A couple of quick hits today, on once “novel” causes of action whose time – at least in the novel legal spaces to which plaintiffs attempted to export them – appears to have passed.

The first of these is the shopworn effort, popular back in the late 1990s but more or less petered out by now, to use the ill-defined concept of public nuisance as a club to attack the products of an entire industry, and not incidentally, to try an end run around product specific causation.  We’ve blogged on it before, criticizing public nuisance claims against products on various grounds.

Us?  The Drug And Device Law Blog?  Who listens to us?

Not too many people, unfortunately.

But a lot of people – most importantly, judges – listen to the American Law Institute.  Bexis has joined the Members’ Consultative Group for the ALI’s Third Restatement of Torts: Liability for Economic Harm, and that group met recently.  Preliminary Draft #2, circulated last month, has this to say about attempts to use “public nuisance” to encroach upon the law of product liability:

g.         Products.

Tort suits seeking to recover for public nuisance have occasionally been brought against the makers of products that have caused harm, such as tobacco, firearms, and lead paint.  These cases vary in the theory of damages on which they seek recovery, but often involve claims for economic losses the plaintiffs have suffered on account of the defendant’s activities: the costs of removing lead paint, for example, or of providing health care to those injured by smoking cigarettes.  Liability on such theories has been rejected by most courts, and is excluded by this Section, because the common law of public nuisance is an inapt vehicle for addressing the conduct at issue. . . . If those [existing] bodies of law provide do not supply adequate remedies or deterrence, the best response is to address the problems at issue through legislation that can account for all the affected interests.

As noted in Comment g [sic, we think this should be “b”], problems caused by dangerous products might have seemed to be matters for the law of public nuisance only because the term “public nuisance” has sometimes been defined in broad language that appears to encompass anything injurious to public health.  The traditional office of the tort, however, has been narrower than those formulations suggest, and contemporary case law has made clear that its reach remains more modest.  The rules of this Section reflect that modesty.

ALI, Restatement of the Law Third, Torts:  Liability for Economic Loss; Preliminary Draft No. 2, §8, comment g (Sept. 3, 2013).  Our thanks to the reporter for permission to post his work (we specifically asked).

Since this seems to be the ALI’s evolving position on product-related public nuisance claims, chances are it will be persuasive with the courts.  Public nuisance in the product context is a prime example of a bad idea whose time has passed.

A second such example, we hope, is medical monitoring.  Here the rationale is different.  The ALI has not taken any position on medical monitoring.  See ALI, Principles of the Law, Aggregate Litigation §2.04, comment b (2010) (“[t]he [American Law] Institute has never taken a position on whether recovery for medical monitoring should be permitted”).  Instead, it is possible that certain aspects of the Affordable Care Act (also called “Obamacare”) could render claims for medical monitoring obsolete, at least we hope.  Medical monitoring, in its novel application, is a suit by an otherwise uninjured person solely for the costs of medical tests that are allegedly effective in the early diagnosis of latent diseases that the plaintiff claims his/her exposure to some alleged toxin has increased the risk of contracting.

So what does the ACA have to so with that?

Potentially, quite a bit – at least what’s on paper.

One aspect of the ACA is the envisioned effect of the United States Preventive Services Task Force (here’s the USPSTF’s website) role in evaluating screening methods.  The USPSTF has been conducted such evaluations for some time, but the ACA mandated, as to a wide variety of proposed preventive screening methods, that a positive (an “A” or “B” finding) by the USPSTF makes those tests eligible for insurance coverage.

Assuming things work as planned (a significant caveat), what is supposed to happen under the ACA is that, once the USPSTF concludes that a particular screening method is effective, then it’s to be covered by the insurance that the ACA is requiring all Americans to obtain.  Buried deep in the ACA is the following provision, applicable to all private insurers, as well as Medicare, and Medicaid.  All insurers:

shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the [USPSTF].

42 U.S.C. § 300gg-13. This provision already covers a significant number of screening methods (including anemia, high blood pressure, several types of cancer, high cholesterol, diabetes, HIV/AIDS, and obesity), a number that will only increase as the USPSTF makes more standard of care determinations as new screening methods arise (to see what’s in the works, search for “draft recommendation” on the USPSTF’s website).

With respect to any given screening method, we see this ACA provision requiring coverage of USPSTF-recommended procedures as presenting one of three options:  (1) the method in question has been found by the USPSTF to be effective for early detection of the condition in question; (2) the method in question has not been found by the USPSTF to be effective for early detection of the condition in question; or (3) the method in question has not yet been evaluated by the USPSTF.

In the event of option (1), then medical monitoring should be held superfluous, since the vast majority of individuals will be able to receive that screening method for free (without so much as a co-payment) from universally-available, governmentally mandated insurance.  Thus, there would be no need whatever for private litigation to fill a gap that no longer exists – to require what is already available to anyone who does not deliberately fail to get available insurance.  Such persons would be a pretty small percentage of the whole, require individualized investigation incompatible with class action treatment to identify, and in any event failed to mitigate their purported damages.

In the event of option (2), then a cause of action for medical monitoring fails of its own terms, since every state that we know of which has permitted this novel tort has, as an essential element, that the monitoring being sought “exists” and is “medically necessary.”  E.g., Bower v. Westinghouse Electric Co., 522 S.E.2d 424, 433 (W. Va. 1999) (“medical examinations [are]reasonably necessary”; “procedures exist which make the early detection and treatment of the disease possible and beneficial”); Redland Soccer Club, Inc. v. Department of the Army, 696 A.2d 137, 145 (Pa. 1997) (“monitoring procedure exists”; “prescribed monitoring regime is reasonably necessary according to contemporary scientific principles”); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993) (“medical test for early detection exists”; “prescribed . . . according to contemporary scientific principles”); Firestone Tire & Rubber Co., 863 P.2d 795, 825 (Cal. 1993) (“clinical value of early detection and diagnosis”). If the USPSTF determines that a particular screening method is not useful or effective, and thus does not represent the medical standard of care, then any cause of action for medical monitoring must fail as a matter of substantive tort law.  The judiciary should not second-guess the USPSTF’s expert decision whether a particular screening method is actually effective or advisable for a given group of plaintiffs.

Finally, in the event of option (3), then the obvious, much cheaper, and much more effective remedy is for the plaintiffs to petition the USPSTF to evaluate whatever new screening method is at issue in any given litigation.

  • Anybody can nominate a topic for USPSTF evaluation, so this alternative is not difficult, particularly when compared to what medical monitoring plaintiffs seek to create.
  • Obviousness matters, since equity (in which plaintiffs typically clothe medical monitoring claims) will not act where there is an adequate remedy at law – in this case the ACA (again, assuming it turns out to be adequate).  There may well be another screening method for the same condition that the USPSTF has already found to be effective.
  • Cheapness matters, too, since why set up an alternative judicially supervised program, at great expenditure of time (including judicial time) and money, where a government run alternative already exists?  Judicial intervention is simply unnecessary; since it’s not the judiciary’s role to add even more benefits to the ACA.
  • Finally, since plaintiffs have the burden of proof on the existence and necessity of monitoring, how can they proceed with determinations that are really within the primary jurisdiction of the USPSTF?

At bottom, the effect of the ACA on medical monitoring bears watching.  The statute could well further deprive that novel tort of its theoretical justification for existence.  Where early diagnostic testing represents the medical standard of care, then cost is no longer an excuse.  There is no longer any need to create a such a cause of action merely to ensure that plaintiffs can have access to screening.  The government is undertaking to assume that role.  Whether you like Obamacare, hate it, or fall somewhere in between, it has this potential silver lining from the perspective of defense counsel.