As we mentioned in our recent American Law Institute (“ALI”) medical monitoring post, the other side is engaged in an ongoing attempt to ram recognition of a new tort for recovery of medical monitoring expenses by plaintiffs with no present injury (“no-injury medical monitoring” for short) through the ALI. One aspect of Bexis’ activity in opposition to that was to conduct detailed 50-state analysis of no-injury medical monitoring, once we determined that the ALI reporter’s material was both biased and incomplete. We stand behind our research and have nothing to hide. Thus, there’s no reason for us not to make this same information available to our blog readers, so that’s what we’re doing here. For long-time subscribers to the blog, please consider what follows to be an update to, and replacement of, our 2009 50-state survey on medical monitoring – ironically also prompted by ALI-related activity.
So here goes:
The United States Supreme Court, in asbestos-related cases brought under the Federal Employees Liability Act, has twice rejected claims for medical monitoring in the absence of present physical injury. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-40 (1997), rejected no-injury medical monitoring because:
[T]ens of millions of individuals may have suffered exposure to substances that might justify some form of substance-exposure-related medical monitoring. . . . And that fact, along with uncertainty as to the amount of liability, could threaten both a “flood” of less important cases (potentially absorbing resources better left available to those more seriously harmed) and the systemic harms that can accompany “unlimited and unpredictable liability” (for example, vast testing liability adversely affecting the allocation of scarce medical resources).
Id. at 442 (citations omitted). These “potential systemic effects” – “the effects upon interests” of those “who depend on a tort system that can distinguish between reliable and serious claims on the one hand, and unreliable and relatively trivial claims on the other” − led the Metro-North to retain the traditional requirement of present-injury. Id. at 444. See Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 156-57 (2003) (reaffirming that “[t]he categorical approach endorsed in Metro-North serves to reduce the universe of potential claimants to numbers neither ‘unlimited’ nor ‘unpredictable’”).
Several federal courts of appeals have extended this rejection of no-injury medical monitoring to claims brought under other federal statutes: Giovanni v. United States Dep’t of Navy, 906 F.3d 94, 109 (3d Cir. 2018) (“Private party medical monitoring falls outside of the definition of response action” and cannot be recovered under CERCLA; following Hanford); Cook v. Rockwell International Corp., 618 F.3d 1127, 1139-4040 (10th Cir. 2010) (the Price-Anderson Act “limit[s] recovery to the discrete group of injuries enumerated,” and no-injury medical monitoring “do[es] not constitute a bodily injury in the absence of the manifestation of an actual disease or injury”); June v. Union Carbide Corp., 577 F.3d 1234, 1249, 1251 (10th Cir. 2009) (“‘DNA damage and cell death,’” which creates only a possibility of clinical disease, does not constitute a “‘bodily injury’ under the Price–Anderson Act” denying relief to those without symptomatic, diagnosed ailments so that scarce resources can be directed to compensate those who have suffered more serious harms”); In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, 1009 (9th Cir. 2007) (“medical monitoring claims were not compensable under the [Price-Anderson Act] absent physical injury”); Syms v. Olin Corp., 408 F.3d 95, 105 (2d Cir. 2005) (“private monitoring of an individual’s health is not a valid response cost under CERCLA”); In re Berg Litigation, 293 F.3d 1127, 1133 (9th Cir. 2002) (“a cause of action for medical monitoring because of a future risk of disease, and absent a present physical injury, also fails to meet the jurisdictional requirements of the Price Anderson Act”); Price v. U.S. Navy, 39 F.3d 1011, 1016 (9th Cir. 1994) (“medical monitoring costs are not response costs under CERCLA”); Daigle v. Shell Oil Co., 972 F.2d 1527, 1537 (10th Cir. 1992) (“health assessment costs . . ., including the medical monitoring Plaintiffs seek, differ from response costs, and ‘response costs’ are the only available costs to private parties” under CERCLA); Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985) (“subclinical injury . . . is insufficient to constitute the actual loss or damage to a plaintiff’s interest required to sustain a cause of action under generally applicable principles of tort law”) (FELA); Laswell v. Brown, 683 F.2d 261, 269 (8th Cir. 1982) (absent “any allegations that the [plaintiffs] have sustained any damage other than the exposure to a higher risk of disease and cellular damage, . . . [w]e agree . . . that a lawsuit for personal injuries cannot be based only upon the mere possibility of some future harm”) (Federal Torts Claims Act) (citations omitted).
Alabama firmly rejects no-injury medical monitoring.
[W]e find it inappropriate . . . to stand Alabama tort law on its head in an attempt to alleviate these concerns about what might occur in the future. We believe that Alabama law, as it currently exists, must be applied to balance the delicate and competing policy considerations presented here. That law provides no redress for a plaintiff who has no present injury or illness.
Hinton v. Monsanto Co., 813 So. 2d 827, 831-32 (Ala. 2001) (emphasis original); Houston County Health Care Auth. v. Williams, 961 So. 2d 795, 811 (Ala. 2006) (“A person exposed to a known hazardous substance but not claiming a present physical injury or illness as a result may not recover as damages the costs of medical monitoring.”).
Alaska “do[es] not have any court decision that clearly address the issues related to medical monitoring.” In re NHL Players’ Concussion Injury Litigation, 327 F.R.D. 245, 260, 262 (D. Minn. 2018) (applying Alaska law).
Arizona recognizes no-injury medical monitoring, but only under limited circumstances. In Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. App. 1987), an Arizona intermediate appellate court permitted the award of medical monitoring as nuisance damages in the absence of present physical injury allegations. Id. at 33. However, the Arizona Supreme Court subsequently made clear that such damages were not recoverable outside the context of nuisance actions:
Burns concluded that . . . medical costs associated with monitoring the residents’ subclinical injuries was recoverable in the context of a nuisance claim. [plaintiff] Family reads too much into Burns[, as it] has never alleged that [defendant] created a nuisance.
Quiroz v. ALCOA Inc., 416 P.3d 824, 832-33 (Ariz. 2018). A federal court prediction that Arizona purportedly permits medical monitoring claims generally occurred before the Arizona Supreme Court decided Quiroz. In re National Hockey League Players’ Concussion Injury Litigation, 327 F.R.D. 245, 262 (D. Minn. 2018) (applying Arizona law).
Arkansas “has rejected medical monitoring as a cause of action.” In re Prempro Products Liability Litigation, 230 F.R.D. 555, 569 (E.D. Ark. 2005) (citing Baker v. Wyeth-Ayerst Laboratory Div., 992 S.W.2d 797, 799 (Ark. 1999) (affirming denial of medical monitoring class action)); Nichols v. Medtronic, Inc., 2005 WL 8164643, at *11 (E.D. Ark. Nov. 15, 2005) (“no claim for medical monitoring seems plausible”).
California recognizes no-injury medical monitoring, but only as a remedy for negligence. In California, no-injury medical monitoring may be sought “not as a separate tort but simply an item of damages,” Lockheed Martin Corp. v. Superior Court, 63 P.3d 913, 918 (Cal. 2003), and only as a remedy for negligent conduct. Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 822-23 (Cal. 1993) (“in a negligence action”; medical monitoring costs are “a proper item of recoverable damages” “[w]hen a defendant negligently invades [plaintiff’s] interest”). Further, a plaintiff must prove that “the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable.” Potter, 863 P.2d at 824.
To be recoverable, “the monitoring must be additional or different” than what the general public requires. Lockheed Martin, 63 P.3d at 918; see Potter, 863 P.2d at 825 (must be “beyond” what “members of the public at large should prudently submit”). The “reasonableness and necessity” of medical monitoring must be shown with reference to five “substantial evidentiary burdens”: “(1) the significance and extent of the plaintiff’s exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff’s chances of developing the disease had he or she not been exposed, and (b) the chances of the members of the public at large of developing the disease; (4) the seriousness of the disease for which the plaintiff is at risk; and (5) the clinical value of early detection and diagnosis.” Id. at 824-25.
No Colorado state appellate court has considered no-injury medical monitoring. A few federal district court decisions have nonetheless predicted that the state supreme court would recognize such a claim. The first was Cook v. Rockwell International Corp., 755 F. Supp. 1468 (D. Colo. 1991), in which the court purported to find a “weight of authority” supporting no-injury medical monitoring. Id. at 1477. “Although Colorado has yet to do so, I conclude that the Colorado Supreme Court would probably recognize . . . a tort claim for medical monitoring”. Id. That’s the same litigation that produced an erroneous decision allowing no-injury medical monitoring under the Price Anderson Act, Cook v. Rockwell International Corp., 564 F. Supp.2d 1189, 1214 (D. Colo. 2008), that the Tenth Circuit reversed, as described above. See Cook, 618 F.3d 1127. The court in Cook thus seemed all-too-eager to allow this questionable form of liability.
Still, in reliance on that not-particularly-persuasive precedent, two other federal trial courts have also predicted that Colorado would allow no-injury medical monitoring. See Mehr v. Federation Internationale de Football, 115 F. Supp.3d 1035, 1070 (N.D. Cal. 2015) (Colorado plaintiff could include no-injury medical monitoring as a prayer for relief, but not as a separate action) (applying Colorado law); Bell v. 3M Co., 344 F. Supp.3d 1207, 1224 (D. Colo. 2018) (following Cook, despite it being “a close call” whether Colorado would permit no-injury medical monitoring). None of these three doubtful predictions of state law provides in any guidance about the elements or limitations that Colorado law might impose on this would-be cause of action, but absent any contrary Colorado precedent, we are constrained to count Colorado in the “yes” column.
Connecticut federal and state trial courts have consistently rejected claims for no-injury medical monitoring. See McCullough v. World Wrestling Entertainment, Inc., 172 F. Supp.3d 528, 567 (D. Conn. 2016) (“plaintiffs have failed to articulate any authority supporting the proposition that plaintiffs can bring a cause of action for ‘medical monitoring’”); Martin v. Shell Oil Co., 180 F. Supp.2d 313, 323 (D. Conn. 2002) (medical monitoring costs “only” recoverable in Connecticut when “other actionable injuries exist”); Poce v. O & G Industries, Inc., 2017 WL 6803084, at *4-5 (Conn. Super. Dec. 5, 2017) (“Connecticut tort law does not permit recovery based on . . . exposure in the absence of any present clinical injury or physical symptom”); Goodall v. United Illuminating, 1998 WL 914274, at *10 (Conn. Super. Dec. 15, 1998) (“[r]ecovery for such expenses would only be allowable if these plaintiffs have sustained actionable injuries”); Bowerman v. United Illuminating, 1998 WL 910271, at *10 (Conn. Super Dec. 15, 1998) (same).
However, in Dougan v. Sikorsky Aircraft Corp., 251 A.3d 583, 593-94 (Conn. 2020), the Connecticut Supreme Court “assume[d], without deciding,” while affirming summary judgment on other grounds, that a medical monitoring remedy might exist on a showing of present “subclinical cellular injury that substantially increased the plaintiffs’ risk of cancer.” Thus, not even in Dougan did that court hypothesize the ALI’s proposed complete abandonment of the traditional present injury requirement in tort. In a workers compensation case, the Connecticut Supreme Court allowed claimants to seek no-injury medical monitoring, while expressly contrasting such administrative remedies with “traditional tort principles.” Doe v. City of Stamford, 699 A.2d 52, 54 (Conn. 1997).
Delaware rejects no-injury medical monitoring. Holding that “[i]t is axiomatic that all tort claims require an injury,” Baker v. Croda, Inc., ___ A.3d ___, 2022, 2023 WL 5517797, at *2 (Del. Aug. 24, 2023), ruled that “an increased risk of illness without physical harm is not a cognizable injury under Delaware law,” since “an increased risk of harm only constitutes a cognizable injury once it manifests in a physical disease.” Id. (citations omitted).
Our holding that an increased risk of illness, without more, cannot be a cognizable injury under Delaware law comports with the established principle . . . that claims in tort require an actual or imminent injury. To hold otherwise would constitute a significant shift in our tort jurisprudence. . . . Delaware tort law presupposes that plaintiffs will bring suits after they suffer physical symptoms, not before. . . . Accordingly, a future risk of illness without any present injury does not constitute an injury-in-fact in tort under Delaware law.
Id. at *3 (citations and quotation marks omitted). If no-injury medical monitoring is to exist in Delaware, the legislature, not the courts, must act. Id. at *4
Baker relied primarily on Mergenthaler v. Asbestos Corp., 480 A.2d 647, 651 (Del. 1984), where the court “disagreed” that “a claim for the expenses of medically required surveillance” could lie when “there is no present physical disease.” In K.G. v. A.I. Dupont Hospital for Children, 393 F. App’x 884, 892 & nn. 6-7 (3d Cir. 2010), the Third Circuit reversed a federal district court’s prediction that Delaware would permit no-injury medical monitoring claims. See also In re Asbestos Litigation, 1994 WL 16805917, at *2 (Del. Super. Aug. 5, 1994) (“Because the Court has determined that plaintiffs do not have a compensable physical injury, plaintiffs may not recover for the expenses of medical surveillance.”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 762 (D.N.J. 2021) (including Delaware as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
District of Columbia (YES)
The District of Columbia became the first jurisdiction anywhere to recognize a version of no-injury medical monitoring, in Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984) (applying District of Columbia law). In that rather bizarre litigation, a class of orphans “adopted by non-U.S. parents” sued over an airplane crash in Vietnam. Id. at 819. Application of District of Columbia law thus seems entirely arbitrary. Further, after years of litigation the defendant “agreed not to contest liability.” Id. at 820. On this attenuated basis, the District of Columbia Circuit recognized no-injury medical monitoring, even though the plane crash allegedly involved “explosive decompression and hypoxia” that presumably caused some degree of immediate impact, even if asymptomatic. Id. at 825. That “cause of action for diagnostic examinations in the absence of proof of actual injury” existed “[w]hen a defendant negligently invades [the plaintiff’s] interest.” Id. at 819, 826. Presumably because liability was conceded, Friends for All Children offered no description of the elements of the novel claim it created.
Filling the void, Witherspoon v. Philip Morris Inc., 964 F. Supp. 455 (D.D.C. 1997), finding lack of present injury, dismissed a medical monitoring claim concerning a consumer product. Id. at 567 (“Whether a cause of action or a part of damages requested, medical monitoring requires that the plaintiff have a present injury and a reasonable fear that the present injury could lead to the future occurrence of disease.”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 762 (D.N.J. 2021) (including the District of Columbia as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”). In Reed v. Philip Morris Inc., 1997 WL 538921, at *16 & n.10 (D.C. Super. Aug. 18, 1997), another trial court, in denying certification of a proposed class seeking medical monitoring relief, indicated that such a remedy existed under District of Columbia law, but cited only precedents from other jurisdictions for the claim’s elements.
Florida intermediate appellate precedent recognizes no-injury medical monitoring claims, only for negligent exposure to hazardous material. Petito v. A. H. Robins Co., 750 So.2d 103 (Fla. App. 1999), review denied, 780 So.2d 912, 916 (Fla. 2001), invoked “equity” to create such a cause of action, with the following elements: (a) exposure at more than normal background levels; (b) to a proven hazardous substance; (c) caused by the defendant’s negligence; (d) plaintiff has a significantly increased risk of contracting a serious latent disease; (e) a monitoring procedure exists that makes the early detection of the disease possible; (f) monitoring is different from that recommended for unexposed persons; and (g) monitoring is reasonably necessary according to current science. Id. at 106-07 (citation omitted). A court-supervised fund to oversee any medical monitoring program is mandatory. Id. at 106. Later Florida precedent precluded medical monitoring claims against to FDA-approved drugs. See Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 640 (Fla. App. 2006), review denied, 950 So.2d 413 (Fla. 2007) (drug that “continues to be approved as safe and effective by the FDA,” does not have “proven” “hazardous nature”); accord, In re Fosamax Products Liability Litigation, 248 F.R.D. 389, 400 (S.D.N.Y. 2008) (applying Florida law). No-injury medical monitoring plaintiffs must also prove the elements of a negligence claim. See Santiago v. Honeywell International, Inc., 2021 WL 5066924, at *7 (S.D. Fla. Sept. 29, 2021) (finding “no case where Florida courts have applied this medical monitoring framework to a negligence action” not involving a toxic substance); Coffie v. Florida Crystals Corp., 460 F. Supp.3d 1297, 1313 (S.D. Fla. 2020); Fosamax, 248 F.R.D. at 395; Zehel-Miller v. Astrazenaca Pharmaceuticals, LP, 223 F.R.D. 659, 664 & n.6 (M.D. Fla. 2004); Perez v. Metabolife International, Inc., 218 F.R.D. 262, 271 (S.D. Fla. 2003); In re Baycol Products. Litigation, 218 F.R.D. 197, 211 (D. Minn. 2003) (applying Florida law). But see Tillman v. C.R. Bard, Inc., 96 F. Supp.3d 1307, 1350 (M.D. Fla. 2015) (purporting to extend Florida no-injury medical monitoring claims to strict liability).
The Georgia Supreme Court has yet to rule on no-injury medical monitoring. See Collins v. Athens Orthopedic Clinic, P.A., 837 S.E. 310, 314 n.2 (Ga. 2019) (“That type of claim is not before us, and we express no opinion on the viability of such a claim.”). However, every other Georgia court to consider such claims has rejected them. “[M]edical testimony that [plaintiff] children would require monitoring in the future” “falls far short of th[e] standard” for present injury. Boyd v. Orkin Exterminating Co., 381 S.E.2d 295, 298 (Ga. App. 1989), abrogation recognized on non-relevant grounds, Hanna v. McWilliams, 446 S.E.2d 741, 744 (Ga. App. 1994). The Eleventh Circuit likewise decided:
Plaintiffs rest their personal injury claims on the contention that their allegations of subclinical and cellular damage are sufficient to allege a current physical injury under Georgia law; because we reject this argument, Plaintiffs’ claims for personal injury and emotional distress must fail. And because Plaintiffs’ allegations of subclinical damage are insufficient to state a current physical injury, Plaintiffs are not entitled to recover the ‘quantifiable costs of periodic medical examinations’ as future medical expenses. Plaintiffs have failed to point us to any Georgia authority that allows recovery of medical monitoring costs in the absence of a current physical injury.
Parker v. Brush Wellman, 230 F. App’x 878, 882-83 (11th Cir. 2007) (citation omitted) (applying Georgia law), affirming, Parker v. Brush Wellman, Inc., 377 F. Supp.2d 1290, 1296-97 (N.D. Ga. 2005) (“a ‘subclinical’ condition, lacking in any contemporaneous physiological manifestations, is not a cognizable ‘injury’ under applicable tort law”; following Boyd); see also In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 763 (D.N.J. 2021) (including Georgia as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”; citing Parker). In re NHL Players’ Concussion Injury Litigation, 327 F.R.D. 245, 260, 262 (D. Minn. 2018) (quoting and following Parker) (applying Georgia law); Cure v. Intuitive Surgical, Inc., 2017 WL 498727, at *3 (N.D. Ga. Jan 30, 2017) (present injury “does not include simple exposure to a potentially harmful substance”), aff’d, 705 F. App’x 826 (11th Cir. 2017).
Hawai’i “do[es] not have any court decisions that clearly address the issues related to medical monitoring.” In re NHL Players’ Concussion Injury Litigation, 327 F.R.D. 245, 260, 262 (D. Minn. 2018) (applying Hawai’i law); see also Almond v. Janssen Pharmaceuticals, Inc., 337 F.R.D. 90, 96 (E.D. Pa. 2020) (“no court has yet decided whether a plaintiff can bring a no-injury medical monitoring claim”) (applying Hawai’i law). Cf. In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1573 (D. Haw. 1990) (remitting special damages for no-injury medical monitoring without any substantive discussion).
In Hepburn v. Boston Scientific Corp., 2018 WL 2275219, at *5 (D. Idaho 2018), a federal district court denied a motion to dismiss a medical monitoring claim despite the plaintiff’s apparent lack of present injury, citing only dictum in the Sutton case from Tennessee (see below). Hepburn failed to describe any of elements of such a claim and invited the plaintiff to “bolster her claims of injury on amendment” of her complaint. Id. Subsequently, a motion to dismiss was granted, Hepburn v. Boston Scientific. Corp., 2019 WL 298212, at *5 (D. Idaho Jan. 23, 2019), then (according to PACER) shortly after Hepburn was reassigned to a different (presumably less adventurous) judge, plaintiff voluntarily dismissed the case with prejudice.
Other, more recent Idaho law decisions, have concluded that, notwithstanding Hepburn, Idaho “do[es] not have any court decisions that clearly address the issues related to medical monitoring.” In re NHL Players’ Concussion Injury Litigation, 327 F.R.D. 245, 260, 262 (D. Minn. 2018) (applying Idaho law); Almond v. Janssen Pharmaceuticals, Inc., 337 F.R.D. 90, 96 (E.D. Pa. 2020) (“no court has yet decided whether a plaintiff can bring a no-injury medical monitoring claim”) (applying Idaho law).
Illinois rejects no-injury medical monitoring. Berry v. City of Chicago, 181 N.E.3d 679 (Ill. 2020), flatly rejected classwide claims “that the need for medical testing or monitoring is an injury cognizable in a negligence action.” Id. at 688:
We disagree. Simply pleading a need for medical monitoring prompts the question: Why is medical monitoring needed? Plaintiffs themselves allege in their complaint that the need for medical monitoring is based on “their increased risk of harm.” Without an increased risk of future harm, plaintiffs would have no basis to seek medical monitoring. In other words, plaintiffs’ allegation that they require “diagnostic medical testing” is simply another way of saying they have been subjected to an increased risk of harm. And, in a negligence action, an increased risk of harm is not an injury. A plaintiff who suffers bodily harm caused by a negligent defendant may recover for an increased risk of future harm as an element of damages, but the plaintiff may not recover solely for the defendant’s creation of an increased risk of harm.
Id. at 689 (citations omitted). Berry thus confirmed prior Illinois appellate rejections of no-injury medical monitoring. See Jensen v. Bayer AG, 862 N.E.2d 1091, 1100-01 (Ill. App. 2007) (claims that “a plaintiff may bring a claim for medical monitoring for potential future harm, where no present injury is shown . . . lacked merit”); Lewis v. Lead Industries Ass’n, Inc., 793 N.E.2d 869, 877 (Ill. App. 2003) (rejecting unjust enrichment claim where “plaintiffs merely assert that they paid for medical monitoring made necessary by the defendants’ alleged tortious conduct”); accord Illinois ex rel. Raoul v. Monsanto Co., 2023 WL 3292591, at *6 (N.D. Ill. May 5, 2023) (under Berry “[a]bsent an allegation of any present injury, [plaintiff] cannot recover for the risk of future injury”).
Indiana law regarding no-injury medical monitoring is divided. The Indiana Supreme Court summarily affirmed denial of a no-injury medical monitoring remedy under a state environmental statute, Shell Oil Co. v. Meyer, 705 N.E.2d 962, 981 (Ind. 1998), and several other decisions directly hold that no-injury medical monitoring claims are not permitted under Indiana law: Pisciotta v. Old National Bancorp, 499 F.3d 629, 639 & n.10 (7th Cir. 2007) (“compensable damage requires more than an exposure to a future potential harm”) (applying Indiana law); Barbee v. Atlantic Richfield Co., 2022 WL 4463341, at *7 (N.D. Ind. Sept. 23, 2022) (“there is no independent cause of action for medical monitoring in Indiana”); Hostetler v. Johnson Controls, Inc., 2020 WL 5543081, at *4 n.4 (N.D. Ind. Sept. 16, 2020) (“the law does not provide recovery for remote, speculative, theoretical possibilities”; “unclear if Indiana would even recognize a claim for damages for medical monitoring based on an increased risk of future injury”); Hunt v. American Wood Preservers Institute, 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002) (a “medical monitoring claim . . . is not cognizable in the State of Indiana”); Johnson v. Abbott Laboratories, 2004 WL 3245947, at *6 (Ind. Cir. Dec. 31, 2004) (“Indiana does not recognize medical monitoring as a cause of action.”).
On the other hand, Gray v. Westinghouse Electric Corp., 624 N.E.2d 49 (Ind. App. 1993) − decided before the Indiana Supreme Court’s opinion in Shell Oil v. Meyer − allowed medical monitoring solely as a remedy in a nuisance case. Id. at 54. So did Allgood v. General Motors Corp., 2005 WL 2218371, at *5 (S.D. Ind. Sept. 12, 2005), a nuisance case decided in federal district court two years before the Seventh Circuit’s Pisciotta decision. In re Zantac (Ranitidine) Products Liability Litigation, 546 F. Supp.3d 1152 (S.D. Fla. 2021) (applying Indiana law), relied on Gray to predict that Indiana would permit medical monitoring relief in negligence actions. Id. at 1166-67. None of the Indiana-law decisions allowing no-injury medical monitoring discusses the likely limitations on or required elements of such a claim, beyond limiting it to nuisance.
Iowa does not recognize no-injury medical monitoring. Pickrell v. Sorin Group USA, Inc., 293 F. Supp.3d 865 (S.D. Iowa 2018), predicted the concept’s rejection “[d]ue to Iowa’s requirement that negligence claims include an actual injury, . . . the Iowa Supreme Court, if confronted with the opportunity to recognize a medical monitoring cause of action, would either decline to do so or would require an actual injury.” Id. at 868. Pickrell followed three Iowa Supreme Court decisions enforcing the present injury requirement generally, the most recent of which held that plaintiffs alleging negligence must establish “actual injury, loss, or damage.” Vossoughi v. Polaschek, 859 N.W.2d 643, 649 (Iowa 2015). That remains Iowa law. E.g., Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 90 (Iowa 2022) (trespass actions require “actual damage”); Clark v. State, 955 N.W.2d 459, 464 (Iowa 2021) (same for legal malpractice). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 763 (D.N.J. 2021) (including Iowa as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”). Cf. In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2021 WL 364663, at *24 & n.36 (D.N.J. Feb. 3, 2021) (recognizing that” Iowa has not explicitly accepted or rejected medical monitoring as an independent cause of action or as a remedy,” but nonetheless declining to dismiss such claims for unstated reasons) (applying Iowa law).
No Kansas law decision clearly addresses no-injury medical monitoring claims. The closest is Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995), brought by a plaintiff alleging present injury, where the court dismissed a separate medical monitoring claim because it was “merely a component of plaintiffs’ damages.” Id. at 1523 & n.6.
Kentucky rejects no-injury medical monitoring. “[H]aving weighed the few potential benefits against the many almost-certain problems of medical monitoring, we are convinced that this Court has little reason to allow such a remedy without a showing of present physical injury.” Wood v. Wyeth-Ayerst Labs, 82 S.W.3d 849, 859 (Ky. 2002).
Traditional tort law militates against recognition of [no-injury medical monitoring] claims, and we are not prepared to step into the legislative role and mutate otherwise sound legal principles. . . . Granting [plaintiff’s] request for medical monitoring costs absent a showing of physical injury, would require [defendant] to finance diagnostic testing for a large number of past [product] users. If each were actually tested, and the results of the tests showed no physical disease, the negligent party will have paid large sums of money despite having caused no physical injury. . . .
From a policy standpoint . . ., recognizing only claims supported by physical injury will prevent the potential flood of litigation stemming from unsubstantiated or fabricated prospective harms, thereby preserving judicial and corporate resources to compensate actual victims who develop injuries in the future.
Id. at 859.
Louisiana statutorily prohibits no-injury medical monitoring. La. Civ. Code art. 2315(B) (“Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.”). Thus, “the Louisiana Legislature amended [article] 2315 to eliminate medical monitoring as a compensable item of damage, unless the plaintiff has manifested physical or mental injury or disease.” Burmaster v. Plaquemines Parish Gov’t, 982 So. 2d 795, 806 (La. 2008).
Maine rejects no-injury medical monitoring. The Maine Supreme Court has held that “subclinical injury . . . is insufficient to constitute the actual loss or damage to a plaintiff’s interest required to sustain a cause of action under generally applicable principles of tort law.” Bernier v. Raymark Industries, Inc., 516 A.2d 534, 543 (Me. 1986) (discussing accrual of cause of action). For that reason, “[i]t is undisputed that no medical monitoring cause of action currently exists in Maine.” Higgins v. Huhtamaki, Inc., 2022 WL 2274876, at *10-11 (D. Me. June 23, 2022) (following Bernier). Higgins further predicted that Maine state courts would defer to the state legislature on any such extension of tort liability. Id. at *10. Accord Millett v. Atlantic Richfield, 2000 WL 359979 (Me. Super. March 2, 2000) (refusing to certify no-injury medical monitoring class), appeal dismissed, 760 A.2d 260 (Me. 2000).
Maryland recognizes medical monitoring without present physical injury, but only as a remedy in hazardous exposure situations. In Maryland, medical monitoring is a “compensable element of damage under traditional tort theories of recovery,” not an independent claim. Exxon Mobil Corp. v. Albright, 71 A.3d 30, 77 (Md. 2013) (citation omitted), modified in part on other grounds, 71 A.3d 150 (Md. 2013). Such monitoring is available only when, “to a reasonable degree of medical certainty, [it is] necessary in order to diagnose properly the warning signs of disease.” Id. at 78 (citation omitted). To recover, and to prevent “speculative” claims, a plaintiff must (a) prove “exposure to a known hazardous substance”; (b) show a “reasonably certain” and “significantly” increased risk of contracting a “serious illness or disease”; (c) present expert testimony, “particularized to [each] plaintiff,” establishing “quantifiable, reliable indicia” of the increased risk; (d) demonstrate that the increased risk is a “direct and proximate result” of the defendant’s “tortious” conduct; (e) prove that medical monitoring is “necessary to detect the potential onset of the “serious illness or disease”; and (f) show that the “nature and extent” of medical monitoring is “greater than that which should be undertaken by the general population.” Id. at 78-79 (citations omitted); see also Exxon Mobil Corp. v. Ford, 71 A.3d 105, 132-33 (Md. 2013) (judgment n.o.v. where expert “could not predict which [property] might become contaminated in the future or when”). Funds for any monitoring must be disbursed from a court-supervised fund. Albright, 71 A.3d at 80-81.
Massachusetts rejects no-injury medical monitoring. In medical monitoring cases, Massachusetts retains present physical injury as an essential element, although demonstrable sub-cellular damage qualifies. Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 901 (Mass. 2009).
Negligence in the abstract does not support a cause of action. A negligence action may not be maintained unless one has suffered injury or damage. Under our law of negligence, injury and damages are integrally related: there can be no invasion of the rights of another unless legal damage is caused, and for that reason nominal damages cannot be recovered.
Id. at 899 (citations and quotation marks omitted). In a medical monitoring action, an allegation of “present injury in the form of objectively observable and identifiable damage to the[ir] tissues” will suffice. Id. at 898. This requirement of “at least a corresponding subcellular change” caused by exposure “address[es] any concern over false claims.” Id. at 901 (citation omitted). Thus, Donovan did not recognize no-injury medical monitoring, but left that question “for another day.” Id. at 901. Without expert proof of at least subcellular injury, medical monitoring is not recoverable in Massachusetts. Genereux v. Raytheon Co., 754 F.3d 51, 56-57 (1st Cir. 2014) (refusing to read Donovan as allowing no-injury medical monitoring) (applying Massachusetts law).
Beyond present injury, the other elements of a Massachusetts medical monitoring claim are: (a) that the defendant was negligent; (b) that the negligence caused the plaintiff’s exposure to a hazardous substance; (c) that the exposure substantially increased the risk of serious disease or injury; (d) that effective medical monitoring for reliable early detection exists; (e) that prompt and effective treatment exists that, with early detection, significantly decreases the plaintiff’s risk of death or the severity of injury; (f) that the proposed medical monitoring is reasonably, and periodically, necessary, under the relevant standard of care; and (g) the present value of the reasonable cost of such tests and care, as of the filing date of the complaint. Donovan, 914 N.E.2d at 902 (citation omitted). Expert testimony regarding these elements is required. Id.
Michigan rejects no-injury medical monitoring. “Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim [for medical monitoring] under Michigan’s common law.” Henry v. Dow Chemical Co., 701 N.W.2d 684, 686 (Mich. 2005) (emphasis original).
It is no answer to argue, as plaintiffs have, that the need to pay for medical monitoring is itself a present injury sufficient to sustain a cause of action for negligence. In so doing, plaintiffs attempt to blur the distinction between “injury” and “damages.” While plaintiffs arguably demonstrate economic losses that would otherwise satisfy the “damages” element of a traditional tort claim, the fact remains that these economic losses are wholly derivative of a possible, future injury rather than an actual, present injury. A financial “injury” is simply not a present physical injury, and thus not cognizable under our tort system.
Id. at 691 (emphasis original); see also id. at 701 (“plaintiffs’ medical monitoring claim is not cognizable under our current law”; “recognition of this claim would require both a departure from fundamental tort principles and a cavalier disregard of the inherent limitations of judicial decision-making”).
Minnesota does not recognize no-injury medical monitoring. When medical monitoring is sought, Minnesota retains present physical injury as an essential element, although demonstrated, “real and present physical and biologic injury” in the form of sub-cellular damage qualifies. Bryson v. Pillsbury Co., 573 N.W.2d 718, 721 (Minn. App. 1998) (“subcellular damage” may suffice to prove the required present injury in a medical monitoring case if the jury concludes that it constitutes ‘injury’”); see also In re NHL Players’ Concussion Injury Litigation, 327 F.R.D. 245, 264 (D. Minn. 2018) (“Plaintiffs must prove that they incurred cell damage (injury) as a result of being exposed to the hazard”); Werlein v. United States, 746 F. Supp. 887, 901 (D. Minn. 1990) (same as to “actual physical injury in the form of chromosomal breakage, and damage to the cardiovascular and immunal systems”), class certification vacated, 793 F. Supp. 898 (D. Minn. 1992).
Bryson also required a quantified “more likely than not” claimed increased risk of future disease. 573 N.W.2d at 721 (expert admission that the “increased risk . . . could not be measured or quantified . . . does not, as a matter of law, permit a factfinder to determine that [plaintiff] is more likely than not to develop cancer”). Several other courts have declined to find that Minnesota allows medical monitoring claims at all. In re St. Jude Medical, Inc., 425 F.3d 1118, 1211 (8th Cir. 2005) (declining to address merits) (applying Minnesota law); Thompson v. American Tobacco Co., 189 F.R.D. 544, 552 (D. Minn. 1999) (“Given the novelty of the tort of medical monitoring and that the Minnesota Supreme Court has yet to recognize it as an independent theory of recovery, this Court is not inclined at this time to find that such a tort of exists under Minnesota law.”); Paulson v. 3M Co., 2009 WL 229667 (Minn. Dist. Jan. 16, 2009) (rejecting independent medical monitoring action); Palmer v. 3M Co., 2007 WL 1879844, at *3 n.8 & *14 n.30 (Minn. Dist. June 19, 2007) (same). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 763 (D.N.J. 2021) (including Minnesota as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
Mississippi “does not recognize a claim for medical monitoring based on increased risk of future disease.” Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 5 (Miss. 2007).
[E]xposure to a dangerous substance is not an injury. Exposure to a potentially harmful substance does not in itself constitute a personal injury. Persons who allege only exposure are asking for a remedy without a wrong. Therefore, plaintiffs have a claim for harm which is not compensable under Mississippi law. Accordingly, it would be contrary to current Mississippi law to recognize a claim for medical monitoring allowing a plaintiff to recover medical monitoring costs for mere exposure to a harmful substance without proof of current physical or emotional injury from that exposure.
Id. at 5-6 (citations and quotation marks omitted). Thus, “in response to the question . . . whether Mississippi recognizes a medical monitoring cause of action without a showing of physical injury this Court has previously refused to recognize such an action and in accordance with Mississippi common law continues to decline to recognize such a cause of action.” Id. at 7.
Missouri recognizes medical monitoring without present physical injury, but only as a “theory of recovery [that] accounts for the latent nature of injuries stemming from exposure to toxins,” and not in routine product liability litigation. Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 718 n.7 (Mo. 2007). To recover, a medical monitoring plaintiff must be at a significantly increased risk of disease. Id. at 718. Such plaintiffs must also prove that proposed “medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease.” Id.
Beyond that, Meyer declined “to establish precisely what must be proven in order to recover medical monitoring damages.” Id. at 718 n.7. Filling this void, subsequent Missouri precedent has determined that medical monitoring is only a remedy, not an independent tort. Moore v. Scroll Compressors, LLC, 632 S.W.3d 810, 819 (Mo. App. 2021) (“Missouri law does not recognize medical monitoring as a separate cause of action.”); Ballard v. National Football League Players Ass’n, 123 F. Supp.3d 1161, 1172 & n.8 (E.D. Mo. 2015) (no-injury medical monitoring “derivative” of traditional tort claims). Other Missouri precedent has further narrowed the medical monitoring remedy to toxic torts, not product-related cases. “By [Meyer’s] own definition of a medical monitoring claim, [it] does not apply to potential latent injuries resulting from anything other than exposure to toxic substances,” and specifically “does not support medical monitoring claims in garden variety products liability cases.” Ratliff v. Mentour Corp., 569 F. Supp.2d 926, 928-29 (W.D. Mo. 2008).
Montana state appellate courts have not opined on no-injury medical monitoring claims, and trial court rulings are mixed. Compare Lamping v. American Home Products, Inc., 2000 Mont. Dist. Lexis 2580, at *14 (Mont. Dist. Feb. 21, 2000) (“conclud[ing] that public policy dictates Montana’s recognition of an independent cause of action for medical monitoring”), with In re Zantac (Ranitidine) Products Liability Litigation, 546 F. Supp.3d 1152, 1167 (S.D. Fla. 2021) (declining to recognize medical monitoring under Montana law; refusing to follow Lamping, noting that the decision “is more than twenty years old, is unpublished, has not been acknowledged by other Montana courts, and only recognized medical monitoring on that case’s specific facts”).
No Nebraska decision has ever recognized no-injury medical monitoring. See Trimble v. ASARCO, Inc., 232 F.3d 946, 963 (8th Cir. 2000) (“agree[ing] with district court that it was ‘improbable that the Nebraska courts would judicially fashion such a right or remedy”) (applying Nebraska law), abrogated on non-relevant grounds, Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 551-52 (2005); accord Avila v. CNH Am., LLC, 2012 WL 13187721, at *5 (D. Neb. Aug. 30, 2012) (“Nebraska tort law does not permit the cost of future medical monitoring to be recovered as damages by an individual who has no present physical injury.”); Schwan v. Cargill, Inc., 2007 WL 4570421, at *1-2 (D. Neb. Dec. 21, 2007) (“Nebraska law does not recognize a claim for medical monitoring when no present physical injury is alleged.”) (citations omitted).
Nevada has recognized no-injury medical monitoring, but only as a remedy and not as an independent cause of action. The Nevada Supreme Court rejects medical monitoring as an independent claim, instead limiting it to a form of relief. See Badillo v. American Brands, Inc., 16 P.3d 435, 437 (Nev. 2001) (“We conclude that Nevada common law does not recognize a medical monitoring cause of action but the remedy of medical monitoring may be available.”). In Sadler v. PacifiCare, 340 P.3d 1264 (Nev. 2014), the court decided that “a plaintiff may state a cause of action for negligence with medical monitoring as the remedy without asserting that he or she has suffered a present physical injury.” Id. at 1270 (emphasis original).
Sadler provided no additional guidance, deciding that “[a]t this early stage of the district court action, and in light of our treatment of medical monitoring as a remedy, rather than a cause of action, we decline to identify specific factors that a plaintiff must demonstrate to establish entitlement to medical monitoring as a remedy.” Sadler, 340 P.3d at 1272. Thus, the elements of a no-injury medical monitoring in Nevada are almost entirely undefined. A Nevada trial court dismissed a no-injury medical monitoring claim where the plaintiffs were able to obtain such monitoring without any out-of-pocket expense:
[Defendants] facilitated and provided medical monitoring to Plaintiffs . . . free of charge to all of the Plaintiffs. [They] did not incur any costs for their medical monitoring and will not require future medical treatment or any further diagnostics as a result of the alleged [negligence] in 2013. Therefore, [these] Plaintiffs no longer require any medical monitoring.
Vargas v. Summerlin Hospital Medical Center, LLC, 2017 WL 4339738, at *2 (Nev. Dist. Aug. 25, 2017).
New Hampshire (NO)
New Hampshire does not recognize no-injury medical monitoring.
[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 a cause of action in the context of plaintiffs who were exposed to a toxic substance but have no present physical injury.
Brown v. Saint-Gobain Performance Plastics Corp., ___ A.3d ___, 2023 WL 2577257, at *2-3 (N.H. March 21, 2023). “[A]n increased risk of harm is not an injury for purposes of a negligence action,” and “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). Accord Petition of Textiles Coated, Inc., 2023 WL 2584441, at *1 (N.H. March 21, 2023) (same result in companion case to Brown).
New Jersey (YES)
New Jersey has recognized no-injury medical monitoring, but limited it to toxic tort cases. Ayers v. Township of Jackson, 525 A.2d 287, 298 (N.J. 1987), permitted a medical monitoring claim absent present physical injury. Sinclair v. Merck & Co., 948 A.2d 587 (N.J. 2008), then held that such medical monitoring was available only in the “limited circumstances” of toxic torts and could not be sought in product liability cases.
Here, it is not disputed that plaintiffs do not allege a personal physical injury. Thus, we conclude that because plaintiffs cannot satisfy the definition of harm to state a product liability claim under the [product liability statute], plaintiffs’ claim for medical monitoring damages must fail. . . . Plaintiffs’ effort to expand the definition of harm to include medical monitoring is best directed to the Legislature.
Id. at 595 (citation omitted).
Where New Jersey permits medical monitoring, it is “a special compensatory remedy designed to address the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals. It is not easily invoked.” Theer v. Philip Carey Co., 628 A.2d 724, 733 (N.J. 1993). To recover, a plaintiff must (a) have been “directly exposed” to a hazardous substance with a “risk . . . attributable to the exposure”; (b) show that “medical surveillance is required because the exposure caused a distinctive increased risk of future injury”; (c) establish a “require[d]” “course of medical monitoring independent of any other that the plaintiff would otherwise have to undergo”; and (d) “quantify the extent to which [the claimant] may have encountered the substance.” Id. (construing Ayers, 525 A.2d at 312, and Mauro v. Raymark Industries, 561 A.2d 257, 312-13 (N.J. 1989)). In addition, Ayers requires plaintiffs to prove
through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.
525 A.2d at 312-13. See also In re Paulsboro Derailment Cases, 2013 WL 5936991, at *3 (D.N.J. Nov. 4, 2013) (“Plaintiffs will need to produce expert testimony on the significance of the exposure . . ., the nature of the alleged increased risk of diseases, and the value of a monitoring program”); Player v. Motiva Enterprises LLC, 2006 WL 166452, at *9 (D.N.J. Jan. 20, 2006) (“the plaintiff must establish that the risk of serious disease is ‘significant’”) (quoting Ayers), aff’d, 240 F. App’x 513 (3d Cir. 2007).
New Mexico (UNCLEAR)
New Mexico has no authority regarding the availability of no-injury medical monitoring.
New York (NO)
New York does not recognize no-injury medical monitoring. The New York Court of Appeals “conclude[d]” in Caronia v. Philip Morris USA, Inc., “that . . . policy reasons . . . militate against a judicially-created independent cause of action for medical monitoring. Allowance of such a claim, absent any evidence of present physical injury or damage to property, would constitute a significant deviation from our tort jurisprudence.” 5 N.E.3d 11, 18 (N.Y. 2013). “[D]ispensing 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.” Id. at 14. “The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including the costs of implementation and the burden on the courts in adjudicating such claims.” Id. at 18.
New York’s rejection of a no-injury medical monitoring cause of action “did not prevent plaintiffs who have in fact sustained physical injury from obtaining the remedy of medical monitoring . . ., so long as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of action.” Caronia, 5 N.E.3d at 18-19. Several subsequent decisions rely on this language in Caronia to allow medical monitoring claims predicated on present “physical manifestation of or clinically demonstrable presence of toxins in the plaintiff’s body.” Benoit v. Saint-Gobain Performance Plastics Corp., 959 F.3d 491, 501 (2d Cir. 2020) (applying New York law); see In re World Trade Center Lower Manhattan Disaster Site Litigation, 758 F.3d 202, 213 (2d Cir. 2014) (“Medical monitoring is not an independent cause of action under New York law,” and is contingent “on the plaintiff establishing entitlement to damages on an already existing tort cause of action”) (quoting Caronia); Baker v. Saint-Gobain Performance Plastics Corp., 232 F. Supp.3d 233, 250 (N.D.N.Y. 2017) (“under case law cited favorably by Caronia, a plaintiff may show an injury sufficient to seek medical monitoring damages through the accumulation of a toxic substance within her body”), aff’d in pertinent part, 959 F.3d 70 (2d Cir. 2020); Burdick v. Tonoga, Inc., 2018 WL 3355239, at *10 (N.Y. Sup. July 3, 2018) (in table at 110 N.Y.S.3d 219) (plaintiffs have stated a “cognizable claim for medical monitoring based on a present injury, specifically, blood accumulation of [an alleged toxin]”), aff’d, 112 N.Y.S.3d 342 (N.Y. App. Div. 2019). Thus, while detectable, but asymptomatic, injuries are sufficient, a “stand-alone claim for medical monitoring under New York law . . . would be futile.” Macuka v. Le Creuset of America, Inc., 2019 WL 955344, at *3 (E.D.N.Y. Feb. 27, 2019).
North Carolina (NO)
North Carolina “has rejected outright an independent medical monitoring claim as well as a medical monitoring claim as the measure of damages.” In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, 2021 WL 364663, at *25 n.38 (D.N.J. Feb. 3, 2021) (applying North Carolina law). Curl v. American Multimedia, Inc., 654 S.E.2d 76, 81 (N.C. App. 2007), refused to create a “new cause of action” for no-injury medical monitoring because “recognition of the increased risk of disease as a present injury, or of the cost of medical monitoring as an element of damages, will present complex policy questions. We conclude that balancing the humanitarian, environmental, and economic factors implicated by these issues is a task within the purview of the legislature and not the courts.”); accord Priselac v. Chemours Co., 2022 WL 909406, at *3 (E.D.N.C. March 28, 2022) (“without a present physical injury, medical monitoring because of increased risk of illness is not cognizable as an independent cause of action or an element of damages under North Carolina law”); Nix v. Chemours Co. FC, LLC, 456 F. Supp.3d 748, 764-65 (E.D.N.C. 2019) (dismissing no-injury medical monitoring under Curl); Carroll v. Litton Systems, Inc., 1990 WL 312969, at *51-53, 87 (Mag. W.D.N.C. Oct. 29, 1990) (“this court should not recognize a common law claim for the costs of medical monitoring in the absence of clear direction from the North Carolina courts or legislature”), adopted 1991 WL 187277, at *2 (W.D.N.C. July 15, 1991), aff’d in part and rev’d in part on non-relevant grounds mem., 47 F.3d 1164 (4th Cir. 1995), cert. denied, 516 U.S. 816 (1995).
North Dakota (NO)
North Dakota does not recognize no-injury medical monitoring. See Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505, 518-19 (D.N.D. 2005) (“North Dakota requires a legally cognizable injury . . . before damages may be awarded”; “a plaintiff would be required to demonstrate a legally cognizable injury to recover any type of damages . . ., including a medical monitoring claim”); North Dakota Dept. of Health v. Burlington Northern & Santa Fe Railway Co., 2004 WL 6225407, at *1 (N.D. Dist. Sept. 8, 2004) (“medical monitoring claims are speculative and lack sufficient standards”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 763 (D.N.J. 2021) (including North Dakota as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
Ohio appears to have recognized medical monitoring, but only as an element of damages, not as a standalone claim. Hirsch v. CSX Transportation., Inc., 656 F.3d 359, 363 (6th Cir. 2011) (“assum[ing] that Ohio would recognize” no-injury medical monitoring relief for a negligence claim, while holding that plaintiffs failed to establish any increased risk) (applying Ohio law); Elmer v. S.H. Bell Co., 127 F. Supp.3d 812, 825 (N.D. Ohio 2015) (“medical monitoring is not a cause of action” but rather “a form of damages for an underlying tort claim”); Hardwick v. 3M Co., 2019 WL 4757134, at *7 (S.D. Ohio Sept. 30, 2019) (same); Mann v. CSX Transportation, Inc., 2009 WL 3766056, at *3 (N.D. Ohio Nov. 10, 2009) (same); Day v. NLO, 851 F. Supp. 869, 879 (S.D. Ohio 1994) (a “remedy”). Cf. Wilson v. Brush Wellman, Inc., 817 N.E.2d 59, 63-65 (Ohio 2004) (addressing only injunctive nature of no-injury medical monitoring, but not addressing underlying question of availability of a standalone no-injury medical monitoring claim under Ohio law).
Synthesizing these cases yields the following prerequisites for no-injury medical monitoring recovery. Plaintiffs are required to prove: (a) liability for an established tort, (b) demonstrate exposure to an alleged toxic substance (c) in an amount sufficient to cause a significantly increased risk of disease, and (d) establish the level of increased risk by expert testimony. Hardwick, 2019 WL 4757134, at *9-10; Elmer, 127 F. Supp.3d at 825; Mann, 2009 WL 3766056, at *3; Day, 851 F. Supp. at 881. Further, plaintiffs must present “evidence that a reasonable physician would order medical monitoring for them.” Baker v. Chevron USA, Inc., 533 F. App’x 509, 525 (6th Cir. 2013) (citation omitted) (applying Ohio law); see also Elmer, 127 F. Supp.3d at 825 (similar). Monitoring must occur under the aegis of a court-supervised fund. Wilson, 817 N.E.2d at 64-65.
Oklahoma does not recognize no-injury medical monitoring. See McCormick v. Halliburton Co., 895 F. Supp.2d 1152, 1155-59 (W.D. Okla. 2012) (“the Oklahoma Supreme Court would decline to recognize medical monitoring as a remedy in the absence of any guidance from the Oklahoma legislature”); Taylor v. Michelin North America, Inc., 2018 WL 1569495, at *6 (N.D. Okla. March 30, 2018) (medical monitoring claim dismissed where “plaintiffs have not yet presented evidence of physical injuries attributable to contaminants”); Reece v. AES Corp., 2014 WL 61242 at *7 (E.D. Okla. Jan. 8, 2014) (“Oklahoma law does not allow a remedy for medical monitoring in the absence of an existing disease or physical injury.”); Cole v. Asarco, Inc., 256 F.R.D. 690, 695 (N.D. Okla. 2009) (plaintiffs must “demonstrate an existing disease or physical injury before they can recover the costs of future medical treatment”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 763-64 (D.N.J. 2021) (including Oklahoma as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
Oregon does not recognize no-injury medical monitoring:
Our precedents control this issue, and the differing decisions from the other jurisdictions do not provide a basis for overruling Oregon’s well-established negligence requirements. Following our precedents, we hold that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence.
Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 187 (Or. 2008).
Pennsylvania recognizes no-injury medical monitoring, but only as a remedy for negligent exposure to hazardous substances. Redland Soccer Club, Inc., v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997), held that ”a plaintiff must prove [several] elements to prevail on a common law claim for medical monitoring” in “negligence” only. Such plaintiffs must prove: (a) exposure to a proven hazardous substance; (b) at “greater than normal background levels”; (c) caused by the defendant’s negligence; (d) that as a proximate result of the exposure; (e) plaintiff has a significantly increased risk of contracting a serious latent disease; (f) monitoring exists that makes early detection of the disease possible; (g) the prescribed monitoring regime is different from tests normally recommended in the absence of the exposure; and (h) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. Id. at 145-46.
Thus, plaintiffs must prove all the elements of a common law negligence claim. Barnes v. American Tobacco Co., 161 F.3d 127, 152 (3d Cir. 1998) (applying Pennsylvania law). Accurate tests to establish risk must also exist, In re Paulsboro Derailment Cases, 746 F. App’x 94, 100 (3d Cir. 2018) (applying Pennsylvania law), and expert testimony is required. Gates v. Rohm & Haas Co., 655 F.3d 255, 265 (3d Cir. 2011) (applying Pennsylvania law); Sheridan v. NGK Metals Corp., 609 F.3d 239, 251 (3d Cir. 2010) (applying Pennsylvania law).
Rhode Island (NO)
Rhode Island does not recognize no-injury medical monitoring. Kelly v. Cowesett Hills Assoc., 768 A.2d 425, 430 (R.I. 2001), addressing accrual of causes of action generally, decided that “the possibility of contracting [a disease] resulting from mere exposure . . . is too tenuous to be a viable cause of action”). Following Kelly, Miranda v. DaCruz, 2009 WL 3515196 (R.I. Super. Oct. 26, 2009), held that “case law does not support awarding damages for medical monitoring if the plaintiff only has the potential to contract the medical conditions” but “does not have these physical conditions currently.” The court was “not persuaded to open the damages flood gates to indefinite future monitoring.” Id. at *7.
South Carolina (NO)
South Carolina does not recognize no-injury medical monitoring. See Easler v. Hoechst Celanese Corp., 2014 WL 3868022, at *5 n.5 (D.S.C. Aug. 5, 2014) (no-injury medical monitoring claim “would fail because South Carolina has yet to recognize a cause of action”); Rosmer v. Pfizer, Inc., 2001 WL 34010613, at *5 (D.S.C. 2001) (“South Carolina has not recognized a cause of action for medical monitoring”).
South Dakota (UNCLEAR)
South Dakota has no precedent regarding the availability of no-injury medical monitoring.
Tennessee does not recognize no-injury medical monitoring. See Bostick v. St. Jude Medical, Inc., 2004 WL 3313614, at *14 (W.D. Tenn. Aug. 17, 2004) (dismissing no-injury medical monitoring claim; “Tennessee requires present injury for medical monitoring claims.”); Jones v. Brush Wellman, Inc., 2000 WL 33727733, at *8 (N.D. Ohio Sept. 13, 2000) (“No Tennessee cases support a cause of action for medical monitoring in the absence of a present injury.”) (applying Tennessee law). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 764 (D.N.J. 2021) (including Tennessee as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
A footnote in Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568, 575 n.7 (6th Cir. 2005), suggesting that “although Tennessee law is murky on the issue of whether claims for [no-injury] medical monitoring are cognizable, there are reasons why such claims are most probably proper,” is dicta, since Sutton expressly declined to decide whether Tennessee would “allow a claim for medical monitoring where no physical injury or property damage manifests itself.” 419 F.3d at 575. Sutton did not purport overrule prior district court precedent rejecting no-injury medical monitoring in Tennessee. Moreover, Story v. Bunstine, 538 S.W.3d 455 (Tenn. 2017), a post-Sutton legal malpractice case, reaffirmed that a plaintiff alleging negligence “must suffer legally cognizable damage − an actual injury” in order to have a claim. Id. at 463.
Texas has never recognized no-injury medical monitoring. Rather, the Texas Supreme Court has rejected tort liability for “the possibility of future consequences from what is now an inchoate risk.” Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88, 93 (Tex. 1999). Under Temple, no basis exists for embracing no-injury medical monitoring. See McManaway v. KBR, Inc., 2015 WL 13322054, at *3 (S.D. Tex. Jan. 23, 2015) (summary judgment granted against medical monitoring claims because “Plaintiffs have failed to show that they have any current physical injury based upon their exposure”; following Temple-Inland); Norwood v. Raytheon Co., 414 F. Supp.2d 659, 665, 668 (W.D. Tex. 2006) (“[T]he Texas Supreme Court appears disposed to rely on the same policy considerations in rejecting medical monitoring claims that it relied on in rejecting mental anguish claims in the absence of a present physical injury. . . . [A]lthough some jurisdictions have recognized a medical monitoring tort, Texas appears unlikely to adopt medical monitoring as a cause of action if confronted with the issue.”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 764 (D.N.J. 2021) (including Texas as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”). Cf. Downer v. Simon Property Group Texas L.P., 2009 WL 2199352 (Tex. Dist. May 28, 2009) (granting motion in limine to exclude “[a]ny and all references to or evidence of Plaintiff’s claimed cost of medical monitoring and prevention in the future damages because that is not a recoverable element of damages under Texas law”).
Utah recognizes no-injury medical monitoring, but only as a remedy for negligent exposure to hazardous substances. Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993), permitted an independent cause of action for medical monitoring. Id. at 979. The cause of action requires: (a) exposure to a “toxic substance”; (b) caused by the defendant’s negligence; (c) producing an increased risk of a serious disease, illness, or injury; (d) for which a medical test allowing early detection exists; (e) that a qualified physician would prescribe under current scientific principles; (f) so that effective early treatment could cure or mitigate the course of the malady. Id. at 979-80. Further, proof of the Hansen causation/need elements are explicitly plaintiff-specific. Id. at 980 (“It also must be shown that administration of the test to a specific plaintiff is medically advisable for that plaintiff.”).
Vermont is the only state with a statute authorizing claims for no-injury medical monitoring, but the statute only allows no-injury medical monitoring claims in environmental cases. The increased risk at issue must be “linked to exposure to a proven toxic substance,” Vt. Stat. tit. 12, § 7201, and only an “owner or operator of a large facility” may be sued. Id. § 7202(a). The statute specifies that a plaintiff must prove “exposure at a rate significantly greater than the general population” and that “the increased risk makes it medically necessary for the plaintiffs to undergo periodic medical examination different from that prescribed for the general population in the absence of exposure.” Id. Further, the plaintiff has the burden of identifying “monitoring procedures . . . that are reasonable in cost and safe in use.” Id. A “court-supervised medical monitoring program” is mandatory. Id. § 7202(b). Other than limiting the universe of potential defendants, the statute largely tracks the prior elements of common-law medical monitoring stated in Sullivan v. Saint-Gobain Performance Plastics Corp., 431 F. Supp. 3d 448, 467 (D. Vt. 2019).
Virginia does not recognize no-injury medical monitoring. See Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir. 1991) (only plaintiffs who have “demonstrated that they are suffering from a present, physical injury” are “entitle[d] . . . to recover medical surveillance costs under . . . Virginia law”) (applying Virginia law); In re All Pending Chinese Drywall Cases, 2010 WL 7378659, at *9-10 (Va. Cir. March 29, 2010) (no-injury medical monitoring is a “‘novel’ or ‘innovative’ remed[y] that depart[s] from Virginia common-law or legislative authority” and thus “is one for the legislature and not the courts”) (citations omitted).
Washington does not recognize no-injury medical monitoring. See DuRocher v. Riddell, Inc., 97 F. Supp.3d 1006, 1014 (S.D. Ind. 2015) (“the State of Washington does not recognize a standalone claim for medical monitoring”) (applying Washington law); Krottner v. Starbucks Corp., 2009 WL 7382290, at *7 (W.D. Wash. Aug. 14, 2009) (“no Washington court has recognized a cause of action or remedy in which the sole injury is an increased risk of a future harm” such as “medical monitoring”), 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) (finding “no compelling reason for this Court to create . . . a new separate tort of medical monitoring”). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 764 (D.N.J. 2021) (including Washington as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”).
West Virginia (YES)
West Virginia has recognized no-injury medical monitoring, but only in toxic exposure cases. Plaintiffs seeking medical monitoring expenses under West Virginia law must “prove that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant’s tortious conduct.” Bower v. Westinghouse Electric Corp., 522 S.E.2d 424, 426 (W. Va. 1999) (syllabus, point 2). “[U]nderlying liability must be established based upon a recognized tort.” Id. at 433, see In re Opioid Litigation, 2023 W.V. Cir. Lexis 3, at *28-29 (W.V. Cir. May 31, 2023) (medical monitoring dismissed upon failure of all other tort claims). The essential elements are: (a) that the plaintiff has, relative to the general population, been significantly exposed to a proven hazardous substance; (b) through the defendant’s tortious conduct; (c) and as a proximate result of that exposure; (d) plaintiff has an increased risk of a serious latent disease; (e) and the increased risk makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical tests; (f) different from those prescribed in the absence of the exposure; (g) and monitoring procedures exist that make the early detection of a disease possible. Id. at 426 (syllabus, point 3).
Bower requires that plaintiffs “must present scientific evidence demonstrating a probable link between exposure to a particular compound and human disease,” and must show a “significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure.” Id. at 433. “Diagnostic testing must be ‘reasonably necessary’ in the sense that it must be something that a qualified physician would prescribe based upon the demonstrated exposure to a particular toxic agent.” Id. A court supervised fund is not necessary, but allowed. Bowers, 522 S.E.2d at 434; In re West Virginia Rezulin Litigation, 585 S.E.2d 52, 57 (W. Va. 2003) (syllabus, point 14). In West Virginia, “punitive damages [can] not be awarded for the medical-monitoring claim.” Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815, 825 (W. Va. 2010) (syllabus, point 7).
The “injury” required to prove a medical monitoring claim is a “significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure.” Thus, under the decision in Bower, a plaintiff seeking medical monitoring as an element of damages for a traditional common law tort must still prove the required elements of that tort to obtain medical monitoring relief.
Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 98 (4th Cir. 2011) (applying West Virginia law).
Wisconsin does not recognize no-injury medical monitoring. “Mere exposure to a dangerous substance is not an actual injury” nor is “medical monitoring.” Alsteen v. Wauleco, Inc., 802 N.W.2d 212, 216, 218 (Wis. App. 2011). “[A] plaintiff in Wisconsin must allege actual, present injury in order to state a tort claim,” and “allowing a medical monitoring claim absent present injury would constitute a marked alteration in the common law.” Id. at 223 (citations omitted). Accord In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp. 3d 679, 764 (D.N.J. 2021) (including Wisconsin as a jurisdiction that “do[es] not allow a medical monitoring relief without a present physical injury”); In re National Hockey League Players’ Concussion Injury Litigation, 327 F.R.D. 245, 260 & n. 12 (D. Minn. 2018) (including Wisconsin as a state recogniz[ing] medical monitoring only if the plaintiff has a manifest physical injury”).
Wyoming has no authority regarding the availability of no-injury medical monitoring. In In re Copley Pharmaceutical, Inc., 161 F.R.D. 456, 469 (D. Wyo. 1995), a Wyoming federal court denied a motion to dismiss medical monitoring claims, but that decision involved plaintiffs from all 50 states, and it nowhere discussed Wyoming law.