One of the most fundamental limitations on tort liability – all tort liability – is that a plaintiff must suffer an injury before s/he can bring a lawsuit. As Judge (later Justice) Benjamin Cardozo, held “[p]roof of negligence in the air, so to speak, will not do.” Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (1928) (citation omitted). Or, as Professors William Prosser and Page Keeton, put it in their treatise:
[P]roof of damage was an essential part of the plaintiff’s [tort] case. Nominal damages … cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.
W. Prosser & P. Keeton, Prosser & Keeton on the Law of Torts, at 165 (5th ed. 1984).
We’re thus pleased that the New Hampshire Supreme Court has recently become the eleventh court of last resort (more on that below) to reject medical monitoring claims completely. See Brown v. Saint-Gobain Performance Plastics Corp., ___ A.3d ___, 2023 WL 2577257 (N.H. March 21, 2023). Brown is not a prescription medical product case, but rather involved purported toxic torts – specifically the chemical scare du jour, polyfluoroalkyl substances (“PFAS”). Brown demonstrated, in gory detail, how pernicious and expansive medical monitoring claims can be, since the plaintiffs in that case demanded such monitoring for literally everybody in a small city of 28,000 people, despite:
- Including as claimants persons whose PFAS exposure was no more, and often less, than ordinary background levels.
- Failing to establish that would-be claimants were at a substantially increased risk of any alleged condition.
- The purported increased risks being so small that the medical monitoring plaintiffs were demanding would take many years to detect even one actual injury.
- Completely failing to quantify any would be claimant’s actual PFAS blood levels.
- No published study or medical organization recommending PFAS medical monitoring as beneficial.
- No published study or medical organization having concluded that PFAS actually causes any human disease.
Because no-injury medical monitoring claims would open the door to massive class actions on behalf of entire populations over de minimis purported exposures, the New Hampshire Supreme Court logically, and unanimously, refused to recognize any such common-law claim. Only the legislature could adopt what is essentially a social welfare program masquerading as tort litigation.
Full disclosure right up front – Bexis filed an amicus curiae brief in Brown in opposition to permitting no-injury medical monitoring, as he had previously in cases in New York (Caronia) and Delaware (Guinan/M.G.).
Brown came to the New Hampshire Supreme Court on a certified question from a New Hampshire federal district court. 2023 WL 2577257, at *1. Plaintiffs claimed (with dubious scientific support) increased exposure risks for various and sundry medical conditions, “including testicular cancer, kidney cancer, immunotoxicity, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy induced hypertension.” Id.
The Brown court held that “our well-established precedents” require present injury before any tort litigation can be brought. “We have long held that the possibility that injury may result from an act or omission is sufficient to give the quality of negligence to the act or omission; but possibility of injury is insufficient to impose any liability.” 2023 WL 2577257, at *2 (citations and quotation marks omitted) (emphasis original). Brown recognized the “absurd” overly broad liability theories seeking recovery for large numbers of persons who were not injured and would never be injured
If twenty persons were endangered by an act having the possibility of injury, it would be absurd to say that rights of action accrued to all of them at the moment the defendant’s act was completed, such rights of action to evaporate when it turned out that the harm was averted for some reason or other. Only if and when harm came to any one of the twenty, would a right of action accrue. There is an actionable breach of the duty only when the injury happens.
Id. (citation and quotation marks omitted). Thus, “the mere existence of an increased risk of future development of disease is not sufficient under New Hampshire law to constitute a legal injury for purposes of stating a claim for the costs of medical monitoring as a remedy or as a cause of action in the context of plaintiffs who were exposed to a toxic substance but have no present physical injury.” Id. at *3
The plaintiffs’ purported “present medical necessity to incur the cost of diagnostic testing” was based solely on their supposed “increased risk” of future injury from the claimed PFAS exposure. That was not enough. “[A]n increased risk of harm is not an injury for purposes of a negligence action.” Id. “Diagnostic” costs might be “damages,” but did not qualify as “injury”:
[T]he plaintiffs’ characterization of their “injury” as “the present need for and cost of diagnostic testing” conflates an allegation of “injury,” which is “an instance of actionable harm,” with a claim for “damages,” that is, “a sum of money awarded to one who has suffered an injury.”
Id. at *2 (citation and quotation marks omitted).
Having no law and no facts in their favor, the Brown plaintiffs instead tried to pound the drum of “public interest.” Id. However, “[t]he declaration of public policy with reference to a given subject is regarded as a matter primarily for legislative action.” Id. Unless and until the legislature acts to create a statutory cause of action, New Hampshire’s present injury requirement “reflects the current public policy of this state.” Id.
Because the Blog’s 50-state medical monitoring survey is relatively old, dating from 2009, we’ll take this opportunity (since Bexis already did the work in his amicus brief) to update the law – at least for the defense side (no need to do the other side’s research for them). As best we know, the following decisions in the following states have rejected no-injury medical monitoring.
Federal law: Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 156-57 (2003); Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-40 (1997); June v. Union Carbide Corp., 577 F.3d 1234, 1249-51 (10th Cir. 2009); In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, 1009 (9th Cir. 2007); Syms v. Olin Corp., 408 F.3d 95, 105 (2d Cir. 2005).
Alabama: Houston County Health Care Authority v. Williams, 961 So.2d 795, 810-11 (Ala. 2006); Hinton v. Monsanto Co., 813 So.2d 827 (Ala. 2001).
Arkansas: In re Prempro, 230 F.R.D. 555, 569 (E.D. Ark. 2005).
Connecticut: McCullough v. World Wrestling Entertainment, Inc., 172 F. Supp.3d 528, 567 (D. Conn. 2016); Goodall v. United Illuminating, 1998 WL 914274, at *10 (Conn. Super. Dec. 15, 1998); Bowerman v. United Illuminating, 1998 WL 910271, at *10 (Conn. Super. Dec. 15, 1998) (identical opinions).
Delaware: Merganthaler v. Asbestos Corp. of America, 480 A.2d 647, 651 (Del. 1984); M.G. v. A.I. Dupont Hospital for Children, 393 F. Appx. 884, 892-93 & n.7 (3d Cir. 2010); Baker v. Croda, Inc., 2021 WL 7209363, at *2 (D. Del. Nov. 23, 2021); In re Asbestos Litigation, 1994 WL 16805917, at *1-2 (Del. Super. Aug. 5, 1994).
Georgia: Cure v. Intuitive Surgical, Inc., 2017 WL 498727, at *3 (N.D. Ga. Jan 30, 2017), aff’d, 705 F. Appx. 826 (11th Cir. 2017); Parker v. Brush Wellman, Inc., 377 F. Supp.2d 1290, 1302 (N.D. Ga. 2005), aff’d, 230 F. Appx. 878, 883 (11th Cir. 2007).
Illinois: Berry v. City of Chicago, 181 N.E.3d 679, 688-89 (Ill. 2020).
Indiana: Pisciotta v. Old National Bancorp, 499 F.3d 629, 639 & n.10 (7th Cir. 2007); Hunt v. American Wood Preservers Institute, 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002); Johnson v. Abbott Laboratories, 2004 WL 3245947, at *6 (Ind. Cir. Dec. 31, 2004).
Iowa: Pickrell v. Sorin Group USA, Inc., 293 F. Supp.3d 865, 868 (S.D. Iowa 2018).
Kansas: Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1523 (D. Kan. 1995).
Kentucky: Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849, 856-59 (Ky. 2002).
Louisiana: La. Civ. Code art. 2315; Burmaster v. Plaquemines Parish Government, 982 So.2d 795, 806 (La. 2008).
Maine: Higgins v. Huhtamaki, Inc., 2022 WL 2274876, at *10-11 (D. Me. June 23, 2022).
Michigan: Henry v. Dow Chemical Co., 701 N.W.2d 684, 686, 691 (Mich. 2005).
Minnesota: Thompson v. American Tobacco Co., 189 F.R.D. 544, 552 (D. Minn. 1999); Paulson v. 3M Co., 2009 WL 229667 (Minn. Dist. Jan. 16, 2009); Palmer v. 3M Co., 2005 WL 5891911 (Minn. Dist. April 26, 2005).
Mississippi: Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 5-6 (Miss. 2007).
Montana: In re Zantac (Ranitidine) Products Liability Litigation, 546 F. Supp.3d 1152, 1167 (S.D. Fla. 2021).
Nebraska: Trimble v. ASARCO, Inc., 232 F.3d 946, 962-63 (8th Cir. 2000), aff’g, 83 F. Supp.2d 1034 (D. Neb. 1999); Schwan v. Cargill, Inc., 2007 WL 4570421, at *1-2 (D. Neb. Dec. 21, 2007); Avila v. CNH America LLC, 2007 WL 2688613, at *1-2 (D. Neb. Sept. 10, 2007).
Nevada: Badillo v. American Brands, Inc., 16 P.3d 435, 440-41 (Nev. 2001).
New Hampshire: Brown v. Saint-Gobain Performance Plastics Corp., ___ A.3d ___, 2023 WL 2577257, at *2-3 (N.H. March 21, 2023).
New York: Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11, 16-18 (N.Y. 2013).
North Carolina: Curl v. American Multimedia, Inc., 654 S.E.2d 76, 81 (N.C. App. 2007); Priselac v. Chemours Co., 2022 WL 909406, at *3 (E.D.N.C. March 28, 2022).
North Dakota: Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505, 518-19 (D.N.D. 2005).
Oklahoma: Taylor v. Michelin North America, Inc., 2018 WL 1569495, at *6-7 (N.D. Okla. March 30, 2018); McCormick v. Halliburton Co., 895 F. Supp.2d 1152, 1155-56 (W.D. Okla. 2012); Cole v. Asarco, Inc., 256 F.R.D. 690, 695 (N.D. Okla. 2009).
Ohio: Elmer v. S.H. Bell Co., 127 F. Supp.3d 812, 825 (N.D. Ohio 2015).
Oregon: Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 186-87 (Or. 2008).
Rhode Island: Miranda v. DaCruz, 2009 WL 3515196, at *8 (R.I. Super. Oct. 26, 2009).
South Carolina: Easler v. Hoechst Celanese Corp., 2014 WL 3868022, at *5 n.5 (D.S.C. Aug. 5, 2014); Rosmer v. Pfizer, Inc., 2001 WL 34010613, at *5 (D.S.C. March 30, 2001).
Tennessee: Bostick v. St. Jude Medical, Inc., 2004 WL 3313614, at *14 (W.D. Tenn. Aug. 17, 2004); Jones v. Brush Wellman Inc., 2000 WL 33727733, at *8 (N.D. Ohio Sept. 13, 2000).
Texas: Norwood v. Raytheon Co., 414 F. Supp.2d 659, 664-68 (W.D. Tex. 2006).
Virginia: Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir. 1991); In re All Pending Chinese Drywall Cases, 2010 WL 7378659, at *9-10 (Va. Cir. March 29, 2010).
Virgin Islands: Purjet v. Hess Oil Virgin Islands Corp., 1986 WL 1200, at *4 (D.V.I. Jan. 8, 1986); Louis v. Caneel Bay, Inc., 2008 WL 4372941, at *5-6 (V.I. Super. July 21, 2008).
Washington: DuRocher v. Riddell, Inc., 97 F. Supp.3d 1006, 1014 (S.D. Ind. 2015); Krottner v. Starbucks Corp., 2009 WL 7382290, at *7 (W.D. Wash. Aug. 14, 2009), aff’d in part on other grounds, 628 F.3d 1139 (9th Cir. 2010); Duncan v. Northwest Airlines, 203 F.R.D. 601, 607-09 (W.D. Wash. 2001).
Wisconsin: Alsteen v. Wauleco, Inc., 802 N.W.2d 212, 221 (Wis. App. 2011).
That’s 34 American jurisdictions, including 32 states (warning − some have conflicting precedent). In addition, several states only allow no-injury medical monitoring for some claims (usually environmental pollution), but not others.
Washington, DC, Missouri, and New Jersey do not allow medical monitoring in non-environmental product liability litigation. Witherspoon v. Philip Morris, Inc., 964 F. Supp. 455, 467 (D.D.C. 1997); Ratliff v. Mentor Corp., 569 F. Supp.2d 926, 929 (W.D. Mo. 2008); Sinclair v. Merck & Co., 948 A.2d 587, 595 (N.J. 2008).
Florida and Pennsylvania allow medical monitoring in negligence, but not strict liability, actions. Petito v. A.H. Robins Co., 750 So.2d 103, 106-07 (Fla. App. 1999); Zehel-Miller v. AstraZeneca Pharmaceuticals, LP, 223 F.R.D. 659, 663-64 (M.D. Fla. 2004); Redland Soccer Club v. Department of the Army, 696 A.2d 137, 145 (Pa. 1997); Brown v. Dickinson, 2000 WL 33342381, at *1 (Pa. C.P. March 9, 2000); Barnes v. American Tobacco Co., 989 F. Supp. 661, 664 (E.D. Pa. 1997); In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 273597, at *9-10 (E.D. Pa. Feb. 22, 1995).
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Finally, despite divided precedent that – at minimum – is closely balanced, and no trend in favor of no-injury medical monitoring (Brown being the latest indicator), the American Law Institute is scheduled to vote this May on a “Restatement” (really, a radical expansion of the law) that would adopt a broad no-injury medical monitoring cause of action with no limits on the type of action for which such claims could be brought. Thus, without even getting into finer details (such as elements of such claims) than this post discusses, that “Restatement” would be contrary to judicial decisions in 39 American jurisdictions, including 36 states.
If you are an ALI member who doesn’t believe that “ALI” stands for “always liability increases,” please attend the ALI’s annual meeting May 22-24 at the Ritz-Carlton hotel in Washington, DC to vote “no” on this proposal (in-person voting only). Right now, the schedule for the meeting has debate on the “Restatement of the Law Third, Torts: Medical Malpractice & Miscellaneous Provisions” – which includes the medical monitoring proposal – set for Monday, May 22 at 10:30 a.m.