We’ve been doing some research in anticipation of the upcoming ALI meeting at which the Principles of the Law of Aggregate Litigation will be voted on (we hope ALI members interested in class actions and the like will come out, debate the issues, and vote), and in the spirit of cross-fertilization, we thought we’d share it with our readers. The only question we have is the format. We were impressed with reader response we had to the 50-state survey we did not too long ago on informal defense communication with treating physicians, so we’ve decided to present the medical monitoring issue in a similar fashion.
The questions before the house are what states have adopted medical monitoring, which have rejected it, and what quirks are there? Our research indicates that at present, the law is all over the lot. We count 13 jurisdictions that recognize medical monitoring, or where federal courts – in violation of what we think are proper Erie principles – have predicted that the jurisdiction would recognize medical monitoring in the absence of present injury. Some of these claims are more or less limited in scope, which we’ll discuss.
Opposing them are the federal common law and 21 other jurisdictions that either do not recognize medical monitoring where the plaintiff isn’t hurt, or where a federal court has made a prediction to that effect.
In the middle are four more states (including a couple of big ones) where different courts have reached different results on the question, and we can’t say with certainty what the answer is.
The remaining jurisdictions, as far as we’ve been able to tell, simply haven’t addressed medical monitoring as a separate cause of action where the plaintiff has no present injury.
As we warned the last time around, you get what you pay for, so don’t even think about using us as the be all and end all on this (or any other) subject. If you do, please see our disclaimer. What we’re doing here is the start, not the end, of relevant research.
Also, if you think we didn’t get your state right, please let us know. Show us that we’ve missed something and we’ll add it.
the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.
Jurisdictions allowing no-injury medical monitoring claims: AZ, CA, CO, DC, FL, GM, MA, MO, NJ, OH, PA, UT, VT, WV.
Jurisdictions not allowing no-injury medical monitoring claims: Federal, AL, AR, CT, GA, KS, KY, LA, MI, MN, MS, NE, NV, NC, ND, OK, OR, RI, SC, TN, TX, VA, VI, WA.
Jurisdictions with no law on no-injury medical monitoring claims: AK, HI, ID, IA, ME, MD, MT, NH, NM, PR, SD, WI, WY.
Jurisdictions with divided law on no-injury medical monitoring claims: DE, IL, IN, NY.