Academic journal article Defense Counsel Journal

Medical Monitoring in Drug and Medical Device Cases: Taking the Temperature of a New Theory

Academic journal article Defense Counsel Journal

Medical Monitoring in Drug and Medical Device Cases: Taking the Temperature of a New Theory

Article excerpt

Many state courts have not confronted the issue, so class action plaintiffs shouldn't get in federal court what they can't in state court

ON ITS FACE, medical monitoring relief has a seductive appeal. What could be more reasonable, after all, than providing an opportunity for those who have taken a drug or have had a possibly defective medical device placed in their bodies from receiving ongoing medical monitoring to detect the early onset of symptoms and to receive care to treat--or even prevent--medical problems related to the ingestion or defect. Medical monitoring arguably serves public policy interests by protecting the innocent users of medical products from the medical technology industry's mistakes, by placing the costs of such mistakes on the responsible party rather than on public and private insurers, and even by benefiting defendants by minimizing the number of serious injuries that could result in costly litigation and potential punitive damages awards.

This superficial appeal, however, hides a darker reality. At its core, medical monitoring relief fundamentally alters one of the cornerstones of the civil justice system, because it allows recovery on behalf of one who has, by definition, sustained no injury and might not sustain an injury in the future. It permits a finding of liability against a defendant even when no harm has befallen the plaintiff. Moreover, an entitlement to medical monitoring relief likely will not bar a plaintiff from suing again if the drug or medical device causes injury in the future. The costs of a medical monitoring program, therefore, are likely to outweigh significantly any purported benefit to the defendant in minimizing future defense costs.

This article traces the history of the medical monitoring theory of recovery and discusses some defenses that can be offered to combat both medical monitoring as a theory of relief and the certification of a medical monitoring class action, the most common form under which such relief is sought.


The medical monitoring theory of relief has two principal sources in the case law, one from a federal court of appeals and one from the New Jersey Supreme Court. Between them, these two cases defined the parameters of medical monitoring. They are so often quoted that they are crucial to an understanding of this theory of relief.

A. Friends for All Children

The earliest case to recognize a right to sue for medical monitoring is Friends for All Children Inc. v. Lockheed Aircraft Corp., decided in 1984,(1) which involved the decompression of an aircraft carrying Vietnamese children being evacuated from Saigon at the end of the Vietnam war. The entity that organized the evacuation, Friends for All Children, sued Lockheed, the manufacturer of the aircraft, as the children's legal guardians, seeking recovery for the costs of medical monitoring associated with residual brain dysfunction caused either by the decompression or the resulting crash.

The U.S. Court of Appeals for the District of Columbia Circuit held that the District of Columbia Court of Appeals, the equivalent of a state court for diversity purposes, would find a medical monitoring cause of action if faced with the issue. So holding, the D.C. Circuit recognized the medical monitoring cause of action, using the following example which has been almost universally quoted by other courts confronted with the medical monitoring issue:

      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.(2)

The court concluded that "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. …

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