Readers know of our interest in medical monitoring, an interest which dates back to trying a medical monitoring class action to a defense jury verdict decades ago. Your humble blogger co-authored the Medical Monitoring chapter in American Bar Association’s A Practitioner’s Guide to Class Actions, Third Edition.
Our friends at the highly regarded Drug and Device Law blog have written two important posts on the subject in the past few weeks.
The first describes the ridiculous (my term) effort of certain elements in the ALI to bless no injury medical monitoring claims, despite the absence of any consensus case law in favor of this radical position. In “Always Liability Increases (ALI)? Not Yet with Medical Monitoring.” The D&DL folks offer their take on a fundamental problem with the ALI’s current approach to medical monitoring: from the moment this project (first called “Concluding Provisions” and now renamed as “Miscellaneous Provisions” to the Restatement Third of Torts) began in early 2019, the reporters have seemed dead set that the ALI will recognize no-injury medical monitoring – no matter what the law actually is – because they believe that giving money to currently uninjured people, who may never get sick, based on bare “increased risk,” is the “better” rule of law.
Putting their money where their mouth is, the D&DL folks follow up with a Medical Monitoring – 50-State Survey a detailed 50-state analysis of no-injury medical monitoring, which shows that the ALI reporter’s material was, at best, incomplete.
Both are required reading for anyone interested in this doctrine.