Perhaps lighting will strike twice. Earlier this year, we criticized a federal district court decision predicting that Delaware would adopt an independent medical monitoring cause of action despite contrary-tending, if not dispositive, law from the Delawere Supreme Court, and the Erie principle that federal courts should not predict expansion of state tort law. We were particularly concerned about medical monitoring in the air, because the court had dismissed all negligence or strict liability claims. We didn’t think medical monitoring could exist without actionable tortious conduct either.
Well, we’re pleased to report that the trial judge, if not exactly seeing the error of his ways, has at least agreed that the medical monitoring issue is a controlling issue of law on which reasonable minds may differ. In Hess v. A.I. DuPont Hosp. for Children, 2009 U.S. Dist. Lexis 77589 (E.D. Pa. Aug. 28, 2009), the court certified the issue for immediate appeal to the Third Circuit. From there, it could end up where it belongs – before the Delaware Supreme Court.
We expect we’ll have more to say about this case before all is said and done.