Can individuals who have suffered occupational or environmental exposure to asbestos, but do not yet manifest physical injury, recover damages for medical monitoring? This chapter will analyze the state of the law with respect to medical monitoring rights and how those laws relate to asbestos exposure issues.
Additionally, a survey of the holdings of cases of various state and federal courts respecting these actions as they may pertain to medical monitoring will also be presented.
We will begin by generally addressing the ingredients involved in claims for medical testing, treatment and monitoring arising from exposures to toxic materials, including asbestos. Medical monitoring is compensation for costs of future medical examinations and testing for the early detection and diagnosis of diseases known or believed to be caused by toxic exposure, but which may not manifest themselves until after a long latency period (Bauer & Lakind, Toward Resolution of Insurance coverage Questions in Toxic Tort Litigation, 38 Rutgers L. Rev. 677, 65 (1986).
Pre-Damage Medical Monitoring Claims
Claims for medical monitoring are increasing and often present a situation wherein a litigant makes a claim for damages before a physical injury or actual onset of a diagnosed disease. This problem has presented a substantial challenge for litigants alleging and defending claims involving toxic exposure.
The issue of damage claim in advance of actual injury or disease has proven to be a substantial problem for courts grappling with traditional common law notions of injury and damages and attempting to harmonize them with the problem of latent disease or latent manifestation of disease which may result from such exposures.
Many of the cases addressing these issues do not involve the asbestos question; however, the rationale and holdings in many respects are analogous.
So called toxic tort claims have greatly increased with the awareness of the health hazards of many materials now known to cause disease. The pervasive and essentially unregulated use of carcinogenic materials for many years has now heightened public concern over their use, misuse and individual health consequences connected to exposure.
The result has been increased litigation concerning the rights of those exposed, and defining the extent of the liability of the manufacturers, users and custodians of these materials. Concerns over cancer and latent disease have been an area of particular concern for government, courts and parties to the litigation setting (Dinkins C, Murphy A. Overview of Environmental and Toxic Tort Litigation, SA88 ALI-ABA 441, 450 (1996).
Traditional tort law has readily recognized that when one causes injury to another, the wrongdoer, frequently referred to as a "tort-feasor," is obliged by law to repair that injury (La. Civ. Code Ann. art. 2315 et seq). It is also well established that the tort-feasor is responsible for all future medical damages that may flow from the wrongful act (National Car Rental Systems, Inc. v. Holland, 269 So. 2d 407 (Fla. 4th Dist. Ct. App. 1972).
Traditionally, injury has been viewed narrowly in the personal injury context to mean that there is actual disease or something has gone wrong within the human frame (Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)). Using traditional beliefs, no rights arise so as to permit a person to enter a petition for relief in a court of law until such injury has physically manifest itself.
Throughout the Twentieth Century, this notion has been challenged and expanded as courts began to recognize that a person may have intangible rights that also merit protection. More recently, courts are confronted with plaintiffs presenting claims for increased risks of harm in advance of the manifestation of actual disease or physical injury.
Compelling arguments are made both pro and con that an "injury" has or has not occurred as a result of increased risk of harm, such that obligations to pay compensation or damages should be triggered. Accordingly, a closer look at the elements and competing policies is required.
Evolution of Increased Risk of Disease and Medical Monitoring in Advance of Disease
In the early case law that led to the development of medical monitoring, a rather benign hypothetical question was innocently phrased concerning the rights involved in the question of future damages for medical monitoring for a condition that may not, in fact, arise. The subsequent treatment of this question and the resulting conclusions from the cases that followed this rationale have had far reaching consequences in the toxic tort arena:
Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial costs of the diagnostic examinations.
Medical Monitoring an Equitable Remedy
The United States Circuit Court of Appeals for the District of Columbia in Friends for All Children v. Lockheed Aircraft Corp., used the foregoing analogy to allow plaintiffs to recover for costs for future medical monitoring in the absence of an injury or present physical disease.
The case involved a plane crash of Vietnamese orphans and the individual crash survivors' claims for future medical monitoring to detect and treat possibly serious brain-related complications that may arise in the future, in some of the crash survivors, as a result of the sudden depressurization of the aircraft.These plaintiffs had suffered an impact, but, like the hypothetical, had no present actual condition or disease to support the nature of the medical treatment sought.
The Court noted that the plaintiffs had a legally-protected interest in avoiding these examinations which were necessitated by the negligence of the defendant. In this early decision, the Court rejected the plaintiffs' argument that this right was predicated upon an enhanced risk of injury or disease, indicating that such an argument was too speculative.
Instead, the Court found that the award of future medical monitoring was in the nature of an equitable remedy, that is, a remedy of fairness, in order to avoid greater damages in the future.
The Court also pointed out that the need for medical monitoring was medically warranted and reasonable since it would serve to prevent a far more serious harm in some of these cases.
While the Friends for All Children case did not accept the increased risk of future disease as a basis for supporting an award for medical monitoring, it did posit four basic public policy concerns to support the rationale of the case holding.
These policies are frequently cited in later cases where they are used as a policy basis to support awards for medical monitoring in advance of a diagnosed disease. The court's analysis in Friends For All Children touched upon four policy concerns that favored such an award:
- Medical monitoring would promote important public heath concerns;
- It would promote deterrence of substandard conduct;
- It would promote beneficial medical issues such as mitigation of damages; and
- It would conform with societal notions of fairness.
Rejected Concept of Increased Risk of Contraction of Disease
Despite its rejection in Friends, a concept of increased risk of contraction of disease as a remedy was already taking root in the jurisprudence, if that risk of contraction was probable, well established, and there was some objective symptom or impact (Hagerty v. L&L Marine Services, Inc., 788 F.2d 315, 319, modified, 797 F.2d 256 (5th Cir. 1986)).
However, remedy was generally being discussed in terms of compensation for increased risk of contraction of disease claimed as a separate item of damages, as opposed to rights for medical monitoring damages. It was unclear how this standard was to be applied to damage claims solely for medical monitoring.
Plaintiffs began combining these requests as separate items of damages arising out of toxic exposures, usually in cases that also involved other damages alleged to result from toxic exposure.
The case of Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987) can be fairly viewed as the seminal legal authority regarding medical monitoring claims by plaintiffs who do not have an existing physical injury or present any current manifestation of disease. According to Ayers, plaintiffs could recover medical monitoring costs absent an identified disease, and more importantly, a plaintiff could recover medical monitoring costs even if the risk of contraction of the disease was not necessarily more probable than not.
The elements for medical monitoring recovery under Ayers are generally viewed as follows:
- Significant exposure;
- To a proven hazardous or toxic substance;
- The victim suffers a significantly increased risk of contracting serious disease;
- This increased risk makes the need for periodic examinations reasonably necessary, and
- Monitoring and testing procedures exist in which the benefits derived exceed the social and economic cost.
It is also generally accepted that this exposure be caused by some form of substandard conduct, such as negligence. (Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 863 P.2d 795, 826 (1993).
All of the reviewed cases discuss application of liability within the context of negligent conduct. This is customarily viewed as the failure of a defendant to adhere to the acceptable standard of care of a reasonably prudent person of the same station and circumstance.
At present, it is unclear if a party could use a strict products liability, intentional misconduct, or a theory of fraud and conspiracy to recover for medical monitoring claims (Hanson v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993), although it would appear that the underlying policy concerns would be equally served using these other theories of substandard conduct.
A cursory review of the enumerated elements in Ayers would indicate that, as a general proposition, issues regarding significant asbestos exposure and medical monitoring would fit neatly within this criteria. A closer examination of this case is, therefore, in order.
In the Ayers case, the New Jersey Supreme Court announced a rule that rejected a standard of proof that a disease is "more probable than not" to follow as a result of a significant toxic exposure, to a more relaxed standard that considered the nature of exposure, the toxicity of the materials, and the seriousness of the potential disease.
The court stated, at least with future malignancy and medical monitoring claims, that requiring a burden of proof of "more probable than not" was beyond the realm of possibility of proof that claimants or modern science could offer at this time. Recognizing this problem, the Supreme Court of New Jersey moved from a "quantifiable, more probable than not standard" to a "significant risk standard."
This standard has not been universally adopted in state and federal courts, but has been cited with approval in many jurisdictions.
Caution must be exercised in reading these opinions because they are frequently discussed in connection with claims involving a request for compensation for "increased risk of contraction of a given disease" in connection with a certain type of toxic exposure.
It would appear that the jurisprudence following Ayers with respect to medical monitoring claims, is frequently using one standard to allow recovery for medical monitoring in advance of disease, and a different, higher standard for damages claimed for an increased risk of contraction of disease (Jackson v. Johns-Manville, 731 F.2d 394, 412-13 (5th Cir.), 478 U.S. 1022 (1996).
Since Ayers, a majority of jurisdictions have fashioned different standards in order for a plaintiff to avail the remedy of medical monitoring. In a few cases, however, courts have rejected the notion outright as incompatible with local tort theory or policies, or have felt it was simply too speculative or expensive a remedy for courts to fashion under existing law.
The Pitfalls of Proving Increased Risk of Disease
The use of risk assessment evidence to prove and predict that asbestos may cause injury is essential. While this proposition may appear obvious to the reader, proof of this risk in a reliable manner in the courtroom is an entirely different matter (Roth-Nelson W, Verdeal K. Risk Evidence in Toxic Torts, 2 Environmental Lawyer 405, ABA (1996).
While there are a mediad of medical studies available to support such a proposition (which can be found in other sections of this series), this is a pivotal proof issue for the legal practitioner dealing with this concept (Selikoff, IJ, Churg J. Hammond EC. Asbestos Exposure and Noeplasia. J. Am. Med. Assoc. 1964; 1988:22-6).
The bulk of jurisprudence addressing the medical monitoring question readily acknowledges that risk of contraction of disease resulting from exposure to a toxic substance is beyond proof to a reasonable medical certainty in an individual case. Naturally, the strength of this assertion will vary with respect to the type of toxin at issue and, consequently, this may change the proof standard that a given court may require.
The cited cases that have allowed medical surveillance damages have attempted to define a reliable methodology which could best be described as a medical/legal test in order to justify allowing such a remedy. This test is usually very similar to Ayers insofar as the goal of proof is to reliably and persuasively demonstrate that the level of toxicity and the incidence of disease observed is so great that a reasonable inference can be created to justify recovery, or in the alternative, is so tenuous as to negate the remedy.
Both plaintiffs and defendants, therefore, rely heavily upon expert witnesses using epidemiology, industrial hygiene and toxicology in order to meet the requisite burden of proof or to challenge the claim.
Disagreement as to Quantification of the Risk
While most experts would agree that asbestos dust and fiber present an increased risk of disease, there is a divergence of opinion regarding the quantification of the risk, and the circumstances generally giving rise to an increased risk (Lecler A, Goldbert M, Goldbert P, Deloumeaux J, Fuhrer R. Geographical Distribution of Respiratory Cancer in New Caledonia, Arch Environ Health 1987; 42(5): 315-20).
These proof problems become even more apparent when attempting to meet this burden in an individual case. The test articulated in Ayers exemplifies the insertion of a legal policy to support medical surveillance as a theory of recovery where medical certainty begins to fail. The result has been a noticeable divergence in the jurisprudence with respect to legal standards which justify compensation of exposed claimants for an increased risk of a disease verses compensation of claimants for medical monitoring costs (Wiechmann EW. The Curse of the Unsick. The Brief 96:12).
These two forms of damages should not be confused because the rationale supporting or disfavoring them will be quite different from jurisdiction to jurisdiction. These diverse approaches are, at least in part, due to the competing policies that courts perceive as the rational basis for each remedy.
A review of the case law shows that despite semantics in the various cases on this subject, what is happening is that courts are attempting to define injury for the purpose of providing a remedy for medical monitoring arising out of alleged wrongful exposure.
Once again, this may seem too obvious, but it is important. The portal through which one plaintiff may pass and be compensated due to exposure by a given toxic substance in a given state may not be the same in another. Despite statements to the contrary in the case law, there are three basic approaches taken by courts dealing with medical surveillance claims: the increased risk of harm before onset of disease requirement (Ayers); the same impact or symptoms shown requirement (Ayers); or the actual manifestation of disease requirement, as a prerequisite to compensating exposed plaintiffs (Ball v. Joy Manufacturing Co., 755 F. Supp. 1335, 1370 (S.D. W. Va. 1990).
While cases may use differing terminology in considering these issues, the facts and case rationales will generally fall into one of these categories.
Expert Risk Evidence
Risk evidence in the form of expert testimony, is primarily driven by the use of statistical models of similarly exposed individuals and incidence of disease observed (Roth-Nelson W, Verdeal K. Risk Evidence in Toxic Torts, 2 Environmental lawyer 408, ABA (1996). While there is great danger in failing to meet the requisite evidentiary burden based on bare risk numbers alone, alternative approaches may not be readily available.
Some cases have been defeated at this threshold (Quinn v. Amphenol Corp., 69 F.2d 533, 1995 WL 627468 unpublished, (4th Cir. 1996)). In addition to the numbers, compelling factual development of the duration and level of exposure is also important. Cases can also be lost due to the failure of the evidence on this point.
This is a problem that often cannot be remedied due to the nature of the substance at issue or the facts of a given case (Bradley v. Brown, 42 F.3d 434 (7th Cir. 1994); and Theer v. Philip Carey Co., 133 N.J. 610, 628 A.2d 724, 733 (N.J. 1993). Medical monitoring rights applies only to persons who have been directly exposed).
Effective use of a combination of lay and expert testimony can be very important. Claims are often denied, but not necessarily because the remedy does not exist under the law of a given state, but rather because a plaintiff failed to persuasively make the case for toxicity and risk.
In order to be successful, a plaintiff should combine the testimony of the expert and the claimant in such a way that toxicity and risk are amply proven without laboring over morbidity and disease cohorts (Metro North Commuter Railroad Co. v. Buckley, 521 U.S. 424, (1997). Proof methodologies in this area are subject to great variation and are discussed at length in several journal articles (Rudlin DA. Environmental and Toxic Tort Matters. SA88 ALI-ABA 45, (1996).
Evaluation of Scientific Experts Testimony
A contemporaneous concern is the reliability and quality of the science that the expert witness will rely upon. Rules 702 and 703 of the Federal Rules of Evidence set out the legal standards required for proper expert opinion testimony. The role of the trial judge with respect to the admission of certain expert evidence cannot be understated (Daubert v. Merrell Dow Pharmaceuticals, Inc., (Daubert II), 509 U.S. 579 (1993).
The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals has identified four factors that the trial court should examine to determine whether a scientific expert's testimony rests upon a reliable foundation such that it should be received into evidence:
- Is it subject to empirical testing?
- Has it been subject to peer review and publication?
- What is the potential error rate? And
- Is it generally accepted in the scientific community?
An important aspect of Daubert that must be given careful consideration is the paid expert whose opinion and research has been developed solely for litigation. The case law indicates that expert testimony based upon scientific methods and developed solely for presentation at trial, is to be very closely scrutinized and may be disallowed.
Certain commentators have emphasized the impact of Daubert as a useful tool in challenging the underlying science used by an opponent. Invariably, the Daubert standard places a greater burden on the trial judge to take a more authoritative posture in determining the extent of an expert's role with respect to the question of risk and probability evidence (Rudlin DA, Supra.).
It is, therefore, very important for the practitioner to understand the underlying variables that may be contested, so as to assist the judge in this understanding. This will also require the judge to be more conversant with proper scientific methodology and mainstream science in this area, or to make use of court-appointed experts to assist the court.
For example, in a Utah case, the State Supreme Court held that proof of the requisite elements of an enhanced risk will require expert testimony in order to meet the requisite elements of proof for medical monitoring required under Utah law.
A major problem inherent with bare risk evidence is that the numbers, and their meaning, are subject to many variables of subjective assumption, value judgments, variables of the individual subjects of the studies, human variability within a given dose level and ultimately, the opinion of the individual experts as to what these studies may actually mean.
In the litigation context, this will inextricably lead to a high level of contradiction concerning many studies used to support or refute the incidence of increased risk. This often leaves complex scientific questions of factual, legal questions of admissibility to be decided by the trial judge and, if admitted into evidence, by a jury.
Little Rationale or Guidance for Lay People
The resulting problem is often a situation wherein little rationale or practical guidance is provided to assist lay people in answering a difficult question of science, in turn resulting in decisions based on a less quantitative basis. Consequently, the importance of persuasion in this context cannot be overlooked.
While many commentators lament this is a very undesirable situation, others have pointed out that if the evidence otherwise meets the standards of sufficiency, even where it would appear impossibly gridlocked, making these types of decisions is precisely what judges and juries are supposed to do (Eggen JM. Toxic Torts, Causation, and Scientific Evidence After Daubert, 55 U.P.H. Rev. 889, 933 (1992).
As a practical matter, at this point, the issue of admissibility of evidence and its usefulness to a jury, is due as much to the persuasive skills of the advocate, as the underlying foundation of science the expert is attempting to use. In order to avoid some confusion over admissibility, some courts and commentators have noted an increased willingness on the part of judges to appoint their own "neutral experts" to assist them with these scientific concerns (Federal Judicial Center, Reference Manual on Scientific Evidence 537 (1994).
The conundrum of relevance, reliability and sufficiency of scientific evidence in a successful claim can best be illustrated in the case of Buckley v. Metro-North Commuter Railroad. The retained experts who testified regarding the level of exposure of the plaintiff did so in a very anecdotal fashion insofar as testimony was given concerning the risks of disease hypothesized for this plaintiff and the medical needs that he would require in order to be properly monitored.
While no hard evidence of exposure levels was offered in Buckley, due to the defendants' failure to comply with applicable regulations, the plaintiff and plaintiff's expert were able to describe exposure levels that were estimated to be greatly in excess of prevailing standards. The Buckley plaintiffs were engaged in the tearout of asbestos insulation and were so heavily exposed as to be described as "snowmen."
This evidence of exposure, while lacking in hard numbers of threshold and dose, was graphic in meeting the necessary notions of the court as to the level of proof required.
Conversely, in cases where exposure evidence is not sufficiently developed or is properly rebutted, claimants will not prevail. A good example is evidence in a secondhand exposure claim brought by a homemaker. Without accompanying expert testimony with respect to dose or duration, the claim was deemed insufficient (Theer, Supra at Note 34).
Case will Depend on Litigator's Skill at Presentation
While the reported cases do not always set out a rigid protocol for accompanying expert evidence from the toxicologist or epidemiologist, it is important for the practitioner to be familiar with these requirements to avoid the risk of the sponsoring expert's testimony being stricken via a Daubert-based challenge, summary dismissal or error and reversal to appeal (Supra at Note 37, page 89).
This will also require the practitioner to have an understanding of underlying data or studies relied upon. While the strength of the association between cancer and asbestos exposure is well known, the association can be attenuated in cases involving less exposure, nontraditional exposures, exposure to other toxins, or where an expert has omitted consideration of study bias or error factor (Levin JL, Kronenberg RS. Medical Surveillance After Asbestos Exposure. Source Book on Asbestos Diseases: Asbestos medical Research. Vol. 4 18:561, 569 (1989).
In the fact finding stage, if the evidence is allowed in, the skill of the litigator's presentation and his understanding of the importance of the overall proof and persuasion will go far in determining the outcome. Sound statistics alone are not very persuasive to juries. When the finder of fact is confronted with decision making based on probabilities, cohesive narrative evidence has a critical impact on the ultimate outcome. As on commentator noted ". . . an expression of ignorance or uncertainty, even if accurate, is often less persuasive than a plausible theory, even a false one." (Supra at Note 21, pp. 440-441).
The importance of supplemental evidence in an expert's narration cannot be understated for its persuasive value, particularly when presented in tandem with risk evidence. For example, several asbestos manufacturers have written medical monitoring policies for their own employees.
This information may be viewed as very persuasive by a jury when considering the relative risk merits in the case at bar, when the very same manufacturer is attempting to convince them that medical monitoring is not necessary (Pittsburgh-Corning Corp., Port Allegany Asbestos Health Program, Prepared by Workers Institute for Safety and Health HCI; and Owens Corning Fiberglas, Questions and Answers Concerning Asbestos, prepared by D.J. Billmaier, M.D.).
Use of Admissions to Contradict Elements to be Proven
Another example may be the use of admissions or pleadings by a party because such admissions may be entirely contradictory to one or more of the elements sought to be proven or refuted by the opposing party (Brief National Gypsum Co. in Stonewall Insurance Co. v. National Gypsum Co., Case No. 86 Civ. 9671 (35) filed 1992.).
Additionally, from the defendant's perspective, there may be numerous admissions by plaintiffs who have denied exposure in personnel or medical records. The fact is, both judges and juries find this type of evidence persuasive if it is allowed to be considered as evidence. However, it is not always easy to convince a court that this type of evidence should be admitted, since judges vary widely with respect to their personal views as to admissibility and relevance of this type of evidence.
This aspect once again underscores the role of the trial judge in assessing the propriety of the evidence sought to be offered.
Proof of medical monitoring claims to juries is, under the best of circumstances, difficult, and particularly so when the jury is confronted with plaintiffs who, in all other respects appear healthy.
There are cases with extensive litigation histories, in advance of an actual trial, establishing the legal right to medical monitoring in a given jurisdiction, only to suffer a loss before a jury that, for various reasons, was unwilling to enter an award in favor of medical monitoring (In Re Paoli Railroad Yard PCB Litigation (1997). Additionally, several commentators and cases have noted that a bare request for medical monitoring as an item of cash damages may be viewed with less favor than a prayer that seeks establishment of a judicially managed fund.
Concomitant with this concern is the inherent power of the court to use its own experts in connection with these issues, particularly when they are confronted with questions about appropriate specialists or appropriate monitoring modalities for use in connection with a court-mandated fund.
Exposure and the Causation Question
Asbestos-related exposure issues have received substantial governmental regulatory treatment in the past, and there is considerable discussion both pro and con as to the appropriate threshold limit values (TLV) for disease and regulatory action levels (20 C.F.R. Sections 1910-1926. Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite. (1986).
There is still great debate over these questions in the United States and elsewhere. Because the regulatory guidelines frequently represent economic, political and medical compromise, they may not be completely useful in definitively assessing a given risk level.
While those regulatory guidelines are useful reference points concerning the question of severity of exposure, reliable development of the exposure facts and a medically-based risk assessment and presentation based on sound epidemiology is still necessary.
Asbestos exposure issues generally, without reference to medical monitoring rights, have received substantial treatment in the case law with respect to questions concerning exposures which are generally viewed as greatly in excess of "safe" TLV levels such that would give rise to disease in cases involving claims for actual asbestos-related disease and injury (Horton v. Hardwick Chemical Corp. 73 Ohio St. 3d 679 (Ohio Supreme Court 1995) rejects Lohrmann v. Pittsburgh Corning Corp. 782 F.2d 1156 (4th Cir. 1989) as pseudo-science). It is only more recently that the case law has begun to discuss this same exposure causation question in connection with medical monitoring cases.
Proof of Exposure Requirement
Virtually all jurisdictions in the U.S. have fashioned and refined rules with respect to proof of exposure sufficient to support the proposition that a given occupational exposure supports a claim for an asbestos-related injury. Only a minority of venues have begun to deal with claims strictly for medical monitoring arising from asbestos exposure prior to the manifestation of either an injury or perhaps a compensable level of disease.
While causation and its meaning will vary from state to state, it is likely that states will rely upon their existing approach for causation questions related to asbestos injuries and apply them to the medical monitoring question. There are two generally recognized legal tests for proof of causation in asbestos litigation used by courts in the United States.
The first is the legal "but for" test and the other is the "substantial contributing cause" test. It must be remembered that in the asbestos exposure context, the plaintiff will have to prove not only increased risk of harm, but also that the substandard conduct of the defendant caused or substantially contributed to this risk. The "but for" test usually requires a plaintiff to prove exposure to a given asbestos product was a legal cause of his injury.
That is, but for the exposure to a given product, the plaintiff's disease would not have occurred. This can be a very exacting standard and usually works to the detriment of claimants who may not know the identity of the maker of the product that caused exposure.
This test may also prove to be detrimental to the asbestos company with the larger market share at a given exposure site, while favoring companies with less than memorable product names or less well-known applications.
Substantial Factor Test
Many states have favored a more liberalized test known as the substantial factor test in order to remedy the perceived shortcomings of a strict "but for" test. The substantial factor test has been interpreted differently from state to state. Some states have required proof of frequency, proximity and regularity of the plaintiff in relation to the product in question.
As a practical matter, such an approach is, in application, a cause-in-fact test. (Lohmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). Other states have expressly rejected this concept and have broadly defined proof of causation as proof that a given defendant's product was present at a specific location and that it is likely a plaintiff was exposed to that product.
Moreover, it must be shown that exposure was such that it could cause or contribute to a plaintiff's harm in combination with other products present. While the presence or absence of a given defendant's product at the exposure site continues to be a time consuming and expensive proof problem for courts and parties, there has been a growing trend to move away from a strict cause-in-fact test for a more liberal, substantial factor test.
There are several reasons for this shift, some of which are based upon policy concerns of the courts of individual states.
Medical monitoring in advance of manifestation of disease is a relatively new issue and the rationale supporting it as an item of damages in advance of disease are novel to the traditional tort modalities. States which have allowed these claims have done so on the basis of the occurrence of damages which are viewed as necessary and reasonable to compensate such a claimant, based upon some of the important underlying policy concerns discussed above.
Other states have adopted medical monitoring as an interim remedy and method of reducing docket overcrowding. These states have generally held the threshold for injury with respect to an actionable asbestos disease claim requires actual impairment, along with the tangible stigmata of exposure (Simmons v. Pacor, Inc., 674 A.2d 232, 239 (Pa. 1996).
Such an approach would bar many pleural disease claimants from pursing general damages claims in court, unless or until they could meet the threshold criteria of an actionable injury. Conversely, these states would allow a plaintiff the interim remedy of medical monitoring.
Today, many states are confronting interim issues of medical monitoring such as:
- what to do with claimants who may have an increased risk of disease -- that is, give them a day in court now or monitor their conditions;
- what are the needs for medical care, in advance of an illness;
- is there potentially a cure or tangible health benefit by early detection; and if so (d) what kind of care will be required to avoid late stage diagnosis and fatality?
What is a Reasonably Necessary Medical Surveillance?
The final element of proof of increased risk in these claims is proof of the proposition that early detection of disease leads to improved prospects for cure, prolongation of life, relief from pain or other symptoms, and minimization of disability. Entitlement to medical monitoring turns not just on the risk of disease but also upon the "medical judgment" about the necessity for periodic examinations to effectuate early detection of disease to attain the benefits stated above.
An important consideration in asbestos exposure claims for medical monitoring is the risk of contracting cancer and whether medical intervention can meet these goals.
The risk could be argued to be the essence of asbestos medical monitoring claims. While a similar proposition could be asserted for monitoring for progression of pneumoconiosis lung disease as well, this proposition is fraught with more difficulty. The general view is that there is no cure for this condition, therefore, a plausible argument can be made that there is no need for monitoring for progression until the disease is manifest.
This argument is premised on the supposition that there is no impairment associated with conditions wherein the only symptom observed is strictly pleural involvement. It should be noted, however, that this view is not uniformly accepted and there is substantial debate over early carcinogenicity with respect to asbestos exposure.
Additionally, the problem with a narrow medical benefits view is it tends to ignore the other potential benefits medical monitoring may offer. Early intervention via medical monitoring, it can be argued, is not justified solely for the purpose of early detection of lung cancer, but also to monitor for progression, to assist individuals in assessing work restrictions, to give claimants accurate information respecting malignancy risk, and in certain cases, to provide aggressive medical follow-up of secondary health issues as a result of exposure.
In other words, the purpose is not just to intervene early and thereby reduce the chance of premature death, but primarily to assist in identifying and separating those individuals most likely to develop disease from those who will not (Seidman H, Selikoff IJ, Hammond EC. Short-term asbestos work exposure and long-term observation. Ann NY Acad Sc; 1979, 330:61-89.).
Risk-Benefit Analysis May not be Needed
Certain cases dealing with class action issues suggest an increased risk of disease does not require a risk-benefit analysis in each and every individual case. Instead, jurisprudence recognizes that if there is an adequate showing that a certain level of exposure to a toxic substance has occurred in a given population and that the exposure is so great as to present a significant risk to the health of everyone in that group, then said group may be entitled to medical monitoring (Day v. NLO, 851 F. Supp. 860 (S.D. Ohio 1994).
In considering class or consolidated claims for medical monitoring relief, the courts have recognized that the need for medical surveillance, based upon the disease-causing potential of a certain level of toxic exposure is a common issue that can be decided for larger groups of toxic exposure victims (Cook v. Rockwell Int'l. Corp., 151 F.R.D. 378 (D. Colo. 1993); Boggs v. Diversified Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991).
Presumably, the defense of these claims would rest on overturning these notions, such that the court concludes the contrary view, which would require a more individualized approach.
As an element of proof, a plaintiff must show: (a) what type of monitoring is required and that the monitoring is consistent with contemporary scientific principles; and (b) testing is recommended by health care providers in the appropriate area of specialty for similarly situated patients.
Currently, the viewpoint held by the mainstream medical community is for individuals significantly exposed to asbestos to receive medical examinations, a series of chest radiographs read by a B-reader, and a pulmonary function test. Frequency of chest x-rays is generally established for employers at 29 C.F.R. 1910.1001.
If the patient's first exposure is less than ten years ago, chest x-rays are required every five years. If the first exposure is ten years or longer, the frequency of the chest x-ray is dictated by a patient's age.
- 15 to 35 years of age requires chest x-rays every 5 years
- 35 to 45 years of age requires chest x-rays every 2 years
- 45 years old and over requires chest x-rays every year
However, those patients with asbestos disease symptoms or histories of very heavy exposure justify more frequent follow up. It must also be remembered that there may be other applicable guidelines which may recommend differing monitoring intervals.
While other modalities are also recognized as beneficial, the costs, invasiveness and accompanying reluctance to undergo the procedure, or resulting morbidity, render their application more debatable for general use. However, they may be important and justified in individual cases.
The foregoing text presents only a nutshell review of the substantive issues of medical monitoring. A survey of legal cases and their treatment of medical monitoring concerns by various state and federal courts follow.
The State of New Jersey
The New Jersey Supreme Court in Ayers handed down one of the more frequently cited cases dealing with the issue of medical monitoring. This case involved a number of different types of claimants and claims for medical monitoring due to a landfill leading a "gumbo" of toxins from an improperly regulated dump into a city's water supply.
After reconsidering its prior ruling, the court fashioned a holding which has become a cornerstone with respect to the medical monitoring question: when proof through reliable expert testimony, predicated upon a significant exposure to toxic material will result in a significantly increased risk of serious disease, and it can be shown that the value of an early diagnosis is such that it is medically indicated and necessary, medical monitoring in advance of disease is a compensable item of damages.
The opinion goes on to note that even if the risk of cancer was only slightly higher than the average from the unaffected population, medical intervention may still be appropriate. This statement has become very important in the divergence of legal standards for successfully asserting a claim for medical monitoring versus a claim for compensation for fear of future risk of contraction of a disease.
The court did not address the evidentiary issues raised by this language in any detail. However, the importance of the opinion's language was not lost in subsequent cases involving medical monitoring rights. New Jersey is also one of the few states that have addressed the asbestos exposure question.
It would appear that unimpaired pleural disease claimants are not entitled to bring a suit for risk of contraction of a future disease claim, but under certain circumstances would be entitled to medical monitoring (Mauro v. Raymark Industries, Inc., 561 A.2d 257, 263 (N.J. 1989). In a case involving the spouse of an asbestos worker, a New Jersey court rejected a request for medical monitoring absent proof of more direct and quantifiable exposure.
The State of Utah
Utah allowed recovery for medical monitoring int he case of Hansen v. Mountain Fuel Supply Co. The State Supreme Court stated that proof of mere exposure is insufficient. A plaintiff must demonstrate exposure to a toxic substance caused by another party's negligence has increased the risk of serious disease injury or illness for which medical surveillance is available for early detection.
Further, this court requires proof that early detection followed by treatment will be beneficial to the individual plaintiff. The Utah case is noteworthy in that it announced a more refined standard than the Ayers v. Township of Jackson case in New Jersey, by requiring this proof in individual cases. Additionally, Utah would allow medical monitoring even in cases of individuals who do not have any of the benign stigmata of disease, as may be required by some states.
The Hansen plaintiffs were construction workers suffering only six months of exposure to asbestos, had no physical symptoms and were well within the latency period.
The State of New York
In Gibbs v. E.I. Dupont DeNemours & Co., New York, like Utah, allowed plaintiffs to recover for medical monitoring upon sufficient proof of exposure. (Gibbs v. EI DuPont De Nemours & Co., Inc., 876 F. Supp. 475 - Dist. Court, WD New York 1995). This state court allowed plaintiffs to press their claims for medical monitoring for asbestos exposure from handling the replacement of high fiber content asbestos gaskets (Gerardi v. Nuclear Utility Services, 149 Misc. 2d 657, 566 N.Y. So. 2d 1002 (Sup. Ct. 1991).
Since this case involved an appeal of an exception of no cause of action, it was unclear whether these plaintiffs would ultimately recover. The decision is also a noteworthy example of the resolution of the conflict between traditional notions of injury with exposure and increased risk of disease concerns resulting from exposure.
The court found that New York law protected the claimants from the invasion of their legally-protected interest of having to undergo medical testing absent this exposure. While tacitly recognizing the absence of injury, the court held that a defendant can be liable for damages reasonably anticipated to flow from the invasion of the body by a toxic substance occasioned by the negligence of another.
The costs of medical monitoring were allowable damages resulting as a consequence of the defendant's conduct.
In a more recent case dealing with a railroad worker's asbestos exposure filed under the Federal Employers Liability Act (FELA), the United States Court of Appeals for the Second Circuit reversed the lower court and ruled that claims for medical monitoring during the latency period of the disease are compensable. T
his opinion is an important holding for federal claims of railroad workers and certain maritime workers. Moreover, since it deals with interpretation of federal law that is supplemented by state common law, it can be viewed as important for New York state law as well.
This judicial panel cited with approval another panel of the United States Court of Appeals for the Third Circuit in another FELA claim arising out of Pennsylvania that had reached a similar result. A plaintiff must prove that due to his exposure to a toxic substance, caused by defendant's negligence, a reasonable physician would prescribe a monitoring regime different from one that would be required in the absence of the exposure.
Under this theory of recovery, a plaintiff's incremental risk of harm must be such that the monitoring is required because of the exposure. This rationale could be very important in the case of cigarette smokers who also suffered from asbestos exposure.
Other States Recognizing Medical Monitoring as a Cause of Action
Pennsylvania has recognized a cause of action for medical monitoring from asbestos, bu does not allow a cause of action for general damages or for any risk of future harm or risk of contraction of disease for unimpaired pleural cases (86). California appears to follow the rule outlined in Ayers (Miranda v. Shell Oil Co., 17 Cal.App.4th 1651 (1993).
California courts have noted that its Civil Code is not constrained by the traditional common law concept of physical injury, but is instead broadly defined to include any loss or harm (Potter). Michigan allows for the remedy of medical monitoring as well, and basically follows the Ayers rule (Meyerhoff v. Turner Construction Co., 509 N.W. 2d 847 (Mich. 1993).
Michigan agreed with the public policies supporting medical surveillance as a cause of action: deterrence, promotion of important public health goals, mitigation of damages, and fairness (actually following the Friends For all Children case).
Arizona has also followed the Ayers case in considering claims of landowners and residents living within close proximity to an asbestos milling operation (Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1988).
Suit against mining corporation involving environmental exposure of contiguous residents). Colorado rejects this as a general civil remedy for employees suing their employer, but notes that it would be covered under the State's worker's compensation law (Building and Construction Department: AFL-CIO v. Rockwell International Corp., 7 F.3d 1487, 1493 (10th Cir. 1993).
Further, Colorado has recognized plaintiffs' rights to medical monitoring in torts generally when they are not suing within the context of workers compensation (Cook, et al. v. Rockwell International Corp., 755 F. Supp. 1468 (D. Colo. 1991). Ohio has cited the Ayers case with approval in radiation contamination cases (Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994).
The States of Vermont and Kentucky have also recognized medical monitoring rights in advance of injury or disease in principal (Stead v. F.E. Meyers Co., Division of McNeil Corp., 758 F. Supp. 56, 57 (D.C. Va. 1990); Bocock v. Ashland Oil, Inc., 819 F. Supp. 530 (S.D. W. Va. 1993). Court interpretation of Kentucky law.
This case notes Kentucky requires some physical injury, however, slight. It would appear that Kentucky uses an "impact" approach. the court in Babcock followed Paoli.).
Jurisdictions Which Have Not Clearly Addressed The Issue But May Favor Medical Monitoring in Advance of a Diagnosed Disease
In a Louisiana Jones Act case involving a maritime worker's exposure to toluene and benzene on the Mississippi River in Louisiana, the United States Fifth Circuit Court of Appeals ruled that medical monitoring was allowed where there was some objective, albeit temporary symptoms from exposure (Johnson v. Armstrong Cork, 645 F. Supp. 764 (W.D. La. 1986)).
While some writers have stated that Louisiana recognizes the rights to medical monitoring based upon a pure increased risk of disease theory, the cases cited for such a proposition are not so clear. Two national class actions have discussed medical monitoring in connection with certification issues.
While these opinions are not directly on point, the analysis did not question the merits of medical monitoring, despite the fact that both presented fertile grounds to do so (Castano v. American Tobacco Co., 84 F.2d 734 (5th Cir. 1996: and Georgine v. Johns-Manville Sales Corp., 83 F.2d 64, 64 U.S.L.W. 2711 (3d Cir.) (Pa. May 10, 1996).
The State of Delaware rejected a claim for secondhand exposure, noting that there can be no claim for medical monitoring without direct contact. Although Texas has yet to clearly rule, it appears that such a remedy may be favored (Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138 (5th Cir. 1985). Allowed recovery for risk of contraction of asbestosis where plaintiff proved risk was in excess of 50%.).
Jurisdictions Which Have Rejected Claims For Medical Monitoring Without Physical Injury
Some jurisdictions have rejected outright the medical monitoring remedy absent a diagnosed injury. Federal courts have held that this is not permitted under West Virginia or Missouri law (Ball v. Joy Manufacturing Co., 958 F.2d 36 (4th Cir. 1991); and Thomas v. FAG Bearings Corp., 846 F. Supp. 1400 (W.D. Mo. 1994). The Federal District Court in West Virginia expressed a concern that is palatable with all courts that confront the request:
There is little doubt that millions of people have suffered exposure to hazardous substances. Obviously allowing individuals who have not suffered any demonstrable injury from such exposure to recover the costs of future medical monitoring in a civil action could potentially devastate the court system as well as defendant . . . [T]his is not to say that defendants who have caused such exposure should not pay the price. Certainly, . . . theoretically both justice and common sense dictate that they should; however, practically there must be a realization that such defendant's pockets or bank accounts do not contain infinite resources. Allowing today's generation of exposed but uninjured plaintiffs to recover may lead to tomorrow's generation of exposed and injured plaintiffs being remediless. Thus to prevent one injustice from arising from another, the finite resources must be spent both cautiously and wisely (Id, Ball at p. 1372).
Many of the reported cases which are often cited for the proposition that the courts have rejected claims for medical monitoring frequently do so on the basis that there was a failure of proof in the individual cases without rejecting the underlying rationales which may allow such a recovery (Mergenthaler v. Asbestos Corporation of America, 480 A.2d 647 (Del. 1984).
Therefore, a close reading of the jurisprudence weighing the issues to be proven is required. It would appear, though, that West Virginia and Missouri are not alone in disallowing medical monitoring based on risk in advance of actual disease or injury (Abuan v. General Electric, 3 F.3d 329 (9th Cir. 1993); Werlin v. United States, 746 F. Supp. 887, 904 (D. Min. 1990), requiring "present injuries."; Redland Soccer Club v. Dept. of Army of the United States, 55 F.2d 827 (3d Cir. 1995). Failure of proof of exposure, among other issues).
Conclusion
Returning to answer the question posed at the beginning of this chapter, it would appear that in most states individuals who have suffered significant occupational or environmental exposure to asbestos do have rights to press claims for medical monitoring.
In these various venues, courts have generally relied upon Section 7 of the Restatement (2d) of Torts or the wording of their own tort recovery statutes. Generally, these statutes define injury as an invasion of a "legally protected," or a similar concept that broadly defines harm within the tort context such that, upon appropriate proof, a remedy for medical monitoring can be triggered.
In medical surveillance claims, the legally-protected interest is deemed to be in the victim's interest to be free from the cost of medical examinations and diagnosis made necessary by exposure to a toxic substance. The principle involved here is that an interest is given legal protection if society recognizes it as so legitimate as to make one who interferes with its realization civilly liable.
The injury alleged in a medical monitoring case is the exposure to potentially health-endangering substances and the subsequent need for precautionary medical examinations as a preventative measure.
It is this necessity for sustained medical surveillance, created by the tort-feasor's conduct, that constitutes the actual injury (Gara, Medical Surveillance Damages: Using Common Sense in the Common Law to Mitigate the Dangers Posed by Environmental Hazards, 12 Harv. Envtl. L. Rev. 265 (1988); Slagel, Medical Surveillance Dangers: A solution to the Inadequate Compensation of Tort Victims, 63 Indiana L.J. 849 (1988).
The future of this as a remedy, in lieu of full blown litigation of claims which may, according to traditional notions, appear to be premature or speculative, may be a useful, midway approach for courts to remedy a perceived harm.
It may also be a useful tool for docket management in order to avoid full litigation of claims that are, as a practical matter, premature and it may be an effective tool to control societal and judicial costs.
Finally, it may be a method to remove the incentives for certain forms of mass litigation. Currently, there is no uniform view on the part of the states and courts with respect to medical monitoring rights. Claimants and practitioners will be confined to look to the law of each state and its competing policies in order to determine whether such claims can be pressed.