Over the last 30 years, state and federal courts have grappled with how best to address claims filed by plaintiffs who do not currently suffer from an actual injury or illness, but rather seek damages for their risk of developing an illness from past exposure to some hazardous substance or product. See e.g., Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984) (discussing damages for diagnostic exams before physical conditions developed). Plaintiffs, in matters such as these, typically file claims for “medical monitoring” and seek damages for the costs associated with monitoring them for the possible development of an illness or condition related to their claimed exposure to the hazardous substance or product.
The viability of medical monitoring claims varies greatly from jurisdiction to jurisdiction. Some states, including Michigan, Oregon, and most recently, New York, have rejected these claims. See Henry v. The Dow Chem. Co., 473 Mich. 63, 75, 701 N.W.2d 684, 690 (2005); Lowe v. Philip Morris USA, Inc., 344 Or. 403, 414-15, 183 P.3d 181, 187 (2008); Caronia v. Philip Morris USA, Inc., 2013 N.Y. Slip Op. 08372, 2013 WL 6589454. Whereas other states, including California, Louisiana, Massachusetts, and Pennsylvania, allow these claims and continue to refine what constitutes a medical monitoring claim in their jurisdictions. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1009, 863 P.2d 795, 824 (1993); La. Rev. Stat. § 2315; Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 915 N.E.2d 891 (2009); Redland Soccer Club, Inc. v. Department of the Army and Dept. of Defense of the U.S., 548 Pa. 178, 196, 696 A.2d 137, 146 (1997).
Originally published in IADC's Toxic and Hazardous Substances Litigation Committee Newsletter.
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