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

-

No. 96-320 ~~ DEC 16 1996

~~ ewer ee ree

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

METRO-NoRTH COMMUTER RAILROAD,

7 Petitioners,

MICHAEL BUCKLEY,

Respondent.

On 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

VICTOR E. SCHWARTZ *

MARK A. BEHRENS

CHRISTOPHER H. Woop

CROWELL & MorING LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

(202) 624-2500

SHERMAN JOYCE

AMERICAN TORT REFORM

ASSOCIATION

1212 New York Avenue, N.W.

Suite 515

Washington, D.C. 20005

(202) 682-1163

Attorneys for Amicus Curiae

* Counsel of Record

_—_———____

a

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

\)

' TABLE OF CONTENTS

TABLE OF AUTHORITIES. ......-..--..---.--co--cco-ccecccesccessove-

INTEREST OF AMICUS CURIAE oc.ccccccccoc-cccccccoseeomoe

STATEMENT OF THE CASE q..00--..-:cc--cccesccoecccecccseessseee

INTRODUCTION AND SUMMARY OF THE ARGU-

ITS cinctcnnsenesepinngninesinenvniattpinnnatadauacantapatcamamenpenes

| I. CONGRESS AND STATE LEGISLATURES

ARE THE MOST APPROPRIATE FORUMS

f TO DETERMINE WHETHER A MEDICAL

j MONITORING REMEDY IS NEEDED AND

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

A. Legislatures Are Better Equipped Than

Courts To Address The Broad Public Inter-

est In Medical Monitoring ........................000......

B. Legislatures’ Prospective Treatment Of The

Law Is Better Suited For Implementing Medi-

cal Monitoring Awards Than Courts’ Retro-

active Treatment Of The Law .........................

C. Creating A New Cause Of Action For Medi-

cal Monitoring Does Not Represent A Tra-

ditional Development Of The Common Law..

II. COMPLEX ISSUES WHICH SHOULD BE

CONSIDERED BEFORE MEDICAL MONI-

TORING IS AWARDED DEMONSTRATE

WHY LEGISLATURES PROVIDE A BETTER

FORUM THAN COURTS FOR IMPLEMENT-

ING THE REMEDY. .200.002...2.202.....ccccssseeeeeeee-e

A. Legislatures Are In The Best Position To

Establish A Clear And Sound “Trigger” As

To When Medical Monitoring Is Appro-

eA tiilhiintastaensiniesictidnmbialdatie Aaaite Ei iaititiaitaas

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ii

TABLE OF CONTENTS—Continued

B. Legislatures Are In The Best Position To

Ensure That Medical Monitoring Awards

Serve Their Intended Purpose tednintadinneunes

C. Legislatures Are In The Best Position To

Ensure That Medical Monitoring Is Only

Used When It Confers A Real Benefit...

D. Administrative Burdens Detract From Judi-

cial Supervision Of Medical Monitoring...

ET Te

15

17

ili

TABLE OF AUTHORITIES

CASES Page

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

1987) .. 4, 12, 14, 17

Ball v. Jey 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 (1992) ........ siieteentinenbi 17

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

SS 1,8

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

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

(1996) ... 4,12

Butterfield v. “Forrester, 108 Eng. ‘Rep. 926 (KB.

1809) ... 9

Coats v. Penrod ‘Drilling ‘Corp., “61 F.3d 1113

(Sth Cir. 1995) —.............. 6

Edmonds v. Compagnie Generale ‘Transatlantique,

OU) .

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

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

MB 13-14

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

2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963)... 10

Halcyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 262 (1961) ................................... 7

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

ge a Se ae 4

Harrison v. Montgomery Co. Board of Education,

456 A.2d 894 (Md. 1983) ll

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

SS ee eee 13

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

(NJ. 1960) . ues 10

Hoffman v. Jones, 280 So. 24 431 (Fla. 1973)... 9

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

(3d Cir. 1994) (“Paoli II"), cert. denied sub

nom. General Elec. Co. v. — 499 U.S. 961

(1991) ... 4,12

Jones & Laughlin Steel Corp. e. _ Pfeifer, 462 US.

FE ee a eS ee a 13

iv

TABLE OF AUTHORITIES—Continued

Page

Lozada ex rel. Lozada v. United States, 140 F.R.D.

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

cccicuriccenpnecinaiicitiianiiiliitntehibisitie aaiititpiaiil a le DE 14

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

0 en ee a eee 10

Medt onic, Inc. v. Lohr, 116 S. Ct. 2240 (1996) 2

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

Sr MS 13

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

EE esas ae vee LS aS 7

Pennsylvania R.R. Co. v. Aspell, 23 Pa. 147

a 9

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

. f Re ee a 4, 12,17

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

(3d Cir. 1995), cert. denied, 116 S. Ct. 772

EE eee a a Le ee 5 EE 17

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

0 eee ee 6

Urie v. Thompson, 337 U.S. 163 (1949)... 5

CONSTITUTIONAL AND STATUTORY

MATERIALS

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

RR EN Se A cA ln a er NN Ss 12

ET LCM

@ USB. § $606¢i) (9) (A)... 13

ET A A 2-3, 5, 8,9

ey eemuniineiiin 6

PUBLICATIONS

2 American Law Institute, Enterprise Responsi-

bility For Personal Injury—Reporters’ Study

Lg a 16, 17

Amy B. Blumenberg, Medical Monitoring Funds,

43 Hastings L.J. 661 (1992) 14

Lester Brickman, The Asbestos Litigation Crisis:

Is There A Need For An Administrative Alter-

native?, 13 Cardozo L. Rev. 1819 (1992)... 13

v

TABLE OF AUTHORITIES—Continued

Steven Carroll and Allan Abrahamse, The Costs

Of Excessive Medical Claims For Automobile

Personal Injuries (RAND Institute For Civil

OD EEE

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.

SS 2 ES eee

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

Of Future Injury And Medical Monitoring

Claims, 61 Def. Couns. J. 554 (1994) ........._...

Deborah R. Hensler, Fashioning a National Reso-

lution of Asbestos Personal Injury Litigation:

A Reply to Professor Brickman, 13 Cardozo L.

TT

Judicial Conference Ad Hoc Committee on As-

bestos Litigation, Report of the Ad Hoc Com-

in ale AS

Jesse R. Lee, Medical Monitoring Damages:

Issues Concerning the Administration of Medi-

cal Monitoring Programs, 20 Am. J.L. & Med.

i —-

Jeffrey O'Connell, Must Health And Disability

Insurance Subsidize Wasteful Injury Suits?, 41

Rutgers L. Rev. 1055 (1989) ...

William Prosser and Page Keeton, The Law Of

Torts (5th ed. 1984) .

Restatement Of The Law Of Torts: Products Lia-

bility (Proposed Fina! Draft (Preliminary Ver-

sion) Oct. 18, 1996) -

Vietor E. Schwartz, Comparative Negligence (3a

ed. 1994) . a

Victor E. Schwartz, Tort Law Reform: ” Strict

Liability And The Collateral Source Rule Do

Not Miz, 39 Vand. L. Rev. 569 (1986) .

Stephen A. Spitz, From Res Ipea Loquitur to

Diethylstilbestrol: The Unidentifiable Tort-

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

Page

17

16

4, 16

16

17

8,9

vi

TABLE OF AUTHORITI2S—Continued

Page

United States Preventive Services Task Force,

Guide To Clinical Preventive Services (2d ed.

1996) ... 12

John w. Wade et y ® " Presser, “Wade end

Schwartz's Cases and Materials On Torts (9th

IO a ee 10, 17

In THE

Supreme Court of the United States

OcToBER TERM, 1996

No. 96-320

MeTRO-NoRTH COMMUTER RAILROAD,

2 Petitioners,

MICHAEL BUCKLEY,

Respondent.

On 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

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

* Pursuant to Rule 37, letters of consent from the parties have

been filed with the Clerk of the Court.

2

medical device “preemption” decision in Medtronic, Inc.

v. Lohr, 116 S. Ct. 2240 (1996).

ATRA submits this brief to further this Court's under-

standing of the specific policy issues presented by medical

monitoring damages, a core issue in this case. ATRA

urges this Court to reverse the decision of the Second

Circuit Court of Appeals.

STATEMENT OF THE CASE

ATRA adopts Petitioner's summary of the dispute in

question.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

ATRA submits that decisions about whether to estab-

lish complex and revolutionary changes in liability law,

if at all, such as the award of damages for so-called “med-

ical monitoring,” are best addressed 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,

interests. Further, when courts “make” law, they do so

retroactively, denying “fair notice” to the public about

rights and responsibilities that may result from significant

new changes in the law.

3

Act (“FELA”), 45 U.S.C. § 51, even though the plain-

tiff currently suffers no harm and no symptoms of harm.

Whether individuals should receive damages from pri-

vate parties for medical monitoring is a question for legis-

latures, not courts, to answer. There are several reasons

why this is true.

First, legislatures can devise clear and sound “triggers”

that identify the specific circumstances under which a

claimant may be eligible for a medical monitoring award;

courts have not demonstrated the ability to do so. Sec-

ond, courts cannot assure that awards for medical moni-

toring will actually be used for that purpose — tort awards

are made in lump sums. The lump sum award could be

used for purposes having nothing to do with medical moni-

toring. Legislation could address this problem. Third,

courts do not have the scientific knowledge to determine

when and if medical monitoring is appropriate. Legisla-

tures are in a better position to obtain such information.

Finally, the few courts that have decided to create this

“new tort” have given no consideration to the fact that

the plaintiff already may have opportunities for medical

monitoring under workers’ compensation or a health in-

surance plan. A legislature could consider whether the

“new tort” should be limited to people who do not have

existing resources that provide for medical monitoring.

In sum, legislative questions deserve legislative answers —

they are not questions that can or should be addressed

by courts.

ARGUMENT

I. CONGRESS AND STATE LEGISLATURES ARE

THE MOST APPROPRIATE FORUMS TO DETER-

MINE WHETHER A MEDICAL MONITORING REM-

EDY 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 process

generally worked well. In recent years, however, the in-

4

cremental approach has been abandoned in some cases,

resulting in potentially large adverse consequences to the

Nation’s civil justice system and those who must abide

by its rules.

Early in the asbestos litigation, courts empathetic to

the claims of asbestos claimants deviated from accepted

legal principles to permit recoveries that 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 in-

tentions, the litigation turned into a judicial “disaster of

major proportions.” * People with very serious harms 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 seriously injured

persons, now caught up in an ever-widening sea of litiga-

tion, was so great that the judiciary sought congressional

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 embraced a

novel theory of recovery (i.e., the award of “medical

monitoring” damages) that is contrary to traditional com-

mon law principles and has been recognized in only a

tiny number of jurisdictions. For over 200 years, the

traditional tort law rule has been that a plaintiff must

' Judicial Conference Ad Hoc Committee on Asbestos Litigation,

Report of the Ad Hoc Committee 2 (1991).

2 Id.

* See Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987);

In re Paoli R.R. Yard PCB Litig., 35 F.8d 717 (3d Cir. 1994)

(“Paoli II”), cert. denied sub nom. General Elec. Co. v. Ingram,

499 U.S. 961 (1991); Hansen v. Mountain Fuel Supply Co., 858

P.2d 970 (Utah 1993) ; Potter v. Firestone Tire & Rubber Co., 863

P.2d 795 (Cal. 1998); Buckley v. Metro-North Commuter R.R.

Co., 79 F.3d 1887 (2d Cir.), cert. granted, 117 S. Ct. 379 (1996).

5

suffer actual injury before he or she will receive an award

in tort. The rationale of the rule is that tort law needs

Medical monitoring claims raise difficult and complex

issues. These issues are extremely broad, and are not sub-

ject to judicial control. In that regard, on a daily basis,

almost everyone comes into contact with a potentially

limitless number of materials that, arguably, may warrant

a “medical monitoring” remedy.* Who should be eligible

for that remedy? Lawyers in the courtroom, however

helpful, cannot resolve that key issue.

ATRA submits that decisions to establish retroactive,

wholesale, and complex changes in liability law, including

the award of damages for medical monitoring, are best

addressed by Congress and state legislatures. This is par-

ticularly the case where, as here, the underlying cause of

action is statutorily-based.° Courts may not rewrite the

FELA statute to provide medical monitoring damages;

4 Cf. Urie v. Thompson, 337 U.S. 163, 170 (1949) (a party bring-

ing suit under the FELA suffers a compensable injury only when

“the accumulated effects of the deleterious substance manifest them-

selves”) (citation omitted).

S 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 C. Gay &

Paige F. Rosato, Combatting Fear Of Future Injury And Medical

Monitoring Claims, 61 Def. Couns. J. 554, 562 (1994).

* See generally Roger S. Fine, A Personal Perspective from the

“Manufacturer,” 55 Brook. L. Rev. 899, 903 (1989) (“[Lljet us go

back to the days when there was a real difference between the judi-

cial and legislative branches. When a court is faced with a problem

that is a socia) one rather than a legal one, we defer to the legisla-

ture, 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 California,

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

it is up to Congress, if it desires to do so, to change the

law."

A. Legislatures Are Better Equipped Than Courts To

Address The Broad Public Interest In Medical

Monitoring.

Courts are particularly well-suited to adjudicate individ-

ual disputes concerning discrete issues and parties. The

Founding Fathers recognized this when they drafted the

Constitution to give the judiciary jurisdiction to decide

“cases and controversies.”* This particularized focus,

however, involves some basic limitations; it deprives the

judiciary of the comprehensive access to information that

is essential to the formation of complex and sound na-

tional tort policy rules.

Legislatures, on the other hand, :re well-equipped to

reach fully informed positions about the need for wide-

spread changes in the law. They have more complete

access to information, including the ability to receive com-

ments from persons representing a multiplicity of perspec-

tives and to use the legislative process to obtain new in-

formation. If a point needs further elaboration, a witness

can be recalled. This process allows legislatures to engage

in broad policy deliberations.®

7In an analagous case where a statutorily-based remedy was at

issue (i.e., a request for judicial modification of the application of

joint and several liability to the Longshore and Harbor Workers’

Compensation Act), the Fifth Circuit Court of Appeals recently

held: “[{T]he Congress is in a better position than a court to eval-

uate various policy objectives. We are persuaded that deferring to

congressional action here is the wiser course.” Coats v. Penrod

Drilling Corp., 61 F.3d 1113, 1138 (5th Cir. 1995).

§ 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 dissenting in part)

(disagreeing with the majority’s application of “market share liabil-

ity” to a blood products case, because “[t)here are too many unan-

swered questions of social, economic, and legal import which only

7

Accordingly, legislatures are in the best position to

consider whether a medical monitoring remedy is needed,

and if it is needed, to resolve its complex issues.”

B. Legislatures’ Prospective Treatment Of The Law

Is Better Suited For Implementing Medical Moni-

toring Awards Than Courts’ Retroactive Treatment

Of The Law.

Adoption of a novel remedy, such as medical monitor-

ing, that denotes a sweeping change of the rights and

responsibilities of the public, should be done prospec-

tively, if at all, to provide “fair notice” to everyone poten-

tially affected.

Courts, following the common law process, institute

their rulings on a retroactive basis. Although this may be

appropriate when implementing minor adjustments to

common law principles, it is not appropriate when the

“adjustments” precipitate a broad, fundamental change in

an available tort remedy.

the legislature, with its investigative powers and procedures, can

determine”); Mulcahy 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’’).

1” As this Court has stated, when “[mljany groups of persons

with varying interests are vitally concerned .... We think that

legislative consideration and action can best bring about a fair

accommodation of the diverse but related interests of these groups.”

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S.

282, 286 (1951). The American Law Institute’s new draft Restate-

ment on the law of products liability similarly suggests that when

the government has superior access to information, it, rather than

the courts, should act. See Restatement Of The Law Of Torts:

Products Liability § 20 emt. a (Proposed Final Draft (Preliminary

Version) Oct. 18, 1996) (“Issues relating to product recalls are

best evaluated by governmental agencies capable of gathering ade-

quate data regarding ramifications of such undertakings”).

By way of contrast, legislative consideration of medical

monitoring will result in prospective legislation that will

give the public advance notice of significant changes af-

fecting rights and duties, and the time to comport be-

havior accordingly. As this Court said in its most recent

decision on the subject of punitive damages, “Elementary

notions of fairness enshrined in our constitutional juris-

prudence dictate that a person receive fair notice . . . of

the conduct that will subject him to [liability]... .” 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 can.

C. Creating A New Cause Of Action For Medical Moni-

toring Does Not Represent A Traditional Develop-

ment Of The Common Law.

It may be argued that the Second Circuit’s creation of

a “new cause of action” for medical monitoring is simply

a traditional development of the common law. This argu-

ment does not correspond to the facts.

First, the Second Circuit was not merely developing

traditional “common law” without a statutory base. Since

1908, the FELA statute has been in existence and subject

to construction based on congressional intent.” If

changes are needed, Congress can choose to amend the

Act.” In 1908, allowing a cause of action where an

individual was not injured at the time he or she brought

11 See William Prosser and Page Keeton, The Law Of Torts,

§ 80 at 577 (5th ed. 1984).

12 As this Court stated in Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256, 272-273 (1979) (citations omitted) :

[Wle are mindful that here we deal with the interface of

statutory and judge-made law. * * * By now changing what

we have already established that Congress understood to be

the law, and did not itself wish to modify, we might knock

out of kilter this delicate balance. As our cases advise, we

should stay our hand in these circumstances.

9

the claim was simply inconceivable.” There is nothing

in the legislative history or in the common law at the time

the FELA statute was enacted that provides even a

scintilla of evidence to suggest a basis for medical moni-

toring damages awards.

Second, the Second Circuit’s creation of a cause of

action for medical monitoring is different in both form

and substance from traditional common law developments

in the law of torts. They have been incremental in

nature.”

For example, the doctrine of contributory negligence

had its origin in the English case of Butterfield v. For-

rester, 103 Eng. Rep. 926 (K.B. 1809). In 1854, a

Pennsylvania judge called the defense “a rule from time

immemorial” and ventured to guess that it was “not likely

to be changed for all time to come.” Pennsylvania R.R.

Co. v. Aspell, 23 Pa. 147, 149 (1854). The judge who

wrote the opinion was a poor prognosticator of history,

but he must be given some credit as the rule took more

than 150 years to change in common law development.

In time, exceptions were created to the rule, such as not

applying it when the defendant had a “last clear chance”

to avoid an accident or where the defendant engaged in

“reckless” behavior."* Gradually, “comparative negligence”

Statutes were enacted.” But, it was not until 1973 that

the first common law decision permitted comparative fault

as a general rule, and that was in a state that had already

used comparative fault in a wide matrix of specific

statutes.”

18 See generally William Prosser and Page Keeton, supra note 11,

§ 54 at 361.

4 See id., §80 at 578 (noting that the history of the FELA

statute has been one of “gradual” liberalization) (emphasis added).

16 See id., § 66 at 462-464.

16 See Victor E. Schwartz, Comparative Negligence (3d ed. 1994).

17 See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1978).

10

When other changes have developed in the common

law, such as the development of strict products liability,

they have occurred gradually. 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 Tray-

nor, writing for the California Supreme Court, recog-

nized 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 Materials On

Torts 717 (9th ed. 1994). Even when this expansion

occurred, a fault base remained in the key areas of prod-

uct design and warnings.”

The same slow, meticulous, evolvement of the common

law has been true with other tort law developments, such

as the modification of traditional immunities, permitting

recovery for a child who had been injured in the womb,

or modification or abolition of the assumption of risk

defense.

In point of fact, one can find no example where

a court on a common law basis retroactively overruled

a fundamental principle of tort law, like the one at issue

here, that a plaintiff must suffer a current harm in order

to bring a tort claim.

The claim allowed in the instant case occurred without

any forewarning or “evolvement” in the case law. The

Second Circuit did not engage in a gradual abolition of

18 See Restatement Of The Law Of Torts: Products Liability

§2 (Proposed Final Draft (Preliminary Version) Oct. 18, 1996).

11

a traditional defense or incremental development of the

common law. Unfortunately, the Court of Appeals’ deci-

sion represents judicial retroactive legislative lawmaking

and is wrong as a matter of history and public policy.

If a claim is to be allowed for medical monitoring, as this

brief will show, it is a subject for legislative action.”

Il. COMPLEX ISSUES WHICH SHOULD BE CONSID-

ERED BEFORE MEDICAL MONITORING IS

AWARDED DEMONSTRATE WHY LEGISLA-

TURES 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.

Before parties can be given access to medical monitor-

ing, a clear and sound “trigger” must be set to identify

the specific circumstances under which a claimant may be

eligible for a medical monitoring award.

A proper “trigger” analysis requires access to informa-

tion from numerous sources, particularly scientific and

medical experts, that is only partly available to courts.”

Legislatures, on the other hand, are not limited to infor-

mation produced by plaintiffs and defendants; if they

need additional information, they may initiate information

gathering (e.g., epidemiological studies).

%” See Harrison v. Montgomery Co. Bd. of Educ., 456 A.2d 894,

904 (Md. 1983) (stating that the judiciary should defer “to the

legislature where change is sought in a long-established and

well-settled common law principle”).

» 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 treatment for exposures.

12

In the past, courts have not demonstrated an ability to

articulate specific or consistent eligibility requirements

for medical monitoring. The Second Circuit’s vague and

ambiguous “standard” in this case illustrates this point

well:

Buckley suffered a substantial impact from asbestos

that has significantly increased his risk of contracting

an asbestos-related disease and that Buckley should

receive medical monitoring in order to ensure early

Buckley, 79 F.3d 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 Occupa-

tional Safety and Health Act, 29 U.S.C. §§ 651-78, and

its extensive implementing regulations clearly define per-

missible exposure levels for hazardous substances used in

the workplace and provide for surveillance procedures to

determine whether workplaces exceed those levels.” In

21 See also Ayers, 525 A.2d at 312 (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 at 788 (monitoring appropriate

when there is a “significantly increased risk to plaintiff of contract-

ing a serious disease” such that “periodic testing is reasonably

necessary”); Potter, 863 P.2d at 824 (to recover there must be a

“significant, but not necessarily, likely risk of disease” that makes

the need for monitoring “reasonably certain”).

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

1995) (regulations regarding occupational asbestos exposure). In

addition, the federal government formed the United States Preven-

tive Services Task Force, which performed an exhaustive study and

published recommendations concerning the effectiveness of clinical

preventive services. The latest culmination of the Task Force's

efforts is 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 conducted to

detect disease.

In most medical monitoring cases, plaintiffs seek,* and

are granted, lump sum awards.” Yet, courts cannot dic-

tha sy Congress — The Agency for Toxic Sub-

stances Disease Registry, in specific circumstances, may

initiate “medical testing . . . of population subgroups 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 litiga-

tion. Trials have essentially become “games of chance,” because

of the lack of clearly delineated standards for recovery. 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?, 138 Cardozo L. Rev. 1819, 1852-

1859 (1992).

%5 See, e.g., Herber v. Johns-Manville Corp., 785 F.2d 79 (3d

Cir. 1986); Merry v. Westinghouse Elec. Corp., 684 F.

847 (M.D. Pa. 1988). a ne

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

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

14

tate how damages recipients will spend a lump sum

award.” The medical monitoring award itself is not

appropriately monitored, so there is no assurance 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 monitor-

ing programs that provide appropriate testing,“ and

ensure that damage awards, from whatever source, are

actually used to pay the expense of medical monitoring.

Courts and commentators alike have advocated the use

of periodic payment pians to secure the efficient, fair, and

proper allocation of medical monitoring awards.” Legis-

latures are well situated to devise and implement periodic

payment plans and effectively have done so.”

C. Legislatures Are In The Best Position To Ensure

That Medical Monitoring Is Only Used When It

Confers A Real Benefit.

Medical monitoring should be instituted only if the

benefits of testing outweigh the costs. An appropriate

cost-benefit analysis in the context of medical 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.

tion 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

ex rel. Lozada v. United States, 140 F.R.D. 404, 416 (D. Neb.

1991), aff'd, 974 F.2d 986 (8th Cir. 1992).

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

28 Cf. 29 U.S.C. §§ 651-78.

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

Monitoring Funds, 43 Hastings LJ. 661, 683 n.112 (1992) (citing

numerous commentators) .

3° State legislatures have passed statutes providing awards through

periodic payments for social concerns such as alimony, child support,

no-fault automobile liability, medical malpractice, and workers’

compensation. See Amy B. Blumenberg, supra note 29, at 686-687.

15

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.e., the proportion of the popu-

lation with the suspect condition) and the proposed test's

scientific sensitivity, specificity, and positive and negative

predictive value. Without this assessment, the decision-

maker will not be able to discern risks inherent in the

testing procedure, such as the incidence of false positives

and false negatives — incorrect test results that can induce

destructive psychological reactions, and in the case of

false positives, lead to additional testing and treatments

that carry a number of additional risks. This single

example illustrates the complexity of the cost-benefit

analysis that must be conducted prior to determining the

viability of a medical monitoring remedy.

As this Court can appreciate, access to a substantial

amount of complex, scientific information is imperative

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 Su-

pervision Of Medical Monitoring.

Courts are not equipped to handle the administrative

procedures needed to ensure that medical monitoring

remedies serve their limited purpose. Implementation and

administration of a sound plan will require, at a mini-

mum: specifying the nature and amount of benefits avail-

able, specifying the source of funding and funding allot-

ments, defining procedures for determining eligibility for

monitoring, defining when eligible parties may join the

program, and determining program duration and how it

will be implemented (e.g., formal versus informal facility

testing; designated service provider versus participants’

16

chosen provider). Moreover, as the program matures,

its scope and ee arene Gee ton re-

uire change, especially program errone-

= estimates funding needs or the number of eligible

participants.”

A further administrative issue arises if third-party pay-

ment plans overlap with the medical monitoring program.

2 an Gigs pars eneiakes & Oy ee

health care insurer“ and there is no proof of injury, a

basic public policy question arises as to whether the

“collateral source rule” should apply. Under the rule,

benefits received by a claimant from health or medical

insurance, disability insurance, workers’ accident com-

pensation benefits, and government benefits, in legal terms

are deemed “collateral” to the tortfeasor, since the tort-

feasor did not pay for them, and are not deducted in

calculating the amount of the claimant’s alleged dam-

ages.** Extension of this rule beyond traditional tort law

where someone is harmed, to a brand new claim where

31 See Jesse R. Lee, Medical Monitoring Damages: Issues Con-

cerning the Administration of Medical Monitoring Programs, 20

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

ioning a National Resolution of Asbestos Personal Injury Litiga-

tion: A Reply to Professor Brickman, 13 Cardozo L. Rev. 1967,

1985-1986 (1992).

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

claims against the Johns-Manville Company “settled [only] 25,000

out of more than 140,000 claims [before] deplet{ing} its funds.”

Judicial Conference Ad Hoc Committee on Asbestos Litigation,

supra note 1, at 25.

33 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 contracts, for example, may

provide that the insurer is to be subrogated to the insured’s tort

17

an individual suffers no harm, is inappropriate and against

public policy.”

CONCLUSION

Courts, in accord with constitutional dictates, are not

Structured to devise and supervise medical monitoring

remedies. Legislatures, on the other hand, not only have

authority to confront and resolve the broad public policy

tort issues raised by medical monitoring, 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 legislation prospectively. The inappro-

priateness of a court acting on a matter of

priority is particularly acute where the legislative body,

claim. See John W. Wade et al., Prosser, Wade and Schwartz's

Cases and Materials On Torts § 2 at 522 (9th ed. 1994). There has

been substantial criticism of the collateral source rule. See Ameri-

can Law Institute, supra note 33, at 161-182 (recommending aboli-

tion of collateral source rule, except with respect to life insur-

ance); Victor E. Schwartz, Tort Law Reform: Strict Liability

And The Collateral Source Rule Do Not Miz, 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).

% See Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1872 (S.D. W.Va.

1990) (the costs of monitoring awards to asymptomatic plaintiffs

could “devastate” defendants), aff'd, 958 F.2d 36 (4th Cir.), cert.

denied, 502 U.S. 1033 (1992); Ayers, 525 A.2d at 297 (township

liable for over $8,000,000 in monitoring costs). The rule’s applica-

tion 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 Svccer Club v. Dep't of Army, 55 F.3d 827, 848 (3d Cir.

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

the collateral source rule should not apply, and the eligible perty,

or his insurer, should bear the testing expense. /d.

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MARK A. BEHRENS

CHRISTOPHER H. Woop

CROWELL & Morinc LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

(202) 624-2500

SHERMAN JOYCE

AMERICAN TORT REFORM

1212 New York Avenue, N.W.