J.C. McElveen, of Jones Day, contributed this guest post, for which we thank him. The two of us take no credit for what follows:

In 2006, the California legislature passed a law that included something called the California Environmental Contaminant Biomonitoring Program. Cal. Health Safety Code § 105440-105459 (2008). That program “shall utilize biological specimens, as appropriate, to identify designated chemicals that are present in the bodies of Californians.” Participation in the program is completely voluntary, but, once a person agrees to be in the program, he or she will be evaluated for the presence of “designated chemicals” (defined as “chemicals known to, or strongly suspected of, adversely impacting human health or development. . . .”). The individuals will be given the results of their tests (presumably blood, urine or saliva), if they ask, and “when either physiological or chemical data obtained from a participant indicate a significant known health risk (undefined by the statute), program staff experienced in communicating biomonitoring results shall consult with the individual and recommend follow-up steps, as appropriate.”

The “Scientific Guidance Panel” designated by the legislature has not yet made its recommendations on the “design and implementation of the program, including specific recommendations for chemicals that are priorities for biomonitoring in California,” but, when that program is up and running, some people will be receiving information about biomarkers of exposure. What might they do with that information?

One possibility is filing a lawsuit. Two recent cases have discussed how courts might handle biomarker of exposure evidence.

In Cleary v. Wallace Oil Company, 2008 WL 4682615 (N.Y. A.D. 2 Dept.), the Second Department of New York’s Appellate Division considered what evidence of harm was necessary in a case for negligent infliction of emotional distress. In that case, the defendant had accidentally pumped 900 gallons of home heating oil directly into the plaintiff’s basement. No one was home at the time.

The appellate court affirmed the grant of judgment as a matter of law in favor of the heating oil company. The court said that the law in New York is that “a breach of a duty of care ‘resulting directly in emotional harm is compensable even though no physical injury occurred.’” However, to prevent frivolous claims, a requirement exists that the claim “possesses some guarantee of genuineness.” That “guarantee of genuineness,” in New York, is “clinical evidence of some physical manifestation of contamination,” or evidentiary proof of “some other indication of a toxin induced disease.”

In the Cleary case, the court held that the plaintiffs put in no evidence that they were exposed to the admittedly “toxic environment” when they went into the house after the spill, nor did they present “clinical evidence of some physical manifestation of contamination,” or proof of “some other indication of a toxin-induced disease.” Though, in that case, the ability to detect hydrocarbons from heating oil in the bodies of the plaintiffs would have been very difficult, especially after some time had elapsed, in another type of case, biomarkers might be able to supply that proof.

In fact, New York decisions have held that the “clinically demonstrable presence of a toxin in the plaintiff’s body” satisfies the evidentiary requirement. See Prato v. Vizliatta, 253 A.2d of 46 (1998); Abusco v. Consolidated Edison Co., 238 A.D. 2d 454 (1997) (PCBs). That “clinically demonstrable presence,” for example, can be satisfied by the “clinical presence of asbestos fibers in the lung.” Rittenhouse v. St. Regis Hotel Joint Venture, et al., 149 Misc.2d 452 (1990). The court there pointed out that New York and federal courts had upheld jury verdicts that awarded damages for fear of cancer when the plaintiff had scarring in the lungs [fibrosis] or of the pleura [pleural plaques or thickening].

In Rittenhouse itself, though, there was no objective, physical evidence of an asbestos-related condition. Therefore, there was no rational basis for fear of disease. “In view of the fact that asbestos was widely used and asbestos removal [is] now common, fear of cancer without a physical indication of disease is not reasonable.” The Appellate Court upheld that aspect of the lower court’s determination (though it reversed an award of attorney’s fees), saying “since we find that all objective testing of plaintiff’s person and possessions had demonstrated no physical manifestation of asbestos contamination, we agree with the . . . determination granting defendant’s motion for summary judgment.” Rittenhouse v. St. Regis Hotel Joint Venture, et al., 180 A.D.2d, 523 (1992).

However, a recent decision by the Ohio Supreme Court (in the context of deciding whether certain revisions to state laws governing asbestos litigation were retroactive) weighed in on the extent to which pleural plaques could be used to support an injury claim. In that case, Ackison v. Anchor Packing Company, et al., 2008 WL 4601676 (Ohio), the court held that the provisions were retroactive. However, in so ruling, it also commented on an Ohio Appellate Court decision, Verbryke v. Owens Corning Fiberglass Corp., 84 Ohio App.3d 388, 616, N.E.2d 1162 (1992), which had held that pleural thickening or “plaques” were sufficient to constitute an injury, for purposes of stating a personal injury cause of action under Ohio law. The Ohio Supreme Court said that, contrary to the plaintiff’s assertion, that case did not establish the substantive rule that pleural thickening was sufficient, in Ohio, to “establish a compensable injury for asbestos exposure.” In fact, said the court, the biomarker of pleural thickening, or pleural plaques, is not sufficient, alone, to establish “asbestos-related illness or impairment,” necessary for personal injury tort recovery in Ohio.

These decisions are obviously not inconsistent, because the New York case just allows evidence of the toxin in the body (the biomarker) to be used to prove an emotional distress cause of action, and the Ohio case just refuses to allow evidence of the biomarker to be used to prove “bodily harm” in a personal injury cause of action. However, both cases illustrate that biomarkers have taken on increasing significance in litigation, and the California approach may well lead to yet more litigation.