Medical monitoring liability is potentially broad and dangerous to industry because the claim substitutes the notion of increased risk for the traditional tort concept of injury. In an important decision, the Third Circuit reaffirmed that medical monitoring is not available under Pennsylvania law to a plaintiff alleging an increased risk of future disease based only on exposure to a substance that might cause disease in some people in some situations. Sheridan v. NGK Metals Corp., 2010 WL 2246392 (3d Cir. June 7, 2010). Sheridan is also significant procedurally, as it approved a streamlined procedure for disposing of repetitive claims once a dispositive issue has been authoritatively resolved.
The plaintiffs in Sheridan had worked in or lived near beryllium plants. They brought separate class actions seeking medical monitoring for chronic beryllium disease (“CBD”), a potentially fatal lung disease that occurs in a small fraction of persons exposed to beryllium. To develop CBD, a person first must have an immune system (identifiable by a genetic marker) that recognizes beryllium in the lungs as an antigen. Exposure to beryllium causes those people to develop beryllium sensitization, an asymptomatic condition identifiable by laboratory test. Only a small percentage of people with beryllium sensitization go on to develop actual CBD. The Sheridan class representative plaintiffs did not have beryllium sensitization and nevertheless sought medical monitoring in the form of diagnostic screening for CBD.
The defendants moved for summary judgment, noting that a significantly increased risk is a required element of medical monitoring, and citing a Pennsylvania intermediate appellate court decision rejecting medical monitoring for all persons merely exposed to beryllium because those persons, absent sensitization, did not have a significantly increased risk of developing CBD. Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa. Super. Ct. 2007). The defendants in one case supported their motion with expert testimony. The defendants in the other case relied solely on Pohl, although the plaintiffs submitted several expert opinions. Both defense motions were granted. Plaintiffs appealed.
The Third Circuit’s Decision
The Third Circuit decided the two appeals in one opinion, and affirmed. The court held that Pohl’s decision on a question with common factual and legal elements—whether beryllium exposure absent beryllium sensitization created a significantly increased risk of contracting chronic beryllium disease—constituted a holding of substantive Pennsylvania law on medical monitoring. Absent clear proof that the Pennsylvania Supreme Court would reject that holding, the federal court was bound to follow that reasoning. As a result, the Sheridan plaintiffs could not avoid the adverse Pohl decision simply by offering different or expanded expert testimony. Based on Pohl, the Third Circuit held that the named plaintiffs in the putative classes did not have a significantly increased risk of CBD because they did not have beryllium sensitization. Without evidence of a significantly increased risk, state law did not allow medical monitoring.
The court also upheld the dismissal of a “Good Samaritan” liability claim against an engineering firm that tested the plant’s beryllium levels. The engineering firm contracted only with the plant’s operators and had no duty to report test results to people living near the plant.
The Third Circuit’s ruling generally reaffirms the important principle that medical monitoring often depends upon individual medical facts, and is not always appropriate even in those states recognizing the remedy. Also, medical monitoring is not available merely based on even allegedly significant exposure to a substance that can cause a disease; increased risk is an independent element of the claim and must be evaluated in light of the pertinent medical state of the art, and individual medical facts including the development of a disease in susceptible persons. Although Sheridan did not consider class certification, having rejected the claims of the putative class representatives, another logical implication of Sheridan is that medical monitoring claims are often not appropriate for class certification because the elements may require analysis of individual circumstances.
Sheridan also shows an inexpensive way to resolve cases in repetitive tort litigation. The Third Circuit affirmed summary judgment against one of the class plaintiffs based solely on a similar appellate decision, without requiring independent evaluation of expert testimony. The procedure followed in Sheridan could prove invaluable to prevent repetitive rulings on expert testimony in pattern litigation. Once a controlling court—including a state appellate court, a federal appellate court, or a federal district court judge in the same district—definitively resolves whether certain scientific evidence satisfies a substantive legal standard, under the Sheridan approach that decision should be binding in all similar cases. A defendant may move for summary judgment based on the controlling court’s decision as a matter of substantive law without the expense of providing new expert affidavits or addressing the plaintiff’s experts. In mass tort litigation this procedure could help defendants who have won a key legal victory avoid the significant expense of preparing and presenting the same expert testimony again and again.