Medical monitoring has yet to gain traction in Illinois. Plaintiffs with medical monitoring only claims – seeking future testing to determine whether defendants’ alleged negligence has caused the injuries feared – have been unsuccessful in Illinois. Although the Illinois Supreme Court has not ruled specifically on medical monitoring, existing Illinois law does not allow for medical monitoring absent a present physical injury.
The Illinois appellate court first explored a remedy for medical monitoring without proof of present physical injury in Lewis v. Lead Industries Ass’n (793 N.E. 2d 869 (Ill. App. Ct. 2003) (Lewis I). The Lewis plaintiffs sought to recover damages for defendants’ alleged manufacture, distribution, and promotion of paint containing lead. The Lewis case was dismissed for failure to state a claim, but the plaintiffs appealed the dismissal. On appeal, the court accepted the plaintiffs’ theory that the cost of lead testing or assessment could constitute compensable damage, but held that plaintiffs failed to state a claim because they had not adequately pled the requisite causation element. The plaintiffs argued that the complaint contained causation allegations because they had alleged that “the risk of poisoning from exposure to lead pigments in paint such as that promoted and supplied by the defendants is so significant that it has become medically necessary that all children six months through six years of age residing in the State of Illinois be tested” under the Lead Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 2000)). The court disagreed, holding that the plaintiffs had failed to identify a specific manufacturer and therefore failed to allege the required causal link between a specific defendant’s acts and the plaintiff’s injuries. The appellate court reversed the decision in part, but did not reject medical monitoring absent physical injury. See Lewis v. NL Indus., 2013 IL App (1st) 122080 (Lewis II). However, in Jensen v. Bayer AG, the court found that the plaintiff’s claim for medical monitoring for potential future harm, where no present injury is shown, could not proceed. 371 Ill. App. 3d 682, 693 (1st Dist. 2007). The Jensen plaintiffs brought a claim for medical monitoring without alleging a present injury, arguing that taking medication for cholesterol increased their risk of developing a disease in the future. In response to plaintiffs’ reliance on Lewis I, the court stated that Lewis I did not address whether a plaintiff may bring a claim for medical monitoring for potential future harm where plaintiff does not allege a present injury. The Jensen court further cautioned that Lewis did not provide trial courts with guidance on the elements necessary to state an independent claim for medical monitoring absent present injury.
In HPF, L.L.C. v. Gen. Star Indem. Co., 338 Ill. App. 3d 912, 913 (1st Dist. 2003), the court examined the duty to defend suits for medical monitoring. The insured was a distributor of herbal dietary supplements (Herbal Phen-Fen) marketed as safe and effective treatments for obesity. The insured’s policy provided coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Id. at 916. The underlying complaint sought an injunction against the insured based on misleading marketing and unlawful distribution of an alleged ineffective supplement. The complaint did not seek damages based on bodily injury, but, in the prayer for relief, sought to establish a medical monitoring fund for users of Herbal Phen-Fen to test for future negative health effects. Absent allegations of bodily injury to plaintiffs, the insurance carrier denied that it had a duty to defend or indemnify the insured. The court agreed, finding that the underlying complaint did not seek damages for bodily injury and did not fall within the insured’s coverage policy. Id. at 918.
The most recent case involving medical monitoring before the Illinois Appellate Court was dismissed due to a statute of limitations issue. See Allen v. YRC Worldwide Inc., 2015 IL App (1st) 143053. Defendants filed a 2-619.1 motion to dismiss plaintiffs’ complaint alleging the defendants were responsible for contaminating the village water supply with vinyl chloride. Defendants’ 2-615 motion sought to dismiss the claim for failure to state a cause of action for medical monitoring, while Defendants’ 2-619 motion sought dismissal based on statute of limitations. The plaintiffs’ complaint requested that defendants fund periodic medical monitoring for plaintiffs to determine whether plaintiffs were suffering from any of the increased risks associated with vinyl chloride. The Allen court found that the statute of limitations was not tolled and barred Plaintiffs’ medical monitoring claim against defendants for allegedly contaminating residents’ water supply. Based on this finding, the court did not determine whether the plaintiffs stated a claim for medical monitoring.