Readers know that medical monitoring is a recurring topic here at MassTortDefense. Here is one to keep an eye on, as a defendant recently asked the Oklahoma federal court to reject plaintiffs’ claim for medical monitoring in a putative class action. Mitchell McCormick, et al. v. Halliburton Co., et al., Np. 5:11-cv-0127 (W.D. Okla.).
Plaintiffs, about three dozen residents of Duncan, Okla., are seeking, inter alia, medical monitoring, establishment of a class-wide medical registry, and payment for medical research to assist alleged disease identification, prevention and treatment, based on allegations that defendants exposed the town’s residents to toxic substances.
Defendants have moved to dismiss, arguing that there is no cognizable claim for a medical monitoring remedy under Oklahoma law. Defendants noted the absence of any Oklahoma statutes or state court decisions recognizing or even suggesting the availability of medical monitoring, and the important public policy considerations that disfavor medical monitoring relief. Specifically, medical monitoring for uninjured plaintiffs (1) encourages highly speculative claims and equally conjectural awards; (2) diverts scarce medical resources away from truly injured individuals who need them most; (3) subjects defendants to open-ended liability; and (4) places significant strain on a judicial system that is generally ill-equipped to formulate and then supervise complex medical monitoring regimes.
Such fears are reflected in the prevailing trend in other jurisdictions to reject such claims. See Rhodes v. E.I. duPont de Nemours & Co., 657 F. Supp. 2d 751, 774 (S.D. W. Va. 2009) (noting post-Buckley trend); Norwood v. Raytheon Co., 414 F. Supp. 2d 659, 667 (W.D. Tex. 2006) (discussing “the recent trend of rejecting medical monitoring as a cause of action” in light of Buckley); see also Zarov et al., A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?, 12 DEPAUL J. HEALTH CARE L. 1, 2 (2009).
The defendants cited additional authority: Hinton v. Monsanto Co., 813 So. 2d 827, 830 (Ala. 2001) (“To recognize medical monitoring as a distinct cause of action . . . would require this Court to completely rewrite Alabama’s tort-law system, a task akin to traveling in uncharted waters, without the benefit of a seasoned guide. We are unprepared to embark upon such a voyage.”); Badillo v. Am. Brands, Inc., 16 P.3d 435, 441 (Nev. 2001) (en banc) (“[W]e hold that Nevada common law does not recognize a cause of action for medical monitoring”); Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 857 (Ky. 2002) (“We are supported in rejecting prospective medical monitoring claims (in the absence of present injury) by both the United States Supreme Court and a persuasive cadre of authors from academia. These authorities explain that, while well-intentioned, courts allowing recovery for increased risk and medical screening may be creating significant public policy problems.”); Henry v. Dow Chem. Co., 701 N.W.2d 684, 703 (Mich. 2005) (“To recognize a medical monitoring cause of action would essentially be to accord carte blanche to any moderately creative lawyer to identify an emission from any business enterprise anywhere, speculate about the adverse health consequences of such an emission, and thereby seek to impose on such business the obligation to pay the medical costs of a segment of the population that has suffered no actual medical harm.”); Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 5-6 (Miss. 2007) (refusing to recognize a claim for medical monitoring allowing a plaintiff to recover medical monitoring costs for mere exposure to a harmful substance without proof of a current actual bodily injury); Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 187 (Or. 2008) (“[W]e hold that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence.”).
But see Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 431 (W. Va. 1999); Meyer v. Fluor Corp., 220 S.W.3d 712, 717-18 (Mo. 2007); Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 901 (Mass. 2009).