When Bexis got back from hiking the Milford Track and doing all sorts of other ridiculously strenuous things in New Zealand, a friend of his from the Tar Heel State had sent along a new decision by a local appellate court rejecting medical monitoring where the plaintiff had no present injury. Our readers know we keep track of this sort of decision – even if we don’t always get it right 100% of the time.

Anyway, by now the case is reported, Curl v. American Multimedia, Inc., ___ S.E.2d ___, 2007 WL 4386334 (N.C. App. Dec. 18, 2007), so it’s not exactly breaking news, but it’s still worthy of mention. The Curl court takes the position we’d like to see other courts take, not just about medical monitoring, but about a wide variety of novel causes of action – if you want to be able to sue for things the courts have never recognized before, use the democratic process.

[T]he recognition of a new cause of action is a policy decision which falls within the province of the legislature. The excelsior cry for a better system in order to keep step with the new conditions and spirit of a more progressive age must be made to the Legislature, rather than to the courts. . . . The cases cited by Plaintiffs in support of these damages all involve future damages claimed in connection with a recognized present injury. However, these cases do not address or support a freestanding claim for future medical expenses in the absence of a present injury.

Clearly, recognition of the increased risk of disease as a present injury, or of the cost of medical monitoring as an element of damages, will present complex policy questions. We conclude that balancing the humanitarian, environmental, and economic factors implicated by these issues is a task within the purview of the legislature and not the courts. Accordingly, we decline to create the new causes of action or type of damages urged by Plaintiffs.

2007 WL 4386334, *5-6 (citations omitted). It’s an “excelsior cry” for judicial restraint in tort litigation that we’d like to see more often.

We’ve commented about the opposite view, which we call “judicial triumphalism,” before. Medical monitoring is a classic example. There’s next to no common law precedent for being able to sue before suffering any actual injury, and the only purpose of medical monitoring claims is to create class actions where nobody’s actually hurt.

When is the last time you saw anybody sue for medical monitoring other than through a class action?

Precisely because of class actions, we’re opposed to choice of law arguments that would apply the law of a company’s state of incorporation/principal place of business to tort claims against the company nationwide. Thus we agree with cases like Townsend v. Sears, Roebuck & Co., 2007 WL 4200826 (Ill. Nov. 29, 2007). But for a North Carolina headquartered company, we can certainly understand the temptation to try out such an argument.

We know some tobacco companies that would be interested, too.