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. …