A Growing Number of States Recognize Medical Monitoring Claims

In a landmark decision on October 19, 2009, the Massachusetts Supreme Judicial Court (“SJC”) held that claims for medical monitoring expense damages are valid under Massachusetts law where the plaintiff has sustained subcellular changes due to hazardous substance exposure that substantially increases an individual’s risk of serious disease, illness, or injury. With this ruling, Massachusetts joins a growing minority of states that recognize medical monitoring claims without a present physical injury. This article analyzes the Massachusetts decision and discusses its place in the developing case law across the United States, with respect to the viability of medical monitoring claims.

The Massachusetts Ruling

Although the ruling in the case, Donovan v. Philip Morris USA Inc., 455 Mass. 215 (2009), marks a move toward acknowledgement of latent, subcellular injuries in Massachusetts as a basis for damage claims, jurisdictions are split on whether to allow medical monitoring claims without a manifest physical injury.

The Donovan ruling answered two questions posed by the United States District Court for the District of Massachusetts: 1) whether the plaintiffs’ claims for medical monitoring, based on exposure to cigarette smoke and increased risk of lung cancer, present a valid claim, and permit a remedy, under Massachusetts state law; and if so, 2) whether those claims were barred by the statute of limitations. Id. at 215-16. The SJC ruled that the plaintiffs had a valid cause of action for medical monitoring based on subcellular changes to the lungs from cigarette smoke and that, assuming plaintiffs’ allegations were true, those claims would not be barred by the applicable statute of limitations. ¹Donovan is a putative class action, though at the time of the SJC decision the U.S. District Court had not yet ruled on plaintiffs’ pending motion for class certification. The SJC expressly took no position on class certification , and the U.S. District Court is scheduled to hear oral argument on the issue in April 2010. Id. at 216.

Plaintiffs’ putative class action suit demands that Philip Morris establish a court-supervised and administered medical monitoring program using a new technology called low-dose computed tomography (LDCT) chest scans. Id. at 219-20. LDCT scans allow for much earlier detection of lung cancer than prior screening procedures or mechanisms.

The crux of the issue is whether Massachusetts plaintiffs need to establish a present physical injury in order to prevail on their claims for medical monitoring against Philip Morris. Plaintiffs argued they have a present physical injury, i.e., the damage to the tissues and structures of their lungs, resulting in a substantially increased risk of cancer, and that this injury was caused by Philip Morris’ negligence in the design and manufacture of Marlboro cigarettes. ²The plaintiffs offered expert medical testimony that the physical changes caused by smoking left them at a substantially greater risk of cancer due to the alleged negligence of Philip Morris. Philip Morris countered that, as neither of the plaintiffs has been diagnosed with lung cancer, plaintiffs failed to present evidence of present physical harm manifested by objective symptomotology. Id. at 224.

The case is noteworthy primarily because of the remedy sought by plaintiffs, i.e., instead of seeking money damages, plaintiffs are suing for the costs and establishment of a court-run medical monitoring program to aid in early detection of lung cancer. In recognizing a valid claim to this form of damages, the SJC compared plaintiffs’ situation to that of a shaken baby or a pedestrian struck by a motorist, both of whom may recover expenses for diagnostic tests determined to be medically necessary to ascertain the existence of injuries even if those tests produce negative results. ³The Court required that the corresponding medical standard of care apply as a proper indication for use of the medical diagnostic tests in question. The SJC noted that in those situations outward signs of physical injury would not be required. Id.

In so holding, the court specifically recognized the need for tort law “to adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent.” Id. at 225. ⁴The SJC also specifically did not address “cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred.” Id. at 225. Further, the SJC noted that “the physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages.” Id.

The SJC held that, in order to establish their damage claims, each plaintiff must prove seven elements:

(1) The defendant’s negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.

Id. at 226. In sum, while it was not as clear as it might have been on this point, the SJC has determined that an additional form of medical expense damages is recoverable in negligence (and under warranty and unfair trade practice law), but it has done so without creating a new and distinct cause of action for medical monitoring.

The SJC also held that plaintiffs’ claims would not necessarily be barred by the applicable statute of limitations. ⁵Similarly, the SJC held that pursuit of medical monitoring claims in the context of a toxic tort case would not bar plaintiffs from a later negligence claim, should they eventually contract cancer, under the doctrine known as the “single controversy rule.” Plaintiffs are seeking only medical monitoring through the use of LDCT chest scans, a relatively new procedure. They allege that prior to the advent of the LDCT, they had no effective remedy, and thus could not have brought their suit previously. The SJC ruled that if plaintiffs can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. The plaintiffs also must show that the standard of care of the reasonable physician did not call for monitoring of any pre-cancerous condition by other means prior to the expiration of the limitations period, not just that the technology at that time was less effective for monitoring. ⁶The statute of limitations for a medical monitoring expense damage claim begins to run when 1) there is a physiological change resulting in a substantial increase in the risk of cancer, and 2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance. Id. at 229.

This recent ruling raises questions about the prospect of claims for medical monitoring in other toxic tort areas, both in Massachusetts and perhaps elsewhere, should other courts adopt this rationale. ⁷The SJC held that implied warranty and unfair trade practice claims under M.G.L. c. 93A, §§2 and 9, based on the same theory of injury and the same alleged facts, would survive or fail on the same analysis as the negligence claim. Similarly, insurers that have underwritten commercial general liability insurance in these industry segments should be aware that they may see an increase in claims for defense and indemnity costs relating to medical monitoring claims in Massachusetts and in other jurisdictions that have embraced such claims. The Donovan case thus has significant implications for claims relating to asbestos, nanotechnology, toxic chemicals, pharmaceuticals, and other potentially hazardous substances, to the extent that it suggests that subcellular effects can satisfy the requirement that plaintiffs prove a present physical injury.

Federal Courts’ Predictions of State Court Rulings

The Donovan ruling came in the form of questions certified to the SJC by the District Court for the District of Massachusetts. Rather than certify questions to the appropriate state court, many other federal courts have chosen instead to predict whether their particular host state courts would recognize claims for medical monitoring without a manifest physical injury. Several federal courts have predicted the allowance of medical monitoring claims by certain state courts, including Connecticut, Colorado, Ohio, Pennsylvania and Vermont. ⁸See Martin v. Shell, 180 F. Supp. 2d 313, 323 (D. Conn. 2002) (noting that the Connecticut Supreme Court has cited favorably a Third Circuit case indicating that it would uphold a medical monitoring action without requiring physical injury); Cook v. Rockwell Int’l Corp.
, 755 F. Supp. 1468, 1476-77 (D. Colo. 1991) (concluding that the Colorado Supreme Court would probably recognize a medical monitoring cause of action without requiring physical injury); Day v. NLO Inc., 851 F. Supp. 869, 880-81 (S.D. Ohio 1994) (concluding that an independent claim for medical monitoring would be recognized under Ohio law); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990) (concluding correctly that the Pennsylvania Supreme Court would later recognize a medical monitoring action without a showing of physical injury); Stead v. F.E. Myers Co., 785 F. Supp. 56, 57 (D. Vt. 1990) (speculating that Vermont would allow plaintiffs to bring independent, no-injury claims for medical monitoring).

However, a federal court’s prediction is only that: a prediction. ⁹Federal courts have speculated as to the validity of medical monitoring claims without a manifest physical injury in three additional jurisdictions, but the law in those states is inconsistent. They are: Illinois (see Stella v. LVMH Perfumes & Cosmetics USA Inc., 564 F. Supp. 2d 833, 836 (N.D. Ill. 2008), but see Jensen v. Bayer AG, 862 N.E.2d 1091, 1100-1101 (Ill. App. 2007)); Indiana (see Allgood v. General Motors Corp., 2005 WL 2218371, at *6-8 (S.D. Ind. Sept. 12, 2005), but see Johnson v. Abbott Laboratories, 2004 WL 3245947 (Ind. Cir. Dec. 31, 2004)); and, New York (see Allen v. General Electric Co., 821 N.Y.S.2d 692, 694-95 (N.Y. A.D. 2006), but see DiStefano v. Nabsico Inc., 767 N.Y.S.2d 891, 891 (N.Y. A.D. 2003); Abusio v. Consolidated Edison Co., 656 N.Y.S.2d 371, 372 (N.Y. A.D. 1997)). The question is always one of state substantive law subject to final determination in state court. In Bocook v. Ashland Oil Inc.
, 819 F. Supp. 530, 537-38 (S.D. W. Va. 1993), a federal court concluded, incorrectly in hindsight, that Kentucky law would recognize a medical monitoring action without requiring injury. Nine years later, the Kentucky Supreme Court held that Kentucky law does not recognize a medical monitoring cause of action absent present injury. Wood v. Wyeth-Ayerst Labs, 82 S.W.3d 849, 852-56 (Ky. 2002).

Even as between federal courts in the same jurisdiction the issue may turn on differing interpretations of existing state law precedent, or on differing factual circumstances. For example, in Friends for All Children Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 837-38 (D.C. Cir. 1984), the D.C. Circuit recognized an equitable remedy for medical monitoring in tort actions, but more recently, however, the lower D.C. District Court refused to extend that ruling to product liability actions. Witherspoon v. Philip Morris Inc., 964 F. Supp. 455, 467 (D.D.C. 1997).

Conversely, federal courts have also predicted the rejection of such claims by 14 other state courts. These include federal court decisions in Delaware, Georgia, Kansas, Minnesota, North Carolina, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Virgin Islands, Virginia, and Washington. ¹⁰See Mergenthaler v. Asbestos Corp. of Am.
, 480 A.2d 647, 651 (Del. 1984) (holding that Delaware law does not recognize a medical monitoring cause of action without a present injury); Parker v. Brush-Wellman Inc.
, 377 F. Supp. 2d 1290, 1296, 1302 (N.D. Ga.. 2005) (concluding that the Georgia Supreme Court does not recognize a medical monitoring action without the showing of an injury); Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515, 1523 (D. Kan. 1995) (predicting that Kansas courts would not recognize an independent claim for medical monitoring in a product liability case); Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 552 (D. Minn. 1999) (declining to recognize a medical monitoring action); Carroll v. Litton Sys. Inc.
, No. B-C-88-253, 1990 U.S. Dist. LEXIS 16833, at *149-50 (W.D.N.C. Oct. 29, 1990) (concluding that the Supreme Court of North Carolina would not recognize a medical monitoring action); Trimble v. Asarco Inc.
, 232 F.3d 946, 962-63 (8th Cir. 2000) (rejecting medical monitoring claim absent present injury on the basis that Nebraska does not recognize such an action); Mehl v. Canadian Pacific Railway Ltd., 227 F.R.D. 505, 518 (D.N.D. 2005) (ruling that North Dakota would reject independent medical monitoring claims without a present injury); Cole v. ASARCO Inc., 256 F.R.D. 690 (N.D. Okla. 2009) (ruling that Oklahoma would not recognize medical monitoring because of the state’s present injury requirement); Rosmer v. Pfizer Inc., 2001 WL 34010613, at *5 (D.S.C. March 30, 2001) (holding that independent claims for medical monitoring would not be recognized under South Carolina law); Jones v. Brush Wellman Inc.
, No. 1:00 CV 0777, 2000 U.S. Dist. LEXIS 21897, *23 (N.D. Ohio Sept. 13, 2000) (concluding that Tennessee law does not recognize a medical monitoring action absent a present injury); Norwood v. Raytheon Co., 414 F. Supp.2d 659, 664-68 (W.D. Tex. 2006) (concluding that Texas would not recognize an independent, no-injury claim for medical monitoring); Purjet v. Hess Oil Virgin Islands Corp.
, 1986 U.S. Dist. LEXIS 15677, 22 V.I. 147, 153-54 (D.V.I. Jan. 8, 1986) (holding that to recognize a medical monitoring action would be contrary to the law governing the Virgin Islands); Ball v. Joy Technologies Inc., 958 F.2d 36, 39 (4th Cir. 1991) (applying Virginia law as not recognizing recovery of medical monitoring costs absent physical injury); Duncan v. Northwest Airlines Inc., 203 F.R.D. 601, 607-09 (W.D. Wash. 2001) (concluding that it would be contrary to Washington law to recognize a medical monitoring action absent accompanying present injury). These federal courts held that applicable state law required a manifest physical injury in order for plaintiffs to seek costs of future medical surveillance.

State Courts That Recognize Claims for Medical Monitoring: Two Types of Actions

Currently, Massachusetts joins only a handful of states allowing medical monitoring claims without a manifest present injury. The majority of courts confronted with similar claims have rejected them on the grounds that the applicable law required a present physical injury as a basis for the plaintiff’s claim and not merely a change in subcellular condition due to alleged harmful exposure to a hazardous substance. ¹¹See Houston County Health Care Auth. v. Williams, 961 So. 2d 795, 811 (Ala. 2006) (holding that Alabama law does not recognize a medical monitoring action absent a present injury); Wood v. Wyeth-Ayerst Labs, 82 S.W.3d 849, 852-56 (Ky. 2002) (holding that Kentucky law does not recognize a medical monitoring cause of action absent present injury); Henry v. Dow Chem. Co., 473 Mich. 63, 701 N.W.2d 684, 686 (Mich. 2005) (holding that Michigan law does not recognize a medical monitoring action absent present injury); Paz v. Brush Engineered Materials Inc., 949 So. 2d 1 (Miss. 2007) (holding that Mississippi does not recognize a claim for medical monitoring without a present injury); Badillo v. American Brands Inc., 117 Nev. 34, 16 P.3d 435, 440-41 (Nev. 2001) (holding that Nevada law does not recognize a medical monitoring cause of action absent a present injury); Lowe v. Philip Morris USA Inc., 142 P.3d 1079, 207 Ore. App. 532, 556-57 (Or. Ct. App. 2006) (holding that Oregon law does not permit recovery for a medical monitoring action without physical injury); Miranda v. Dacruz, 2009 R.I. Super. LEXIS 129, 27-28 (R.I. Super. Ct. 2009) (ruling that Rhode Island law does not recognize a viable negligence cause of action without a physical manifestation of injury when the only requested damages are compensation for medical monitoring).

Among jurisdictions that allow claims for medical monitoring, the claims fall into two separate categories of cause of action. Six states view medical monitoring as a tort remedy of law akin to more traditional tort claims, while two recognize medical monitoring as a claim in equity. Specifically, Arizona, California, Missouri, New Jersey, Utah, and West Virginia permit plaintiffs to seek medical monitoring damages in tort claims, while Florida and Pennsylvania allow plaintiffs to bring medical monitoring claims in equity as a form of restitution.

Damages for Tort Actions

The Utah Supreme Court provides its own set of eight elements for plaintiffs to satisfy in order to bring independent claims for no-injury medical monitoring in negligence: (1) “exposure”; (2) to a “toxic substance”; (3) that was “caused by the defendant’s negligence”; (4) and results in “increased risk”; (5) of “serious disease, illness, or injury”; (6) where “a medical test for early detection exists”; (7) “early detection is beneficial” in that “a treatment exists that can alter the course of the illness”; and (8) monitoring “has been prescribed by a qualified physician according to contemporary scientific principles.” Hansen v. Mountain Fuel Supply, 858 P.2d 970, 979-81 (Utah 1993).

Arizona has an established set of elements for plaintiffs to prove in order to claim damages for medical monitoring as well, although with half as many elements as Utah. In Burns v. Jaquays Mining Corp., 156 Ariz. 375 (Ariz. Ct. App. 1987), plaintiffs had been exposed to asbestos by the defendant. Burns, 156 Ariz. at 376. At trial, plaintiffs sought damages for, inter alia, the costs of life-long medical monitoring for their increased risk of cancer and other asbestos-related diseases. Id. at 377.

In allowing awards of surveillance costs to monitor the effects of hazardous chemical exposure in the absence of physical injury, the Arizona Court of Appeals set out four required elements: (1) the “significance and extent of exposure,” (2) the “toxicity of the contaminant, [and] the seriousness of the diseases for which the individuals are at risk,” (3) the “relative increase in the chance of onset of the disease in those exposed,” and (4) “the value of early diagnosis surveillance to monitor the effects of exposure to toxic chemicals is reasonable and necessary.” Id. at 380 (citing Ayers v. Township of Jackson, 106 N.J. 557, 606 (1987)).

California has also set forth the elements that, if proven, allow for medical monitoring damages in a negligence action. In Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (Cal. 1993) (en banc), the California Supreme Court recognized medical monitoring as a remedy “when liability is established under traditional tort theories of recovery.” Potter, 6 Cal. 4^th at 1007. After liability is established, plaintiffs must prove with reasonable certainty that medical monitoring is a necessary consequence of exposure to the hazardous substance. Id. at 1006. In order to do so, plaintiffs must show:

(1) the significance and extent of the plaintiff’s exposure to the chemicals; (2) the relative toxicity of the chemicals; (3) the seriousness of the diseases for which plaintiff is at an increased risk; (4) the relative increase in the plaintiff’s chances of developing a disease as a result of the exposure, when compared to (a) plaintiff’s chances of developing the disease had he or she not been exposed, and (b) the chances of members of the public at large of developing the disease; and (5) the clinical value of early detection and diagnosis.

Id. at 1006.

The West Virginia Supreme Court of Appeals has also allowed recovery of medical monitoring costs as a form of damages in tort, “‘where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant’s tortious conduct.’” In re W. Va. Rezulin Litig. v. Hutchison, 214 W.Va. 52, 59 (W.Va. 2003) (quoting Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 Syllabus Point 2 (1999)). In Bower v. Westinghouse Electric Co., 522 S.E.2d 424, 427 (1999), the West Virginia Supreme Court of Appeals ruled that to sustain a claim for medical monitoring expenses, the plaintiff must prove

that (1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

Bower, 522 S.E.2d at 426 (syllabus at 3).

Not all courts require proof of four or more elements for tort recovery. In Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007), for example, a putative class action case involving lead poisoning, the Missouri Supreme Court held that medical monitoring claims may be brought based on latent injuries, meaning diagnosable physical injury or illness not immediately apparent, and for which years may pass before symptoms are detected. The court explained that “[t]he general consensus that has emerged in these cases is that a plaintiff can obtain damages for medical monitoring upon a showing that ‘the plaintiff has a significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure.’” Meyer, 220 S.W.3d at 718 (quoting Bower v. Westinghouse Electric Corp., 206 W. Va. 133, 433 (1999)). Plaintiff must then show that “‘medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease….’” Id. Notably, however, the District Court for the Western District of Missouri later ruled that medical monitoring claims were not allowed in product liability actions under Missouri law. Ratliff v. Mentor Corp., 569 F. Supp.2d 926, 929 (W.D. Mo. 2008).

There has been an evolution in the treatment of medical surveillance in New Jersey. In Ayers v. Township of Jackson, supra, plaintiffs brought suit after the discovery of toxic pollutants in their well water. Id. at 565. Of the damages awarded to plaintiffs, over half of the $15,854,392.78 were allotted to cover the future costs of plaintiff’s medical surveillance due to the increased susceptibility to cancer and other diseases. Id. The Appellate Division reversed the award of medical monitoring damages, and plaintiff appealed to the New Jersey Supreme Court.

In upholding the medical monitoring damage award, the New Jersey Supreme Court noted that,

permitting recovery for reasonable pre-symptom, medical-surveillance expenses subjects polluters to significant liability when proof of the causal connection between the tortious conduct and the plaintiffs’ exposure to chemicals is likely to be most readily available. The availability of a substantial remedy before the consequences of the plaintiffs’ exposure are manifest may also have the beneficial effect of preventing or mitigating serious future illnesses and thus reduce the overall costs of the responsible parties. Other considerations compel recognition of a pre-symptom medical surveillance claim. It is inequitable for any individual, wrongfully exposed to dangerous toxic chemicals but unable to prove that disease is likely, to have to pay his own expenses when medical intervention is clearly reasonable and necessary.

Ayers, 106 N.J at 604-05 (internal citations omitted). However, 21years after Ayers, the same court limited this holding by finding that, because New Jersey’s Product Liability Act (PLA)—which was enacted after Ayers—defines what constitutes “harm” under the statute, claims under the PLA require proof of a present injury, and thus medical monitoring is unavailable as a remedy in New Jersey when proceeding under the PLA. Sinclair v. Merck & Co., Inc., 195 N.J. 51, 65 (2008). Actions not covered by the PLA, such as environmental tort actions, still follow the standard set forth in Ayers. In those cases, medical monitoring damages may be awarded without proof of a manifest physical injury, as discussed above.

Restitution in Equity

Currently, two jurisdictions—Florida and Pennsylvania—allow plaintiffs to bring claims in equity for medical monitoring rather than as a damage remedy for negligence and other traditional torts. Rather than creating a separate tort claim, these courts—without explicitly saying so—treat medical monitoring as a claim in equity as a matter of case precedent, similar to restitution.

In Petito v. A.H. Robins, 750 So.2d 103, 106-07 (Fla. Ct. App. 2000), the Florida Court of Appeals recognized a cause of action for medical monitoring without a manifest physical injury in negligence. Petito, 750 So.2d at 104. In Petito, plaintiffs filed a statewide class action in equity for an injunction requiring defendant to set up a medical monitoring program. Id. at 104. The Florida court produced a list of seven elements for its new cause of action: (1) exposure “greater than normal background levels”; (2) “to a proven hazardous substance”; (3) “caused by the defendant’s negligence”; (4) the “plaintiff has a significantly increased risk of contracting a serious latent disease”; (5) “a monitoring procedure exists that makes the early detection of the disease possible”; (6) that monitoring “is different from that normally recommended in the absence of the exposure”; and (7) the monitoring “is reasonably necessary according to contemporary scientific principles.” Id. at 106-07. However, in Zehel-Miller v. Astrazenaca Pharmaceuticals LP, 223 F.R.D. 659 (M.D. Fla. 2004), the U.S. District Court for the Middle District of Florida dismissed a claim for medical monitoring brought under a strict liability claim because claims for medical monitoring require a negligent act. Zehel-Miller, 223 F.R.D at 663-64.

In establishing a cause of action in equity for medical monitoring, the Florida Court of Appeals, Third District was careful to distinguish claims in equity for medical monitoring damages from claims in tort seeking compensation for increased risk of contracting a disease. The Florida court explained, “[a]n action for medical monitoring seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm, whereas an enhanced risk claim seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur… .” Petito, 750 So. 2d at 105-06. Moreover, the court specifically noted that the injury in medical monitoring claims is “the cost of the medical care that will, one hopes, detect that injury,” rather than the potential injury itself. Id. at 106. The cost recovery allowed by the court is akin to restitution as opposed to a tort recovery of damages for future injuries. The only question for a jury, therefore, is whether the plaintiff needs medical surveillance, rather than the speculative question of probability of future injury. Id.

Pennsylvania also allows independent actions in equity for medical monitoring. In Redland Soccer Club v. Department of the Army, 696 A.2d 137, 145 (Pa. 1997), plaintiff brought an equitable claim to establish a medical monitoring trust fund under the Pennsylvania Hazardous Sites Cleanup Act, 35 P.S. §6020.1115. Id. at 142. To bring a common law medical monitoring cause of action in equity in Pennsylvania, a plaintiff must prove: (1) exposure to “greater than normal background levels”; (2) the substance is “proven hazardous”; (3) exposure “caused by the defendant’s negligence”; (4) exposure caused “a significantly increased risk of contracting a serious latent disease”; (5) “a monitoring procedure exists that makes the early detection of the disease possible”; (6) the monitoring “is different from that normally recommended in the absence of the exposure”; and (7) the monitoring “is reasonably necessary according to contemporary scientific principles.” Id. at 145-46. The Pennsylvania Supreme Court noted that “[i]t was the non-speculative nature of a claim for medical monitoring … that prompted our recognition of a claim for medical monitoring.” Id. at 145 (citing Simmons v. Pacor Inc., 543 Pa. 664 (1996)). As in Florida, however, other Pennsylvania courts have held that Pennsylvania law does not permit medical monitoring claims in strict liability. ¹²Brown v. Dickinson, 2000 WL 33342381, at *1 (Pa. C.P. March 9, 2000); Barnes v. American Tobacco Co., 989 F. Supp. 661, 664 (E.D. Pa. 1997); (both requiring a “negligent” act); see also In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 273597, at *9-10 (E.D. Pa. Feb. 22, 1995) (holding that medical monitoring is not a proper remedy for a product liability action not involving exposure to a toxic substance).

Conclusion

Medical surveillance claims represent a risk of substantial exposure for manufacturers, distributors and sellers of potentially hazardous substances across a vast array of industries. While many jurisdictions have rejected medical-surveillance claims outright, or on certain legal theories, some others, like Massachusetts, have embraced them on policy grounds. The law in any jurisdiction can change by legislative fiat, ¹³In Bourgeois v. A.P. Green Industries Inc., 716 So.2d 355 (La. 1998), the Louisiana Supreme Court initially recognized no-injury medical monitoring claims. Bourgeois, 716 So.2d at 360. Subsequently, however, Louisiana enacted a law requiring that damages for future medical surveillance be “directly related to a manifest physical or mental injury or disease.” La. Civ. Code Ann. art. 2315 (1998). or new facts and circumstance presented by new or emerging hazards can provoke judicial changes to existing case law. The weight of authority is still adverse to these claims, but decisions like that in Donovan are proof that the law is far from settled on medical-monitoring claims.