In Hirsch v. CSX Transportation, Inc. (6th Cir., No.09-4548) (PDF), a case that could have significance in other medical monitoring cases throughout the circuit and perhaps even more broadly, the Sixth Circuit affirmed a district court ruling on summary judgment that rejected class claims for medical monitoring following a major 2007 train derailment in Ohio.
The case stems from train derailment in Painesville, Ohio on October 10, 2007, in which 31 cars were toppled, nine of which carried hazardous materials. As a consequence of the derailment, a fire burned for three days, allegedly consuming over 2,800 tons of combustibles, which the plaintiffs claimed resulted in the release of toxic materials into the atmosphere. As a result of these events, some 1,300 residents within a half-mile radius were forced to evacuate for three days. The plaintiffs brought suit for negligence, nuisance, strict liability, trespass and medical monitoring under Ohio law, but CSX obtained dismissal of all claims save negligence, under which the district court permitted the plaintiffs to seek medical monitoring as a remedy. CSX won the remaining negligence claim on summary judgment, and the plaintiffs appealed.
Affirming the district court, Judge Boggs wrote for a unanimous panel that included Judges Kennedy and Sutton. Early on, the panel noted that "[w]hat makes the present claim conceptually unique is that the Plaintiffs -- though no doubt distraught from the stress of a train crash and evacuation -- have, even by their own admission, as of now not suffered any discernable compensable injury. Rather, their alleged injuries consist solely of the increased risk of -- and corresponding cost of screening for -- certain diseases" that plaintiffs claim are likely to occur because of the train crash and fire. Stating that "not every risk of disease warrants increased medical scrutiny," the panel emphasized that Ohio law required medical monitoring only if a "reasonable" physician would deem monitoring necessary (emphasis in original). Examining the opinions of plaintiffs' experts, the Court found that those opinions were "plainly insufficient," offering only "an expert's bare opinion on the ultimate issue" as to whether monitoring should be ordered. The Court also criticized other aspects of the experts' opinions, calling estimates of the total amount of burned materials to be "speculative" and observing that even the "one-in-a-million" chance of elevated disease represented by the experts was "proverbially small." As the Court put it, "[i]f something has a one-in-a-million chance of causing cancer in an individual, then it will not cause cancer in 999,999" -- which the panel then compared to chances of dying by car crash (1 in 88), by air/space accident (1 in 7,000), by lightning (1 in 84,000) and by discharge at a fireworks display (1 in 386,000). For all these reasons, the Court found that "Plaintiffs have alleged only a risk that borders on legal insignificance" and further "failed to produce evidence establishing even this hypothetical risk with any degree of certainty."
Thus, in Hirsch, to establish a case for medical monitoring under Ohio law, the Sixth Circuit has demanded both a greater raw risk of injury than the "one-in-a-million" chance that the plaintiffs offered, as well as a less speculative showing as to exposure levels to allegedly disease-causing toxins. In ruling, the panel assumed without deciding that such a negligence/medical monitoring claim would be permissible under Ohio law, and it also expressly did not "foreclose any number of possibilities" that might survive summary judgment: for instance, where plaintiffs could show that medical monitoring would be standard practice for certain risks or where plaintiffs could "obtain conclusive evidence" that they, in fact, faced a "one-in-a-million increased risk of cancer." Such "harder cases" the panel left for another day.