Our long time readers know that medical monitoring is a frequent topic here, probably because as a young (younger?) lawyer we got an opportunity to help try a medical monitoring class action to defense jury verdict.

In the years since then, several states have weighed in on the availability of medical monitoring, which refers to future medical testing of a plaintiff who has not suffered a manifest traditional physical injury, but who has been exposed to a hazardous substance or product and claims to therefore be at increased risk of contracting a future disease or injury; the plaintiff is then monitored periodically with appropriate medical testing to facilitate early detection and diagnosis of that possible future consequence.  Medical monitoring thus turns on the notion of latency, the time between exposure and manifestation of a symptomatic or detectable injury. See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6th Cir. 2005) (“A medical monitoring award aids presently healthy plaintiffs who have been exposed to an increased risk of future harm to detect and treat any resultant harm at an early stage.”).

The general trend has been against the recognition of the claim/remedy, and the latest word on the subject comes from the Illinois Supreme Court in a proposed proposed class action by Chicago residents claiming the city failed to warn them of lead exposure in their drinking water. Berry v. City of Chicago, 2020 IL 124999, 2020 WL 5668974  (Ill. Sept. 24, 2020).

In short, the allegations were that the City’s negligent conduct placed the putative class m at increased risk of having lead in their water supplies and, therefore, at increased risk of having lead enter their bodies and of suffering lead poisoning. Based on these allegations, plaintiffs sought to recover the costs of blood testing necessary to detect the presence of lead. The City, in response, contended that the complaint failed to allege an injury that is cognizable in a negligence action and, therefore, was properly dismissed by the lower court. In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1017 (7th Cir. 2002) (“No injury, no tort” is an ingredient of every state’s law). 2020 IL 124999, ¶¶ 29-30.  The supreme court agreed with the City.
The rule that an increased risk of harm is not, itself, an injury, is consistent with the traditional understanding of tort law, noted the court. Almost anything that a person does while living and working in the world can create a risk of harm to others. The long-standing and primary purpose of tort law is not to punish or deter the creation of this risk but rather to compensate victims when the creation of risk tortiously manifests into harm.  Further, observed the court, there are practical reasons for requiring a showing of actual or realized harm before permitting recovery in tort. Among other things, such a requirement establishes a workable standard for judges and juries who must determine liability, protects court dockets from becoming clogged with comparatively unimportant or trivial claims, and reduces the threat of unlimited and unpredictable liability. See, e.g.Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 982 N.Y.S.2d 40, 5 N.E.3d 11, 14 (2013); Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997).
Plaintiffs argued that not only were they at risk, they were at a level of risk needing monitoring.  But simply pleading a need for medical monitoring begs the question: Why is medical monitoring needed? Plaintiffs themselves alleged in their complaint that the need for medical monitoring was based on “their increased risk of harm.” Without an increased risk of future harm, plaintiffs would have no basis to seek medical monitoring. In other words, plaintiffs’ allegation that they require “diagnostic medical testing” is simply another way of saying they have been subjected to an increased risk of harm. And, in a negligence action, an increased risk of harm is not an injury. See Restatement (Third) of Torts, Liability for Physical & Emotional Harm § 4, cmt. c (2010).
Bottom line, held the court, a plaintiff may not recover solely for the defendant’s creation of an increased risk of harm. Since the complaint alleged only that the City caused an increased risk of harm it did not allege a cognizable injury for purposes of a negligence action. 2020 IL 124999, ¶¶ 37-38.