The Abnormal Use Review of the ABA Joint CLE Seminar in Colorado

This past weekend, the ABA Section of Litigation once again held a successful joint CLE seminar of the Environmental, Mass Torts and Products Liability Committees. The destination was certainly a great attraction. Who can beat Aspen, Colorado and its beautiful slopes (not to mention that the Winter X Games 15 were held this very same weekend!). The conference featured broad and familiar topics (Medicare Secondary Payer reporting and repayment obligations – now a staple at all conferences) but also specific products liability updates.

The Products Liability Committee held two break-out sessions, the first of which was devoted to medical monitoring damages. The panel presentation on this topic was moderated by Rudy Perrino of Fulbright & Jaworski, L.L.P., and included speakers Scott DeVries of Winston & Strawn, L.L.P. (to provide the defense perspective), and Andrew J. “Duke” Maloney, III, of Kreindler & Kreindler, L.L.P. (to provide the plaintiff’s perspective). Whereas medical monitoring damages have not really been addressed in South Carolina, they have come into play in many other states, with the current majority refusing to recognize them. In essence, medical monitoring damages are those that could be awarded to a plaintiff seeking to monitor the long-term effects of an injury or residual effects of exposure to chemicals, radiation or pharmaceuticals, resulting in an increased risk of developing disease or injury in the future. The issue presents some challenges for both parties to litigation and the courts, particularly in the context of alleged toxic exposure that initially does not result in evident injury.

From a defense perspective, the number of plaintiffs could become quite large, imposing a heavy expense over an extended period of time. Further, if a defendant agrees to pay for long-term medical monitoring damages, the defendant is essentially building an apparatus to allow a plaintiff to potentially come back for additional damages if or when the plaintiff develops some sort of disease. As the plaintiff will see it, the defendant has been paying to monitor him or her for disease and, if they indeed develop disease (regardless of whether it was actually caused by the prior exposure versus some alternative cause or whether that plaintiff would have developed the disease without the exposure), that plaintiff has a basis to come back to the defendant. Moreover, a defendant does not want to be required to pay for regular medical care and physical exams that an individual should be seeking anyway. Additionally, there are the side effects that could develop from the testing itself (such as the increased risk of developing cancer from having a yearly MRI for instance, if such a procedure were a part of the recommended monitoring).

From the plaintiff’s perspective, a tort has already occurred, and the plaintiff deserves to be monitored for future injury, should that plaintiff choose to do so. If there is an increased risk of disease as a result of the testing itself, that risk should be one decided by the plaintiff. Additionally, the plaintiffs’ bar suggests that their clients still must prove that the disease that has developed was, in fact, caused by the prior alleged toxic exposure. Of course, the concession that causation will still be on the table does not alleviate the concerns of the defense bar. The very fact that a plaintiff has previously been awarded medical monitoring damages to detect the development of the very type of condition caused by the prior exposure bestows upon the plaintiff some type of litigation advantage. Indeed, it would be nearly impossible for a defendant to take the position that the disease is idiopathic in light of the past monitoring for that very condition.

The issue is bound to present difficult issues for the courts. For instance, what if a state demands evidence of physical injury in order for a plaintiff to receive an award of medical monitoring damages, an expert establishes that there were subcellular changes that will make the plaintiff more susceptible of developing cancer (even though there is no evident injury at present), and the plaintiff later develops cancer? A defendant, understandably enough, is likely to argue that the plaintiff is barred by the statute of limitations. The plaintiff, through an expert, already made the case for the injury in order to obtain the medical monitoring damages in the first place. Then there is the issue of what care should comprise the medical monitoring and who should conduct it. Medical professionals often don’t agree on what tests should be performed to check for various disease and how often they should be done. Moreover, the plaintiff’s and defense attorneys are very likely not going to trust the other side to select the care providers.

Overall, the issues surrounding medical monitoring made for a very interesting debate. The presenters believe that the issue will be a developing one that litigators will eventually encounter, and the plaintiff’s bar, at least, believes that the trend will be to allow such damages. A prime example is the recent federal legislation to allow medical care for those who worked at Ground Zero following the September 11 terrorist attacks. Whereas federal courts have rejected medical monitoring claims absent physical injury, the legislation circumvented that common law in handling this high-profile issue. We will be interested to watch the development of this issue over the next few years and see if the prediction of an increase in such awards comes to fruition.

We could not close out this report without mentioning friend of the blog James Beck, one of the authors of the Drug and Device Law Blog. He spoke at this seminar on new developments in litigation, particularly on the American Law Institute’s new Principles of the Law of Aggregate Litigation. He has a commanding presence as a speaker and gave an enjoyable presentation.

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