Arguments Not Raised: How the Plaintiffs' Missed Opportunity Led to the Tenth Circuit's Decision in June V. Union Carbide Corp

By White, Nathan | Brigham Young University Law Review, January 1, 2011 | Go to article overview

Arguments Not Raised: How the Plaintiffs' Missed Opportunity Led to the Tenth Circuit's Decision in June V. Union Carbide Corp


White, Nathan, Brigham Young University Law Review


I. INTRODUCTION

At first glance, the Tenth Circuit's decision in June v. Union Carbide Corp.1 is an unremarkable one. The court reaches what appears to be a reasonable result in interpreting the Price-Anderson Act to exclude medical monitoring claims, and the case mirrors the reasoning of a sister circuit in doing so. But while die court presents its reasoning as a matter of simple statutory interpretation, the court's holding fails to take into account or even mention its own reversal of previous Price -Anderson jurisprudence in the Tendi Circuit. Thus, the most striking aspect of the opinion is the court's lack of awareness that it is reversing itself.

Indeed, the plaintiffs failed to stress to the court that a previous panel of the Tenth Circuit had decided die issue in Building <& Construction Department v. Rockwell International Corp? Although die plaintiffs mentioned Building & Construction Department in their brief, they mostly cited it only to establish that the Tendi Circuit had previously approved of medical monitoring claims in general.3 The plaintiffs failed to emphasize die fact that Building & Construction Department had decided die precise issue of whether a medical monitoring claim constitutes a claim for "bodily injury" under the Price-Anderson Act.4 This oversight may have directly led to a decisive swing in favor of denying all such claims under die Act - an issue on which there remains a split in the circuits.

This Note begins with a brief history of medical monitoring claims, the Price-Anderson Act, and die relevant jurisprudence in those areas. The Note then recaps the Tenth Circuit's decision in June. Next, die Note analyzes the June decision and the alternate paths that decision could have taken had the court relied on Building & Construction Department - as the plaintiffs should have more pointedly asked it to do. The Note concludes by noting the potential nationwide consequences of the plaintiffs' failure to rely more heavily on Building & Construction Department in presenting their case to the court.

II. CONTEXT AND BACKGROUND

This Part of the Note will examine the relevant statutory audiority and case law informing the Tenth Circuit's decision in June. This examination will begin with a brief discussion of the law regarding medical monitoring claims followed by a synopsis of die relevant provisions of the Price-Anderson Act. The Note will then survey the approaches the various circuits have taken in dealing with medical monitoring claims brought under the Act.

A. Medical Monitoring Claims

Medical monitoring first arose as an independent cause of action in die 1980s.5 Philosophically, medical monitoring claims are based on the proposition that a person has "an interest in avoiding expensive medical evaluations caused by die tortious conduct of others."6 Thus, it is appropriate for the tortfeasor to pay for die diagnostic costs of an event carrying with it a risk of injury "that is neither inconsequential nor of a kind die community generally accepts as part of die wear and tear of daily life."7

An early case based the decision to award medical monitoring costs to asymptomatic plaintiffs on the following hypodietical:

Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.8

The D. C. Circuit, in examining this scenario, stated "diat even in the absence of physical injury Jones ought to be able to recover the cost for the various diagnostic examinations proximately caused by Smith's negligent action."9

Courts initially found this sort of reasoning persuasive, and over the next several years multiple jurisdictions adopted medical monitoring as an independent cause of action. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Arguments Not Raised: How the Plaintiffs' Missed Opportunity Led to the Tenth Circuit's Decision in June V. Union Carbide Corp
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.