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

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No. 96-320 Supreme oy WS.

IN THE DEC 16

Supreme Court of the United States

OcTOBER TERM, 1996 = * At

METRO-NoRTH COMMUTER RAILROAD COMPANY,

v, Petitioner,

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR AMICI CURIAE

THE CHEMICAL MANUFACTURERS ASSOCIATION

AND THE CHAMBER OF COMMERCE

OF THE UNITED STATES

IN SUPPORT OF PETITIONER

Of Counsel: STEVEN R. KUNEY *

DAVID F. ZOLL ROBERT J. SHAUGHNESSY

DONALD D. EVANS ANN H. RAKESTRAW

CHEMICAL MANUFACTURERS WILLIAMS & CONNOLLY

ASSOCIATION 725 12th Street, N.W.

1300 Wilson Boulevard Washington, D.C. 20005

Arlington, Virginia 22209 (202) 434-5000

(703) 741-5000 Attorneys for Amici Curiae

STEPHEN A. BOKAT

ROBIN S. CONRAD

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

* Counsel of Record

PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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gy A a 7

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...00.0.....2...2...::c2cccccccsceseeeseeees

INTEREST OF THE AMICI CURIAE ............. ecinentata

SUMMARY OF ARGUMENT. 0200200 .2.0....2.cccccecceeeceeeee

SU cccrectencertntintsigiomiaampiniimnmnenainte

I,

Il.

Il.

THE MEDICAL MONITORING TORT IS A

RADICAL DEPARTURE FROM THE COM-

en

A. The Tort Rests on a Novel Notion of “In-

B. The Medical Monitoring Tort Has Been

Recognized in Only a Small Minority of

PRR RE RC ANE LE OE

THE MEDICAL COMMUNITY HAS

REACHED A CONSENSUS THAT DIAG-

NOSTIC TESTING OF ASYMPTOMATIC

PERSONS IS APPROPRIATE ONLY IN

WELL-DEFINED SITUATIONS ..........0000..........

THE MEDICAL MONITORING TORT IN-

VTES ENORMOUS NUMBERS OF SPECU-

BE ee

A. The Medical Monitoring Tort Gives a Color-

able Claim to a Huge New Class of Potential

eh dittnsilia i a cnatdrnsiiditiliindaaglimipit ce ite

B. Medical Monitoring Claims Are Inherently

Speculative, and Threaten Defendants With

Arbitrary and Unpredictable Liability ........

C. There Is No Unfairness in Denying a Cause

of Action for Medical Monitoring -.................

TUR ensetincisiemannininercincineninsintntieinewninecinenen

Page

11

20

21

26

28

30

ii

TABLE OF AUTHORITIES

Federal Cases: Page

Abuan v. General Elec. Co., 3 F.3d 329 (9th Cir.

1993), cert. denied, 510 U.S. 1116 (1994) ....... aa 23

Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480

TITS TIES OTP aT 26-27

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

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

ETE 22

Ball v. Joy Techs., Inc., 958 F.2d 36 (4th Cir.

EEE SS Sn 11, 22

Bocook v. Ashland Oil, Inc., 819 F. Supp. 530

EEE, Wile Wille GINIIID cenccacarcrsccesesoeserassrsenscneneseseasensnses 9, 27

Buckley v. Metro-North Commuter R.R., 79 F.3d

1337 (2d Cir.), cert. granted, 117 S. Ct. 379

EE 5, 24, 26

Building & Constr. Dep’t v. Rockwell Int’l Corp.,

7 F.3d 1487 (10th Cir. 1993) ......... 6

Burton V. R.J. Reynolds Tobacco Co., “ 884 F. ‘Supp.

ee 10

Carroll v. Litton Sys., Inc., 1990 U.S. Dist. LEXIS

16833 (W.D.N.C. Oct. 29, 1990) ...................... ll

Consolidated Rail Corp. Vv. Gottshall, 114 8. Ct.

a ainhatemncboee 3, 8, 11, 20, 23, 28

Cook v. Rockwell Int’l Corp., 755 F. Supp. 1468

ES 6,9

Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

YE Re 23

Day v. NLO, Inc., 851 F. Supp. 869 (S.D. Ohio

ESS eee eee Se 10

East River S.S. Corp. v. Transamerica Delaval,

NS PS

Fried v. Sungard Recovery Servs., 936 F. Supp.

EER 9

Friends for All Children, Inc. v. Lockheed Air-

craft Corp., 746 F.2d 816 (D.C. Cir. 1984) ....10, 29, 30

Georgine v. Amchem Prods., 83 F.3d 610 (3d

Cir.), cert. granted, 117 8. Ct. 379 (1996) ....... = 21

Gibbs v. E.l. DuPont de Nemours & Co., 876 F.

Supp. 475 (W.D.N.Y. 1995) .................ccccoms 10

iii

TABLE OF AUTHORITIES—Continued

Page

Hagerty v. L&L Marine Servs., Inc., 788 F.2d 315

NL aS a eee vee 10

In re Paoli R.R. Yard PCB Litig., 916 F.2d 829

EE renee 4-6, 10, 20, 25-27

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

(3d Cir. 1994), cert. denied, 115 S. Ct. 1253

EE ee a ee 7, 10, 23-26

Kichline v. Consolidated Rail Corp., 800 F. 2d 356

fF GO Se 22

Moore V. Sims, 442 U.S. 415 (1979) 10

Purjet Vv. Hess Oil Virgin Islands Corp., 1986 WL

1200 (D.V.I. Jan. 8, 1986) —....000. 11

Redland Soccer Club, Inc. v. Department of Army,

55 F.3d 827 (3d Cir. 1995), cert. denied, 116

NN Ee 8a 23

Schweitzer v. Consolidated Rail Corp., 758 F.2d

ee 7

Stoleson v. United States, 708 F.2d 1217 (7th Cir.

ee 23

Thomas Vv. FAG Bearings Corp., 846 F. Supp.

1400 (W.D. Mo. 1994) 00 ll

Woodman V. United States, 1995 U.S. Dist. LEXIS

2787 (M.D. Fla. Jan. 24, 1995) 000 9

State Cases:

Askey v. Occidental Chem. Corp., 477 N.Y.S.2d

242 (App. Div. 1964) .........................0........ 5, 8, 9, 12, 25

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

FE or ee 5, 7, 9, 10, 12, 20, 23, 25-27

Burns Vv. Jaquays Mining Corp. 752 P.2d 28 (Ariz.

SSE PU a we a 9, 25

Casa Clara Condominium Ass'n V. Charley Toppino

& Sons, 620 So. 2d 1244 (Fla. 1993)... 3

Dickerson v. International UAW Union, 648

N.E.2d 40 (Ohio Ct. App. 1994) ...... niiihdiinltitiiiaads 3

Hansen V. Mountain Fuel Supply Co., 858 P.2d

re 5-7, 9, 25

Hayes Vv. AC&S, Inc., No. 95 CH 1835, slip op.

(Cir. Ct. Cook Cty. Ill. Oct. 30, 1996) 11

iv

TABLE OF AUTHORITIES—Continued

Homans Vv. Boston Elevated Ry. Co., 62 N.E. 737

0

Mergenthaler v. Asbestos Corp. of Am., 480 A.2d

CE GeD, BID cccccscccnsssccccssnsscecnctsnsnecetenisatincemesesese

Meyerhoff v. Turner Constr. Co., 534 N.W.2d 204

(Mich. Ct. App. 1995), appeal denied, 550

Page

7

11

N.W.2d 5635 (Mich. 1996) .............------------c-eceeeees 6, 9, 25

Miranda Vv. Shell Oil Co., 7 Cal. Rptr. 2d 623 (Cal.

CR, DEI, CTD nccecncccccreccsccccsncssscccccsecesesccentsscssesees 7,12, 22

Newsom Vv. Markus, 588 S.W.2d 883 (Tenn. Ct.

| EEE

Potter v. Firestone Tire & Rubber Co., 25 Cal.

Rptr. 2d 550 (1993) oo eeeeeeeeeeenene 5, 9, 22, 25, 27

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996)..

Theer Vv. Philip Carey Co., 628 A.2d 724 (NJ.

—————

Statutes and Rules:

Federal Employers Liability Act, 45 U.S.C. § 51

GB COD, ccecneccreccncescsecnsecscecsecsnssqnsvenccssnssusresseseseqnseneaneness

Federal Rule of Evidence 702 .................................

Miscellaneous:

AMERICAN CANCER Soc’y, CANCER FACTS & Fic-

en ——————————————ee

American College of Physicians, Periodic Health

Examination: A Guide for Designing Individ-

ualized Preventive Health Care in Asymptomatic

Patients, 95 ANN. INTERNAL MED. 729 (1981)...

AMERICAN LAW INST., ENTERPRIES RESPONSIBIL-

ITY FOR PERSONAL INJURY—REPORTERS’ STUDY

0

Patrick S. Atiyah, Negligence and Economic Loss,

DG kee

Canadian Task Force on the Periodic Health Ex-

amination, The Periodic Health Examination,

121 CANADIAN Mep. Ass’N J. 1193 (1979)........

Philip Cole & Alan S. Morrison, Basie Issues in

Population Screening for Cancer, 64 J. NAT'L

19

19

CANCER INST. 1263 (1980) —....... eee 14, 16, 17

v

TABLE OF AUTHORITIES—Continued

William Feldman, How Serious Are the Adverse

Effects of Screening?, 5 J. GEN. INTERNAL MED.

EN a a ey 6 ees

Thomas M. Gill & Ralph I. Horowitz, Evaluating

the Efficacy of Cancer Screening: Clinical Dis-

tinctions and Case-Control Studies, 48 J. CLINI-

CAL EPIDEMIOLOGY 281 (1995) ......

FOWLER V. HARPER ET AL., THE LAW oF TorTs (2d

REN ged tk ee ES

Robert S.A. Hayward et al., Preventive Care

Guidelines: 1991, 114 ANN. INTERNAL MED. 758

, Sereening

for Lung Cancer: Effective Tests Awaiting

Effective Treatment, 6 OCCUPATIONAL MED.:

STATE OF THE ART REVIEWS 111 (1991)...

Susan L. Martin & Jonathan D. Martin, Tort

Actions for Medical Monitoring: Warranted or

Wasteful?, 20 Cotum. J. ENVTL. L. 121 (1995) ..

George W.C. McCarter, Medical Sue-veillance: A

History and Critique of the Medical Monitoring

Remedy in Tozie Tort Litigation, 45 RUTGERS L.

ia ERE I aa i te

CHARLES T. McCorMICcK, HANDBOOK ON THE LAW

fC ST a

A.B. Miller, The Ethics, the Risks and the Benefits

of Screening, 42 BIOMEDICINE & PHARMACO-

I

Sylvia K. Oboler & F. Mare LaForce, The Periodic

Physical Examination in Asymptomatic Adults,

110 ANNALS OF INTERNAL MED. 214 (1989).

William L. Prosser, /ntentional Infliction of Mental

Suffering: A New Tort, 37 Micu. L. REv. 874

ER en ee

Stanley Joel Reiser, The Emergence of the Con-

cept of Screening for Disease, 56 MILBANK

MEMORIAL FUND Q./HEALTH & Soc’y 4038

Page

15

16

12, 29

19

17

17

11

vi

TABLE OF AUTHORITIES—Continued

Pau D. RHEINGOLD, Mass Tort LATIGATION

SS ee

Irvinc J. SeLikorr & DovcLas H.K. L&E, As-

BESTOS AND DISEASE (1978) -................................

Jacop A. STEIN, STEIN ON PERSONAL INJURY

Ud

THOMAS ATKINS STREET, THE FOUNDATIONS OF

LOGAL, LAABELATY (1906) ...................--.-2-.<0---000-----2

U.S. CoUNCIL ON ENVIRONMENTAL QUALITY,

TWENTY-FOURTH ANNUAL REPORT (1993)...

U.S. Dep’T oF COMMERCE, STATISTICAL ABSTRACT

OF THE UNITED STATES (1996) -..........................

U.S. PREVENTIVE SERVICES TASK FORCE, GUIDE TO

CLINICAL PREVENTIVE SERVICES (2d ed. 1996)...

Page

13-18

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-320

METRO-NORTH COMMUTER RAILROAD COMPANY,

2 Petitioner,

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR AMICI CURIAE

THE CHEMICAL MANUFACTURERS ASSOCIATION

AND THE CHAMBER OF COMMERCE

OF THE UNITED STATES

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE'

The Chemical Manufacturers Association (“CMA”) is

a non-profit trade association whose members produce,

market, and use industrial chemicals. The chemical in-

dustry employs over one million workers in this country,

and on a value-added basis, it accounts for over ten

percent of U.S. manufacturing. The Chamber of Com-

merce of the United States (“Chamber”) is the largest

federation of business, trade, and professional organiza-

tions in the United States. It represents more than 215,000

1 Petitioner and respondent have consented to the filing of this

brief; letters to that effect have been lodged with the Clerk.

2

companies, as well as several thousand trade and pro-

fessional organizations, and state and local chambers of

commerce.

The Court of Appeals in this case and a small number

of other courts have held that persons who have been

exposed to a hazardous substance but have not developed,

and probably will never develop, a resulting illness may

nevertheless recover the cost of special future medical

testing to detect delayed-onset diseases that might con-

ceivably result from the exposure. These courts in effect

have invented an entirely new cause of action—the tort

of “medical monitoring”—that lacks any historical pedi-

gree and is today recognized in only a handful of juris-

dictions.

Industrial companies, including members of the CMA

and many members of the Chamber, have long “moni-

tored” the health of their employees who work with

hazardous substances, but that activity is quite different

from the type of monitoring contemplated by the medical

monitoring tort. The point of monitoring in the industrial

setting is to ascertain whether workers with ongoing ex-

posure to potentially hazardous substances currently

suffer any adverse effects of that exposure, and, if so,

to reduce their exposure. The medical monitoring tort,

by contrast, compensates persons who allegedly face a

risk of becoming ill in the distant future because of ex-

posure to a hazardous substance in the past. Monitoring

in industry is based on sound principles of medicine and

industrial hygiene. The medical monitoring tort rests on

assumptions about the benefits of medical tes’ .g for

asymptomatic persons that have generally beer. :ejected

by the medical profession itself.

This Court’s recognition of a claim for medical moni-

toring under the Federal Employers Liability Act (FELA),

45 U.S.C. § 51 et seq., could inundate the judicial system

with claims by railroad workers who are not ill as a result

of exposure to chemicals and are unlikely ever to become

so. Such a ruling would also doubtless influence the

3

development of common-law tort doctrine in this area.’

The CMA and the Chamber submit that this Court should

reject any interpretation of the FELA that allows persons

without manifest injury in the traditional sense to recover

the costs of future medical testing.

SUMMARY OF ARGUMENT

There is considerable intuitive appeal to the idea that

people who face a risk of future illness would benefit by

receiving periodic testing to detect the possible onset of

disease. In recent years, however, the medical profession

has subjected that intuition to critical scrutiny and has

found it for the most part to be unsound. Medical science

now recognizes that persons without manifest symptoms

of illness ordinarily benefit from only a fairly small num-

ber of well-established tests that are recommended for

almost everyone. The sort of special testing of asympto-

matic persons envisioned by the medical monitoring tort

has been found to be generally ineffective. If medical

science does not see substantial value in special testing of

asymptomatic persons, there is certainly no basis for courts

to elevate the claimed “need” of exposed persons for such

testing to the status of a legally protected interest.

The medical monitoring tort, if widely accepted, would

have staggering implications for the administration of the

civil justice system. This new tort opens the courthouse

doors to literally millions of would-be claimants who have

no demonstrable illness, but who can allege some type of

exposure to some substance that may create a risk of

future illness. And once inside the courthouse, these

2 This Court’s interpretations of tort principles, although under-

taken in connection with issues of federal law, are often followed

by courts confronting similar issues under state law. See, ¢.g.,

Casa Clara Condominium Ass'n Vv. Charley Toppino & Sons, 620

So. 2d 1244, 1246-47 (Fla. 1993) (following East River S.S. Corp.

v. Transamerica Delaval, Inc., 476 U.S. 858 (1986)); Dickerson v.

International UAW Union, 648 N.E.2d 40, 50 (Ohio Ct. App. 1994)

(following Consolidated Rail Corp. vy. Gottshall, 114 8. Ct. 2396,

2411 (1994) ).

4

claims are not easily screened out, because the medical

monitoring tort as courts have so far defined it sets the

threshold of a triable claim extremely low and tolerates,

indeed invites, highly speculative proof.

ARGUMENT

I. THE MEDICAL MONITORING TORT IS A RADI-

CAL DEPARTURE FROM THE COMMON LAW.

A. The Tort Rests on a Novel Notion of “Injury.”

The traditional rule under the common law is that to

maintain a cause of action for negligence, a plaintiff must

allege that he has sustained either a manifest personal

injury (physical harm or, in some circumstances, emo-

tional harm) or damage to property. See Patrick S.

Atiyah, Negligence and Economic Loss, 83 L.Q. REV.

248, 248 (1967) (noting the “general principle denying

liability for purely economic loss in the law of negli-

gence”); see also In re Paoli R.R. Yard PCB Litig.

(“Paoli I’), 916 F.2d 829, 850 (3d Cir. 1990) (“tradi-

tionally, injury needed to be manifest before it could be

compensable”); Susan L. Martin & Jonathan D. Martin,

Tort Actions for Medical Monitoring: Warranted or

Wasteful?, 20 Co_tum. J. EnvTtL. L. 121, 122 (1995).

This was the common-law rule in 1908 when the FELA

was enacted. See | THOMAS ATKINS STREET, THE FOUN-

DATIONS OF LEGAL LIABILITY 493 (1906) (“it appears

that injury is always a prerequisite condition of liability

and without iniury no right of action can exist”).

A corollary of this rule is that a plaintiff may recover

the cost of future medical procedures only if he has suf-

fered a manifest personal injury and proves that those

future expenses are reasonably certain to be incurred as

a result of the injury. This is the traditional rule, see

CHARLES T. McCorMICK, HANDBOOK ON THE LAW OF

DAMAGES § 90 (1935), and it is the prevailing rule

today, see JacoB A. STEIN, STEIN ON PERSONAL INJURY

DAMAGES § 5.18, at 245-47 (2d ed. 1991) (future medi-

cal expenses must be “reasonably certain to become neces-

5

sary” and “[t]here must be evidence of a continuing or

permanent disability and the necessity of future medical

treatment of the disability”).

In the last fifteen years, however, a small number of

courts have abandoned the requirement of manifest injury

in “toxic tort” cases. These courts have held that plain-

tiffs who have been exposed to a hazardous substance but

have not experienced—and probably will never experi-

ence—a resulting illness are nevertheless entitled to re-

cover the cost of future “medical monitoring” (sometimes

denominated “medical surveillance”) to facilitate early

detection of delayed-onset diseases for which they alleg-

edly have been placed at increased risk because of the

exposure. See, e.g., Paoli I, 916 F.2d at 852; Ayers v.

Township of Jackson, 525 A.2d 287, 312 (N.J. 1987);

Potter Vv. Firestone Tire & Rubber Co., 25 Cal. Rptr. 2d

550, 579-80 (1993); Hansen v. Mountain Fuel Supply

Co., 858 P.2d 970, 975-82 (Utah 1993). Typically the dis-

eases of concern are various forms of cancer. See Ayers,

525 A.2d at 311. Because cancers usually occur later

in life, the risk of cancer is thought to require lifetime,

or at least very long-term, medical monitoring. See id.

at 313 n.13 (plaintiffs awarded damages to cover lifetime

medical monitoring).

Some courts, including the Court of Appeals in the

present case, seemingly base the plaintiff's entitlement to

medical monitoring on a theoretical construction of the

notion of physical “injury.” These courts hold that ex-

posure to a hazardous substance, in itself, constitutes a

physical injury, and so under traditional tort principles

one who has been exposed because of the defendant's

negligence may recover the full range of damages flowing

from the injury, including the cost of future medical

monitoring procedures allegedly necessitated by the ex-

posure. See Buckley v. Metro-North Commuter R.R.,

79 F.3d 1337, 1343-45, 1347 (2d Cir.), cert. granted,

117 S. Ct. 379 (1996); Askey v. Occidental Chem. Corp.,

477 N.Y.S.2d 242, 246-47 (App. Div. 1984).

6

More commonly, though, courts that have allowed

recovery for medical monitoring have not attempted to

shoehorn the claim into the conventional definition of

“injury.” Instead, they have dispensed with the require-

ment altogether to create what they acknowledge is a

“non-traditional,” independent tort. E.g., Paoli I, 916

F.2d at 849; Cook v. Rockwell Int'l Corp., 755 F. Supp.

1468, 1476 (D. Colo. 1991). These courts hold that the

plaintiff's need to incur the cost of future medical moni-

toring procedures as a result of an alleged chemical ex-

posure is itself an actionable injury. E.g., Paoli I, 916

F.2d at 851-52; Cook, 755 F. Supp. at 1477; Meyerhoff v.

Turner Constr. Co., 534 N.W.2d 204, 206 (Mich. Ct.

App. 1995), appeal denied, 550 N.W.2d 538 (Mich.

1996); Hansen, 858 P.2d at 977. The Second Circuit

in this case approvingly cited decisions that have recog-

nized claims for medical monitoring on this basis. See

79 F.3d at 1347.

Although the courts have offered slightly varying state-

ments of the medical monitoring tort, one widely cited

formulation holds that a plaintiff must prove the following

elements:

1. Plaintiff was significantly exposed to a proven

hazardous substance through the negligent actions of

the defendant.

2. As a proximate result of exposure, plaintiff suffers

a significantly increased risk of contracting a serious

latent disease.

3. That increased risk makes periodic diagnostic

medical examinations reasonably necessary.

4. Monitoring and testing procedures exist which

make the early detection and treatment of the disease

possible and beneficial.

Paoli I, 916 F.2d at 852. The Paoli I “definition is

generally in accord with how other courts have character-

ized medical monitoring claims.” Building & Constr.

Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1493 (10th

7

Cir. 1993). The medical monitoring tort compensates

exposed persons only for “special” medical testing made

necessary by the exposure, that is, testing beyond what

would be necessary or appropriate even without the expo-

sure. See In re Paoli R.R. Yard PCB Litig. (“Paoli II’),

35 F.3d 717, 788 (3d Cir. 1994), cert. denied, 115

S. Ct. 1253 (1995); Hansen, 858 P.2d at 980. To make

out a claim for such special testing, however, a plaintiff

need not prove that he will in fact contract a disease

caused by the exposure, nor even that his developing such

a disease in the future is more probable than not. Ayers,

525 A.2d at 309. A “significant” risk of future disease,

as sag have defined it, can be very small. See infra

at 23.

Even as they acknowledge the novelty of the medical

monitoring tort, courts that have recognized the claim

have sought to downplay the extent of its departure from

traditional tort principles. Typical is the reasoning of

one court:

A plaintiff who is involved in an automobile accident

and suffers no observable physical injury but never-

theless undergoes medically necessary diagnostic tests

to determine whether internal injuries exist is no

doubt entitled to recover the costs of the examina-

tion. . . . The outcome should be the same when

the operative incident is toxic exposure rather than

collision.

Miranda v. Shell Oil Co., 7 Cal. Rptr. 2d 623, 626 (Cal.

Ct. App. 1992). But the analogy drawn by this passage

is flawed in two respects. First, the plaintiff who is in-

volved in an automobile collision does in fact sustain

physical “injury” in a traditional sense—a traumatic force

to the body—even if the injury is not “observable” after

the fact or is too insignificant to warrant compensation.

See, e.g., Homans v. Boston Elevated Ry. Co., 62 N.E.

737 (Mass. 1902). The introduction of unwanted chemi-

cals into the human body is not a physical injury in any

familiar sense. See, ¢.g., Schweitzer v. Consolidated Rail

Corp., 758 F.2d 936, 942 (3d Cir. 1985). If chemical

exposure is an injury, then almost every person in indus-

trialized society is injured on a daily basis. See infra at

21-22. A second flaw in the analogy is that the auto-

mobile accident victim recovers only for testing expenses

actually incurred to ascertain the extent of then-existing

damage, if any, from the traumatic force. See, ¢.g.,

Newsom v. Markus, 588 S.W.2d 883, 887-88 (Tenn. Ct.

App. 1979). The medical monitoring tort, by contrast,

compensates plaintiffs for the costs of long-term future

medical testing to diagnose injuries that do not yet exist

and probably will never develop.

B. The Medical Monitoring Tort Has Been Recognized

in Only a Small Minority of Jurisdictions.

In FELA cases, this Court “look[s] to the common law

when considering the right to recover asserted” by the

plaintiff. Consolidated Rail Corp. vy. Gottshall, 114 S. Ct.

2396, 2411 (1994). To the extent that the point of

reference is the common law in 1908, when the FELA

was enacted, the medical monitoring tort finds no sup-

port. In 1908, courts in this country required some mani-

fest physical or emotional injury as a prerequisite of a

negligence action, see THOMAS ATKINS STREET, supra, at

493, as indeed they did for many years thereafter. A

claim for “medical monitoring” was not ‘ientioned in a

reported decision until the late 1970s, and no appellate

court appears to have recognized the medical monitoring

tort until the 1984 decision of the New York Supreme

Court Appellate Division in Askey, 477 N.Y.S.2d at 242.

See George W.C. McCarter, Medical Sue-veillance: A

History and Critique of the Medical Monitoring Remedy

in Toxic Tort Litigation, 45 RutGcers L. Rev. 227,

231-42 (1993) (tracing the early history of the tort);

cf. Gottshall, 114 §. Ct. at 2411 (“relative bystander”

test of negligent infliction of emotional distress “was not

developed until 60 years after FELA’s enactment, and

therefore lacks historical support”).

9

Today the medical monitoring tort has been recognized

in only a small minority of jurisdictions. In only three

states—New Jersey, California, and Utah—has the high-

est state court recognized it. See Ayers, 525 A.2d at

297-313; Potter, 25 Cal. Rptr. 2d 550, 579-80; Hansen,

858 P.2d at 975-82.° And the Supreme Court of

New Jersey, after broadly embracing the tort in Ayers,

has since sharply limited its availability. That court now

holds that the claim “is not easily invoked,” and may be

pursued only by persons who have experienced “direct{]”

exposure to a hazardous substance or have suffered a

physical injury as a result of the exposure. Theer v.

Philip Carey Co., 628 A.2d 724, 733 (N.J. 1993).

In three other states—Arizona, Michigan, and New

York—medical monitoring claims have been recognized

by intermediate appellate courts. See Burns v. Jaquays

Mining Corp., 752 P.2d 28, 33-34 (Ariz. Ct. App. 1987);

Meyerhoff, 534 N.W.2d at 206; Askey, 477 N.Y.S.2d at

246-47 (dictum). Elsewhere the courts that have “rec-

ognized” this new tort have been federal courts sitting

in diversity, which have ventured predictions of state

law in the absence of any controlling authority. See Cook,

755 F. Supp. at 1476-77 (Colorado law); Woodman v.

United States, 1995 U.S. Dist. Lexis 2787, at *121-22

(M.D. Fla. Jan. 24, 1995) (Florida law); Bocoock v.

Ashland Oil, Inc., 819 F. Supp. 530 (S.D. W. Va. 1993)

*The Supreme Court of Pennsylvania has held that medical

monitoring expenses may be recovered by persons who have suf-

fered pleural thickening as a result of asbestos exposure. Simmons

v. Pacor, Inc., 674 A.2d 232, 239-40 (Pa. 1996). Although Simmons

held that pleural thickening is not a sufficient “injury” to support

recovery for mental anguish because the condition is not accom-

panied by “disabling consequences or physical impairment,” id. at

236, 238, pleural thickening is a clinically identifiable physical

consequence of asbestos exposure. See Fried v. Sungard Recovery

Servs., 936 F. Supp. 310, 311 (E.D. Pa. 1996) (plaintiffs with no

physical manifestations of exposure may not recover for medica!

monitoring because Simmons requires proof of “demonstrable physi-

cal consequences” caused by exposure).

10

(Kentucky law); Gibbs v. E.J. DuPont de Nemours &

Co., 876 F. Supp. 475, 477-79 (W.D.N.Y. 1995) (New

York law); Day v. NLO, Inc., 851 F. Supp. 869, 879-82

($.D. Ohio 1994) (Ohio law); Paoli I, 916 F.2d at

849-52 (Pennsylvania law).* These forecasts of state law

are at best an uncertain gauge of the common law’s cur-

rent attitude on the matter, because federal courts’ pre-

dictions of state law are “not binding on state courts and

may be discredited at any time.” Moore v. Sims, 442

U.S. 415, 428 (1979); cf. Paoli I], 35 F.3d at 786

(noting that intervening Pennsylvania decisions had “cast{ ]

some doubt” on the prediction ventured in Paoli /).

There is by no means an obvious trend toward accept-

ance of the medical monitoring tort. A number of courts

have considered and explicitly rejected the claim. These

* Certain other courts have used the term “medica! monitoring’

in connection with requests for future medical expenses by plain-

tiffs who have allegedly sustained a physical injury as a result @f

chemical exposure. See, e.g., Hagerty v. L@L Marine Servs, Ink.

788 F.2d 315, 319 (5th Cir. 1986) (plaintiff had “[dlizziness, ier

cramps, and a persistent stinging sensation in feet and fingers’ .

Burton Vv. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1522-28

(D. Kan. 1995) (plaintiff had peripheral vascular disease). In

upholding such requests, these courts have applied traditional dam-

ages principles, see id. at 1523, and have not endorsed a free-

standing medical monitoring tort.

Friends for All Children, Inc. v. Lockheed Aircraft Corp. 746

F.2d 816 (D.C. Cir. 1984), is sometimes cited, erroneously, as a

progenitor of the medical monitoring tort. See, e.g., Paoli J, 916

F.2d at 851; Ayers, 525 A.2d at 309-10. In Friends for All Chil-

dren the plaintiffs had been on board an aircraft when it experi-

enced an explosive decompression and crashed, and they al! claimed

to have a then-ezisting neurological injury as a result of the inci-

dent. 746 F.2d at 819. The defendant conceded liability for all

compensatory damages. /d. at 822. The trial court issued, and the

D.C. Circuit affirmed, an injunction pendente lite requiring the

defendant to fund one-time diagnostic examinations of certain

plaintiffs to determine whether they were at that time in fact

suffering from the neurological injuries they claimed. /d. at 822,

828. In essence, the plaintiffs were in the position of the auto-

mobile-accident victim in the illustration discussed supra at 7-8.

11

courts hold, following the traditional common law rule,

that persons who have been exposed to a hazardous sub-

stance may recover for future medical testing only if the

exposure has caused a physical injury. See Mergenthaler

v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del.

1984); Hayes v. AC&S, Inc., No. 95 CH 1835, slip

op. at 12-14 (Cir. Ct. Cook Cty. Ill. Oct. 30, 1996);

Thomas v. FAG Bearings Corp., 846 F. Supp. 1400,

1410 (W.D. Mo. 1994) (Missouri law); Carroll v.

Litton Sys. Inc., 1990 U.S. Dist. Lexis 16833, at *148-53

(W.D.N.C. Oct. 29, 1990) (magistrate’s report and

recommendation) (North Carolina law); Purjet v. Hess

Oil Virgin Islands Corp., 1986 WL 1200, at *4 (D.V.L.

Jan. 8, 1986) (Virgin Islands law); Ball v. Joy Techs.,

Inc., 958 F.2d 36, 39 (4th Cir. 1991) (Virginia and

West Virginia law).

Il. THE MEDICAL COMMUNITY HAS REACHED A

CONSENSUS THAT DIAGNOSTIC TESTING OF

ASYMPTOMATIC PERSONS IS APPROPRIATE

ONLY IN WELL-DEFINED SITUATIONS.

Whether a certain type of alleged detriment should be

recognized as a legally cognizable “injury” is not an issue

of fact to be determined case by case, but a question of

law and policy for the courts. See Gottshall, 114 S. Ct.

at 2403. The answer depends in large part on whether

there is an expert consensus that the particular interest

asserted is important enough to warrant society's protec-

tion. Recognition of infliction of emotional distress as an

independently actionable tort, for instance, was prompted

by the conclusion of medical science “that not only fright

and shock, but also anxiety, grief, rage and shame, are in

themselves ‘physical’ injuries, producing» well marked

L. Prosser, Intentional Infliction of Mental Suffering: A

New Tort, 37 Micu. L. Rev. 874, 876 (1939). On the

other hand, in the absence of widespread agreement that

they should be protected, “[t]here are some interests to

which the law simply has not extended protection from

12

injury.” 3 FowLer v. HARPER ET AL., THE LAW OF

Torts § 18.3, at 671 (2d ed. 1986).

In holding that the need to incur the cost of special

future medical testing is itself an “injury” deserving of

legal protection, courts that have recognized the medical

monitoring tort “2ve simply assumed that there is a strong

social interest :n sseing that exposed persons who display

no signs of illness receive special medical testing to detect

the possible presence of latent disease. The Supreme Court

of New Jersey, for example, has declared that “[t}he value

of early diagnosis and treatment for cancer patients is

well-documented,” citing nothing but the opinion of a

member of that court in another case. Ayers, 525 A.2d

at 311 (citing Evers v. Dollinger, 471 A.2d 405, 418-19

(N.J. 1984) (Handler, J., concurring) ); see also Askey,

477 N.Y.S.2d at 247 (“[t}here is no doubt that [medical

monitoring] would permit the early detection and treat-

ment of maladies”); Miranda, 7 Cal. Rptr. 2d at 627

(“[iJt is common knowledge [that] early diagnosis of

many serious conditions promotes enhanced cure and

survival rates”)

Intuition, it is true, has long told us that going to the

doctor is a good thing, and that healthy people should

routinely undergo medical testing and examination to fa-

cilitate the early detection of a wide variety of latent di-

seases, especially cancers. For many years that intuition

was shared by medical practitioners and lay people alike.

See Stanley Joel Reiser, The Emergence of the Concept of

Screening for Disease, 56 MILBANK MEMORIAL FuND Q./

HEALTH & Soc’y 403, 406-17 (1978). But in recent years

physicians have come to recognize that diagnostic testing,

like any other medical intervention, is not good for the

patient unless the likely benefits outweigh the risks. Medi-

cal science has developed a sophisticated and we

methodology for assessing the medical risks and benefits

of diagnostic tests, and the application of that methodology

has made clear that our intuition about the desirability of

diagnostic testing is generally incorrect.

13

The medical community now recognizes that, while

diagnostic testing makes sense for patients with symptoms

such testing is generally not beneficial when

applied to persons who do not have symptoms of illness.

the same time that courts have deemed the bene-

fits of extensive medical monitoring to be too obvious to

require detailed explanation, medical science after exten-

SN

from a small number of well-established testing pro-

cedures that are recommended for almost everyone of a

given age, the testing of asymptomatic persons to detect

latent disease rarely improves outcomes, can be harmful,

and is usually not justified. This is true even for those

who face a substantially increased risk of disease, such as

ial

HL

Services Task Force (“Task Force”). The United States

Public Health Service commissioned the Task Force in

1984, and reconstituted it in 1990, to “develop[] recom-

mendations for clinicians on the appropriate use of pre-

ventive interventions, based on a systematic review of

evidence of clinical effectiveness.” U.S. PREVENTIVE

SERVICES TASK ForRCE, GUIDE TO CLINICAL PREVENTIVE

SERVICES xxviii (2d ed. 1996) (“Task Force Guipe”).

The Task Force has focused in particular on the effective-

ness of what physicians refer to as “screening tests”—

various tests and procedures that can be administered to

asymptomatic persons in an effort to identify those with

disease requiring special intervention. Its recommenda-

tions have been formulated in cooperation with a number

of other health-care organizations, including the American

Academy of Family Physicians, the American Academy

of Pediatrics, the American College of Physicians, the

14

of Health. /d. at liii. More than 700 experts reviewed

the Task Force’s recommendations before their publica-

tion. /d. at liv.

The Task Force’s methodological point of departure is

this:

[A] screening test must satisfy two major require-

ments to be considered effective:

* The test must be able to detect the target condition

earlier than without screening and with sufficient

accuracy to avoid producing large numbers of

false-positive and false-negative results. . . .

* Screening for and treating persons with early

disease should improve the likelihood of favorable

health outcomes . . . compared to treating patients

when they present with signs or symptoms of

disease.

Id. at xiii.

No screening test is accurate in all cases. See id. at

xliii-xliv. Inaccuracies generally result not from faulty

administration of the test by medical personnel but from

the inherent difficulty of defining on a generalized basis

what constitutes an “abnormal” test result. Philip Cole &

Alan S. Morrison, Basic Issues in Population Screening

for Cancer, 64 J. NAT'L CANCER INST. 1263, 1266 ( 1980)

(noting crucial role of the “criterion of positivity”). The

error rates of some screening tests are quite high. In some

clinical trials, chest x-rays have been able to identify only

40% to 50% of lung cancers present; that is, at least half

the tests yielded false negative results. Task FORCE

Guiwe at 136. Mammography and clinical breast exami-

nation to detect breast cancer, though recommended for

women over 50, id. at 73, have been found to yield false

positive results in up to 17% of patients. Id. at 74-75.

In an asymptomatic population, very few test subjects will

actually have the target disease, so the vast majority of

15

positive test results obtained will be false positives rather

than true positives. Jd. at xliv.*

_ In addition, there are distinct risks associated with

inaccurate test results. See A.B. Miller, The Ethics, the

Risks and the Benefits of Screening, 42 BioMEDICINE &

PHARMACOTHERAPY 439, 440-41 (1988); William Feld-

man, How Serious Are the Adverse Effects of Screen-

ing?, 5 J. Gen. INTERNAL MED. S50 (1990). Patients

who receive test results falsely indicating the absence of

disease might develop a misplaced sense of security and

delay in seeking medical care when symptoms of the

disease later manifest themselves. Task Force GuIDE at

xliii. False positive results can lead to more invasive

follow-up testing that may be uncomfortable and poten-

tially harmful, for example, coronary angiography after

a positive screening test for coronary artery disease. /d.

at xliv, 5-6. Such results can also “label” as diseased

persons who are in fact healthy, causing them to suffer

anxiety and other difficulties. Id. at xliv, 6; see also

William Feldman, supra, at $51-S52.

a great many diseases, including many cancers, early

®* The Task Force provides this illustration: In a

: population of

100,000 in which the prevalence of a cancer is 1%, there would be

mislabel 9,900 healthy persons as having cancer. The proportion

of persons with positive test results who actually had cancer—the

“positive predictive value” of the test—would be only 8.3%. Id. at

16

detection does not improve clinical outcomes.’ See, ¢.g.,

Task Force Guipe at 6 (“there is little evidence that

routine screening is an effective means to reduce the

incidence of acute coronary events in asymptomatic per-

sons”); id. at 123 (“there is currently no evidence that

screening for prostate cancer results in reduced morbidity

or mortality”); id. at 143-44 (no studies indicate that

skin cancers discovered by screening have a better out-

come than those which present clinically); id. at 170

(there is a “lack of evidence for improved outcome with

early detection of pancreatic cancer”); id. at 188 (“[t}he

benefits of early detection of thyroid cancer in the general

population are not well defined”); see also Philip Cole &

Alan S. Morrison, supra, at 1263 (notwithstanding the

“compelling intuitive appeal of the idea that detection

of early cancer will be rewarding,” in fact “the difficulty

of trying to improve a population’s health by screening

is immense”); Thomas M. Gill & Ralph I. Horowitz,

Evaluating the Efficacy of Cancer Screening: Clinical Dis-

tinctions and Case-Control Studies, 48 J. CLINICAL EpPt-

DEMIOLOGY 281, 290 (1995) (“the benefits of screening

for most cancers have not been convincingly demon-

strated with experimental evidence”). In some cases,

screening does not improve outcomes because treatment

of the target condition in an asymptomatic state is no

more effective than treatment after symptoms have become

apparent. In other cases, the unfortunate fact is that no

effective treatment is available regardless of when the

* Data suggesting that screening prolongs the life expectancy of

persons in whom disease is detected must be viewed with caution

because such data are easily influenced by “lead-time bias”: “sur-

vival can appear to be lengthened when screening simply advances

earlier the time of diagnosis, lengthening the period of time

between diagnosis and death without any true prolongation of

life.” Task Force Guipe at xiv. In addition, data can be under-

mined by “length bias,” the tendency of screening to detect a

disproportionate number of cases of slowly progressing disease and

to miss more virulent, fast-moving cases that are present in the

population only briefly. /d.

17

disease is detected. Philip Cole & Alan S. Morrison, supra,

at 1264 (“There is no point in screening for a disease

that can be treated successfully after symptoms appear,

nor is it reasonable to screen for an untreatable di-

sease.”); TASK Force Guide at xliv-xlvi.’

No disease better illustrates the limitations of screening

than lung cancer. In several broad-based studies, re-

searchers have found that mortality does not differ between

populations that undergo screening and those that do not.

Task Force Guipe at 136-37. Even persons with a sub-

stantially increased risk of lung cancer because of exposure

to carcinogens in the workplace have not been found

to benefit from such screening. “[BJenefit can only be

demonstrated if there is a change in mortality. In neither

the general population nor in workers with occupational

exposures has such benefit been documented.” Anthony

A. Marfin & Marc Schenker, Screening for Lung Cancer:

Effective Tests Awaiting Effective Treatment, 6 OCCUPA-

TIONAL Mep.: STATE OF THE ART Reviews 111, 129

(1991).

The conclusions of the Task Force stand in stark con-

trast to the enthusiastic views of diagnostic testing that

have been offered by courts in embracing the medical

monitoring tort. After a comprehensive review of the

medical evidence, the Task Force has identified only a

handful of screening procedures for which there is per-

suasive evidence of clinical effectiveness in asymptomatic

7Some physicians find benefit in certain screening procedures

for reasons that have little to do with the early detection of

disease. For example, many practitioners conduct routine physical

examinations of their asymptomatic patients because “examining a

patient conveys a special sense of caring,” helps establish a rela-

tionship of “friendship and trust” between doctor and patient, and

provides reassurance to anxious patients. Sylvia K. Oboler & F.

Mare LaForce, The Periodic Physical Examination in Asymp-

tomatic Adults, 110 ANNALS INTERNAL MED. 214, 215 (1989).

18

patients." Most of these procedures are recommended for

all persons within broad age-based categories. TASK

Force Gulpe at Ixii-lxviii.’ In addition, the Task Force

recommends a small number of screening tests for certain

high-risk populations (e.g., an HIV test for persons who

inject drugs). /d. at Ixvi.

But for the vast majority of screening tests—including

virtually all such tests intended to facilitate the early

detection of latent cancers—the Task Force has found

either insufficient evidence of effectiveness or affirmative

evidence that the procedures are ineffective or even harm-

ful. These include colonoscopy to detect colorectal can-

cer, id. at 98; screening for pancreatic cancer, id. at 171;

screening for oral cancer, id. at 178; urine cytology or

other screening tests to detect bladder cancer, id. at 184;

screening for thyroid cancer, id. at 189-90; and electro-

cardiography to detect asymptomatic coronary artery di-

sease, id. at 10. For the cancer that respondent is said to

be at special risk of because of his asbestos exposure—

lung cancer—the Task Force recommends against the ad-

ministration of screening tests to asymptomatic persons.

Id. at 138.”

® The Task Force has not taken into account the financial cost

of the procedures, TASK Force GUIDE at Ixxxv, although it recog-

nizes that cost may be a factor in clinical decisions, id. at li,

ixxxv-xcii.

® For example, for persons between the ages of 25 and 64, the

Task Force recommends measurement of height, weight, and blood

pressure; testing of total blood cholesterol for men over 35 and

women over 45; a Papanicolaou test for women; fecal occult blood

test or sigmoidoscopy for persons over 50; a mammogram for

women over 50; an assessment for problem drinking; and Rubella

serology for women of childbearing age. /d. at Ixvi. In addition,

the Task Force recommends that the physician administer certain

immunizations and chemoprophylaxis and counsel the patient re-

garding substance use, diet and exercise, injury prevention, sexual

behavior, and dental health. /d.

1 The Task Force assigns screening for lung cancer a “D” rec-

ommendation, id. at 138, which means there is “fair evidence to

19

Other medical organizations that have studied the mat-

ter have reached essentially the same conclusion as the

Task Force—the great majority of available screening

tests have not been shown to benefit asymptomatic pa-

tients. See, e.g., American College of Physicians, Pe-

riodic Health Examination: A Guide for Designing In-

dividualized Preventive Health Care in Asymptomatic

Patients, 95 ANN. INTERNAL MED. 729 (1981); Canadian

Task Force on the Periodic Health Examination, The

Periodic Health Examination, 121 CANADIAN MED. Ass’N

J. 1193 (1979); Robert S.A. Hayward et al., Preventive

Care Guidelines: 1991, 114 ANN. INTERN. MED. 758

(1991) (comparing the conclusions of the Task Force,

the American College of Physicians, the Canadian Task

Force on the Periodic Health Examination, and the Amer-

ican Cancer Society).

Given the consensus in the medical profession that

asymptomatic persons generally benefit only from certain

screening tests that are recommended for virtually every-

one, the law should not enshrine as an injury worthy of

legal protection the supposed “need” of chemically ex-

posed plaintiffs without any manifest illness to undergo

special screening beyond what they should receive in any

event. The entitlement to special medical monitoring

does not remotely enjoy the same status as the personal

interests that the law of negligence has traditionally

deemed deserving of protection, namely, freedom from

bodily and emotional harm. That the law should protect

these interests and compensate their negligent invasion

in at least some situations is a matter of universal agree-

ment in our society. By contrast, the desirability of special

medical screening to detect latent disease in uninjured

persons is not simply controversial—it has been generally

support the recommendation that the condition be excluded from

consideration in a periodic health examination,” id. at 861.

20

rejected by the very profession to which society tradi-

tionally looks for guidance on such matters.”

Ill. THE MEDICAL MONITORING TORT INVITES

ENORMOUS NUMBERS OF SPECULATIVE

CLAIMS.

Courts that have embraced the medical monitoring tort

have in effect rejected the manifest injury requirement as

an arbitrary barrier to the compensation of chemically

exposed plaintiffs and the deterrence of activities that

give rise to such exposure. See, e.g., Paoli I, 916 F.2d

at 852; Ayers, 525 A.2d at 312. But as this Court has

noted,

“characterizing a rule limiting liability as ‘unprinci-

pled’ or ‘arbitrary’ is often the result of overemphasiz-

ing the policy considerations favoring imposition of

liability, while at the same time failing to acknowl-

edge any countervailing policies.”

Gottshall, 114 S. Ct. at 2411 (quoting Cameron v. Pepin,

610 A.2d 279, 283 (Me. 1992)). The policies of com-

pensating plaintiffs and deterring alleged wrongdoing

almost always favor the imposition of liability. Courts

that have recognized a cause of action for medical mon-

itoring have focused on these pro-liabiilty policies while

ignoring or trivializing the considerations that counsel

against recognition of this new tort.

11 It is no answer to say that some experts, apparently including

those who testified for respondent at trial, dissent from the medical

consensus on screening for latent disease, and that disputes over

a plaintiff's need for such screening should be resolved by the

factfinder. The law does not abdicate to individual factfinders the

task of defining what constitutes a legally cognizable injury. “In-

jury” must be defined by the law on a categorical basis. See

Gottshall, 114 S. Ct. at 2408. Only if a plaintiff's alleged loss

satisfies the legal definition of injury does the claim qualify for

submission to the factfinder.

a cr eee +

21

A. The Medical Monitoring Tort Gives a Colorable

Claim to a Huge New Class of Potential Plaintiffs.

In eliminating the physical injury requirement, the med-

ical monitoring tort bestows a cause of action, virtually

immune from summary disposition, on an enormous new

class of potential plaintiffs who are not ill and who almost

surely will never become ill as a result of the conduct

complained of. This at a time when the volume of con-

ventional tort claims concerning just one category of

hazardous substance, asbestos, has already “burdened the

dockets of many state and federal courts, and has par-

ticularly challenged the capacity of the federal judicial

system.” Georgine v. Amchem Prods., 83 F.3d 610, 617

(3d Cir.), cert. granted, 117 S. Ct. 379 (1996).

Potentially toxic substances are ubiquitous in American

society. As of June 1993, the United States Environ-

mental Protection Agency had identified 37,921 potential

hazardous waste sites across the nation. U.S. CouNcIL ON

ENVIRONMENTAL QUALITY, TWENTY-FOoURTH ANNUAL

REPORT 293 (1993). During 1993, an estimated 59

million people lived in counties where air pollution levels

failed to meet at least one federally mandated air quality

standard. Id. at 15. Most foods contain pesticide residues.

Id. at 307. There is probably no work site in the country

where potentially hazardous substances are not present,

whether in raw materials used in industrial processes,

solvents used to clean machinery, pesticides used in agri-

culture, or the toner used in office photocopying equip-

ment. Many of these substances are transported by rail

at some point in the distribution process.

The hazardous substance involved in this case, asbes-

tos, is ubiquitous in ambient urban air. “The air of cities

other than that in the vicinity of asbestos processing

plants has . . . been found to carry small amounts of

asbestos.” IrviNG J. SeLikorF & Douctas HLK. LEE,

ASBESTOS AND DISEASE 118 (1978). Diesel exhaust, to

note just one other substance that is pervasive in the

22

environment and in the railroad workplace, is also an

alleged toxin. See, e.g., Kichline v. Consolidated Rail

Corp., 800 F.2d 356, 357 (3d Cir. 1986). Modern

analytical techniques are able to detect measurable

amounts of countless other potentially hazardous sub-

stances in the environment and in human bodies.

It is thus no exaggeration to say that most residents

of the United States, and probably all railroad workers,

are plausible potential medical monitoring plaintiffs.

There can be “little doubt that millions of people have

suffered exposure to hazardous substances.” Ball v. Joy

Mfg. Co., 755 F. Supp. 1344, 1372 (S.D. W. Va. 1990),

aff'd, 958 F.2d 36, 39 (4th Cir. 1991). On a traditional

personal injury claim, the threshold requirement of physi-

cal injury or illness sharply limits the universe of poten-

tial plaintiffs who can go on to try to prove the defendant's

negligence and their entitlement to relief. The nominal

threshold requirement erected by the medical monitoring

tort—exposure to a hazardous substance—scarcely limits

the class of potential plaintiffs at all. Almost everyone

who lives in industrial society has been exposed, in some

amount, to toxic chemicals. The tiiedical monitoring tort

makes all such persons eligible to come to court.

Courts that have recognized the medical monitoring

tort have responded to concerns about a potential torrent

of claims, if at all, by suggesting that such a result will

be prevented by the requirement that plaintiffs prove

elements in addition to mere exposure. See Potter, 25

Cal. Rptr. 2d at 580; Miranda, 7 Cal. Rptr. 2d at 628.

This response ignores what happens when medical moni-

toring claims are actually litigated. Nowadays, “[iJt has

become fashionable to add a cause of action for medical

monitoring to every mass tort complaint.” Paut D.

RHEINGOLD, Mass Tort LITIGATION § 12.2, at 12-2

(1996). Moreover, most courts have read the elements

of the tort to impose only the most minimal evidentiary

burden on plaintiffs. Unless plaintiffs concede, or have

a complete failure of proof on, one of the elements, e.g.,

~

23

Redland Soccer Club, Inc. v. Department of Army, 55

F.3d 827, 848 (3d Cir. 1995), cert. denied, 116 S. Ct.

772 (1996), medical monitoring claims are almost invul-

nerable to summary judgment.” See PauL D. RHEINGOLD,

supra, § 12.2, at 12-3. Thus, courts rarely can screen

Out insubstantial claims as a matter of law.

The elements of “significant” exposure and “significantly

increased” risk do not require plaintiffs to quantify the

extent of their exposure or the degree of increased risk

of disease, even in approximate terms. Paoli I], 35 F.3d

at 788; Ayers, 525 A.2d at 309. The requirement of

Significant exposure has been found to be satisfied by

testimony from the plaintiffs that they were present near

soil containing a hazardous substance. Paoli II, 35 F.3d

at 793. It is not even necessary for plaintiffs to demon-

strate that toxins were on the surface of the soil. It has

been found sufficient that the chemicals were detected

below the surface and “could” have migrated upward to

the surface. Redland Soccer, 55 F.3d at 827. Where

plaintiffs have offered quantitative estimates of their in-

creased risk caused by an alleged exposure, it has been

held that an increased lifetime cancer risk of just 1 in

100,000, Paoli I], 35 F.3d at 794, or even as little as

1 in 1,000,000, Redland Soccer, 55 F.3d at 847, is

enough to qualify as “significant.” *

Even if the medical monitoring tort were made avail-

able only to persons like respondent who have allegedly

12 But see Abuan V. General Elec. Co., 3 F.3d 329, 334 (9th Cir.

1993) (holding that plaintiffs failed to create a genuine issue of

fact because their experts could not “state how ‘significant’ or

relative the increased risk was for any individual”), cert. denied,

510 U.S. 1116 (1994). The Ninth Circuit’s approach in Abuan

has been rejected by the Third Circuit in an influential opinion.

See Paoli I], 36 F.3d at 788.

18 In the general population, the lifetime risk that a person will

develop cancer is one in two for men and one in three for women.

AMERICAN CANCER Soc’y, CANCER Facts & FicuRES—1996 at 1.

Thus, that a chemical exposure increases a man’s risk of cancer

by 1 in 1,000,000 means that the risk moves from 50% to 50.0001%.

24

experienced “massive” exposure to a hazardous substance,

Buckley, 79 F.3d at 1343, courts would still have no

discernible basis for distinguishing “massive” exposures

from lesser exposures as a matter of law. The same is

true of any attempt to constrain the scope of the tort

simply by adding adverbial or adjectival qualifiers to the

description of what plaintiffs need to prove. So long as

the difference between a compensable claim and a base-

less one is a matter of degree, virtually all claims will

qualify for submission to the factfinder. Cf. Gottshall,

114 S. Ct. at 2409 (“The Third Circuit did require that

the emotional injury be ‘reasonably’ foreseeable, but under

the circumstances, that qualifier seems to add little.”

(citation omitted) ).

The requirement to prove in addition that their alleged

increased risk creates a need for future medical monitor-

ing will not deter many plaintiffs. Notwithstanding the

wide agreement in the medical community that screening

for latent disease in asymptomatic persons is generally

not beneficial, see supra at 13-19, on this, as on other

scientific issues that come to court, there are always

experts who are willing to testify to fringe views for a

fee. Cf. Stoleson v. United States, 708 F.2d 1217, 1222

(7th Cir. 1983) (“there is not much difficulty in finding

a medical expert witness to testify to virtually any theory

of medical causation short of the fantastic”). In one

medical monitoring case, the plaintiffs produced an expert

who testified that an expensive program of special medical

monitoring is required for “anyone who lived near a toxic

dump site . . . even if they lived three blocks away.”

Paoli II, 35 F.3d at 794. Another expert in that case

opined that anyone who has been exposed to even one

molecule of an allegedly hazardous substance should

receive medical monitoring on account of such exposure.

Id. The Third Circuit in that case held that such opinions

were admissible under Rule 702 of the Federal Rules of

Evidence and this Court’s decision in Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579 (1993), and were

25

sufficient for the plaintiffs’ medical monitoring claims to

survive summary judgment. Paoli 11, 35 F.3d at 793-95.

With the evidentiary burden set so low, there is little

to deter enormous numbers of medical monitoring claims.

It has been suggested that a plaintiff is not likely to

pursue such a claim unless “he or she thinks the

[medical] tests are really needed.” Jd. at 788. But many

courts, including the Court of Appeals in the present

case, have not required that the recovery on medical

monitoring claims in fact be used for medical testing.

These courts refer to medical monitoring recovery as

“damages.” Buckley, 79 F.3d at 347; Bocoock, 819

F. Supp. at 536; Potter, 25 Cal. Rptr. 2d at 579; Meyer-

hoff, 534 N.W.2d at 206; Askey, 477 N.Y.S.2d at 247;

but see Burns, 752 P.2d at 34 (medical monitoring re-

covery should take form of court-administered fund);

Ayers, 525 A.2d at 313-15 (“encourag[ing]” use of a

court-administered fund); Hansen, 858 P.2d at 982 (de-

fendants should pay only for medical monitoring services

actually provided to plaintiffs). “{DJjamage awards do

not restrict plaintiffs in the use of money paid as com-

pensatory damages.” Ayers, 525 A.2d at 314. What

little empirical evidence is available suggests that plain-

tiffs who have received funds in settlement of medical

monitoring claims in fact often have not used the money

for medical testing. See George W.C. McCarter, supra,

at 257 n.158.

One court has ventured that “the damages available

in a medical monitoring claim—the cost of the tests—

are not likely to be high enough to provoke a flood of

litigation.” Paoli I], 35 F.3d at 788. There is no basis

for such an assumption. In one early case that was tried

to judgment, 339 plaintiffs were awarded a total of $8.2

million for future medical monitoring—an average of

about $25,000 per plaintiff. Ayers, 525 A.2d at 291.

In the Paoli litigation itself, one of the plaintiffs’ experts

offered the opinion that the plaintiffs needed to undergo

a wide variety of specialized evaluations and tests every

26

year for “at least 25 years,” at a projected annual cost of

at $3080 per plaintiff, or $77,000 per plaintiff over

twenty-five years."* Possible recoveries of this magnitude

are more than enough to attract litigants, especially since

most courts do not demand highly individualized proof

of medical monitoring claims, see, e.g., Paoli II, 35 F.3d

at 788, making possible the aggregation of hundreds of

such claims, see, e.g., Ayers, 525 A.2d at 287.

Some plaintiffs, like respondent, will be motivated to

press medical monitoring claims largely by the desire to

hold apparent wrongdoers “accountable for what they

did.” Buckley, 79 F.3d at 1341. Under traditional tort

principles, an alleged wrongdoer could be called to an-

swer in a negligence action only by someone who had

sustained physical injury or severe emotional distress

allegedly caused by the wrongdoing. The medical moni-

toring tort in effect confers standing on all persons in

the vicinity of a toxic chemical to challenge, if they wish,

the conduct of whomever they deem responsible for the

presence of the chemical. One need not doubt the sin-

cerity of most plaintiffs to predict that some will abuse

that right.

B. Medical Monitoring Claims Are Inherently Specu-

lative, and Threaten Defendants With Arbitrary

and Unpredictable Liability.

Traditional tort-law notions of “injury” contain built-in

protections against speculative claims. The physical in-

juries with which tort law has mostly concerned itself are

normally susceptible to observation or some other form

of objective confirmation. Emotional injuries, although

not directly observable, have traditionally been compen-

sated only in circumstances in which they are likely to

yield some external corroboration of their existence. See

Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.

™ See Medical Surveillance Program prepared by G. John

DiGregorio, M.D., Ph.D., at 4, in In re Paoli R.R. Yard PCB Litig.,

No. 86-2229 (E.D. Pa.).

27

557, 569 n.18 (1987). The medical monitoring tort

provides no such check on speculative claims. The injury

involved—a plaintiff's “need” for future medical testing—

has no objective existence.

Courts that recognize the tort have opined that it will

not engender speculative claims because plaintiffs must

prove their need for future medical monitoring by com-

pentent expert testimony. See, e.g., Paoli 1, 916 F.2d at

850-52; Ayers, 525 A.2d at 308-09. But the fact that a

claim can be supported by competent expert testimony

does not necessarily make it non-speculative.

For example, even courts that accept the medical mon-

itoring tort agree that a claim for the “increased risk” of

disease, as such, is too speculative to be allowed, even if

competent experts can be found to support such a claim.”

E.g., Paoli I, 916 F.2d at 850-51; Potter, 25 Cal. Rptr.

2d at 569 n.15; Ayers, 525 A.2d at 304-08. There is no

basis for Sa. a oe claim any differ-

ently. Such a claim requires, as an essential element,

— that the plaintiff is at increased risk of future di-

matters. An _ Opinion that 4 aon healthy plaintiff

perhaps as little as a one-in-a-million chance—that

because of a chemical exposure the plaintiff might years

in the future develop a disease that might benefit from

early detection and treatment. That an expert can put a

present-day price tag on the “need” for future medical

monitoring to detect such disease does not remove the

dominant element of speculation.

The dangers of speculation in medical monitoring

claims are especially severe because the opinion that a

% An “increased risk” claim seeks recovery for the consequences

of a future harm that may, but probably will not, come to pass.

See Bocook, 819 F. Supp. at 536.

28

particular plaintiff needs future medical monitoring is not

easily subjected to verification or falsification. The ex-

pert’s opinion is neither an explanation of how scientific

pisonmen have commend tp Ce gest sor 6 geen S

use the

plaintiff is not currently sick, and will probably never de-

velop any exposure-related illness, the expert has no re-

sponsibility to tie his opinion to objective reality. The

opinion is pure say-so.

Given the ease with which plaintiffs can make out

triable claim for future medical monitoring, and the spec-

ulative nature of the claim, “ery! will be imposed on

shall, 114 S. Ct. at 2409. The only standard set up by

the medical monitoring tort is: do not negligently allow

any chemical exposure that might cause an expert witness

to say exposed persons need future medical testing to de-

tect possible latent disease. That, as a practical matter,

is no guidance at all. Nor is the bare standard that parties

should not engage in negligent conduct enough to guide

defendants and prevent arbitrary outcomes, any more than

it was in Gottshall. See id.

C. There Is No Unfairness in Denying a Cause of

Action for Medical Monitoring.

By comparison with the physical and emotional injuries

that the law of negligence has traditionally compensated,

the alleged need of currently healthy persons for special

future medical testing has at best only a very weak claim

on the limited resources of the judicial system. If one

who has been exposed to a hazardous substance eventu-

ally does develop a disease that he believes was caused by

the exposure, he is entitled (possible problems of claim-

splitting aside) to pursue a conventional personal injury

claim at that time. See Simmons, 674 A.2d at 239. But

medical profession has wide

see supra at 13-19, and that the plaintiff may elect to

forgo in any event, see supra at 25.

ance. U.S. Dep’tT oF COMMERCE, STATISTICAL AB-

STRACT OF THE UNITED StaTEs 120 (1996). Health in-

surance pays for about 80% of all standard medical

bills. See 2 AMERICAN LAw INST., ENTERPRISE RESPON-

SIBILITY FOR PERSONAL INJURY—REPORTERS’ Stupy 379

(1991). To the extent that persons exposed to hazardous

substance may have a genuine need for medical testing to

detect possible latent disease, most such testing will prob-

ably be covered by some form of health insurance.

[T]}here is no strong reason for devising a novel form

of early tort intervention to pay for the modest un-

insured expenses likely to be incurred by those who

were exposed but are not yet diseased.

Id. Where health insurance coverage exists, the medical

monitoring tort simply confers a windfall on plaintiffs

who are not ill, and are unlikely ever to become ill, be-

cause of the defendant’s conduct.”

% On traditional tort claims, the law ignores the fact that the

plaintiff has received insurance benefits from a “collateral source.”

4 Fow.er V. HARPER, supra, § 25.22, at 651 n.7. Friends for All

Children, 746 F.2d at 816, though not a true medica] monitor-

CONCLUSION

For the reasons stated, the judgment should be reversed.

Respectfully submitted,

STEVEN R. KUNEY *

RoBERT J. SHAUGHNESSY

ANN H. RAKESTRAW

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, D.C. 20005

(202) 484-5000

Attorneys for Amici Curiae