Legal Opinion Letter …

Legal Opinion Letter                                                                   WLF
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 Vol. 17 No. 3                                                                                       February 9, 2007


                     MISSISSIPPI SUPREME COURT
                    REJECTS MEDICAL MONITORING
                                            by
                          Mark A. Behrens and Christopher E. Appel
           The Mississippi Supreme Court in Paz v. Brush Engineered Materials, Inc., 2007 WL 14891 (Miss.
 Jan. 4, 2007), recently became the fifth consecutive state court of last resort to reject a cause of action for
 medical monitoring in the absence of an identifiable injury. The case came to the court on a certified question
 from the U.S. Court of Appeals for the Fifth Circuit and involved employee claims of beryllium exposure while
 working at defendants' manufacturing facilities. Class action plaintiffs sought a court-supervised medical
 monitoring fund to detect the possible development of Chronic Beryllium Disease, typically a latent disease
 which impairs the lungs and often causes death. The court held that adoption of a medical monitoring action for
 asymptomatic plaintiffs "would require an unprecedented and unfounded departure from the long-standing
 traditional elements of a tort action." Id. at *4.

           Other High Courts. The Mississippi Supreme Court joined a growing list of state courts of last resort
 that have rejected invitations to adopt medical monitoring for plaintiffs with no present injury. The Alabama,
 Nevada, Kentucky, and Michigan Supreme Courts--the four other courts of last resort to recently consider the
 issue --all rejected medical monitoring absent a present physical injury.

            The Alabama Supreme Court in Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001), rejected a
 medical monitoring claim brought by a claimant exposed to a toxin allegedly released into the environment. The
 court stated, "To recognize medical monitoring as a distinct cause of action . . . would require this court to
 completely rewrite Alabama's tort-law system, a task akin to traveling in uncharted waters, without the benefit of
 a seasoned guide"--a voyage on which the court stated it was "unprepared to embark." Id. at 830. After
 discussing a number of public policy concerns, such as a potential flood of claims that could swamp defendants,
 the court concluded, "we find it inappropriate . . . to stand Alabama tort law on its head in an attempt to alleviate
 [plaintiff's] concerns about what might occur in the future. . . . That law provides no redress for a plaintiff who
 has no present injury or illness." Id. at 831-32.

           In Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001), the Nevada Supreme Court rejected
 claims by smokers and casino workers who sought a court-supervised medical monitoring program to diagnose
 alleged tobacco-related illnesses. The court described medical monitoring as "a novel, non-traditional tort and


           Mark A. Behrens and Christopher E. Appel are attorneys in Shook, Hardy & Bacon L.L.P.'s
 Washington, D.C.-based Public Policy Group. Mr. Behrens authored an amici curiae brief on behalf of the
 Mississippi Manufacturers Association, Coalition for Litigation Justice, Inc., National Federation of Independent
 Business Legal Foundation, American Chemistry Council, American Insurance Association, Property Casualty
 Insurers Association of America, American Tort Reform Association, Chamber of Commerce of the United States of
 America, Pharmaceutical Research and Manufacturers of America, and National Association of Manufacturers in
 support of the defendants in the Paz case.
remedy," id. at 441, and concluded that, "[a]ltering common law rights, creating new causes of action, and
providing new remedies, for wrongs is generally a legislative, not a judicial function." Id. at 440.

           The Kentucky Supreme Court rejected medical monitoring in Wood v. Wyeth-Ayerst Laboratories, 82
S.W.3d 849 (Ky. 2002), where plaintiffs sought a court-supervised medical monitoring fund to detect the
possible onset of primary pulmonary hypertension from ingesting the "Fen-Phen" diet drug combination. The
court stated that, "a cause of action in tort requires a present physical injury to the plaintiff." Id. at 852. "To find
otherwise would force us to stretch the limits of logic and ignore a long line of legal precedent." Id. at 853-54.
The court concluded: "[t]raditional tort law militates against recognition of such claims, and we are not prepared
to step into the legislative role and mutate otherwise sound legal principles." Id. at 859.

           The Michigan Supreme Court in Henry v. The Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005),
rejected a request to establish a medical screening program for possible negative effects from dioxin exposure.
The court said that adoption of a medical monitoring cause of action would create a "potentially limitless pool of
plaintiffs" and "could drain resources needed to compensate those with manifest physical injuries and a more
immediate need for medical care." Id. at 689. The court concluded that recognition of medical monitoring was
not suitable for resolution by the judicial branch. See id. at 694-95.

          These decisions draw support from the United States Supreme Court's decision in Metro-North
Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997), where the Court rejected a medical monitoring claim under
the Federal Employers' Liability Act. The Metro-North Court explained that serious policy concerns militate
against adoption of "a new, full-blown tort law cause of action." Id. at 440. These policy concerns include the
difficulty of identifying which medical monitoring costs exceed the preventative medicine ordinarily
recommended for everyone, conflicting testimony from medical professionals as to the benefit and appropriate
timing of particular tests or treatments, and each plaintiff's unique medical needs. See id. at 441-42. The Court
also considered that defendants would be subject to unlimited liability and a "flood of less important cases"
would drain the pool of resources available for meritorious claims by plaintiffs with serious, present injury. Id.
at 442. Finally, the Court rejected the argument that medical monitoring awards are not costly and feared that
allowing medical monitoring claims could create double recoveries because alternative sources of monitoring are
often available, such as employer-provided health plans. See id. at 443-44.

           Conclusion. For more than 200 years, a fundamental tort law principle has been that a plaintiff must
have a present, actual injury to obtain a recovery. The courts have developed this filter to prevent a flood of
claims, provide faster access to courts for those with reliable and serious claims, and ensure that defendants are
held liable only for genuine harm. Medical monitoring claims brought by asymptomatic plaintiffs conflict with
the traditional rule. See Victor E. Schwartz et al., Medical Monitoring--Should Tort Law Say Yes?, 34 WAKE
FOREST L. REV. 1057 (1999); Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way,
70 MO. L. REV. 349 (2005). Judicial adoption of medical monitoring claims also would be likely to foster
litigation. See James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based
Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S.C. L. REV. 815 (2002). Almost
everyone comes into contact with a potentially limitless number of materials that could be argued to warrant
medical monitoring relief. Courts would be forced to decide claims that are premature (because there is not yet
any physical injury) or actually meritless (because there never will be). The truly injured would be adversely
impacted by the unsound diversion of resources to the non-sick. And courts would face the difficult and time-
consuming task of developing a system for the administration of medical monitoring claims. More courts will no
doubt be asked to decide medical monitoring claims in the future. They would be wise to follow the United
States Supreme Court and the numerous state courts that have recently declined to adopt such novel claims.




    Copyright 2007 Washington Legal Foundation                                                ISBN 1056 3059
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