Medical monitoring or surveillance claims typically seek an award for the cost of periodic medical examinations or testing to facilitate early diagnosis and treatment of diseases allegedly caused by exposure to products, chemicals, or other hazardous materials. The medical monitoring claim began as a non-traditional tort developed in state common law to compensate those environmentally exposed to toxic chemicals, but in recent years medical monitoring has become both a claim and a requested remedy in product liability matters. Not surprisingly, courts have taken divergent views of medical monitoring claims since their inception. Some courts reject medical monitoring claims absent manifest physical injury, while others recognize such claims as the only immediate means of compensating injured parties with increased risk of illness and injury.

Recent decisions in both environmental exposure and product liability matters make clear that the difference in opinions on the viability of medical monitoring claims is unlikely to end soon.

Recent Cases Narrowing Medical Monitoring Claims
Multiple jurisdictions have recently limited the scope of medical monitoring claims or rejected such claims altogether, relying largely on policy considerations regarding the difficulty in evaluating speculative or even fraudulent claims for medical evaluation and testing. For example, New Jersey courts have recognized medical monitoring claims since 1987. However, a New Jersey court recently made clear that medical monitoring is not an available remedy in "pure product liability" matters. Vitanza v. Wyeth, Inc., 2006 WL 462470, *6 (N.J. Super. Jan. 24, 2006). In Vitanza, a putative class ingested a hormone replacement medication that allegedly placed them at increased risk of breast cancer, coronary artery disease, stroke, and pulmonary embolism. Id. at *9. The plaintiffs primarily sought a court-administered medical monitoring program that would include (1) locating patients who used the medication and notifying them of the potential harm; (2) epidemiological or data analysis to detect adverse health effect trends, including population-based studies and the establishment of an adverse health effects registry; (3) informing physicians regarding diagnosing and treating medication-related illnesses; and (4) ongoing testing and monitoring of users. The putative class specifically requested funding for "high definition ultrasound imaging, digital mammography, computer assisted detection, and/or magnetic resonance imaging, consultation with dedicated breast imagers and breast specialists, and more frequent mammography." The defendant manufacturer moved to dismiss the medical monitoring claim, arguing that medical monitoring was not available under the New Jersey Product Liability Act because the proposed class members had no manifest injuries.

Ultimately, the Vitanza court granted the defendant's motion to dismiss the medical monitoring claim, noting that New Jersey's Product Liability Act requires a "harm," which the putative class lacked. The court explained that New Jersey's Product Liability Act defines "'harm'" as "'(a) physical damage to property, other than to the product itself; (b) personal physical illness, injury or death; (c) pain and suffering, mental anguish or emotional harm; and (d) any loss of consortium or services or other loss deriving from any type of harm described in subparagraphs (a) through (c) of this paragraph.'" Id. at *7 (quoting N.J.S.A. 2A:58C-1(b)(2)). Because neither the "costs of medical surveillance or enhanced risk of injury" nor the "significant possibility of potential physical illness," were included in the definition of "harm" under the Act, the Vitanza court found no cognizable claim. Id.

Interestingly, the Vitanza court distinguished the "pure product liability action" from environmental exposure claims in which New Jersey courts had previously permitted medical monitoring. Noting that both (1) the nature of environmental tort actions made proving and establishing causation extremely difficult, and (2) the lack of a governmental response providing compensation for those environmentally exposed forced a need for a judicial remedy, the Vitanza court made clear that no such policy considerations are present in "pure product liability" matters. As a result, the court dismissed the plaintiffs' medical monitoring claim and effectively limited future claims to environmental exposure matters.

Courts of two other jurisdictions also recently rejected medical monitoring claims, requiring a present physical harm. The United States District Court for the Western District of Texas dismissed the medical monitoring claim of a group of radar operators, mechanics, and technicians allegedly exposed to radiation from radar equipment in Norwood v. Raytheon Co.,414 F. Supp. 2d 659, 665 (W.D. Tex. 2006). Though the Texas Supreme Court had not yet ruled on the viability of medical monitoring claims, the District Court dismissed the plaintiffs' medical monitoring claim, noting that Texas law requires a present physical injury for recovery. In so doing, the court analogized the plaintiffs' medical monitoring claim to one for mental anguish from exposure to asbestos fibers addressed in Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999). Like the Temple-Inland court, the Norwood court reasoned that medical monitoring claims present untenable policy questions, including (1) the uncertainty inherent in evaluating the validity and seriousness of the claims in the absence of present physical injury; (2) the attendant unpredictable liability; and (3) the potential proliferation of claims resulting from competition between suits for "'exposure that has not resulted in disease [competing] with suits for manifest diseases for the legal system's limited resources.'" Id. at 664 (quoting Temple-Inland, supra , at 93).

The Supreme Court of Michigan also rejected a medical monitoring claim absent present physical injury in an environmental exposure matter in Henry v. Dow Chemical Co.,701 N.W.2d 684, 688 (Mich. 2005). Reversing the denial of Dow Chemical Company's motion for summary judgment on the medical monitoring claim of a putative class of residents who allegedly were exposed to dioxin, the court held that medical monitoring is not a cognizable claim in Michigan absent a present physical injury. However, the court further eliminated any possibility of such claims under Michigan law, finding that "recognition of this claim would require both a departure from fundamental tort principles and a cavalier disregard of the inherent limitations of judicial decision-making." Id. at 701. The court made clear that any possible recognition of medical monitoring claims absent manifest physical injury must first occur at a legislative level. Id. at 689-92. See also Ware v. CIBA Specialty Chemicals Corp., 2006 WL 1566200 (N.J. Super. June 9, 2006) (applying Alabama law to product liability matter and holding Alabama does not recognize medical monitoring claims absent physical injury); Galaz v. United States of America, 2006 WL 897584 (9th Cir. March 31, 2006) (noting that Nevada does not recognize medical monitoring claims absent physical injury).

Cases Expanding The Scope Of Medical Monitoring Claims

Three jurisdictions recently affirmed their commitment to claims for medical monitoring in the context of environmental exposure. In Muniz v. Rexnord Corp., 2006 WL 1519571, *7 (N.D. Ill. May 26, 2006), the United States District Court for the Northern District of Illinois concluded that medical monitoring claims are cognizable under Illinois law, denying the defendant's motion for summary judgment where residents claimed to have been exposed to chemicals from a nearby industrial facility. Distinguishing Illinois common law from that of Texas as set forth in Norwood v. Raytheon Co. and Michigan as set forth in Henry v. Dow Chemical Co., the Muniz court explained that Illinois state and federal courts previously had found medical monitoring claims cognizable under state law in the absence of a physical injury. Id. at *6. The Muniz court further distinguished the matter from the United States Supreme Court's decision in Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997), in two respects: (1) the Supreme Court in Buckley rejected only a "lump-sum payment" for "'extra monitoring costs, over and above those otherwise recommended,'" a remedy the Muniz court found "readily distinguishable to the remedy prayed for in the instant case," id. at *7 (quoting Buckley, supra, at 441), and (2) the Supreme Court limited Buckley strictly to its facts. Id. Based on this conclusory analysis, the Muniz court denied the defendant's motion for summary judgment.

While no Maryland court has recognized medical monitoring as a cause of action or remedy under Maryland law, the United States District Court for the Southern District of New York recently predicted that Maryland's highest court would do so in an environmental exposure matter and, therefore, refused to dismiss a claim for medical monitoring under Maryland law. In In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability, 2006 WL 928997, *12 (S.D.N.Y. April 7, 2006), the court considered a claim for medical monitoring after a putative class filed suit and alleged exposure to MTBE from leaking storage tanks at a gasoline station. The defendants moved to dismiss the medical monitoring claim, reasoning that (1) no Maryland court had previously recognized a claim for medical monitoring, and (2) even if Maryland law recognized such a claim, the plaintiffs must have been exposed to a known cause of cancer or disease before monitoring would be appropriate. However, the court refused to adopt the defendants' analysis, citing the Maryland Court of Appeals' decision of Phillip Morris v. Angeletti, 752 A.2d 200, 250 (Md. 2000). Although the Phillip Morris court had not addressed the validity of a medical monitoring claim, choosing instead only to address the appropriateness of certification of the proposed class, the New York District Court concluded that Maryland courts would recognize such a claim because the Maryland Court of Appeals had chosen not to address the issue in Phillip Morris. The MTBE court explained: "Maryland's highest court had the opportunity to bar a medical monitoring claim, but refrained from doing so. Thus, I find that Maryland is likely to permit claims for medical monitoring, either as a distinct cause of action or as a remedy depending on the circumstances of a particular case." Id. at *12. See also Jones, et al. v. NL Industries, 2006 WL 1487026 (N.D. Miss. May 24, 2006) (denying summary judgment in lead paint case where plaintiffs had present injury and sought medical monitoring as an element of damages); Pas v. Brush Engineered Materials, Inc., 445 F.3d 809 (5th Cir. 2006) (certifying issue of availability of medical monitoring cause of action to Mississippi Supreme Court).

Finally, a Pennsylvania court recently confirmed the viability of medical monitoring claims in an environment exposure matter. In Brendley v. Rohm & Haas Co., 2006 WL 1010485, *2 (Pa. Com. Pl. March 30, 2006), the court considered a claim for medical monitoring made on behalf of past and present employees of a research facility. The employees claimed that exposure to toxic chemicals while working at the facility caused twelve employees to develop brain cancer and placed other past and present employees at risk. The employees sought the establishment of a medical monitoring fund for preventative medical testing. However, the research facility objected to the class action lawsuit, claiming the employees' claim for medical monitoring was barred by the exclusivity provision of the state's Workmen's Compensation Act. The Brendley court agreed, dismissing the lawsuit with leave to file a Workmen's Compensation Claim. In so doing, the court explained that "medical monitoring costs to detect and prevent the spread of brain cancer is an injury compensable under the [Pennsylvania] Workmen's Compensation Act." Id. at *2.

Cases Decertifying Or Refusing To Certify A Class Of Medical Monitoring Plaintiffs

Faced with requests for class certification under Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure, at least two courts addressing product liability matters have recently concluded that common issues of law and fact do not predominate over questions affecting individual members of the class in medical monitoring actions. In Sanders v. Johnson & Johnson, Inc., 2006 WL 1541033, **5-6 (D.N.J June 2, 2006), the New Jersey District Court struck the class action allegations in a complaint and refused to certify a medical monitoring class, finding that individualized questions of law and fact predominated. The complaint included a variety of traditional product liability claims, but further included the plaintiffs' alleged fear of future product failure and requested compensatory and punitive damages, as well as "equitable relief in the form of medical monitoring." Id. at *5. Explaining the individualized fact questions unique to each proposed class member, the court refused to certify the class under Rule 23(b)(3). The court further refused to certify the class based on a cohesiveness argument under Rule 23(b)(2), noting that individualized issues of how members were injured, alternate causes, and the extent of the injuries further undercut class cohesiveness. See also In re New Motor Vehicles Canadian Export, 2006 WL 623591, *8 (D. Me. March 10, 2006) ("when that injunctive remedy must be individualized (as is the case with money damages, or with court-ordered medical monitoring), the cohesiveness is lost, and (b)(2) certification becomes inappropriate").

Likewise, in Wyeth, Inc. v. Gottlieb, 2006 WL 335602, **3-4 (Fla. App. Feb. 15, 2006), the Florida Court of Appeals reversed a trial court's certification of a class of plaintiffs who took a female hormone replacement medication and sought a medical monitoring program. The Wyeth court held that individual issues, such as differing dosages, periods of ingestion, and levels of awareness regarding studies citing the possible dangers of taking the medication predominated common issues of law and fact. Id. at *4. See also Meyer v. Fluor Corp., 2006 WL 996540, *6 (Mo. App. June 1, 2006) (affirming denial of class certification in environmental exposure matter because individual issues predominated and declining to address whether present physical injury is required for medical monitoring claim under Missouri law).

Conclusion

The validity of medical monitoring claims is a hotly-debated topic, with state and federal courts in a variety of jurisdictions reaching different conclusions. The majority of courts interpreting the validity of such claims have done so in the context of environmental exposure. However, recent decisions in product liability matters, including those addressing the merits of medical monitoring claims such as Vitanza and Norwood and those addressing class certification such as Sanders and Wyeth, make clear that claims for medical monitoring and requests for class certification will be subjected to heightened scrutiny. This is good news for manufacturers.