Amicus Curiae Brief — Metro-North Commuter R. Co. v. Buckley

No. 96-320

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD,

Petitioner,

V.

MICHAEL BUCKLEY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE AND BRIEF OF THE

AMERICAN TORT REFORM ASSOCIATION

IN SUPPORT OF PETITIONER

SHERMAN JOYCE Victor E. SCHWARTZ *

AMERICAN TORT REFORM MARK A. BEHRENS

ASSOCIATION CHRISTOPHER H. Woop

1212 New York Ave., N.W. CROWELL & MoRING LLP

Suite 515 1001 Pennsylvania Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20004-2595

(202) 682-1163 (202) 624-2500

Attorneys for Amicus Curiae

* Counsel of Record

WISO - Eras Printing Co., Inc. - 789-0096 - Waswincron, D.C. 20001

—

IN THE

Supreme Cuurt uf the United States

OCTOBER TERM, 1996

No. 96-320

METRO-NORTH COMMUTER RAILROAD,

Petitioner,

V.

MICHAEL BUCKLEY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

Pursuant to Rule 37 of the Rules of this Court, the

American Tort Reform Association requests leave to

file the accompanying brief as amicus curiae in sup-

port of the petition for writ of certiorari.*

* Petitioner’s letter of consent to the filing of this brief has

been filed with the Court Clerk; Respondents did not consent

to the filing of this brief.

The American Tort Reform Association (“ATRA”),

founded in 1986, is a broad-based, bipartisan coali-

tion of more than 300 businesses, corporations, muni-

cipalities, associations, and professional firms who

have pooled their resources to promote reform of the

civil justice system with the goal of ensuring fairness,

balance, and predictability in civil litigation. For over

a decade, ATRA has filed principal amicus curiae

briefs in cases before this Court that have addressed

important liability issues, including the recent land-

mark punitive damages decision in BMW of North

America, Inc. v. Gore, 116 S. Ct. 1589 (1996).

This case is of major interest to ATRA and its

members, because the Second Cireuit Court of Ap-

peals’ decision to permit a totally asymptomatic plain-

tiff to recover medical monitoring damages under the

Federal Employers’ Liability Act (“FELA”), 45

U.S.C. § 51, inappropriately intrudes on the rulemak-

ing function of Congress. The decision should be re-

versed.

Broad, complex policy issues, such as whether and

under what circumstances damages for medical mon-

itoring can be awarded, are best decided by Congress

and state legislatures. A principal reason is that

legislatures have the ability to consider diverse points

of view and create prospective rules of law. Courts,

on the other hand, are not well-equipped to determine

complex tort policy rules, because they are typically

exposed only to arguments of opposing counsel seek-

ing to advance purely private interests. Further,

when courts “make” law, they do so retroactively.

ATRA is well-suited to further this Court’s under-

standing of the specific policy issues presented by

medical monitoring damages. Accordingly, ATRA

respectfully requests that this Court grant its mo-

tion for leave to file the accompanying brief as amicus

curiae in support of the Petitioner.

Respectfully submitted,

SHERMAN JOYCE Victor E. SCHWARTz *

AMERICAN TorRT REFORM MARK A. BEHRENS

ASSOCIATION CHRISTOPHER H. Woop

1212 New York Ave., N.W. CROWELL & Morinc LLP

Suite 515 1001 Pennsylvania Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20004-2595

(202) 682-1163 (202) 624-2500

Attorneys for Amicus Curiae

Dated: September 30, 1996 * Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............--..--.---------e--ee-eeee-te0s

INTEREST OF AMICUS CURIAE .............................--.

STATEMENT OF THE CAS

REASONS FOR GRANTING THE PETITION ..........

I. CONGRESS AND STATE LEGISLATURES

II.

ARE THE MOST APPROPRIATE FORUMS

TO DETERMINE WHETHER A MEDICAL

MONITORING REMEDY IS NEEDED AND

HOW IT SHOULD BE IMPLEMENTED........

A. Legislatures Are Better Equipped Than

Courts To Address The Broad Public Interest

In Medical Monitoring

B. Legislatures’ Prospective Treatment Of The

Law Is Better Suited For Implementing

Medical Monitoring Awards Than Courts’

Retroactive Treatment Of The LW

COMPLEX ISSUES WHICH SHOULD BE

CONSIDERED BEFORE MEDICAL MONI-

TORING IS AWARDED DEMONSTRATE

WHY LEGISLATURES PROVIDE A BETTER

FORUM THAN COURTS FOR IMPLEMENT-

Ce

A. Legislatures Are In The Best Position To

Establish A Clear And Sound “Trigger” As

To When Medical Monitoring Is Appropriate.

B. Legislatures Are In The Best Position To

Ensure That Medical Monitoring Awards

Serve Their Intended Purpose aoe

C. Legislatures Are In The Best Position To

Ensure That Medical Monitoring Is Only

Used When It Confers A Real Benefit

(i)

10

ii

TABLE OF CONTENTS—Continued

D. Administrative Burdens Detract From Judi-

cial Supervision Of Medical Monitoring

CONCLUSION

Fee TER —— Tee RRR œʃũ—ꝶdQ 4 OOK ree eee cece eeeeees

iii

TABLE OF AUTHORITIES

CASES Page

Ayers v. Township of Jackson, 525 A.2d 287 (N-J.

K —— passim

Ball v. Joy Manufacturing Co., 155 F. Supp. 1344

(S.D. W.Va. 1990), aff'd, 958 F.2d 36 (4th Cir.),

cert. denied, 502 U.S. 1033 (199777 15

BMW of North America, Inc. v. Gore, 116 S. Ct.

. %. 1. 7

Buckley v. Metro-North Commuter R. R., 79 F. gd

1337 (2d Cir.), petition for cert. filed, 65 USLW

r i ele 4

Frankel v. United States, 321 F. Supp. 1331 (E.D.

Pa. 1970), aff'd sub nom. Frankel v. Heym, 466

F.2d 1226 (3d Cir. 19727 8 11

Greenman v. Yuba Power Products, Inc., 59 Cal. 2d

57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) 3

Hansen v. Mountain Fuel Supply Co., 858 P.2d 970

(Utah 1993) AB SL SY 9A — 12

Herber v. Johns-Manville Corp., 785 F.2d 79 (3d

ESE ES PR, Sea oe Ue eee aaa 11

Henningsen v. Bloomfield Motor Co., 161 A. 2d 69

BR ...... 3

In re Paoli R. R. Yard PCB Litigation, 35 F.3d 717

e .... 9

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S.

LN hoe Seay. 11

Lozada ex rel. Lozada v. United States, 140 FR. D.

404 (D. Neb. 1991), fd, 974 F.2d 986 (8th Cir.

r 11

Macpherson v. Buick Motor Co., 111 N. E. 1050

SE —˙—?T—T———— ee a eee 3

Merry v. Westinghouse Elec. Corp., 684 F. Supp.

I es 11

Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa

.. eT 6

Potter v. Firestone Tire and Rubber Co., 863 P. 2d

795 (Cal. 1993 Ae toh Test TA ee a 9,15

Redland Soccer Club v. Dep’t of Army, 55 F.3d 827

(8d Cir. 1995), cert. denied, 116 S. Ct. 772

rr 15

iv

TABLE OF AUTHORITIES-——Continued

Smith v. Cutter Biological, Inc., 823 P.2d 717

r ˙— reeiee : T se

CONSTITUTIONAL AND

STATUTORY MATERIALS

29 C. F. R. § 1910.1001(d), (1) & App. H * 1.

—

29 U.S.C. §§ 6517 ä —

42 U.S. C. § 9604 (i) (9) (A) .......... ä —

1451 . eee

U.S. Const. art. III. § 2, el.. ——

PUBLICATIONS

2 American Law Institute, Enterprise Responsibil-

ity For Personal Injury—Reporters’ Study 254-

FE ee ee en |

Amy B. Blumenberg. Medical Monitoring Funds,

Hastings L.J. 661 (199 2ũ7ᷣö

Lester Brickman, The Asbestos Litigation Crisis:

Is There A Need For An Administrative Alter-

native?, 18 Cardozo L. Rev. 1819 (199277

Steven Carroll and Allan Abrahamse, The Costs Of

Excessive Medical Claims For Automobile Per-

sonal Injuries (RAND Institute For Civil Jus-

II ee

Roger S. Fine, A Personal Perspective from the

“Manufacturer,” 55 Brook L. Rev. 899 (1989)

John G. Fleming, The Collateral Source Rule and

Loss Allocation in Tort Law, 54 Calif. L. Rev.

1 Se eT

Terry C. Gay & Paige F. Rosato, Combatting Fear

Of Future Injury And Medical Monitoring

Claims, 61 Fef. Couns. J. 554 (1993)

Deborah R. Hensler, Fashioning a National Reso-

lution of Asbestos Personal Injury Litigation: A

Reply to Professor Brickman, 13 Cardozo L. Rev.

Cf Ee we ae

Page

9, 11

14

14

*

TABLE OF AUTHORITIES—Continued

Page

Judicial Conference Ad Hoc Committee on Asbestos

Litigation, Report of the Ad Hoc Committee

ERIE PEA SNE oe a passim

Jesse R. Lee, Medical Monitoring Damages: Issues

Concerning the Administration of Medical Moni-

toring Programs, 20 Am. J.L. & Med. 251

EERE EYEE SEE eee 13

Jeffrey O’Connell, Must Health And Disability In-

surance Subsidize Wasteful Injury Suits?, 41

Rutgers L. Rev. 1055 (19899 14

Lee Radford, Medical Monitoring Claims: A Re-

view of the Guide to Clinical Preventive Services,

Toxic L. Rep. 1802 (1996) passim

Restatement Of The Law Of Torts: Products

iAability § 20 (Tent. Draft No. 3 April 5, 1996) 67

Victor E. Schwartz, Tort Law Reform: Strict Lia-

bility And The Collateral Source Rule Do Not

Miz, 39 Vand. L. Rev. 569 (198) 14

Stephen A. Spitz, From Res Ipsa Loquitur to

Diethylstilbestrol: The Unidentifiable Tortfeasor

in California, 65 Ind. L.J. 591 (1990) 5

United States Preventive Services Task Force,

Guide To Clinical Preventive Services (2d ed.

eee ca 9

John W. Wade et al., Prosser, Fade and Schwartz’ 8

Cases and Materials On Torts (9th ed. 1994) 3,14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-320

METRO-NORTH COMMUTER RAILROAD,

0 Petitioner,

MICHAEL BUCKLEY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF

THE AMERICAN TORT REFORM ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The American Tort Reform Association (““ATRA”),

founded in 1986, is a broad-based coalition of more

than 300 businesses, corporations, municipalities, as-

sociations, and professional firms who have pooled

their resources to promote reform of the civil justice

system with the goal of ensuring fairness, balance,

and predictability in civil litigation. For over a dec-

ade, ATRA has filed principal amicus curiae briefs in

cases before this Court that have addressed impor-

tant liability issues, including the recent landmark

punitive damages decision in BMW of North Amer-

ica, Inc. v. Gore, 116 S. Ct. 1589 (1996).

2

This case is of major interest to ATRA and its

numerous members, because the Second Circuit Court

of Appeals’ decision to permit a totally asymptomatic

plaintiff to recover medical monitoring damages under

the Federal Employers’ Liability Act (“FELA”), 45

U.S.C. § 51, intrudes directly on the rulemaking func-

tion of Congress.

Broad and complex tort policy issues, such as medi-

cal monitoring, are more appropriately left to Con-

gress and state legislatures, because of their ability

to hear from a wide array of witnesses and create

prospective rules of law. Courts are not as well-

equipped to resolve such issues, principally because

their perspective is generally limited to arguments

from opposing counsel seeking to advance purely pri-

vate interests. Further, when courts “make” law,

they do so retroactively, denying “fair notice” to the

public about rights and responsibilities that may re-

sult from significant new changes in the law.

ATRA submits this brief to further this Court’s

understanding of the specific policy issues presented

by medical monitoring damages, a core issue in this

case. ATRA urges this Court to grant the petition

for a writ of certiorari.

STATEMENT OF THE CASE

ATRA adopts Petitioner’s summary of the dispute

in question.

3

REASONS FOR GRANTING THE PETITION

I. CONGRESS AND STATE LEGISLATURES ARE

THE MOST APPROPRIATE FORUMS TO DETER-

MINE WHETHER A MEDICAL MONITORING

REMEDY IS NEEDED AND HOW IT SHOULD BE

IMPLEMENTED.

For much of this Nation’s history, courts developed

tort law in a slow, incremental fashion.’ That proc-

ess generally worked well. In recent years, however,

the incremental approach has been abandoned in some

cases, resulting in potentially large adverse conse-

quences to the Nation’s civil justice system and those

who must abide by its rules.

For example, early in the asbestos litigation, courts

empathetic to the claims of asbestos claimants de-

viated from accepted legal principles to permit re-

coveries which traditionally would have been barred.

As the courts lowered legal standards, new plaintiffs

flooded the civil justice system. While the courts in

these cases may have had good intentions, the litiga-

tion turned into a judicial “disaster of major propor-

For example, it took almost fifty years from the time of

then-Judge Cardozo’s landmark decision in MacPherson v.

Buick Motor Co., 111 N.E. 1050 (1916), removing the privity

barrier in product liability negligence cases, before the New

Jersey Supreme Court decided Henningsen v. Bloomfield

Motor Co., 161 A.2d 69 (N.J. 1960), removing the privity

barrier in implied warranty actions involving personal injury.

Three additional years passed before Judge Traynor, writing

for the California Supreme Court, recognized privity-free

strict liability in tort in Greenman v. Yuba Power Products,

Inc., 59 Cal. 2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

Several more years passed before the rule of strict product

liability became the common law of most states. See John W.

Wade et al., Prosser, Wade and Schwartz's Cases and Ma-

terials On Torts 717 (9th ed. 1994).

4

tions.“ People with very serious damages had to wait

long periods of time before courts could hear their

cases; some did not live to obtain a remedy. The

problem of separating out and quickly assisting se-

riously injured persons, now caught in a sea of litiga-

tion, was so great that the judiciary sought congres-

sional intervention to address the crisis, explaining

that the “courts [were] ill-equipped to meet [it]

effectively.“

The legacy of those early decisions continues. In

this case, the Second Circuit Court of Appeals em-

braced a novel theory of recovery (i. e., the award of

“medical monitoring” damages) that is contrary to

traditional common law principles and has been rec-

ognized in only a small number of jurisdictions.* For

over 240 years, the traditional tort law rule has been

that a plaintiff must suffer actual injury before he

or she will receive an award in tort. The rationale of

the rule is that tort law needs some basic boundaries.

Medical monitoring claims raise difficult and com-

plex issues. These issues are extremely broad, and

are not subject to judicial control—on a daily basis,

almost everyone comes into contact with a potentially

limitless number of materials that, arguably, may

warrant a “medical monitoring” remedy.“ Lawyers

2 Judicial Conference Ad Hoc Committee on Asbestos Liti-

gation, Report of the Ad Hoc Committee, at 2 (1991).

Id.

4 See Buckley v. Metro-North Commuter R. R., 79 F.2d 1337

(2d Cir.), petition for cert. filed, 65 USLW 3166 (Aug. 29,

1996).

Everyone is exposed “to potential health hazards each

day through the air they breathe, water they drink, food and

drugs they ingest, and on the land on which they live.” Terry

5

and judges in the courtroom, however helpful, cannot

resolve these issues.

ATRA submits that decisions to establish retroac-

tive, wholesale, and complex changes in liability law,

including the award of damages for medical monitor-

ing, are best addressed by Congress and state

legislatures.“

A. Legislatures Are Better Equipped Than Courts To

Address The Broad Public Interest In Medical

Monitoring.

Courts are particularly well-suited to adjudicate in-

dividual disputes concerning discrete issues and par-

ties. The Founding Fathers recognized this when

they drafted the Constitution to give the judiciary

C. Gay & Paige F. Rosato, Combatting Fear Of Future Injury

And Medical Monitoring Claims, 61 Def. Couns. J. 554, 562

(1994).

This is particularly the case where, as here, the under-

lying cause of action is statutorily-based. Courts may not

rewrite the FELA statute to provide medical monitoring

damages; it is up to Congress, if it desires to do so, to change

the law. See generally Roger S. Fine, A Personal Perspective

from the “Manufacturer,” 55 Brook. L. Rev. 899, 903 (1989)

(Let us go back to the days when there was a real dif-

ference between the judicial and legislative branches. When

a court is faced with a problem that is a social one rather

than a legal one, we defer to the legislature, which has far

more flexibility and power to mold solutions that match our

problems”); Stephen A. Spitz, From Res Ipsa Loquitur to

Diethylstilbestrol: The Unidentifiable Tortfeasor in Cali-

fornia, 65 Ind. L.J. 591, 634 (1990) (“[MJany situations are

better left in the legislative domain and/or are best addressed

by providing administrative remedies”).

6

jurisdiction to decide “cases and controversies.” '

This particularized focus, however, involves some

basic limitations; it deprives the judiciary of the com-

prehensive access to information that is essential to

the formation of complex and sound national tort

policy rules.

Legislatures, on the other hand, are well-equipped

to reach fully informed positions about the need for

widespread changes in the law. They have more com-

plete access to information, including the ability to

receive comments from persons representing a multi-

plicity of perspectives and to use the legislative proc-

ess to obtain new information. If a point needs fur-

ther elaboration, a witness can be recalled. This

process allows legislatures to engage in broad policy

deliberations.* Accordingly, legislatures are in the

best position to consider whether a medical monitor-

ing remedy is needed, and if it is needed, to resolve

its complex issues.“

7 See U.S. Const. art. III, § 2, cl. 1.

See generally Smith v. Cutter Biological, Inc., 823 P.2d

717, 736 (Haw. 1991) (Moon, J., concurring in part and dis-

senting in part) (disagreeing with the majority’s application

of “market share liability” to a blood products case, because

“Tt)here are too many unanswered questions of social, eco-

nomic, and legal import which only the legislature, with its

investigative powers and procedures, can determine“); Mul-

cahy v. Eli Lilly & Co., 386 N.W.2d 67, 76 (lowa 1986)

(“{A] warding damages .. by means of a court-constructed

device that places liability on manufacturers who were not

proved to have caused the injury involves social engineering

more appropriately within the legislative domain”).

„The American Law Institute’s new draft Restatement on

the law of products liability similarly finds that when the

7

B. Legislatures’ Prospective Treatment Of The Law

Is Better Suited For Implementing Medical Moni-

toring Awards Than Courts’ Retroactive Treatment

Of The Law.

Further, adoption of a novel remedy, such as medi-

cal monitoring, that effects a sweeping change of

the rights and responsibilities of the public, should

be done prospectively, if at all, to provide “fair no-

tice” to everyone potentially affected.

Courts, following the common law process, institute

their rulings on a retroactive basis. Although this

may be appropriate when implementing minor adjust-

ments to common law principles, it is not appropriate

when the “adjustments” precipitate a broad, funda-

mental change in an available tort remedy.

By way of contrast, legislative consideration of

medical monitoring will result in prospective legisla-

tion that will give the public advance notice of signifi-

cant changes affecting rights and duties, and the time

to comport behavior accordingly. As this Court said

in its most recent decision on the subject of punitive

damages, “{e]lementary notions of fairness enshrined

in our constitutional jurisprudence dictate that a per-

son receive fair notice . . . of the conduct that will

subject him to [liability J]. BMW of North

America, Inc. v. Gore, 116 S. Ct. 1589, 1598 (1996)

(emphasis added). Courts do not have the ability to

provide this “fair notice“; legislatures do.

government has superior access to information, it, rather

than the courts, should act. See Restatement Of The Law

Of Torts: Products Liability § 20 (Tent. Draft No. 3 April 5,

1996) (“Issues relating to product recalls are best evaluated

by a governmental . . agency capable of gathering adequate

data regarding ramifications of such undertakings”).

II. COMPLEX ISSUES WHICH SHOULD BE CON-

SIDERED BEFORE MEDICAL MONITORING IS

AWARDED DEMONSTRATE WHY LEGISLATURES

PROVIDE A BETTER FORUM THAN COURTS FOR

IMPLEMENTING THE REMEDY.

Recognition of the medical monitoring remedy in

this case could lead to an administrative nightmare“

that a fully informed judiciary may solidly wish to

avoid.

A. Legislatures Are In The Best Position To Establish

A Clear And Sound “Trigger” As To When Medical

Monitoring Is Appropriate.

For example, before parties can be given access to

medical monitoring, a clear and sound “trigger” must

be set to identify the specific circumstances under

which a claimant may be eligible for a medical moni-

toring award.

A proper “trigger” analysis requires access to infor-

mation from numerous sources, particularly scientific

and medical experts, that is only partly available to

courts.” Legislatures, on the other hand, are not lim-

ited to information produced by plaintiffs and defend-

ants; if they need additional information, they may

initiate information gathering (e.g., epidemiological

studies).

In the past, courts have not demonstrated an ability

to articulate specific or consistent eligibility require-

ments for medical monitoring. The Second Circuit’s

vague and ambiguous “standard” in this case illus-

trates this point well:

0 In addition, in the absence of plaintiff-produced evidence

it is unfair to assign to individual defendants the costs of

investigating the “public benefit” of monitoring and treat-

ment for exposures.

9

Buckley suffered a substantial impact from as-

bestos that has significantly increased his risk of

contracting an asbestos-related disease and

Buckley should receive medical monitoring in

order to ensure early detection

Buckley, 79 F. ad at 1347."

By way of contrast, Congress and state legislatures

have devised effective “triggers” for programs that

address and rectify public concerns. For example, the

federal Occupational Safety and Health Act, 29

U.S.C. Ss 651-78, and its extensive implementing reg-

ulations clearly define permissible exposure levels for

hazardous substances used in the workplace and pro-

vide for surveillance procedures to determine whether

workplaces exceed those levels.“ In other legislation,

" See also Ayers v. Township of Jackson, 525 A. 2d 287,

309, 212 (N.J. 1987) (monitoring appropriate when “there

is a significant but unquantified risk of serious disease” such

that monitoring is “reasonable and necessary”); Jn re Paoli

R.R. Yard PCB Litig., 35 F.3d 717, 788 (3d Cir. 1994)

(monitoring appropriate when there is a “significantly in-

creased risk to plaintiff of contracting a serious disease” such

that “periodic testing is reasonably necessary”); Potter v.

Firestone Tire and Rubber Co., 863 P.2d 795, 824 (Cal. 1993)

(to recover there must be a “significant, but not necessarily,

likely risk of disease” that makes the need for monitoring

“reasonably certain“)

See, e.g., 29 C. F. R. § 1910.1001 (d), (1) & App. H (July

1, 1995) (regulations regarding occupational asbestos ex-

posure). In addition, the federal government formed the

United States Preventive Services Task Force, which per-

formed an exhaustive study and published recommendations

concerning the effectiveness of clinical preventive services.

See Lee Radford, Medical Monitoring Claims: A Review of

the Guide to Clinical Preventive Services, Toxic L. Rep. 1302

(1996). The latest culmination of the Task Force's efforts is

10

Congress has provided for medical monitoring.”

Vague and ambiguous medical monitoring “trig-

gers,“ such as the one set forth by the Second Circuit

in this case, do not give the public “fair notice” of

medical monitoring eligibility requirements. The re-

sulting uncertainty will inevitably lead to inconsistent

decisions among jurisdictions, causing disparate treat-

ment of similarly situated plaintiffs. It will also re-

sult in costly litigation as parties seek to clarify their

rights and duties.“

B. Legislatures Are In The Best Position To Ensure

That Medical Monitoring Awards Serve Their In-

tended Purpose.

A second problem which arises when medical moni-

toring is awarded by courts, as opposed to legislatures

and administrative agencies, is that courts cannot en-

sure that parties receiving awards will actually use

them to procure monitoring.

the 1996 Guide To Clinical Preventive Services (2d ed. 1996).

This publication provides, inter alia, a “trigger” for deter-

mining whether and how medical monitoring should be con-

ducted to detect disease.

For instance, Congress created The Agency for Toxic

Substances and Disease Registry, which in specific circum-

stances may initiate “medical testing . . of population sub-

groups to screen for diseases.” 42 U.S.C. § 9604(i) (9) (A).

A lack of consistency and specificity in judicially created

eligibility standards has proved disastrous in the asbestos

litigation. Trials have essentially become “games of chance,”

because of the lack of clearly delineated standards for recov-

ery. Even when similarly situated plaintiffs have tried their

cases in the same jurisdiction, awards have been inconsistent.

See Lester Brickman, The Asbestos Litigation Crisis: Is

There A Need For An Administrative Alternative?, 13 Car-

dozo L. Rev. 1819, 1852-1859 (1992).

11

In most medical monitoring cases, plaintiffs seek,“

and are granted, lump sum awards.“ Vet, courts can-

not dictate how damages recipients will spend a lump

sum award.“ The medical monitoring award itself

is not appropriately monitored, so there is no assur-

ance that the award, however large, will be used to

help a person learn about the onset of avoidable

disease.

Legislatures have the power to design medical mon-

itoring programs that provide appropriate testing.“

and to ensure that damage awards, from whatever

source, are actually used to pay the expense of medi-

cal monitoring. Courts and commentators alike have

advocated the use of periodic payment plans to secure

the efficient, fair, and proper allocation of medical

monitoring awards.”

See, e.g., Herber v. Johns-Manville Corp., 785 F.2d 79

(3d Cir. 1986): Merry v. Westinghouse Elev. Corp., 684 F.

Supp. 847 (M.D. Pa. 1988).

1% See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,

533 (1983). Moreover, it is doubtful that courts have the

discretion to award other than lump sums in tort actions.

See Frankel v. United States, 321 F. Supp. 1331, 1341 (E.D.

Pa. 1970), aff'd sub nom. Frankel v. Heym, 466 F.2d 1226

(3d Cir. 1972); Lozada er rel. Lozada v. United States, 140

F. R. D. 404, 416 (D. Neb. 1991), aff'd, 974 F.2d 986 (8th

Cir. 1992).

1? See, e.g., Ayers, 525 A.2d at 314.

Cf. 29 U.S.C. 88 651-78.

10 See, e.g., Ayers, 525 A.2d at 314; Amy B. Blumenberg,

Medical Monitoring Funds, Hastings LJ. 661, 683 n.112

(1992) (citing numerous commentators).

12

C. Legislatures Are In The Best Position To Ensure

That Medical Monitoring Is Only Used When It

Confers A Real Benefit.

Third, medical monitoring should be used only

if the benefits of testing outweigh the costs.” An ap-

propriate cost-benefit analysis in the context of medi-

cal monitoring requires the decisionmaker to consider

a host of complex and intricately intertwined factors

that courts may not have the resources to formulate

or weigh.

For example, the decisionmaker should be required

to assess the accuracy of each proposed monitoring

test to determine that it is reliable. That assessment

should entail an analysis of prevalence (i.¢., the pro-

portion of the population with the suspect condition)

and the proposed test’s scientific sensitivity, specific-

ity, and positive and negative predictive value.”

Without this assessment, the decisionmaker will not

be able to discern risks inherent in the testing proce-

dure, such as the incidence of false positives and false

negatives—incorrect test results that can induce de-

structive psychological reactions, and in the case of

false positives, lead to additional testing and treat-

ments that carry a number of additional risks.” This

single example illustrates the complexity of the cost-

benefit analysis essential to permit a meaningful

medical monitoring remedy.

As this Court can appreciate, access to a substan-

tial amount of complex, scientific information is im-

See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970,

981 (Utah 1993).

21 See Lee Radford, Medical Monitoring Claims, supra note

12, at 1304.

22 See id.

13

perative to the analysis. Legislatures, with their

broad investigative powers and resources, are in a

better position than courts to acquire and consider

this information.

D. Administrative Burdens Detract From Judicial

Supervision Of Medical Monitoring.

Finally, courts are not equipped to handle the ad-

ministrative procedures needed to ensure that medical

monitoring remedies serve their limited purpose. Im-

plementation and administration of a sound plan will

require, at a minimum: specifying the nature and

amount of benefits available, specifying the source of

funding and funding allotments, defining procedures

for determining eligibility for monitoring, defining

when eligible parties may join the program, and de-

termining program duration and how it will be im-

plemented (c.g., formal versus informal facility test-

ing; designated service provider versus participants’

chosen provider).” Moreover, as the program ma-

tures, its scope and administrative operation inevit-

ably will require change, especially if the program de-

signer erroneously estimates funding needs or the

number of eligible participants.”

See Jesse R. Lee, Medical Monitoring Damages: Issues

Concerning the Administration of Medical Monitoring Pro-

grams, 20 Am. J.L. & Med. 251, 267-272 (1994) ; Deborah R.

Hensler, Fashioning a National Resolution of Asbestos Per-

sonal Injury Litigation: A Reply to Professor Brickman, 13

Cardozo L. Rev. 1967, 1985-1986 (1992).

* For example, a court-guided trust set up to administer

asbestos claims against the Johns-Manville Company “settled

fonly] 25,000 out of more than 140,000 claims [before] de-

plet ing] its funds.“ Judicial Conference Ad Hoc Committee

on Asbestos Litigation, supra note 2, at 25.

14

A further administrative issue arises if third-party

payment plans overlap with the medical monitoring

program. If an eligible party’s monitoring is already

covered by a health care insurer” and there is no

proof of injury, a basic public policy question arises

as to whether the “collateral source rule” should ap-

ply. Under the rule, benefits received by a claimant

from health or medical insurance, disability insur-

ance, workers’ accident compensation benefits, and

government benefits, in legal terms are deemed ‘‘col-

lateral” to the tortfeasor, since the tortfeasor did not

pay for them, and are not deducted in calculating the

amount of the claimant’s alleged damages.” Exten-

sion of this rule beyond traditional tort law where

* Approximately eighty percent of all standard medical

testing is paid for by third-party insurance. See American

Law Institute, 2 Enterprise Responsibility For Personal

Injury—Reporters’ Study 379 (1991).

See John G. Fleming, The Collateral Source Rule and

Loss Allocation in Tort Law, 54 Calif. L. Rev. 1478 (1966).

A plaintiff, however, does not necessarily recover double when

the collateral source rule is applied. Health insurance con-

tracts, for example, may provide that the insurer is to be

subrogated to the insured’s tort claim. See John Wade, et al.,

supra note 1, § 2 at 522. There has been substantial criticism

of the collateral source rule. See American Law Institute,

supra note 25, at 161-182 (recommending abolition of col-

lateral source rule, except with respect to life insurance) ;

Victor E. Schwartz, Tort Law Reform: Strict Liability And

The Collateral Source Rule Do Not Mix, 39 Vand. L. Rev. 569

(1986). Recent data suggests that use of the “collateral

source” rule contributes to inflated damages claims. See

Steven Carroll and Allan Abrahamse, The Costs Of Excessive

Medical Claims For Automobile Personal Injuries (RAND

Institute For Civil Justice, March 1995). See also Jeffrey

O’Connell, Must Health And Disability Insurance Subsidize

Wasteful Injury Suits?, 41 Rutgers L. Rev. 1055 (1989).

15

someone is harmed, to a brand new claim where an

individual suffers no harm, is inappropriate and

against public policy.”

CONCLUSION

Courts, in accord with constitutional dictates, are

not well-structured to devise and supervise medical

monitoring remedies. Legislatures, on the other hand,

not only have the authority to confront and resolve the

broad public policy tort issues raised by medical mon-

itoring, but they also have the necessary tools to do

so in a sound manner—access to nearly limitless

sources of information and the ability to initiate leg-

islation prospectively. The inappropriateness of a

court acting on a matter of legislative priority is par-

ticularly acute where the legislative body, in this in-

stance Congress, has created the basic remedy and, if

it desires to do so, can amend it.

For these reasons, the petition for a writ of certio-

rari should be granted and the decision of the Second

Circuit should be overturned.

27 See Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1372 (S.D.

W.Va. 1990) (the costs of monitoring awards to asympto-

matic plaintiffs could “devastate” defendants), af d, 958 F.2d

86 (4th Cir.), cert. denied, 502 U.S. 1033 (1992); Ayers, 525

A.2d at 297 (township liable for over $8,000,000 in monitor-

ing costs). The rule’s application becomes more suspect when

the eligible party’s monitoring tests are no different than

those that third parties should submit to who are not at a

higher risk for disease. See Potter, 863 P.2d at 825; Redland

Soccer Club v. Dep’t of Army, 55 F.3d 827, 848 (3d Cir.

1995), cert. denied, 116 S. Ct. 772 (1996). In these circum-

stances the collateral source rule should not apply, and the

eligible party, or his insurer, should bear the testing expense.

Id.

16

Respectfully submitted,

SHERMAN JOYCE Victor E. SCHWARTz *

AMERICAN TORT REFORM MARK A. BEHRENS

ASSOCIATION CHRISTOPHER H. Woop

1212 New York Ave., N.W. CROWELL & MorING LLP

Suite 515 1001 Pennsylvania Ave., N.W.

Washington, D.C. 20005 Washington, D.C. 20004-2595

(202) 682-1163 (202) 624-2500

Attorneys for Amicus Curiae

Dated: September 30, 1996 * Counsel of Record