Defendants are on a roll in state supreme courts on “medical monitoring” claims.
Before 1997, a few state courts recognized (in varying permutations) medical monitoring claims, which seek to recover the costs of monitoring to detect a disease before the plaintiff has manifested any symptoms. In 1997, however, the United States Supreme Court decided Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997), which rejected, for multiple policy reasons, a medical monitoring claim under the Federal Employers’ Liability Act.
Since then, there’s been a clean sweep in the state supreme courts. Five state supreme courts have been asked to recognize medical monitoring claims, and all five have rejected them. On the theory of “better on-line than in a heap on my floor,” here are cites to those supreme court cases:
1. Mississippi: Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007).
2. Michigan: Henry v. The Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005).
3. Kentucky: Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002).
4. Nevada: Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001).
5. Alabama: Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001).
There are a host of other — earlier, lower court, or federal — cases analyzing these issues. If you need those cites, don’t strain your eyes — plagiarize. The Mississippi Supreme Court in Paz collected those cites in footnotes 3 (earlier decisions purportedly recognizing a medical monitoring cause of action), 4 (decisions purportedly predicting that a state supreme court would recognize a medical monitoring cause of action), and 5 (17 cases illustrative of state courts’ refusal to recognize medical monitoring causes of action).
That’s a pretty good cross-section of the law on this point.
We hope that future state courts will recognize that Metro-North was a turning point and will refuse to recognize medical monitoring claims. If you ever need to brief the issue, however, this post should jump-start your research.