We used to spend a lot of time defending against medical monitoring claims – cases where the plaintiff has not suffered any actual injury, but claims he or she is at risk of a future injury and demands that the defendant pay for future medical surveillance. We do not, however, see these kinds of cases so much anymore. The plaintiffs’ bar seems to have figured out that there is little money in medical monitoring in the drug and medical device context because the claimed future monitoring – say an annual blood test – often costs only a few hundred dollars. Medical monitoring cases therefore pencil out for the plaintiffs’ attorneys only when brought as class actions.
But medical monitoring class actions don’t work either. Every plaintiff treated with a drug or medical device has a medical condition, usually requiring follow-up medical care. The trick then is determining which follow-up (if any) is attributable to a drug or device risk and which is attributable to the plaintiff’s existing medical condition. You also have to look at the adequacy of the warnings, and at their impact, and at what monitoring the patient might actually need, and at whether the claimed monitoring actually promises medical benefit, etcetera, etcetera. Because these will be different inquiries for every patient, individual issues are the undoing of medical monitoring class actions, which is why they don’t get filed anymore.
We provide this preface because of the latest rejection of medical monitoring, this time in the First Circuit. The plaintiffs in Genereux v. Raytheon Co., No. 13-1921, 2014 WL 2579908 (1st Cir. June 10, 2014), claimed workplace exposure to beryllium. (Yes, we know it’s not a drug or medical device, but it’s a really interesting opinion with crossover appeal, so bear with us.) Beryllium is a useful substance with known hazards: Exposure can cause Chronic Beryllium Disease, which damages the lungs and can impair organ function. Id. at *2. The precursor to Chronic Beryllium Disease is something called “beryllium sensitization,” which is regarded as a testable, abnormal medical finding. People with multiple positive tests for beryllium sensitization are at a higher risk of Chronic Beryllium Disease. Id.
The critical part of Genereux is that the plaintiffs claimed neither beryllium sensitization nor Chronic Beryllium Disease. No injury at all. Nothing. Nada. Zilch. How do we know that? Because the plaintiffs’ expert said so – he could not confirm that any plaintiff or any class member had developed even the precursor condition. Id. at *3.
The plaintiffs therefore were asserting true no-injury medical monitoring claims. When a plaintiff has an actual injury, we have no problem with the recovery of reasonable and provable future medical expenses (when liability is established). That has long been a recognized remedy under most any state’s tort law. When, however, a plaintiff can recover damages without proving any demonstrable physical injury or condition, the law has become unhinged. 1980’s rock band Dire Straits memorialized the concept in a song with a most excellent guitar riff: “Money for Nothing.”
We love the song, but condemn the sought result, and so did the First Circuit in an opinion setting forth Massachusetts law with admirable discipline. Some people say that Massachusetts law recognizes medical monitoring claims, citing a case called Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009). But that is not really true. As the First Circuit explained, Massachusetts law requires evidence that the plaintiff suffered an injury or at least some physiological impact:
Id. at *2 (citations omitted, emphasis added, discussing Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009)). An actually injury therefore is required, although a “subcellular” one will do. (As a side note, we saw what some plaintiffs’ experts had to say about “subcellular” injury in cases involving heart valves, and let’s just say we were unconvinced that such an injury can really exist.) Indeed, rather than approve a cause of action in the absence of any identifiable injury, the Massachusetts Supreme Judicial Court left that issue “for another day.” Id. at *3.