitoring claims on behalf of a class. Jennifer Quinn-Barabanov, Has Dukes Killed Medical Monitoring?, DRI, Product Liability, Nov. 2011. In the modern world of medical treatment, the numbers can get very big, very fast, which makes medical monitoring class actions attractive to attorneys seeking court-awarded fees. See supra, Sullivan.
From the perspective of a corporate defendant, a medical monitoring class action, which can aggregate the claims of thousands of plaintiffs seeking decades’ worth of extensive medical testing costs, can present one of the most serious litigation risks in the product liability and toxic tort arena. See supra, Quinn-Barabanov. Fortunately, the law both on medical monitoring itself and on class actions includes several valuable safeguards against potential abuse.
V. Defending Medical Monitoring Class Actions
Federal Rule of Civil Procedure 23 and its state-law equivalents provide the ground rules for class actions, and they provide significant protections. Rule 23(a) sets forth the well-known four prerequisites to all class actions: (1) numerosity of claims, (2) commonality of an issue of fact or law, (3) typicality of the class representative’s claims, and (4) adequacy of class representation. See Fed. R. Civ. Pro. 23(a). Given that personal injury claims, by their very nature, usually involve diverse individual claimants with diverse individual injuries and diverse needs for future medical care, there is much in Rule 23(a) to exploit in opposing medical monitoring class actions. See supra, Boranian & Hara.
Rule 23(b) also creates significant burdens for a proponent of a medical monitoring class. Under Rule 23(b)(3), the class proponent must show that common issues predominate over individual issues and that a class action is the superior method for resolving the class members’ claims. Fed. R. Civ. Pro. 23(b)(3). Again, given the diversity that is typical for personal injury, product liability claims, this is a challenging burden for plaintiffs to meet. Therefore, it is not surprising that courts have used Rule 23(b)(3) to deny certification of medical monitoring classes. Most courts addressing this issue have held that in cases dealing with medical products, class actions are inappropriate in large part because individual issues will swamp common questions. Id.
To avoid the demands of Rule 23(b)(3), many plaintiffs seek certification of medical monitoring classes under Rule 23(b)(2), which permits class actions seeking primarily injunctive relief. Federal Rule of Civil Procedure 23(b)(2) states “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Plaintiffs will argue that the medical monitoring “program” being sought is in the nature of an injunction, and not damages. The reality is that a class action lawsuit demanding that a defendant pay for future medical surveillance is seeking pecuniary damages, not “injunctive” relief as plaintiffs may claim. The only way to certify a class action claiming primarily damages is through Rule 23(b)(3) and its predominance and superiority requirements. Id.
In short, medical monitoring is an area of substantive law that is by no means uniform. However, the controlling rules and authorities provide defendants with substantial protection against the many issues that medical monitoring class actions present and against the potential abuse of this area of the law. Id. Indeed, it is worth noting that while several federal district courts have certified medical monitoring classes, every federal appellate court that has examined a proposed medical monitoring class has refused certification. See supra, Quinn-Barabanov. See also, e.g., Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998), cert. denied, 526 U.S. 1114 (1999); Ball v. Union Carbide Corp., 385 F.3d 713, 728 (4th Cir. 2004); In re St. Jude Med., Inc., 422 F.3d 1116, 1120 (8th Cir. 2005); In re St. Jude Med., Inc., 522 F.3d 836, 840 (8th Cir. 2008), reh’g denied, 522 F.3d 836 (8th Cir. 2008); Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1196, amended, 273 F.3d 1266 (9th Cir. 2001); Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995).•
Mr. Anwar and Mr. McDonald are associates with the firm of Faegre Baker Daniels in Indianapolis. Opinions expressed are those of the author.