Academic journal article Defense Counsel Journal

Requests for Class Action Certification of Medical Monitoring Claims

Academic journal article Defense Counsel Journal

Requests for Class Action Certification of Medical Monitoring Claims

Article excerpt

IADC member Richard P. Campbell is a founder of Campbell & Associates P.C, a New England regional law firm based in Boston and engaged in both civil and criminal litigation. A graduate of the University of Massachusetts (B.A. 1974) and the Boston College Law School (J.D. 1974), he concentrates in the defense of major toxic tort, products liability and environmental cases.

Michelle I. Schaffer is an associate at the same firm. She is a graduate of Tufts University (B.A. 1985) and Northeastern University School of Law (J. D. 1988).

THERE continues to be an increase in the number and complexity of cases in which plaintiffs seek class action certification of personal injury claims arising from acute or long-term exposure to toxic substances.(1) The class representatives usually include several categories of claimants--persons alleged to have sustained the toxic exposure, as well as their estates, spouses and children. And the certification tends to be sought on multiple causes of action that extend beyond traditional theories of recovery. The multiple count complaints routinely include causes of action for negligence, breach of warranty, strict products liability, fraud, misrepresentation, negligent or intentional infliction of emotional distress, violation of consumer protection statutes, and conspiracy.

For defendants, one of the most significant trends in these cases is that plaintiffs' counsel are seeking to expand the scope of recovery by including class-wide claims for medical monitoring, by which plaintiffs seek compensation for a toxic exposure that not yet has produced any physical manifestation of injury or disease.

When courts are faced with evaluating requests for class action treatment of toxic exposure-related medical monitoring claims, they must balance two competing considerations. Although the treatment on a class-wide basis of the individualized questions of liability, causation and damages presented in toxic tort cases runs contrary to the requirements of Rule 23 of the Federal Rules of Civil Procedure and its state counterparts, courts consider and in some cases approve class certification of certain toxic exposure cases to achieve judicial economy. In light of the broad discretion enjoyed by courts in determining whether an action is maintainable as a class action, it is defense counsel's challenge in opposing certification of claims for medical monitoring to demonstrate that the individual issues dominate so that little or no efficiency would be achieved by consolidation of the claims in one action.

What are the issues courts must consider in evaluating class action certification requests for medical monitoring claims in toxic exposure cases? What are the reasons that courts generally find certification to be inappropriate for such claims?

MEDICAL MONITORING CLAIMS

Claims for medical monitoring are becoming routine in cases arising from acute or long-term exposure to toxic substances.(2) Class-wide claims for medical monitoring are commonly asserted as potentially affording compensation to broad groups of plaintiffs who have sustained a toxic exposure but have no present physical manifestation of disease or injury other than the exposure.(3) Although the viability of a cause of action for medical monitoring has not yet been addressed in many jurisdictions, most courts that have recognized such claims have determined that even in the absence of physical disease, a plaintiff should be able to recover the cost of diagnostic medical evaluation proved to be proximately caused by the defendant's wrongdoing.(4)

As one court explained:

In recent years medical science has come to understanding

that certain exposures can cause a disease

with a protracted latency period, which may

not manifest itself for many years. Under these

circumstances a prudent physician could order

preventative measures and periodic future testing,

in order to have the best opportunity for early detection

and treatment of die full blown disease, if

and when it might manifest itself. …

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