For several years, we have blogged about the controversy over whether the American Law Institute (“ALI”) should put its Restatement Third of Torts imprimatur on no-injury medical monitoring. Here’s the latest update, as that effort nears culmination. As reported by the ALI, on Monday May 22, at the Institute’s 100th Anniversary annual meeting:
The next project up for discussion was Torts: Miscellaneous Provisions. . . . Tentative Draft No. 2. This draft includes Sections on the topics of sepulcher and medical monitoring, among others.
Membership voted to approve §§48D-48F (Sepulcher) of the draft. Membership discussed but did not vote on the topic of medical monitoring.
There was an insufficient time to discuss the Torts: Medical Malpractice draft.
(Footnote and lengthy list of names omitted).
The Institute’s succinct prose doesn’t begin to describe what really happened. Bexis was there, and in the thick of things (speaking four times, and expecting to make a major motion), and he provides this report on the festivities.
The fundamental problem with the ALI’s current approach to medical monitoring is that, from the moment this project (first called “Concluding Provisions” and now renamed as “Miscellaneous Provisions” to the Restatement Third of Torts) began in early 2019, the reporters have been dead set that the ALI will recognize no-injury medical monitoring – no matter what the law actually is – because they believe that giving money to currently uninjured people, based on bare “increased risk,” is the “better” rule of law. We, of course, disagree, but we didn’t pick the reporters.
Thus, the draft medical monitoring section that the ALI membership considered on 5/22/23 – like all prior versions − contained no present injury requirement at all, and did not present the other side of this 40-year legal argument, except for criticism of decisions enforcing the traditional present injury requirement in the draft’s various comments and reporters’ notes.
Central to the reporters’ position was the statement in the first sentence of draft Comment b, the substance of which has remained unchanged since 2019:
Of the jurisdictions that have squarely considered the matter, approximately half endorse [no-injury] medical monitoring, while approximately half do not. There is no clear trend either for or against acceptance.
Tentative Draft #2, at 30, lines 24-26 (that’s how ALI citations to intra-Institute documents are done). It didn’t matter that, during the ensuing years, the only two state high courts to decide no-injury medical monitoring cases both rejected such liability – Illinois, Berry v. the City of Chicago, 181 N.E.3d 679 (Ill. 2020) and New Hampshire, Brown v. Saint-Gobain Performance Plastics Corp., ___ A.3d ___, 2023 WL 2577257 (N.H. March 21, 2023). The reporters’ equipoise language stayed the same.
Also since 2019, Bexis has been of the view that this approach is misguided and that, since even the reporters conceded the law was split, the proper approach would be for the Institute to present both sides neutrally and not take sides. That’s what he posted here in early 2020.
Didn’t happen. As we’ve discussed before, Bexis advocated for this neutral approach at every ALI working meeting on this project, and every time the reporters rejected neutrality. The ALI’s Council, which must pass on projects before they go to the full membership, also sent it back for more work. Still no neutrality. Eventually, in early 2023, the reporters wore down the Council and were permitted to take their no-injury medical monitoring section to the full membership.
About the same time, however, Bexis happened to be updating Chapter 3 of his Treatise on prescription medical product liability litigation – and that included a section on medical monitoring (§3.06). What he found didn’t look much like equipoise. Asking around, through Product Liability Advisory Council (“PLAC”) circles, he confirmed that other defense-oriented ALI members had similar doubts about the accuracy of the reporters’ claim of a 50-50 split.
The pro-defense ALI members thus had made a critical mistake about this project. Bexis (and others) had taken the reporters’ word for it about the supposed 50/50 precedential split. That simply isn’t so. The reporters’ research was not of the quality expected in ALI publications. Rather, it’s the sort thing we expect to see in opposing briefs in litigation. Because it was the ALI, we let our guard down.
We’ll be publishing the resultant 50-state survey soon, but suffice it to say that the reporter’s scholarship turned out to be biased and incomplete in support of the pro-no-injury medical monitoring position they have taken since day one. The true weight of precedent on this issue − including quite a few decisions omitted from the reporter’s Appendix, Tentative Draft #2, at pages 64-71 – demonstrated that the true split, in jurisdictions that had “squarely considered” no-injury medical monitoring, was more like two-to-one against: Specifically, 28 against versus only 14 in favor. The research Bexis conducted was a lot more thorough than a couple of law students assigned to find whatever precedent they could that might support no-injury medical monitoring.
To put these results more graphically – who should win this hypothetical election?
On the basis of this research, an informal group of defense-oriented ALI members began preparing motions. One – which became the “main motion” at the meeting – was for the ALI not to take any position on no-injury medical monitoring, but rather to instruct the reporters to present both sides in a neutral manner. Another motion reflected Bexis original position (but wasn’t Bexis’ motion), that the Institute should prepare black letter, comments and reporters’ notes for both sides of this issue, similarly to the manner in which the same draft handled the question of patient-oriented versus physician-oriented standards for informed consent.
Bexis half-volunteered and was half-assigned to move for revisions to the aforementioned Comment b (“rationale and support”) so that it would reflect the true state of the law. To be 100% certain, he undertook a second round of detailed medical monitoring research. All this research turned up a lot of other interesting information about how the states did, or did not, approach various aspects of the no-injury medical monitoring question. Specifically:
- The draft did not limit no-injury medical monitoring to toxic exposure cases. Of the fourteen pro-no-injury medical monitoring jurisdictions, only Nevada did not have such a limit, express or implied. The other thirteen on that side limit no-injury medical monitoring to cases – sometimes including products with toxic effects − where the defendant allegedly exposed the plaintiff to some sort of toxic or hazardous substance.
- The draft did not limit no-injury medical monitoring to any particular type or types of torts, instead embracing all “tortious” conduct. Eight of the fourteen jurisdictions allowing no-injury medical monitoring limit such claims to specified torts. California, Florida, Nevada, Pennsylvania, Utah, and the District of Columbia, expressly limit recovery to negligence actions. Arizona and Indiana expressly limit recovery to nuisance actions.
- The draft would allow no-injury medical monitoring as either a standalone cause of action or as a remedy, but seven jurisdictions allowing no-injury medical monitoring (California, Colorado, Maryland, Missouri, Nevada, Ohio, Pennsylvania) have not allowed a standalone cause of action. Some others are unclear.
- The draft did not require a plaintiff’s exposure to exceed background levels. Four states that allow no-injury medical monitoring have such a requirement: Florida, Pennsylvania, Utah, and West Virginia.
- The draft did not require any present injury at all. Three states expressly retained the traditional present injury element, but allowed asymptomatic “subcellular” injury (Massachusetts and Minnesota), or “physical manifestation of or clinically demonstrable presence of toxins” (New York) to suffice. Despite this mandatory element, the reporters erroneously counted those states as supporting medical monitoring awards where that element is absent.
- The draft permitted no-injury medical monitoring in product liability actions. But the District of Columbia and two other states that allow no-injury medical monitoring, Missouri and New Jersey, don’t allow such claims in product liability litigation, excepting only some products having toxic effects.
- The draft did not include the traditional “reasonably certain” limit on recovery of future damages. Three of the states that allow no-injury medical monitoring states expressly impose this limit: California, Maryland, and West Virginia.
- Three states imposed other limits on no-injury medical monitoring not reflected in the draft. Maryland requires quantification of the increased risk. Utah requires a plaintiff-specific benefit. Vermont, by statute, limits liability to owners of “large facilities.”
Thus, the draft compiled a set of “consensus” elements for no-injury medical monitoring, while ignoring or submerging numerous elements on which some jurisdictions were more restrictive than others. The result was – as Bexis described it at the ALI meeting – a “lowest common denominator” black letter. This black letter, far from being a “middle” path, Tentative Draft #2, at 31, line 17, describes a version of no-injury medical monitoring that is broader than what any state in the country actually allows.
Several other motions were filed. The most important was a thorough take-down of the word salad (“significant,” “negligible,” “meaningful,” “minuscule,” “incremental,” etc.) in Comment f, which ostensibly explained how much “increased risk” was enough – but did so only in the negative: “no particular level of quantification is necessary,” harm “need not” be “more-probable-than-not,” Tentative Draft #2, at 35, lines 29-31, and included an “illustration” stating that a risk increase of only 12/1000 (0.012, or a little over one percent) is “well above the threshold” for actionable increased risk. Id. at 36, line 15. This motion proposed ameliorative black letter amendments. Other filed motions would include a present injury element or would modify or add various additional elements to the black letter.
The reporters’ pre-meeting response to the motions continued their absolute refusal to consider anything less than the ALI’s full-throated endorsement of no-injury medical monitoring. Nor did they take kindly to having their questionable scholarship exposed.
First, when confronted with many more cases – most of them federal – that their appendix omitted, the reporters argued that the ALI should not consider federal cases applying state law at all, except for those that favored (Colorado, DC, and Ohio, chiefly) their position. That’s simply not how the ALI has worked, at least until now. The Institute has always relied on such federal caselaw in its restatements, including in every one of the first twenty sections of Third Restatement, Liability for Physical and Emotional Harm (nearly 300 citations), where the draft no-injury medical monitoring section would reside.
Second, they doubled down on counting states that retained present injury requirements but did not require them necessarily be symptomatic – purporting to include: (1) New York, despite its highest court’s rejection of no-injury medical monitoring specifically because “dispensing with the physical injury requirement could permit ‘tens of millions’ of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor’s resources for those who have actually sustained damage.” Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11, 14 (N.Y. 2013); (2) Massachusetts, despite its highest court retaining present injury to “address any concerns over false claims,” Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 901 (Mass. 2009); and (3) Minnesota, despite its requiring juries to find that claims of “subcellular damage” constituted “present physical and biologic injury.” Bryson v. Pillsbury Co., 573 N.W.2d 718, 721 (Minn. App. 1998). Since the black letter of the draft rejects any present physical injury requirement at all, then these states cannot be counted as “in favor” of that black letter.
Third, they jettisoned their professed reliance on cases that “squarely considered the matter,” Tentative Draft #2, at 30, line 24, – repeatedly ignoring actual court decisions that directly rejected no-injury medical monitoring in favor of non-decisional dictum from higher courts that had not, to wit:
- Connecticut: Relying on a decision “assum[ing], without deciding” the availability of some sort of medical monitoring, Dougan v. Sikorsky Aircraft Corp., 251 A.3d 583, 593 (Conn. 2020), in preference to four Connecticut trial court decisions unanimously rejecting no-injury medical monitoring.
- Georgia: Relying on a footnote avoiding taking a position on medical monitoring because “that type of claim is not before us,” Collins v. Athens Orthopedic Clinic, P.A., 837 S.E.2d 310, 314 n.2 (Ga. 2019), in preference to a published intermediate appellate state court decision and three federal decisions (two of which were affirmed), unanimously rejecting no-injury medical monitoring.
- Iowa: Relying on no Iowa precedent at all in preference to a published federal court decision rejecting no-injury medical monitoring and following recent, general Iowa Supreme Court precedent retaining present injury generally.
- Rhode Island: Relying on no Rhode Island precedent at all in preference to a state trial court decision rejecting no-injury medical monitoring and following recent, general Rhode Island Supreme Court precedent retaining present injury generally.
- Tennessee: Relying on footnote dictum that Tennessee law was “murky” and no-injury medical monitoring might be “proper,” in a case that expressly declined to decide the issue, Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568, 575 n.7 (6th Cir. 2005), in preference to two federal court decisions rejecting no-injury medical monitoring and recent Tennessee Supreme Court precedent retaining present injury generally.
As Bexis observed during the meeting, the reporters were “trying to flip more states than Donald Trump,” and “you can’t beat something with nothing.”
It being the ALI’s 100th anniversary, it is also appropriate to point out that, for the Institute to adopt no-injury medical monitoring, would have caused past ALI luminaries to roll over in their graves − such as Justice Benjamin Cardozo, who held in Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (N.Y. 1928), that “[n]egligence in the air, so to speak, will not do” to create a tort duty, and Professors William Prosser and Page Keeton, whose torts treatise declared that, “[t]he threat of future harm, not yet realized, is not enough” to support tort liability. Prosser & Keeton on the Law of Torts §30, at 165 (5th ed. 1984).
But despite history, precedent, and the best efforts of everyone who filed motions, the reporters’ uncompromisingly pro-plaintiff position would have prevailed, had there been infinite time for debate. That’s because once again defense minded ALI members failed to attend in anywhere near sufficient numbers. While there were more of us at this meeting than in the past, it soon became apparent that 75% or more of the house consisted of plaintiff-side attorneys and fellow-traveling academics.
The prior session, concerning a different restatement, was non-controversial and ended 45 minutes early. But after 2 ½ hours of extended debate, time expired anyway. The main (“Beisner”) motion, for the Institute not to take a position, was the subject of nearly two hours of that debate – and it wasn’t because our side refused to shut up. Instead, supporters of the reporters’ draft spoke for more than half of that period (particularly at the end), and even stood in the line at the microphone that was reserved for our side (which we didn’t appreciate).
Having talked themselves into a time crunch on the first motion, the other side finally realized that time indeed was not infinite. Everyone then had a taste of how plaintiffs and their supporters would run the ALI if they could.
No debate at all.
Resorting to what Bexis described as “Roberts’ Rules of Fascism,” the other side repeatedly used its two-thirds plus majority to shut off debate. A motion would be called. The movant would have his or her already truncated three minutes to speak in (futile) support of the motion – with somebody hovering alongside, ready to yell out a “privileged” motion to “call the question” the moment the movant was done. With more than two thirds of the vote, Roberts’ Rules evidently allows that tactic – according to the ALI’s parliamentarian (who really had a workout). The ALI’s time-honored tradition of open debate thus became a farce.
But even that wasn’t enough.
At least three major motions remained – for the Institute to propose black letter for both sides’ positions, Bexis’ motion to amend Comment b to correct the aforementioned misstatements about what existing law actually is, and the motion to amend the black letter to correct the aforementioned problems concerning the meaningless adjectives in Comment f.
Ironically, this last motion also corrected a series of typos in the Draft’s black letter – substituting “regimen” for “regime,” and pointing out that “The primary definition of a regime is a government, especially an authoritarian one.” Wheeler Medical Monitoring Motion, at 6. That was exactly what the chaotic final 10-12 minutes of the ALI debate felt like – an authoritarian regime where free debate was not permitted. That is the first, and hopefully last, time we will ever feel like that at an ALI meeting.
So our side’s persistence, combined with the other side’s affinity for their own voices, has bought a twelve-month reprieve for tort law’s traditional present injury requirement. We’re hoping that in the interim the Sixth Circuit might have the same adverse reaction to a ridiculously overbroad PFAS no-injury medical monitoring class action as did the New Hampshire Supreme Court in Brown. How overbroad? “[A]s both parties acknowledge, the class comprises nearly all 11.8 million residents of Ohio, along with anyone else otherwise subject to its laws.” In re E.I. DuPont de Nemours & Co. C-8 Personal Injury Litigation, 2022 WL 4149090, at *1 (6th Cir. Sept. 9, 2022).
But unfortunately, even that probably won’t make a difference. This is not your grandfather’s non-adversarial ALI. Proponents expressly and repeatedly invoked the claimed plight of their clients, but drew no pious admonitions from the head table about the Institute’s tradition of “leaving your clients at the door.” The reporters remain wedded to their position, precedent be damned. If they won’t listen to New York’s highest court about New York law, we can’t expect them to be any more open to the Sixth Circuit’s view of Ohio law.
Unfortunately, the ALI has come to the point where money, along with academic logrolling, matters, while the actual state of the law does not. The reporters are set in stone in support of the plaintiffs’ position. The plaintiffs want big class actions and big class action settlements, and their academic supporters either are, or want to be, ALI reporters on their own projects, and thus won’t vote anybody else’s project down for fear the same thing could happen to them.
Next time, nothing will count except turnout. If we don’t have numbers, don’t expect the other side even to let us speak, as the recent debate’s dénouement demonstrates. Why the heck won’t our side at least show up? The world is run by those who do.