Medical monitoring: Will Buckley have an effect?

Hagan, Patrick J

I.

INTRODUCTION

The Anglo-American common law tort system evolved from an effort to redress injuries raised by simple, straightforward trauma; not diseases which might manifest twenty or more years after the last tortious act.1 Claims involving diseases with long latency periods lead to problems when analyzed under traditional common law tort doctrine. Such problems arise because, under traditional tort theory, physical injury must be manifest in order to complete the tort and make it compensable.2 As Dean Prosser has stated, "the threat of future harm, not yet realized, is not enough."3

Despite this time honored rule, the majority of state supreme courts and federal circuit courts which have considered the issue have recognized claims in toxic tort cases founded upon possible future injuries, i.e., fear of cancer, enhanced risk of future disease, and even medical monitoring.4 Such claims validations were designed to compensate exposed plaintiffs for damages which they might suffer in the future, as a result of injuries not yet manifested, and which might never appear.

Medical monitoring5 represents a recovery-expanding concept for "symptom free victims" and their counsel. It is one of a growing number of "nontraditional" torts now evolving within the common law to compensate plaintiffs who have been exposed to toxic substances but do not exhibit a sufficiently demonstrable injury to cause accrual of a specific tort.6 Medical monitoring claims seek reimbursement for the specific dollar costs of periodic examinations which the putative victim alleges to be medically necessary. However, the extent of any health impairment is uncertain and the costs associated therewith are not capable of being clearly quantified.7 Claims for medical monitoring allow plaintiffs to recover in the absence of present physical injury. Unlike emotional distress for the fear of possible disease, which would seem to be peculiarly related to the mindset of each claimant, medical monitoring seems ideally situated as the common basis for a class-based type of claim because there are no readily apparent superficial distinctions among exposed "potential victims." For example, since the periodic tests and examinations for pulmonary conditions and malignancies, in the absence of symptoms, are essentially standardized, no individual predominance issue would seem present to defeat a class claim for medical monitoring at the threshold certification stage, if a common exposure or event giving rise to the need for this testing could be shown.

Onto this expanding relief frontier came the "Snowman of Grand Central," a railroad maintenance worker exposed to vast amounts of asbestos but symptom-free and still working after twenty years. His name was Michael Buckley. Buckley attempted to represent a class of all similarly employed workers under the Federal Employers' Liability Act (FELA).9 After losing a dispositive threshold motion at the district court level, the Second Circuit Court of Appeals found that Buckley's exposure to asbestos fibers in the course of his work constituted a sufficient "physical impact" to allow recovery for emotional distress and regular physical examinations (medical monitoring).

In June of 1997, however, the United States Supreme Court reversed that determination in Metro-North Commuter Railroad Co. v. Buckley." This article focuses on the evolution of medical monitoring claims recoverable under traditional tort theories, the standards used to determine whether such damages are recoverable, and the potential effects of the Supreme Court's holding in Buckley.

II.

AWARDING RECOVERY FOR MEDICAL MONITORING

To date, the recovery issue has been considered by the highest courts of four states," as well as numerous federal and state appellate courts. These courts grappled with the concept of allowing medical monitoring costs when the plaintiffs presented no physical injury, but had been exposed to a toxic substance. Each of the state supreme court cases allowed the recovery of reasonable medical monitoring costs without the need for present physical injury. Using a logical pattern similar to Buckley, each state supreme court began its analysis with the premise that under traditional tort doctrine, a personal injury plaintiff could recover reasonable medical expenses, both past and future,'2 which the plaintiff incurred as the result of a demonstrated injury.13 The New Jersey Supreme Court, for example, noted that the "avoidable consequences" doctrine required the plaintiff to submit to advisable medical treatment since "[f]ailure to do so may bar future recovery for a condition he could thereby have alleviated or avoided."14

In circumventing the physical injury requirement, each of the state supreme courts invariably cited the case brought by air crash survivors in Friends for All Children, Inc. v. Lockheed Aircraft Corp.'5 This case expanded the tort concept of "injury" beyond physical injury to mean an "invasion of a legally protected interest." Using this concept of "injury as the fulcrum for its decision," the Friends court found the need for medical examination to be compensable without proof of demonstrable injury.

Collectively these courts then use similar public policy arguments to allow recovery for medical monitoring. Foremost is the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, especially in light of the value of early diagnosis and treatment. A second cited policy consideration is deterrence: medical surveillance claim recovery should act to discourage the irresponsible discharge of toxic chemicals. Thirdly, the availability of this type of remedy before the physical consequences of the plaintiffs' exposure are manifest should prevent or mitigate serious future illnesses, thus reducing the overall costs. Finally, societal notions of fairness and elemental justice are better served when an individual who is wrongly exposed to dangerous toxins but unable to prove the likelihood of disease is relieved of the expense of medical monitoring - especially when this intervention is clearly reasonable and necessitated by the misdeeds of a culpable party.16

While each court allowed the recovery of medical monitoring, either as an element of damages or a cause of action, each also held that proof of exposure to a toxic chemical alone was not sufficient to permit recovery. Ayers v. Jackson Township17 was the first toxic exposure case in which a state's highest court upheld a jury verdict awarding future medical monitoring costs in the absence of a demonstrable physical injury." The plaintiffs, 339 residents of Jackson Township, New Jersey, sued the municipal defendant for contamination of their well water by toxic chemicals leaching from the municipality's landfill. No plaintiff claimed a present physical injury from this exposure. The Supreme Court of New Jersey affirmed the rejection of enhanced risk on the ground that plaintiffs' expert ". . . could not quantify the extent of the enhanced risk of cancer because of the lack of scientific information concerning the effect of the interaction of the various chemicals to which plaintiffs were exposed."19

However, the Ayers court noted that ". . . recognition of the medical surveillance claim is not necessarily dependent on recognition of the enhanced risk claim."zo It then rejected the notion of a quantification standard and held that the need for medical examinations itself is compensable without independent proof of other injury. Citing Friends for the proposition that a plaintiff should recover the costs of various diagnostic examinations proximately caused by a defendant's negligence, even in the absence of physical injury,21 the Ayers court declared post-exposure, pre-symptom recovery for the cost of medical monitoring a compensable item of damages. It articulated the following factors to support such a recovery: (1) the significance and extent of exposure;22 (2) the toxicity of the chemicals; (3) the seriousness of the diseases for which individuals are at risk; (4) the relative increase in the chance of disease onset in those exposed; and (5) the value of early diagnosis to monitor the effect of exposure to toxic chemicals.23

Likewise, in Potter v. Firestone Tire & Rubber Co.,24 the California Supreme Court held that the cost of medical monitoring was a compensable item of damages. Residents who lived near a landfill that prohibited the dumping of toxic substances brought an action against a tire manufacturer for dumping toxic waste materials on the ground and contaminating the water supply. The Potter court reasoned that, " '[t]he cost of anticipated medical care reasonably certain to be required in the future has long been held to be a proper item of recoverable damages under [Civil Code section 3333]'."25 Furthermore, both the California Civil Code, section 3282, and the Restatement of Torts26 supported a finding that recovery of medical monitoring damages was not contingent upon a showing of a present physical injury.27 The California Civil Code defines "detriment" as "a loss or harm suffered in person or property," and the Restatement defines "harm" as "the existence of loss or detriment in fact of any kind to a person...." The court's logic was further supported by the Friends public policy discussion.2 Finally, when determining the reasonableness and necessity of monitoring, it cited the following factors as relevant to awarding recovery:

( 1 ) the significance and extent of plaintiff's exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to: (a) the plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of the members of society at large of developing the disease; (4) the seriousness of the disease for which the plaintiff is at risk; and (5) the clinical value of early detection and diagnosis.29

A few courts have allowed a "cause of action" for medical monitoring as opposed to permitting it as an item of damages. In Hansen v. Mountain Fuel Supply Co.,30 the plaintiffs were exposed to asbestos while performing renovation work for Mountain Fuel. In resolving the dispute, the Supreme Court of Utah held that the plaintiffs were entitled to recover both the initial and recurring costs of medical monitoring.31

The Hansen court began its analysis by restating the implications of the avoidable consequences rule and allowing for prospective medical damages.32 The court then examined the public policy reasons cited in Ayers.33 As did the Ayers court, the Utah court noted that the latent nature of diseases associated with exposure to toxic substances makes it difficult for plaintiffs to prove immediate physical injury. It then cited Friends for the proposition that a plaintiff ought to be able to recover the costs of diagnostic examinations proximately caused by a defendant's negligent action, even in the absence of physical injury.3" Specifically enumerated, the Hansen criteria for recovery include:

1. exposure;

2. to a toxic substance;

3. which exposure was caused by defendant's negligence;

4. resulting in increased risk;

5. of serious disease, illness or injury;

6. for which medical tests for early detection exist;

7. as does a treatment that can alter course of illness, making early detection beneficial;

8. by tests that are prescribed by qualified physicians, according to contemporary scientific principles.35

Hansen articulates the most cogent set of standards for the award of medical monitoring damages. The judicial discussion which follows clarifies these standards, especially the significance and interaction of points (4) "resulting in increased risk" and (8) "which test has been prescribed by a qualified physician according to contemporary scientific principles." The reference to "contemporary scientific principles" in point (8) is doubly meaningful since it provides a nexus to the Supreme Court's recent decisions on novel science and expert opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.36 Though Daubert defines the trial court's gatekeeper responsibility for expert admissibility, it is General Electric Co. v. Joiner,37 which provides the appellate standard of review, reaffirms the trial court's gatekeeper role, and discusses an appropriate expert admissibility analysis.38

In 1996, the Pennsylvania Supreme Court decided three consolidated appeals under the case name, Simmons v. Pacor, Inc.39 The other two cases were Murray v. Philadelphia Asbestos Corp. and Giffear v. Johns-Manville Corp. In the consolidated Simmons decision, the court held that asymptomatic pleural thickening caused by occupational exposure to asbestos was not sufficient physical injury to support a cause of action for damages. Similarly, plaintiffs with asymptomatic pleural thickening could not seek damages for fear or risk of cancer, but they could recover for medical monitoring.40

In fact, the Simmons court recognized a "limited exception" for medical monitoring expenses, but said only that it adopted the rationale and findings articulated by the Arizona Court of Appeals in Burns v. Jaquays Mining Corp.,41 discussed later in this article. Since the plaintiffs in Simmons did not seek damages for medical monitoring, however, the court's discussion on this point is arguably viewed as dicta. As a result of the Simmons comments regarding medical monitoring, Greitzer & Locks (a leading asbestos plaintiffs' firm) commenced a putative class action in Butler v. Owens Corning Fiberglas.42 That complaint addressed medical monitoring claims of persons exposed to asbestos in Pennsylvania (in both occupational and non-occupational settings), who had been "diagnosed with an asymptomatic pleural disease."43 After Butler was commenced, the Pennsylvania Supreme Court defined the elements of a medical monitoring cause of action in Redland Soccer Club, Inc. v. Dept. of the Army,'44essentially adopting seven of the eight criteria advanced by the Utah Supreme Court in Hansen. The missing element from Hansen is that requiring meaningful, existing treatment. This omission, which is the subject of a footnote, was premised on a plaintiff's need to take "advantage of advances in medical science."45 However, this position seems to contradict a major policy basis for allowing medical monitoring itself, i.e., early diagnosis and treatment.46 If a disease is discovered through special testing, but there is no known cure or course of treatment for the disease, what is the benefit of early discovery? Under such circumstances, several courts infer that the only result is negative: the diagnosed victim would have earlier notice of a serious or terminal condition without hope of cure. This seems a most unfortunate result.

Under the state supreme court's analytical framework, medical monitoring should replace recovery for incurred risk,47 and in the absence of some demonstrable significant physical trauma, for fear of cancer. The apparent logic supporting recovery for medical testing is that it will create the opportunity to assess the disease at an early stage and eliminate the need for the other forms of "future" recoveries. If the test proves negative, there is no basis for fear, and a completed tort does not occur. Further, because those who are tested regularly and do contract a causally related disease may then seek a recovery, the otherwise haphazard recovery under the risk theory is eliminated. In that case, the haphazard recover, which might use up the available recovery fund, is replaced by the actual injury recovery which should have first call on that fund. Thus, all "potential victims" can be tested, but only those causally injured get a fully justified tort recovery. The recovery fund is not so readily exhausted based on speculative disease, and the damages trigger for latent/delayed manifestation torts is more equitably applied. Thus, properly applied, no other future recovery is needed.

Some decisions by state intermediate appellate courts and federal courts sitting in diversity, which have allowed recovery for medical monitoring costs, also merit discussion. In Burns v. Jaquays Mining Corp.,48 an Arizona appellate court held that ". . . despite the absence of physical manifestation of any asbestos-related diseases, . . . the plaintiffs should be entitled to such regular medical testing and evaluation as is reasonably necessary and consistent with contemporary scientific principles. . ."49 The court thus adopted the reasoning and criteria for awarding medical monitoring damages as put forth in Ayers.50

In Stead v. F.E. Myers Co., Div. of McNeil Corp.,51 plaintiffs commenced an action against a submersible pump manufacturer for injuries allegedly resuiting from exposure to pump oil. The manufacturer moved for an order in limine to prevent expert testimony relating to increased risk of cancer resulting from the exposure. Plaintiff had sought to offer proof of an increased risk of cancer that, while unquantifiable, was substantial enough to require medical monitoring for which the plaintiff sought recovery. The federal district court for Vermont found that such testimony was relevant to the issue of recovering costs for future medical monitoring. Furthermore, when offered for this purpose, such evidence eliminates the need to quantify the increased risk to a reasonable degree of medical certainty. Thus, while the proof of increased risk was found unquantifiable, it was substantial enough to require medical monitoring for many years.52

In Bocook v. Ashland Oil, Inc.,53 plaintiffs sued Ashland Oil for injuries caused by toxic substances released into the air, water and ground by Ashland Oil in the vicinity of its Catlettsburg, Kentucky refinery. The Bocook court reasoned that since the Kentucky Supreme Court had taken the greater step of allowing speculative damages for enhanced risk,54 it would take the lesser step of allowing claims for medical monitoring, since such costs were not as speculative as those for enhanced risk.55 After analyzing Kentucky case law, the Bocook court found that the term "injury" did not always mean "present, demonstrable physical injury."56 However, the court conceded that the Kentucky Supreme Court would require proof of some present physical injury, however slight, before allowing recovery for medical monitoring costs. The court then adopted the criteria set forth in Paoli, discussed below.

In re Paoli Railroad Yard PCB Litigation,57 is a seminal toxic tort case brought by some thirty-eight persons who had either worked in or resided near the Paoli rail yard. The plaintiffs claimed that they had contracted a variety of illnesses resulting from exposure to polychlorinated biphemyls ("PCBs"). They sought to recover the costs of periodic medical examinations, contending that these were necessary to protect against exacerbation of latent diseases brought about by their PCB exposure. The Third Circuit Court of Appeals observed that courts had begun to recognize claims like medical monitoring, even absent manifestation of physical injury, as a result of an increasing awareness of the potential injury caused by widespread use of toxic substances.58 The Paoli court discussed Friends and Askey v. Occidental Chemical Corp.,59 noting that a present physical injury is not necessary to support a cause of action for medical monitoring.6

The court said it agreed with the Pennsylvania district court's ruling in Merry v. Westinghouse Electric Corp.,61 and predicted that the Pennsylvania Supreme Court would follow the weight of authority, recognizing a cause of action for medical monitoring. It also prescribed the elements for such a cause of action:

1. plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendant;

2. as a proximate result of exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease;

3. that increased risk makes periodic diagnostic medical examinations reasonably necessary;

4. monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.62

The court distinguished this relief from enhanced risk, noting: "recognizing this tort does not require courts to speculate about the probability of future injury. 63

In Cook v. Rockwell International Corp.,64 ("Cook I") the plaintiffs articulated a claim for medical monitoring and health studies under Colorado common law. They sought ". . . costs of individual periodic monitoring and a fund to finance `independent scientific studies of adverse health effects in the population living and working around Rocky Flats and of exposure of the population to radioactive and other hazardous substances."'65

Acknowledging the problem of latent diseases in toxic tort claims, as discussed by other courts, the Cook I court recognized the "non-traditional" tort claim, which affords relief even though a plaintiff has not yet manifested present physical injury.66 The district court then distinguished a claim for medical monitoring from a claim for enhanced risk of future harm, citing Friends for the proposition that present physical injury need not be manifest for an individual to recover the cost of medical monitoring. The Cook I court also cited Paoli to demonstrate use of a tort claim for medical monitoring.67

Adopting the criteria for medical monitoring claims suggested in Paoli, the Cook I court concluded that the Colorado Supreme Court likewise might recognize a tort claim for medical monitoring.68 However, although the court assumed that the Colorado Supreme Court would recognize a tort claim for individualized medical monitoring, it did not believe the Colorado court would recognize plaintiffs' claim for generalized scientific studies. Therefore, the Cook I court determined that the scientific studies requested by plaintiffs were not recoverable under a medical monitoring cause of action.69

In Cook v. Rockwell International,70 ("Cook II"), the district court reaffirmed its previous holding that generalized population based scientific studies were not cognizable in a medical monitoring cause of action. However, what plaintiffs apparently sought were funds to pool the data derived from the medical tests of the exposed plaintiffs.71 Under the circumstances, the Cook II court held that such pooling may be cognizable in a medical monitoring cause of action: "Pooling the examination results is a reasonable complement to normal diagnostic testing that furthers the objective behind the tort - to assure the early diagnosis of a latent disease."72

III.

DENYING RECOVERY FOR MEDICAL MONITORING

As previously noted, under traditional tort doctrine, a plaintiff in a personal injury suit may recover reasonable past and future medical expenses resulting from a demonstrated injury. Decisions reviewed thus far have extended this basic premise, finding that a plaintiff may recover for the costs of medical monitoring without the necessity of proving a demonstrable injury. Some courts, however, have refused to proceed apace and have refused to reformulate the definition of "injury." Thus, in order for a plaintiff to recover the cost of future medical monitoring, these courts require a present physical injury.

In Ball v. Joy Manufacturing Co.,73 plaintiffs alleged that while employed at the defendant's facility, they were wrongly exposed to and absorbed various toxic chemicals. Yet the Ball court refused to recognize a claim for medical monitoring in the absence of an enabling ruling by the supreme courts of either Virginia or West Virginia, or legislative action by the states. The court surmised that awarding medical monitoring costs threatened to overburden the courts, and potentially denied future victims a full recovery.

Plaintiffs urged the Fourth Circuit Court of Appeals to expand the law of torts in West Virginia and Virginia so as to recognize exposure to toxic substances as a physical injury. However, the Fourth Circuit found that a claim for medical monitoring costs was simply a claim for future damages that required physical injury. Since the plaintiffs had not demonstrated that they were suffering from a present physical injury, they were not entitled to recover medical monitoring costs.74

In Carroll v. Litton Systems, Inc.,75 the district court held that it would not recognize a common law claim for medical monitoring in the absence of clear direction from the North Carolina courts or legislature. The Carroll court declined to "create such a tort" holding that plaintiffs had failed to show any demonstrable injuries so as to state a prima facie case for medical monitoring. Such a claim required that the plaintiff prove a present physical injury proximately caused by the defendant:76

Even if the undersigned were to hold that North Carolina would recognize a claim, in some circumstances, for medical monitoring, no such relief can be obtained by plaintiffs here. Given both the lack of admissible evidence that plaintiffs' alleged medical problems were caused by the alleged exposure to the chemicals at issue and the lack of evidence that plaintiffs are more likely than not to contract any disease in the future, their medical monitoring claims must be dismissed."

Similarly, in Mergenthaler v. Asbestos Corp. of America,78 a Delaware appellate court affirmed the dismissal of a complaint seeking, among other things, "medically required surveillance" by the wives of asbestos workers who feared contracting cancer from washing their husbands' clothes. The ostensible ground for the decision was the plaintiffs' inability to show "present physical injury," but the court's attempt to distinguish Ayers suggests that a plaintiff's failure to show contact with asbestos, much less physical injury, was the real reason for dismissing the claim.79 Although the continued vitality of these cases may be open to question, Buckley seems to create even more doubt about the expansion of medical monitoring without injury.

IV.

BUCKLEY: THE UNITED STATES SUPREME COURT SPEAKS

As expressed by Justice Breyer, the Buckley majority appears quite concerned about expanding the application of FELA to large groups of exposed claimants in the absence of symptoms. Following a relatively exhaustive discussion of the need for some form of "physical impact," the majority rejected medical monitoring as an item of damages.so It pointedly declined to allow emotional distress recovery premised only on massive toxic exposure. The Court went on, however, to consider medical monitoring as a cause of action in negligence - a novel basis for recovery of economic injury. If read correctly, that concern seemed to transcend concerns about expanding FELA to impose medical monitoring on the entire United States tort system.81

Two factors expressly played an important role in the Court's analysis. First, ". . . tens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring ..." Secondly, there were ".. . the potential systemic effects of creating a new, full-blown, tort law cause of action. . ." which would allow the recovery of "lump sum damages."82 What the Supreme Court apparently envisioned, but never quite articulated, was that massive class-based monitoring claims could erode the traditional injury-based tort system. In the absence of some unspecified controlling factor (e.g., demonstrable injury or a detectable quantum of physical impact) the compensation for monitoring the "not injured" would consume unacceptable levels of wealth and would clog the courts. In fact, the Court states that "competing interests" between "reliable and serious claims" and "unreliable and relatively trivial claims" was much at issue in their decision, although not expressly factored.83 In particular, the Court fails to undertake the math analysis. If each of these claims is hypothetically worth $25,000 (like Mr. Buckley's), and the millions of forseen exposures should mature in the short term, the consequences could prove devastating.84 Who would pay these claims? Casualty insurance companies might fail, e.g., Home Insurance,85 Transit Casualty,sb even Lloyds' of London, which saw its pre1993 policy years salvaged by Equitas.87 American and multinational corporations, without insurance, would either pass the costs on to consumers or fail. ss There is also the policy question of how far the Supreme Court should extend the common law. In the "court" of world opinion outside the United States, compensation in the absence of injury approaches anathema.

Putting aside these overarching policy considerations for the moment, the majority also seems troubled by two other points: the identification of extramonitoring costs and the presence of alternative sources of payment. To the first point, it should be noted that this is the same Court which recently penned Joiner to strengthen Daubert. Clearly, the Court is troubled by a tort system that goes beyond or exploits state-of-the-art science. In a forthcoming class action epidemic, will the named plaintiff press for unnecessary incremental testing, or unproved testing, or too much testing - all to secure an even larger "lump-sum damage recovery"?

To the second point, is the Court concerned that this extension of tort recovery ultimately must confront the policy behind the collateral source rule?9 That rule allows that the prudent victims who invested years of insurance premiums to assure medical care should receive the benefits of their thrift, and that the tortfeasor should not garner the benefits of the victim's providence.90 But time has marched on. Many troublesome exposures occur in the workplace and, as the Court points out, monitoring for potential illness is paid by some form of job-related insurance. A huge percentage of the population either has private, job-related, or governmental coverage. The Court seems convinced that these "collateral sources" should be the only form of compensation in the absence of impact or injury.

Finally, there are the various safeguards supplied by the state court systems. Certainly, those safeguards seek to differentiate the "trivial" from the "unnecessary." Yet the Supreme Court does not discuss those safeguards in any detail. Moreover, the Court seems most uncertain about extending this form of recovery to the federal system.

V.

CONCLUSION

In Buckley, seven justices seriously questioned extending the common law tort remedy of medical monitoring to the federal system under FELA. They seemed extraordinarily bothered about "lump sum" compensation in the absence of a demonstrable physical injury or some showing of physical impact beyond the exposure itself. The policy considerations for halting the advance of federal common law, short of this next step, were not crystal clear. Nonetheless, the Court clearly acknowledges a trend among the state high courts and the federal circuits. Given a choice to do so, the Supreme Court refused to follow that trend. What will be the effect of this decision on the emerging trend? Will the state courts look to tighten their guidelines? Will some courts reverse the trend for compensation without injury? Or, will the United States common law advance on its usual state-by-state, piecemeal basis, to permit recovery for subjective concerns in the absence of proof of injury or reliable proof of a probability of injury?

1Amy Blumenberg, Note, Medical Monitoring Funds: The Periodic Payment of Future Medical Surveillance Expenses in Toxic Exposure Litigation, 43 HASTINGS L.J. 661, 668 (1992).

2Under traditional tort theory, physical injury must be proved as an element of liability. See, e.g., Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1476 (D. Colo. 1991).

3W. PAGE KEETON ET. AL., PROSSER AND KEETON ON THE LAW OF TORTS 30(4) at 165 (Sth ed. 1984). See also Buttram v. Owens-Coming Fiberglass Corp., 941 P.2d 71, 82 (Cal. 1997) ". . . subclinical alteration of the cells during the decades-long latency period of asbestos-related disease. . . without manifestation of any symptoms or awareness of illness on plaintiff's part should [not] be the event establishing accrual of a cause of action for the limited purpose of determining whether . . . Proposition 51 can fairly be applied prospectively in a latent injury case."

"In jurisdictions that recognize claims for enhanced risk of future disease, a toxic tort plaintiff may be allowed to recover the full value of a future disease if he or she can demonstrate that the disease is reasonably probable and not just possible. The injury is the enhanced risk itself. Under the fear of cancer theory, a plaintiff seeks compensation for the emotional distress caused by the fear or knowledge that he or she may someday contract cancer as a result of exposure to a toxic substance. The injury is the emotional distress itself and most courts require some level of physical injury or impact. Judith A. DeFranco, Note, California's Toxics Initiative: Making It Work, 39 HASTINGS L.J. 1195 (1988); Allen T. Slagel, Note, Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 IND. L.J. 849, 860-861 (1988). 5The terms "medical monitoring" and "medical surveillance" have been used interchangeably and will be referred to collectively as medical monitoring. 61n the absence of the physical injury to complete the tort, a plaintiff would argue that no statute of limitations could run. But what will be the limitations trigger for medical monitoring?

'Unlike claims for damages to compensate for increased risk of disease, medical monitoring damages do not contemplate compensation for a quantifiable risk of future injury. Rather, the claim is based on the present need for future medical monitoring. As such, the courts generally do not require plaintiffs to demonstrate any additional injury as the basis of this damages claim. See Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987) (hereinafter Ayers) (rejecting the plaintiff's claim for damages based on enhanced risk of injury while allowing medical monitoring damages).

8 For the counterpoint to this hypothesis, see infra note 39, which is best understood after concluding this article. 945 U.S.C. 51-60 (West 1998).

'o117 S. Ct. 2113 (1997) (hereinafter Buckley). Of additional significance is the Court's finding that exposure to great volumes of asbestos fibers did not constitute the type of "physical impact" needed to support Buckley's emotional distress claim. The majority seems to be searching for some symptom or indicator that would support such a claim. The lack of any treatment seemed to provide a rational basis for denial. Id. at 2118.

"Redland Soccer Club, Inc. v. Dept. of the Army, 696 A.2d 137 (Pa. 1997); Simmons v. Pacor, Inc., 674 A.2d 232 (Pa.1996); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993); Ayers v. Jackson, 525A.2d 287 (N.J. 1987).

'2In order to recover future damages, the plaintiff must show with reasonable certainty that detriment from the commission of a tort will accrue to him in the future. An award may not be based on mere speculation. Frustuck v. Fairfax, 28 Cal. Rptr. 357, 370-71 (Ct. App. 1963). "See Noralyn 0. Harlow, Annotation, Recoverability from Tortfeasor of Cost of Diagnostic Examinations Absent Proof of Actual Bodily Injury, 46 A.L.R. 4th 1151 (1994) and cases cited (value of medical services, including diagnostic examinations, is one of the major elements of damage in a personal injury action, if plaintiff proves that medical services were proximately caused by defendant's tortious conduct); see also, 22 AM. JUR.2D Damages, 213 (1988). '4Ayers v. Township of Jackson, 525 A 2d 287, 310-11 (N.J. 1987). "746 F.2d 816, 826 (D.C. Cir. 1984) (hereinafter Friends). The plaintiffs in Friends were Vietnamese orphans who had been passengers in a Lockheed C-5A transport plane that had depressurized and crashed while attempting evacuation from Saigon in 1975. It is the first case containing an extended discussion of medical examinations which led to an actual award. But Friends involved a very different set of circumstances than do the medical monitoring cases which cite it as initiating authority. For example, Friends was not a toxic tort case, and many of the plaintiffs were already severely injured when the plane crashed. Yet some appear to have been symptom free. The decision did not rest upon the traditional rationale of the plaintiff's right to future medical monitoring; the remedy was limited to diagnostic testing and did not extend to lifetime monitoring. Moreover, the Friends court chose equitable relief over the chance for money damages as the preferred remedy for this group of compelling medical care claims.

"SPotter, 863 P.2d at 824. However, another societal issue of note is the abhorrence of dual recovery. Here, the challenge to medical monitoring is posed by the collateral source rule. In a society that recognizes advancement through science but is yet aware that the cause of many medical conditions is uncertain, and where most persons are insured either through a private plan or by a governmental entity, it becomes less clear why testing (which would likely be covered by some insurer) should be recoverable by the individual. This level of subrogation analysis has served as the basis for the states' potential recovery against the tobacco industry. Fight over Tobacco Funds Starts Between U.S., States, WALL ST. J., Nov. 5, 1997, at B 12. A full analysis of this concept is not attempted in this article.

17525 A.2d 287 (N.J. 1987). Recall that the Pennsylvania Supreme Court in Simmons adopted the Ayers reasoning as delineated in Burns v. Jaquays, 752 P.2d 28 (Ariz. 1988). See 674 A.2d at 239. Burns adopted the rationale and holding of Ayers as it concerned medical monitoring. 18Morrissy v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill. App. Ct. 1979), seems to be the earliest reported reference to "medical monitoring" as a remedy in a toxic tort case. Morrissy was a purported class action by daughters of women who had ingested diethylstilbestrol ("DES"). However, since the class certification was denied, the opinion offered little discussion of the remedy other than to note that "[ijn Illinois, possible future damages in a personal injury action are not compensable unless reasonably certain to occur." Id. at 1376. The Morrissy class apparently was unable to make this showing.

Ayers, 525 A2d St 303 (8 ais ne mld aId.naJ4. 21/ a

22The Supreme Court of New Jersey has subsequently held that damages for medical monitoring may be recovered only by persons who have been directly exposed to hazardous substances, and then only if a plaintiff demonstrates that medical surveillance is required because the exposure caused a distinctive increased risk of future injury necessitating monitoring independent of any other the plaintiff would otherwise have to undergo. See Theer v. Philip Carey Co., 628 A.2d 724, 733 (N.J. 1993). 23Ayers, 525 A.2d at 312. 24863 P.2d 795, 822 (Cal. 1993).

'Id. (citing Miranda v. Shell Oil Co.,15 Cal. Rptr.2d 569 (Ct. App. 1993)). CAL. Clv. CODE 3333 (West 1998) sets forth the measure of damages applicable to tortious conduct. "For the breach of an obligation not arising from contract, the measure of damages . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."

26RESTATEMENT (SECOND) OF TORTS 7 7(2) (1965). 27Potter, 863 P.2d at 822. 2"Id. at 823.

29Id. at 824-25. The court added that ". . . there can be no recovery for preventative medical care and checkups to which members of the public at large should prudently submit." Id. 3858 P.2d 970 (Utah 1993).

3'The Utah court refers to medical monitoring as a "cause of action." Id. at 977-78, 982. 32Id. at 976.

331d. at 976-77. 341d. at 977-78. 35Jd. at 979. 36509 U.S. 579 (1993). 3'118 S.Ct 512 (1997). 381d. at 519.

39674 A.2d 232 (Pa. 1996).

40 Id. at 239.

4'752 P.2d 28 (Ariz. Ct. App. 1988).

42Butler v. Owens Coming Fiberglas (Court of Common Pleas, Philadelphia County, Pennsylvania, Aug. 1996 Term., No. 2721 (J. Stephen E. Levin). (The author has summarized that pleading.)

43;Various defendents filed briefs supporting the motion to dismiss in Butler. These briefs suggested potential problems, including that the "diagnosed with a pleural disease" feature of the class definition goes beyond the Redland Soccer elements, under which a cause of action accrues on exposure (not disease). Claims of most of the representative plaintiffs (using their pleaded diagnosis date) appear time barred under the Pennsylvania two-year statute of limitations. The class definition does not exclude non-Pennsylvania plaintiffs (which triggers issues of whether those persons are entitled to avail themselves of Pennsylvania law). The trial of the named plaintiffs' cases will not advance the trial of class claims because each person will have been exposed to products manufactured by a different array of defendants. The class definition is so ambiguous (e.g., no date as to exposure, diagnosis) that one cannot tell who would be bound if the defendants defeat the class.

4696 A.2d 137, 145-146. Points (4) and (5) from Hansen become Redland point (4). Point (6), requiring that the regime be different from basic prophylactic health care, is consistent with New Jersey and California decisions. See supra notes 20 and 27. 45696 A. 2d at 146 n.8.

46See discussion at pp. 75-76, supra, summarizing consensus of New Jersey and California Supreme Court criteria.

4'See, e.g., Gideon v. Johns Manville Sales Corp., 761 F.2d 1129 (Sth Cir. 1985). 48752 P.2d 28 (Ariz. Ct. App. 1988). 491d. at 33.

40 Id. The Pennsylvania Supreme Court, in Simmons v. Pacor, Inc., quoted this passage with approval and adopted the Arizona rationale as the rule of law for Pennsylvania. See Simmons, 674 A.2d at 239.

51 785 F. Supp. 56 (D. Vt. 1990).

521d. at 57. This decision seems weak in the face of the state supreme court analyses and standards. It seems even weaker in the face of Daubert, Jones, and Buckley, and may have lost precedential value.

53819 F. Supp. 530 (S.D. W. Va. 1993).

"Id. at 532-33 (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). "Bocook, 819 F. Supp. at 536. 561d. at 537.

5'916 F.2d 829 (3d Cir. 1990), modified by 35 F.3d 717 (3d Cir. 1994).

Paoli, 916 F.2d at 850.

59477 N.Y.S. 2d 242 (App. Div. 1984). This case involved a would-be class action brought by neighbors of a toxic landfill in New York State. While not directly deciding the issue, the court in dicta endorsed medical monitoring as a recoverable element of damages. The court stated that "there is a basis in law to sustain a claim for medical monitoring as an element of consequential damage." Id. at 246.In particular, the court observed: "In light of the foregoing, it would appear that under the proof offered here persons exposed to toxic chemicals emanating from the landfill have an increased risk of invisible genetic damage and a present cause of action for their injury, and may recover all `reasonably anticipated' consequential damages." Id. at 247. The future expense of medical monitoring could be recoverable as a consequential damage provided that plaintiff could establish, with a reasonable degree of medical certainty, that such expenditures were "reasonably anticipated" because of the plaintiff's exposure. 6Paoli, 916 F.2d at 851-52. 61684 F. Supp. 847 (M.D. Pa. 1988).

62Paoli, 916 F.2d at 852. This point specifically was not adopted by the Pennsylvania Supreme Court in its Redland Soccer decision.

631d. at 852. As discussed previously, the Pennsylvania Supreme Court allowed this form of recovery. The dissent in Buckley cited Paoli with approval and used it as the linchpin for its discussion.

64. 755 F. Supp. 1468 (D. Colo. 1991)

65. Id. at 1476.

66. Id.

67. Id. at 1476-77

68. Id.

69. Id. at 1478. This reasoning approxiamates that of Justice Breyer in Buckley, infra, 117 S. Ct. at 2123-24.

70 778 F. Supp. 512 (D. Colo. 1991).

71. Id. at 514.

72. Id. at 515. This result may provide a plaintiff's basis in a class action

73 755 F. Supp. 1344 (S.D.W. Va. 1990)

74. Id. at 1372

75 No. B-C-88-253, 1990 WL 312969 (W.D.N.C. 1990). This is an unpublished opinion

76. Id. at 52.

nld. at 53. d647( 1984).

7"Plaintiffs in Villari v. Terminix Int'l, Inc., 77 F. Supp. 330 (E. D. Pa. 1987), sought to establish a constructive trust in an amount sufficient to pay the cost of medical detection and monitoring. The district court recognized the request as sounding in equity and noted that under Pennsylvania law, a plaintiff seeking costs for medical monitoring as an element of damages must demonstrate some physical injury. However, the district court did not understand this to require that a plaintiff exhibit symptoms of the particular diseases for which medical surveillance was sought. The court found that there was sufficient medical evidence on record to permit a jury to conclude that the plaintiffs suffered physical injury from toxic exposure in the month following the spill. Thus, without reaching the issue of recovery absent a present physical injury, the court concluded that such evidence of injury supported a claim for costs of future medical surveillance. This decision is probably moot, however, as a result of Simmons and Redland Soccer.

80 Buckley, 117 S.Ct. at 2122-2124.

"This concern seems especially manifest here in terms of the class action, which has the capacity to exhaust large sums and take them out of otherwise productive capital for testing on a largely speculative outcome.

":Buckley, 117 S. Ct. 2113, 2123-24 (1997). While the majority points to the "safeguards" present in the various state supreme court rules, it does not seem satisfied that they will work at least not on the facts present here. Simmons and Redland Soccer postdate Buckley but make no concerted effort to distinguish it. Whether this is the beginning of a race to consume the balance of funds remaining from certain mass tort (e.g., asbestos) litigation may prove to be of less concern than the disruption of the traditional tort system at the individual state level. "Id. at 2124.

"It should be remembered that the Court considered Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997), involving a mass asbestos settlement, while deliberating on Buckley. These cases were heard the same day and the opinions were issued on the same date. Together they seem to show a judicial reluctance to allow massive lump sum compensation for claims that are not clear in their scope or application.

85Business Brief- Home Holdings Inc.: State Regulators Place Unit Under Formal Supervision, WALL ST. J., Mar. 5, 1997.

86Report On Insolvency and Mismanagement at Transit Casualty Co., Transit Casualty: The Titanic of Insolvencies (on file with author).

"Nicholas Bray, Lloyd's of London Isn't Out of Woods: as $4.98 Billion Deal Nears, Insurer Copes With Lloss of Image Market Share, WALL ST. J., Aug. 29, 1996, at A-4.

88See Patrick J. Hagan et al., Totalling Up the Costs of Asbestos Litigation: Guess Who Will Pay the Price, 4 TEMP. ENVTL. L. & TECH. J. 1 (1990).

89The writer suggests this would be especially true where claimants had multiple exposures, made multiple claims, and as a class member of different classes could effect multiple recoveries.

90Helferd v. Southern Cal. Rapid Transit Dist., 465 P.2d 61 (Cal. 1970).

PATRICK J. HAGAN*

*The author wishes to express his appreciation to Karen Creech, a former associate at Dillingham & Murphy and a 1993 graduate of the University of California, Hastings College of Law, for her assistance in the preparation of an earlier paper on medical monitoring. Thanks also to Kimberly Borah, also a former associate at Dillingham & Murphy, and a 1997 graduate of the University of San Francisco School of Law, for her assistance on this article.

Patrick J. Hagan is a partner and supervising attorney for the Environmental/Product Liability Team at Dillingham & Murphy in San Francisco. He graduated from St. Joseph's University in Philadelphia, Pennsylvania in 1965 and the University of California at San Francisco, Hastings College of the Law in 1975. Mr. Hagan is a member of the California, San Francisco County, and the American Bar Associations. He is also a member of the Federation of Insurance & Corporate Counsel (former chair of the Toxic Tort and Environmental Section), the Defense Research Institute, and the Association of Defense Counsel for Northern California. He is widely published in the areas of his expertise.

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