Medical Monitoring: Gateway To Unlimited Liability Or Just Reimbursement?

Wednesday, December 1, 1999

National Press Club

Washington, D.C.

Panel I _ The Rise of Medical Monitoring Claims

  • Victor Schwartz, Senior Partner, Crowell & Moring LLP, Washington, D.C.; counsel to the American Tort Reform Association

Panel II _ Medical Monitoring Claims: Pro and Con

  • Duane Freese (Moderator), Editorial Page Writer, USA Today
  • E. Donald Elliott, Yale Law School; Paul, Hastings, Janofsky & Walker, LLP; Author, The Future of Toxic Torts
  • Gene Locks, Greitzer & Locks; Counsel in American Home Products Fen-Phen Diet Drug Settlement
  • Mark Behrens, Partner, Crowell & Moring LLP, Washington, D.C.
  • The Honorable Elliott Maynard, West Virginia Supreme Court; Author of dissent in West Virginia Supreme Court case of Bower v. Westinghouse Electric Corp.
  • Ronald Simon, Simon & Associates

Panel III _ The Legislative Battleground Ahead

  • Tyson Shofstahl, Partner, Adams & Reese, New Orleans, Louisiana; Counsel in Louisiana Supreme Court case of Bourgeouis v. A.P. Green Industries, Inc.


JUDY PENDELL: This conference concerns an issue about which many people do not know a great deal. It is an issue that has periodically surfaced and receded over the last decade-and-a-half, but hasn't had broad exposure. We are hoping we can provide a grounding in what medical monitoring is about in the following proceedings.

PANEL I - The Rise of Medical Monitoring Claims

VICTOR SCHWARTZ: I am going to talk about the rise of medical monitoring claims and put them in the larger context of liability law. It might be helpful, first, to give an overview of tort law on the topic. There are really only four parts to every tort case.

First, there has to be a basis of liability, in other words, negligence, strict liability, or intentional act. There has to be some social policy basis that explains why someone should pay money to someone else. Second, there has to be causation in fact. This is crucial. Many bad things happen, but there may not be a direct causal relationship between an act and a repercussion — say, a breast implant and an autoimmune disease. The third element of liability is proximate cause. The law of torts requires more than basic causation. It says there has to be proximate causation, or a relationship that is close enough in terms of public policy and in fact to merit imposition of liability. Finally, there is a requirement of present injury. You cannot go into court and expect to be given money without showing a present physical harm.

Medical monitoring lacks the fourth liability requirement. Someone comes into court, and no doctor in the world — at least under the pure medical monitoring theory — can find anything wrong with him. When considering the words of the following panelists, I urge you to consider what I call the Passover question. On Passover, the youngest child says, "why is this night different from all other nights?" The Passover question here is "why is this claim different from all other claims where there is no current injury?" Why can we — or should we —single out medical monitoring to give awards without present physical injury?

The United States Supreme Court, in a 1997 case called Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997), tried to answer that question. At issue was the Federal Employers' Liability Act, or FELA. FELA is a tort substitute for workers' compensation in the railroad field. It requires the same basic elements as other types of liability law: a basis of liability (negligence), causation in fact, proximate cause, and present injury.

Buckley involved railroad employees who were dubbed "snowmen"— workers who, in the course of employment, were covered with asbestos dust. Many of their colleagues suffered major injuries, such as non-curable cancer; however, the plaintiffs in the Buckley case alleged no discernable ailments. Despite their lack of symptoms, these workers felt they should be given money for emotional harm, and, more significantly, for medical monitoring.

It is easy to sympathize with the Buckley plaintiffs. They were exposed to risk in the workplace through no fault of their own. It is also important to note that FELA, since its
inception, has always been construed quite liberally in favor of plaintiffs.

Despite the factors working in the plaintiffs' favor, they lost their case. Several of the Supreme Court's reasons are worth considering. First, the Court said that it is difficult to separate out the special situations where medical monitoring is deserved from situations where everyone has increased risk, for one reason or another, to their health. How do you separate out the segment that should recover from the majority that can not? Second, with regard to causation, the Court noted the difficulty of determining the source of injury. If someone needs medical monitoring, is that need based on an exposure to asbestos? How about residence in a polluted area or the plaintiffs' own hereditary problems? Third, the Court noted a problem of consensus. If you have five doctors in the room and you ask them whether somebody should be monitored for, say, heart disease, it is like questioning a group of five rabbis. You end up with seven opinions as to what to do.

Within its decision, the Supreme Court also talked about a "flood" of cases — something I will call the 10 million person march to the courthouse. If claims are allowed for medical monitoring, the potential number of plaintiffs would be overwhelming. With confusion about causation and a lack of medical consensus, it would be difficult to distinguish meritorious from frivolous claims. People who are really injured could easily end up at the end of the line. By the time they get paid, it could be too late. Finally, the Court noted that many people already have medical monitoring under their existing health plans. How could the law pick out those who do not have health plans from those who do? The Court, which had a history of construing FELA to benefit plaintiffs, surprised a lot of people by ruling against them in this case.

At the circuit and state level, courts have been divided on the medical monitoring issue. For example, there is a D.C. Circuit Court case called Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984), which might be considered a model for reasonable thinking in this area. This case concerned children who survived an airline crash; they were exposed to explosive decompression and hypoxia aboard the plane. The court noted two things. First, cause was easy to establish. Second, there was a consensus about how these children could be evaluated. The court held that medical monitoring claims could be allowed in this context; further, they set up a fund that could only be used for medical monitoring. Awards could not be used for any other purpose.

Contrast this to a recent case decided by the West Virginia Supreme Court, Bower v. Westinghouse Electric Corp., 1999 WL 518926 (W. Va. July 19, 1999). In response to the Passover question, so to speak, the court said there must only be an increased risk to justify a medical monitoring claim. There is no need to prove the likelihood of contracting a disease. Further, the court said that setting up a trust fund for medical expenses is too difficult; lump-sum awards are sufficient. The court also realized that many of the plaintiffs already had medical monitoring coverage under their health benefit plans, but the court decided they should be paid again. Finally, the court suggested that the results of medical monitoring are not of particular concern. Even if monitoring does no good, the court reasoned, it might make people feel better. There was a dissent in Bower from Justice Maynard; his valid objections, however, could do nothing to stop the handing down of this peculiar decision. All of the concerns the United States Supreme Court voiced in Buckley came into fruition.

Many states have said that no medical monitoring claims should be allowed. The Supreme Court, as a part of the Buckley decision, said that whether or not to allow medical monitoring is a legislative decision, since legislatures are in a position to do things that courts cannot do. A legislature can hold public hearings to establish eligibility criteria. A legislature can distinguish people who have been paid from people who have not. Legislatures can ensure that any money that is allocated to medical monitoring is actually used for that purpose. Legislatures can see to it that medical monitoring will actually achieve its desired effect: detecting the onset of disease from involuntary exposures and preventing diseases from getting worse.

As I look to the future, I wonder what tort law is going to be in 10 years. I wonder, more specifically, whether the requirement of present injury is going to be abandoned. The consequences of such a change are enormous. The potential exposure for companies or employers is huge — beyond anything we have ever seen. At the moment, employers are generally protected from being sued by their employees. But workers' compensation laws focus on physical injuries, not on situations where a person has no present physical injury. For that reason, the employee who wants medical monitoring can presumably sue his or her employer in tort law because the issue that they are alleging — medical monitoring — is not covered by workers' compensation.

If the present injury requirement falls, what about severe emotional harm, where there is nothing physically wrong with somebody? What about a person who is just very upset? The next edition of my casebook may have some answers. For now, I offer some flags of caution.

AUDIENCE MEMBER: Should medical monitoring only be considered a matter for the legislatures?

MR. SCHWARTZ: To the extent that problems with medical monitoring claims are made clear, most people understand that it is a legislative question. The problem you really have, and it is permeating all of liability law, is legislative hesitancy to act. Those who support courts doing things that legislatures normally do — regulating guns or cigarettes or HMOs — argue that if legislatures were to act there would be less need for judicial remedies. They have a point. No legislature has introduced or has seriously considered medical monitoring legislation.
Litigation News

AUDIENCE MEMBER: Is it important to distinguish between medical tests in medical monitoring claims? Will improvements in science affect these cases?

MR. SCHWARTZ: Some of these cases involve a clear, easily understood medical test. For example, I am told that in the Fen-Phen cases an echocardiogram can determine whether or not a person will need future medical attention. If your claim involves a specific medical test, it is certainly more persuasive.

Let me remind you of one of the Supreme Court's questions in Buckley: can the medical question at issue be answered in a clear and coherent way? The dangerous road to take, of course, is the one taken by West Virginia in Bower: the open-ended highway where none of these questions are addressed. Advances in medical technology may solve one of the problems of medical monitoring, but certainly will not solve all of them.

PANEL II — Medical Monitoring Claims: Pro and Con

DUANE FREESE (Moderator): At USA Today we have editorial board meetings every morning, and we have the equivalent of what is called mud wresting with ideas. I don't think we will getting down quite that far in what we do here because we have a distinguished group of lawyers, and, unfortunately, I have no gavel to control them effectively.

E. DONALD ELLIOTT: I have considered medical monitoring from a number of different perspectives. Today, I am going to approach the topic from the standpoint of a law professor.

Medical monitoring should be seen, first of all, as a part of a broader context. It is merely one of a number of developments that has occurred in recent years, largely in response to the public fear of a toxic environment.

I was a law clerk for United State District Court Judge Gerhard Gesell in the early stages of the Lockheed case. In my mind, there is an important distinction between the Fen-Phen case,
Legislative action will gain more credibility if some legislatures take action in this area.

AUDIENCE MEMBER: You suggest that, under current workers' compensation law, there is no reason why an employee can't sue his or her employer in tort to receive medical monitoring. Can you cite a case in this context?

MR. SCHWARTZ: In Ohio, it has been held that workers' compensation does not cover acts of reckless disregard by the employer.(1) In these cases, the employee can sue the employer in tort. Even though it seemed like the employer would not be subject to tort suits because of the shield of workers' compensation, the supreme court said that protection under workers' compensation is, to the letter, congruent with workers' compensation coverage. So, if, in a particular state, medical monitoring is not covered under worker's compensation because there is no present injury, the employer is open to suit under the reasoning of that court. A court in West Virginia came to a similar conclusion.(2)

Employer acts that are reckless, but not covered by workers' compensation, are subject to liability in tort. I reason from those decisions that if a type of workplace harm is not covered by workers' compensation, there is tort exposure. In general, liability protection under workers' compensation is congruent with the workers' compensation immunity shield.

AUDIENCE MEMBER: If someone sues, is medically monitored, and then, 15 years later, suffers from disease, can they sue the same defendant for increased damages?

MR. SCHWARTZ: The answer would depend on the statute of limitations in the state. I do not think payment for medical monitoring alone, however, would preclude a claim for other things. Now, there could be a settlement between a person seeking medical monitoring and a defendant stipulating that future claims for actual disease would be barred. But if there was no such settlement, and the award was made purely in litigation, later claims would depend on the state's statute of limitations. Litigation News
or even the Lockheed case, and the use of medical monitoring as a convenient legal fiction. In the former cases, there is an important medical technology that might be available to help potentially injured plaintiffs. In the latter cases, medical monitoring is a legal strategy that allows plaintiffs to recover for exposure to chemicals that are not known to cause any substantial harm.

Many people in society think that exposure to chemicals is much more hazardous than it actually is. This is the important background fact to consider in medical monitoring cases, one that has been documented repeatedly. The Environmental Protection Agency, for example, published something called the Unfinished Business report in 1997.(3) This report shows that, if you rank various environmental hazards, experts have one ranking and non-experts have another. Non-experts think hazardous waste disposal sites present the greatest danger to public health, for example, and experts put these sites at the bottom of their list. I had a graduate student who did a study explaining this anomaly. He showed that the public's ranking of hazards correlates exactly with the number of news stories published on the subject. The content of these stories is irrelevant. I was a party one time to some proprietary jury research that showed that over half of jurors believed that any chemical with three letters for a name, no matter what they were, caused cancer. Any three letters will do.

It helps to view developments that occur in the law from the standpoint of the plaintiff's lawyer. What strategies are developed to win? In the context of medical monitoring, plaintiffs' lawyers know that many jurors want to award money for chemical exposure, but traditional legal standards in this area make that difficult. Liability law, as Victor Schwartz points out, has difficult standards to meet: present harm, scientific proof, and the demonstration of actual harm. A number of creative legal theories have been developed to maneuver around these obstacles. The function of the new theories is to try to monetize irrational fears of chemical exposure; lawyers try to induce
a sort of chemophobia so their clients can win their cases.

The first, and in many ways, the most successful strategy is to file property damage cases. I don't have to prove that I have been injured by chemical exposure; I just have to prove that other people are afraid to buy my house because there are chemicals on site. Junk science, as most of us are aware, is another way to solve the legal obstacle problem. Another potential solution is the so-called environmental justice case. I just represented 12 companies in a putative class action that we managed to get thrown out of court in upstate New York. The plaintiffs' theory, here, was that the concentration of chemical companies in the area of Niagara Falls — which were, incidentally, encouraged by the cheap electric power from the falls — was a violation of the civil rights of the Native Americans who live on an adjacent reservation. These and other strategies are attempts to monetize exposures which are not recoverable under traditional law.

Medical monitoring fulfills an identical function. It is particularly attractive because it comes with a veneer of science: the very name suggests that there is scientific support for this action. Like Victor, I might be willing to support medical monitoring where there are careful safeguards that are put in place. Some courts do take findings of fact quite seriously and issue reasonable decisions: if it is a fact that people are exposed to something truly dangerous, there may very well be something that medical science can do to alleviate risk of disease. Funds for this specific purpose should be established, and monies directed to medical services to help the affected parties. That is not typically the way it is done.

Medical monitoring is, in its worst incarnation, a gift of money to non-injured people. More often than not, however, the real winner is the tort lawyer. This is not really about getting compensation to injured people. It is more like the class action settlements where the people in a class get coupons to buy the product at a cheaper rate, and the lawyer gets a hefty fee for creating that questionable benefit.

Let me emphasize the point that medical monitoring is really a legal fiction. The law often changes by developing legal fictions, purporting to apply one set of legal principles and, in fact, applying another. What is really going on in the medical monitoring context is that we are gradually transitioning to a legal system that provides compensation for exposure, not just compensation for actual injury. What is wrong with this switch? I offer two objections. First, by changing the law through a legal fiction rather than by clear changes, we distort legal dialogue and avoid the real issues. If we want to legislate compensation for exposure, I think we should do that directly so we can have lawsuits that focus on the extent of exposure and what real harm is.

Second, by having huge awards for medical monitoring purposes, we distort the public's perception and reinforce the myth that exposure to low levels of environmental chemicals are a major health problem. Louis Brandeis said, years ago, that the law is the great teacher. One of the difficulties I have with awards for medical monitoring is that they often teach an irrational lesson.

MARK BEHRENS: Victor Schwartz referred to the Buckley case from the United States Supreme Court. That case involved medical monitoring claims by the "snowmen of Grand Central." Those workers had no present physical injuries, but it is understandable that they would be worried about health risks. Their case had strong emotional appeal. But, the Supreme Court chose not to award them medical monitoring damages. The court appreciated that on a daily basis, almost everyone comes into contact with numerous materials that could arguably warrant medical monitoring.

For example, farmers work around crop dusting. Janitors work with cleaning agents. Filling station attendants pump gas and are exposed to petroleum products throughout the day. Beauticians work with powerful hair care
products. Waiters and bartenders work in environments where people often smoke. Commuters are exposed to diesel and car exhaust. These are just some of the people who could bring potential medical monitoring claims. People who have taken pharmaceutical products or have a medical implant are others.

Furthermore, the monitoring may not be limited to detecting the onset of disease. There could be medical monitoring claims involving less dramatic ailments. Imagine if the "snowmen" in Buckley were exposed to loud noises in the tunnels beneath the railroad station where they worked. Perhaps they would want monitoring to detect possible hearing loss. A secretarial worker or factory worker may want monitoring for repetitive stress injuries. Acceptance of medical monitoring causes of action could produce countless numbers of new claims that could delay recoveries for persons with serious physical injuries and impose crushing liability on defendants.

Victor Schwartz talked about the Passover question: Why is medical monitoring different than other tort claims? A key difference is that persons seeking medical monitoring have no present physical injury. For over 200 years, tort law has said that there can be no recovery in the absence of physical injury. The "physical injury rule" is a gatekeeper rule. Whether it is fair or not in all cases, the "physical injury rule" is the best filter the courts have been able to develop to prevent a flood of claims, to provide faster access to courts for those with reliable and serious physical injuries, and to ensure that defendants are held liable only for genuine harm.

If the physical injury rule is discarded, however, the farmer, the janitor, the beautician, the filling station attendant, the person who took a drug all could be potential claimants. Contingency fee personal injury lawyers could literally start recruiting people off the street. People with actual physical injuries would suffer. As the Supreme Court said in Buckley: "Buckley is sympathetic and he has suffered wrong at the hands of a negligent employer. But we are more troubled than is the dissent by the potential systemic effects of creating a new, full blown, tort law cause of action — for example, the effects upon interests of other potential plaintiffs who are not before the court and who depend on a tort system that can distinguish between reliable and serious claims on the one hand, and unreliable and relatively trivial claims on the other."

It is highly questionable whether medical monitoring remedies are even necessary. A 1991 American Law Institute report estimated that eighty percent of the public already has access to medical monitoring through a health plan.(4) I can go to the doctor and get a checkup and my firm will pay. Why do I need the courts to step in? A tort award would simply provide a windfall recovery.

Moreover, medical monitoring is subject to widespread and serious abuse. If medical monitoring is provided by way of a lump-sum award instead of a court-administered fund, there is no guarantee that any recovery will actually be spent on medical monitoring. In fact, common sense experience suggests that lump-sum awards are more likely to be spent like a lottery winning — to purchase a new car, a television, or a boat; the jackpot will not be spent on monitoring. This will almost certainly be true in the vast majority of cases where monitoring is already provided by a "collateral source." This is human nature. Tort law, however, should not be used for this purpose.

These are all issues that could be tackled by a legislature. A legislature also could consider whether monitoring should come through an administrative scheme, as opposed to the tort system. The tort system is a highly inefficient and wasteful way to distribute funds for treatment. Consider the following hypothetical. I will use a settled dispute, because that is a typical situation. About 95 percent of tort cases settle before trial.

Let's say someone brings a $10,000 monitoring claim. The case later settles for $6,000 — tort suits almost never settle for 100 cents on the dollar. At this point, the plaintiff is already getting considerably less than he or she needs for complete monitoring, and the contingency fee attorney has not even been paid — so take off another 30 or 40 percent. The resulting $4,000 (or less) is not going to provide all the monitoring the person sought. If a legislature set up a monitoring program, it could ensure that any award would go to monitoring and would be available as long as it is needed.

RONALD SIMON: Let me begin by telling you about some of the hats I wear. I was the author of the amicus brief in Buckley on behalf of scientists who had written textbooks articulating why medical monitoring is generally accepted in the scientific, medical and legal communities. I was also the lead counsel in a number of class actions, which, as a result, enabled tens of thousands of people to receive medical monitoring. I am also the lead counsel in a major class action in which one of the remedies that the workers seek is medical monitoring. In the current core on behalf of workers in Louisiana, the workers suffer with diseases. This allegation is contrary to the Plaintiffs' allegations in Buckley, that they didn't have disease. Buckley was brought specifically not alleging any current disease. That distinction is important.

Medical monitoring needs to be elucidated because I don't think it was clearly explained by the preceding panelists who attack it without understanding its role in the public health community. Medical monitoring has been done throughout our history. We go to the doctor's and get tests for diseases we don't know we have. In the context of someone exposed to a hazardous substance, we can think of it in three ways. First, there is biological monitoring. That is when a person is exposed to something that might be potentially harmful to them; a test is given to see whether they have been exposed to a pesticide, or whether they are carrying radioactive contamination. This is required by OSHA for numerous hazardous substances as a way of controlling exposure. It is also done in the pesticide industry with regard to checking blood cholinesterase of workers working with organophosphates to see if there is exposure that should be reduced.

Second, medical monitoring is done to diagnose diseases when there has been a traumatic or potentially injurious event. Professor Schwartz mentioned Friends of All Children. Let me point out another. I am involved in a major case now involving the drug Neomycin, a frequently used antibiotic. It is well known —indeed, indisputable — that Neomycin causes deafness, particularly among people with renal insufficiency. While the label warns about the unnecessary risks, it is regularly used internally in many hospitals around the country. Many people who had surgery might not necessarily connect the surgery to the onset of deafness at a later time. This is exacerbated because the surgical patients are not told of the use of Neomycin nor are they informed of the risks associated with it. I have brought a medical monitoring claim to require the hospital to notify people treated with Neomycin so they can receive the appropriate testing.

The last kind of medical monitoring is the type where there is a latent disease, most likely cancer, long after exposure. The goal is early detection of cancer to ameliorate its effects. Previous panelists have considered the complications of early detection — do people get the exams through their normal health care? Do the tests work? Are they under or over inclusive? Although these are interesting questions, the points to be made is that this type of monitoring is commonplace. Although challenges to it can be made, we should recognize that many of the tests we regularly get from our doctors are subject to identical criticisms that lawyers direct against claims for medical monitoring. For instance, until very recently, it was thought that the early detection of lung cancer did not always make a difference. This scientific conclusion didn't stop many of us from having our doctors tell us to get chest X-rays that were recommended by the American Thoracic Association.

Why do lawyers and clients seek medical monitoring in legal proceedings? There is a simple economic principle in play here that has not yet been mentioned. This has to do with cost externalization. Consider a report written by Professor Nicholas Ashford of MIT regarding the radiation exposures of workers at Department of Energy plants.(5) According to Ashford, assuming that exposures were as low as the Department of Energy claims — many people who have studied the issue believe they were much higher — there would undoubtedly be an increase of cancer in the population of exposed workers. No one knows who is going to get that cancer, and any person who gets that cancer would have a hard time proving it was from the exposure. On one hand, this is because exposure levels weren't measured by the defendant. The Department of Energy, like many other industries who expose people within the legal limits nonetheless disperse dangerous material and increase risk over a large population. Someone in the population bears the cost, not the Department of Energy. A general premise of tort law is that one party should not externalize the cost and make others bear it.

This tendency to externalize costs is a crucial factor behind medical monitoring claims. Tort reformers argue that tort law is becoming a type of taxation. But general principals of tort law support this direction. It is not appropriate for a company to unjustly enrich itself by exposing its workers and neighbors to chemicals that are likely to cause disease. Companies or government agencies should not be able to walk away from injuries caused by exposure because exposures aren't monitored and the resulting damages of the injured person are hard to prove.

There is another advantage of medical monitoring that has not been mentioned by this panel. This is evident in both the Fen-Phen cases and the Shiley heart valve litigation. The Shiley heart valve was a medical device. When it failed it caused catastrophic problems. Many people who used the device didn't yet suffer problems. If we were left to the old-fashioned tort system, people with catastrophic diseases might get compensation. But those people walking around with this defective valve would have no remedy. Nonetheless, they are not happy waiting to see if the defective valve will kill them and nor are they anxious to undergo further risky surgery to remove the valve. They would want to have medical monitoring. They would want to have medical tests designed to look for potential failure. But they would have no way to obtain these things through the traditional personal injury system. A medical monitoring class action addresses these concerns and encourages proactive treatment.

Frequently, Mr. Locks and I do examinations of workers to see if they have asbestos disease. As a part of these examinations, we tell the workers about their disease, and warn them that if they continue to smoke, they will increase their chances of getting cancer by over 10 times. Most people have been told at one time or another that it is not good to smoke, but somehow notification of this extraordinary effect exposure to asbestos has on them, the notification has a strong effect.

Other objections to medical monitoring are no different than the arguments made against any other type of tort compensation. I have heard the complaint that medical insurance already pays for some of the exams sought in monitoring. The tort law has recognized for centuries that the fact that the victim of tortious conduct does not exonerate the tort-feasor who injured them just because the victim had insurance. Similarly, the fact the medical tests don't always work perfectly or efficiently is not a sufficient objection. There are a series of tests that accompany these claims. If you read the American Cancer Society's recommendations for screenings of the non-symptomatic population with no special increased risk, they admit that of the ten tests they recommend, maybe one of them meets all of their criteria. Most medical tests we get at our doctor's office do not meet the strict standard that has been advanced by panel members as a reason to reject medical monitoring as a legal claim.

The idea that medical monitoring is judicial nullification of statutory law is, quite frankly, inconsistent with at least 600 years of common law here and in England. The courts make the common law in our society. The courts have never believed that the common law is locked in cement. In the 19th Century, many of our states had constitutional conventions. In those conventions, the question was raised: can the legislature overrule the common law and take away tort rights? In almost every state, the conventions said no because interests with power and money too easily control the legislatures. The courts are the realm of government that is most open to the people with the least amount of power.

What about the argument that people who win medical monitoring awards misuse their money? Every time a plaintiffs' lawyer achieves a large award, he or she is well aware that the client may go out and spend it in some or all of it in a manner that others would find ridiculous. The threat of this in medical monitoring cases is no different than in any other kind of law.

An interesting question is raised by contemplating the workers' compensation system. If medical monitoring isn't covered by workers' compensation, can an individual tort case be brought? Professor Schwartz considered this question, and confused two distinct areas of law. First, how do you avoid the exclusive remedy provisions of workers' compensation on the grounds that there is either (a) an intentional tort (a worker is raped by her employer); (b) a fraud (the employer says no to applying for compensation because the employer will pay for medical bills); or (c) dual capacity ( you drive a truck for Coca-Cola, and you drink a poisoned Coke, the Coke that poisoned you has nothing to do with your role as a driver). The law on these points is different in each state.

The second issue is a body of law having to do with remedies for things which compensation law does not cover. The obvious one is racial discrimination. With regard to claims for emotional distress, the states are all over the map on that one. But there is established law on the subject of medical monitoring for medical treatment that is monitoring rather than treating an injury. The leading and most illustrative case comes from the Colorado Supreme Court, Schum v. Littleton. Schum demonstrates that Professor Schwartz is right — you might be able to bring a tort case because something is not covered by workers' compensation. In Schum, the worker was the driver of an ambulance. He picked up a person who was severely infected with hepatitis, helped him, and took him to the hospital. The driver didn't have sufficient protective equipment, and when he dropped the patient off, a doctor told him he needed an injection of gamma globulin to ameliorate his high risk of infection. The question is whether his workers' compensation would pay for the injection if there was no injury? The answer was No: the driver had no current injury. The Colorado Supreme Court held that, since his injection was not covered by workers' compensation, a suit could be brought in tort.

HON. ELLIOTT MAYNARD: If you read my dissent in the Bower case, you already know some of the issues that concern me in this area. I quarreled about the things you would expect me to quarrel about in my dissent, such as the violation of the Doctrine of separation of powers. I said in my opinion that our court hadn't claimed the power to make new causes of action in tort law since we left the mother state (Virginia) in 1863; since then, our legislature has always created new causes of action. The majority made a radical change in tort law that they had no business making. They teach at the University of Virginia Law School that there are Four D's that constitute the elements of a tort: Duty, Dereliction, Damage and Due cause. We now have, after Bower, only three Ds of a tort instead of four. We have omitted Damage. This may be okay in Washington, where Bill Clinton has reduced the Ten Commandments to nine; however, I don't think the West Virginia court should have the power to make this sort of change.

Another thing I complained about in my dissent was the fact that the court's decision makes everybody a potential plaintiff in West Virginia. Virtually every citizen of the state now has a right to recover. The majority opinion lists the substances that, with exposure, entitle people to compensation. This list is in a footnote on page one. They include such things as zinc, which a lot of men take every day. It also includes magnesium, which is probably what the wheels on your car are made of, not to mention women's stockings. Copper is there as well. The real winners, though, are aluminum and iron. If you are exposed to iron in my state, you have been exposed to a hazardous substance.

One point that I didn't make in my dissent is the basic unfairness of the decision. There is still right and wrong in the world, in spite of what the lawyers have done to obfuscate this distinction. There is still fair and unfair. It is simply not fair to make people pay damages when they haven't done anything wrong. I might also point out the disastrous financial effects of the decision. The court said, in effect, "if you live in West Virginia, boy have we got a deal for you. We are going to give you a lump sum of money and you are going to get it now, and there is no restriction on how it is spent." Originally, I referred to this in my dissent as "the pick-up truck fund," but my clerk, a bright young man, suggested we should call it the "Myrtle Beach improvement fund" because so many of our folks go to Myrtle Beach when they vacation. At any rate, this windfall of cash will not be spent for medical tests. This is what our tort law has come to.

Lawyers on both sides of this issue should be concerned about what decisions like this do to American's perception of their judicial system. We live in a democracy and democracies are notoriously inefficient. When something is wrong, it has to get so bad that the dumbest guy on the street knows it is wrong before you can make a change. I suggest to you that the American judicial system is fast approaching that point.

GENE LOCKS: I am a tort lawyer. I am a no-good, dirty, contingent fee lawyer, and have been since I got out of the Ivy League and law school. And guess what: I am proud of it, because I know that my colleagues and I have done the right thing for the judicial system. The tort system works, and, believe it or not, it probably even works in the medical monitoring area. I urge you to keep an open mind when you consider these issues.

Twenty-five years ago, Greitzer & Locks did the first asbestos cases in the country. We obtained the first verdicts for punitive damage against Johns Manville. We have led the onslaught of asbestos cases for 25 years. We were class counsel of the plaintiffs in the Agent Orange case. I was looking forward to Arvin Maskin being here because he was one of our adversaries and he won, because we couldn't get anything from the government. I was successful in bringing a nice settlement in the AmChem asbestos case, but the Supreme Court said we were wrong. They were wrong, but they are bigger than I am and I can't control them. We have brought, and recently settled, the American Home Products diet drug case. The settlement contains, by the way, a good medical monitoring solution.

One shoe does not fit all in the law and it doesn't fit in all medical monitoring cases. You can't pretend medical monitoring has a simple statutory solution. There is terrific merit in some of the criticism of this panel. I don't disagree with much of Justice Maynard's dissent. I also think that the Supreme Court, in Buckley, reached a reasonable decision. Having dealt with asbestos for many years, I don't think that medical monitoring was, in that case, a viable and legitimate solution. Since early detection of an asbestos disease doesn't prevent the disease from progressing; there is nothing you can do about it if you are going to get it.

While there are, certainly, problems in medical monitoring law, improvements must be done correctly. I am not a big fan of legislative solutions since there is no absolute right and no absolute wrong in these situations. Similarly, I don't believe that this issue has a national solution, because this subject does not lend itself to uniform legislation. Courts are better suited to come up with
workable solutions. Courts can, case by case, look at circumstances, look at injuries, and fashion solutions.

I was prepared to comment that in the Fen-Phen case, we proceeded with class action monitoring proceedings in New Jersey, the one that was going to trial, and we went down two tracks for medical monitoring. One was a statutory track called — something called the Consumer Fraud Act of New Jersey, which specifically allowed interpretation by our court, that medical monitoring was one of the remedies. What is the legislative problem? The legislature has spoken in New Jersey. In that state, under, consumer fraud law, we are entitled to certain things and one of them was medical monitoring. Well, we went under the tort law, too, products liability. We wanted to cover both ends just in case one didn't work.

Let me address some of the previous objections. First, Mr. Elliott spoke of lawyers encouraging chemophobia. Irrational fears shouldn't be considered causes of action; significantly, they aren't in most places. Second, medical monitoring awards do not always come in the form of lump sums. If you look at our Fen-Phen settlement, for example, there is no lump sum award; there is, instead, monitoring to detect whether somebody has a disease. This monitoring gives plaintiffs access to medical remedies as well as to medical services which help prevent their symptoms from getting worse. The settlement also stipulates that if someone becomes sick later, they can still recover. It waives the statute of limitation, and it waives the defenses of splitting causes of action.

I challenge any state legislature — let alone the federal legislature — to plug in all the gaps necessary to make medical monitoring a perfect solution. Problems can not be easily solved. Give judges some credit. Even though once in a while their decisions may be wrong, the next time they can do better. Maybe next time they will have more of a record available, which they didn't do in our asbestos case, I don't think very well. They didn't understand our record. But that is sour grapes, I am sorry, I shouldn't criticize those gentlemen and ladies on our Supreme Court.

We have a tort system, and it works. There are difficult issues that it can deal with. There is the double recovery issue. There is the trivial disease issue. How do you think people can learn whether their case is trivial or not? Isn't it better to find out before they get sick? Victor Schwartz suggests that there are alternative solutions, that medical monitoring isn't necessary. He thinks we ought to shift the responsibility to the insurance carriers for the mistakes that companies have made. I am not going to tell you all about all of our cases. But litigation can and should be brought that brings a fair resolution. Many of you have only seen medical monitoring awards in the major class action context. I think there are more discrete instances where negotiated monitoring settlements have been made that are not just for the benefit of the tort lawyers. We do get paid, and we usually get paid a fairly at a pretty good rate when we are successful. We also don't get paid when we are not successful. Maybe it balances out, maybe it doesn't. But we perform a legitimate function.

MR. FREESE: Mr. Locks has raised a very interesting question, namely, are legislators capable of addressing medical monitoring problems?

MR. BEHRENS: One of the things that a legislature could do is create some kind of compensation scheme like we have for workers' compensation. A lump-sum tort recovery cannot provide for increased or decreased medical needs during the course of a claimant's lifetime. More monitoring may be needed in a particular situation; alternatively, science may show, over time, that the person has nothing to worry about. Monitoring is not needed. A flexible funding mechanism would be a good place for legislatures to start.

MR. LOCKS: One comment. In our New Jersey case, we did not ask for a lump sum. Our court ruled that we could not have a lump sum. We were only to get benefits for the people who we asked for monitoring and for their future
medical services.

MR. ELLIOTT: I am not very far from Gene Locks or Ron Simon on the basic validity of medical monitoring. I think that conclusions really do depend upon the particular facts and circumstances of a case. I concede that there are instances where medical monitoring is appropriate, and I think they concede that there are other instances where it is not appropriate, or where there needs to be safeguards.

As for whether or not medical monitoring is appropriate in a given circumstance, or how to design the program, these are questions that require a great deal of expertise. Sometimes solutions can be negotiated in the context of class actions. We may see this in the Fen-Phen case. But we do have a very successful model for legislation in this area that was created by the 1986 amendments to the Superfund statute. The Agency for Toxic Substances and Disease Registry was created as a sub-agency of the Centers for Disease Control. This agency was given the task of studying the community health effects around hazardous waste sites; in doing so, it conducted a number of epidemiological and other scientific studies. Most of those studies have been negative — there really isn't any detectable effect around the sites — but if they do find a detectable effect, they are authorized, through an administrative process, to set up additional remedies. Remedies include medical monitoring.

I bring up this law because I think it is a successful model of how to build a system that deals with these questions appropriately. Technical and scientific questions should be addressed in a technical and scientific way.

MR. SIMON: I think the record is clear that the legislative efforts to regulate medical monitoring are an abysmal failure compared to litigation. Let me cite two examples. First, as to the hazardous waste-sites law just mentioned, the General Accounting Office has produced, I believe, eleven reports, and each of them concludes that community health studies done under that statute are not credible. Indeed, they are laughable; these studies and have no benefit to anyone except the consultants.

The second example is when Congress, I think in 1991, passed a statute requiring medical monitoring of Department of Energy workers. This monitoring was to be conducted in a typically legislative way: you had to first assemble a committee, then know what everybody was exposed to, and then decide exactly what the risks were of each exposure and what the tests were to detect them. 600,000 workers were employed in those plants, and most had enormously high exposures. Under that statute, not a single person was ever medically monitored because the records of the exposure weren't available — the Department didn't carefully keep them. Congress eventually switched to a different system of medical monitoring for DOE workers which resembles what we typically do in litigation. A committee of doctors and industrial hygienists now look at the history of a plant and determine what the most likely exposures are. This is a dynamic, ongoing procedure that looks at exposures, injuries, and changing medical science. In sum, the legislative model has already proven to be a failure.

MS. PENDELL: The procedures that would be covered by medical monitoring often have risks themselves. When people undergo these procedures, many of which are quite invasive, there will be adverse outcomes. I wonder about potential liability of the court when they have awarded money for procedures which turn out to produce harmful effects. This is particularly interesting in light of the National Academy of Sciences study that was released this week that found patient accidents to be stunning in terms of their frequency. How would this play out?

MR. SIMON: When the courts deal with medical monitoring, they generally assign a doctor as trustee. The court doesn't order medical tests. The court appoints a doctor, and whatever general recommendations he or she makes are reviewed by a medical panel. The recommendations are
also reviewed by the person's individual doctor, because any test might be inappropriate for a particular person. Risk, then, depends on the circumstances. I think a dynamic review process that is controlled by a panel of doctors rather than a group of legislators is likely to produce good results.

MR. ELLIOTT: The decision as to whether or not there should be medical monitoring in an individual case involves a balancing of risks and benefits. One of the factors at play is really the limit of detection. That is, through monitoring, are we going to find any useful information? In some instances we find a lot of useful information. There is something that can be done if we find a positive result, and that means that the benefits from the process greatly outweigh the costs. In other instances where our knowledge is not as good, the risk-benefit ratio goes in the other direction. Even if we did find out that somebody was at risk, it is difficult to know what to do about it.

I think monitoring is probably justified in cases where you have high levels of exposure to pharmaceuticals. Here, you have an ability to detect a particular problem, such as the heart valve problem, and you have an ability to intervene. This is a situation where you have relatively low costs, accompanied by relatively large benefits.

The difficulty we have with medical monitoring, as Mr. Locks suggested, is that it is impossible to find a one-size-fits-all approach. When we talk about medical monitoring as a general phenomena, we are engaging in a linguistic fallacy. Medical monitoring in the Fen-Phen case, based on how it has it been described, seems to me entirely appropriate. If we can, relatively inexpensively, detect people who are risk and intervene, I think we are acting appropriately.

We have used the word "injury" in two different ways on this panel, and I think this is confusing. You are not required to have a physical injury to recover in tort law. It is enough you have an economic injury, at least in most states. If someone has involuntarily imposed an exposure on my children, and, as a result, it would be responsible for me to get them expensive medical treatment, that is an injury. The question, always, is whether there really is an injury, and that depends on the balance of risk and benefit for the particular disease that is involved.

AUDIENCE MEMBER: Mr. Simon and Justice Maynard have both pointed out examples where legislatures and courts have done a bad job setting rules in this area. But isn't it better to have legislatures establish causes of action because their rules are prospective? Isn't there much to be said for rule-making that gives both the plaintiff and defendant notice that a cause of action exists?

MR. SIMON: I believe Mr. Elliott just gave you your answer. The cause of action already exists without the legislature. The actual law —as best stated by Judge Becker in the Third Circuit — is that under the Restatement (Third), injury in tort law is not necessarily a physical injury. It may be an injury to an economic interest. If I did something to you, like ram into the back of your car, and your doctor reasonably recommended that you needed to have Xrays, I would have to pay for the X-rays even though your back may not be injured. I am liable because I violated your economic interests. Because of the existing law, I don't believe that a new cause of action is needed. If legislatures were allowed to direct law in this area, they would straightjacket this process. It's not that courts are always right, but at least courts are flexible; this is not an area of law amenable to narrow criteria which does not fit realistic circumstances.

JUSTICE MAYNARD: Well, you pay your money and you take your choice. Who ought to make law? Is it appropriate for judges to make law? That's a fundamental and very hot question. Federal courts are under a lot of criticism from the bar and the public for making law as they go along. As I said in my Bower dissent, it seems to me that judge-made law is a violation of basic constitutional doctrine. Notwithstanding what someone said about the courts' interpretation of
the common law, which is a proper function for courts to do, the creation of new causes of action has always been reserved to one branch of government. It's not the branch I sit in.

MR. BEHRENS: I agree that the legislature is better suited to make rules in this area, because legislative rules, unlike court rules, are prospective in nature. I might add that legislatures are uniquely suited to consider the complex issues that we have talked about on this panel. How do you deal with lump-sum payments? How do you deal with the fact that somebody may be covered by insurance? Monitoring may be appropriate in some situations, but is clearly not appropriate in others.

Furthermore, when a court is deciding an issue, it has to decide a single case or controversy. There could be some argument whether such a "case" even exists in a medical monitoring action, because the plaintiffs do not have any present physical injuries. That aside, a court is only looking at the two people arguing before it. As the United States Supreme Court said in Buckley, however, medical monitoring actions have potentially significant effects on people who are not before the court; people with real and serious personal injuries.

Legislatures are in a much better position to hear from everybody involved. They can hear from labor unions, they can hear from consumer groups, they can hear from trial lawyers, and they can hear from employers. Legislatures have broad information-gathering powers; they are better suited to develop public policy than the courts.

JUSTICE MAYNARD: None of us here are unreasonable or unfair people. The concept of medical monitoring has, at its base, a fairly good argument: you occasionally have people who have been exposed to something dangerous, and they ought to have access to medical science that can monitor their injury. As I have said before, the problem with my court's Bower decision is that it provides no mechanism to guarantee that medical monitoring awards are spent for medical monitoring.

In our state, post-Bower, plaintiffs have three or four recoveries for one non-injury. You can recover from workers' compensation, you can recover from your own insurance company, you can recover, as in the Fen-Phen cases, from the litigation itself, and you can recover in a separate cause of action against the medical supplier for a cause for medical monitoring. These are things that a legislature could manage that courts simply cannot.

MR. SIMON: I worked on the Buckley case and think there are two points about it that should be considered. The first is judicial resistance to mass litigation. I knew what the ruling would be in Buckley as soon as the scheduling order came out. The case was scheduled for argument at the same time that Mr. Locks was preparing a class action to settle hundreds of thousands of asbestos suits. I was certain that a medical monitoring claim was not going to be allowed at the same time that someone proposed to settle hundreds of thousands of cases and I was right. Having practiced law for 25 years, I can tell you that almost every time I've gone to court, one of the first things judges have always said to me is that there'll never be another asbestos. What they mean is that judges will never again allow hundreds of thousands of tort cases to go forward.

The second point I want to make about Buckley concerns Justice Ginsburg's dissent. Her comments show that courts are perfectly capable of creating flexible and reasonable rules when they decide medical monitoring cases. Justice Ginsburg points out that the majority ruled that a lump sum is not an appropriate remedy. There is nothing in the majority opinion, however, that prevents people, even with no injury, from bringing a case under FELA for medical monitoring if it is done as part of a court-ordered or court-monitored program. Courts, then, do allow for variability, depending on the circumstances, including collateral payments. And for an old case, we have people medically monitored. And one of the first things they do when they get their exams
is that the people running it get the collateral payments, so that a lot of these problems can perhaps be better worked out through a court-monitored system than one done by the legislature.

MR. ELLIOTT: The questioner noted that good programs can be created either by legislatures or by courts. I want to comment on what defines whether something is a good program or bad program, regardless of which institution creates it.

I think the panel agrees that it is ultimately a technical question whether medical monitoring is appropriate in a particular case. What leads to a bad monitoring program are rules like the ones contained in the first footnote of the West Virginia opinion. Poorly thought out rules permit medical monitoring in situations where no responsible group of medical professionals would say it is appropriate. Whether or not monitoring is legislatively created or judicially created, I think the key thing is to get an appropriate group of scientists — not uneducated judges or jurors, or for that matter legislators or bureaucrats — to make scientific determinations.

We have, in recent years, begun to consult experts both in the judicial and legislative context through science panels. Consider the science panel that Judge Pointer assembled recently in the context of class actions. Whether these panels are under the auspices of the Agency for Toxic Substances or the court is not really that important. What is important is assembling a range of relatively neutral scientists — not completely unbiased, but certainly less biased than judges or jurors or legislatures — who can deal seriously with questions of relative risks and benefits.

MR. FREESE: Mr. Locks, does that fit in with what you were saying earlier?

MR. LOCKS: No. As a matter of fact, with the Fen-Phen cases, we specifically chose not to have a medical panel as part of the settlement. There's two pieces of it. There's a monitoring end and there's a personal injury end. I invite you to look at the monitoring piece; not a single person, despite my many critics, has yet to criticize it. The personal injury side, however, has a lot of risk. Forget due process issues, which obviously are there. On the medical determination side, we did it in a way that you don't need medical panels. All you need is somebody to have a certain condition. Period. No medical causation arguments. No disputes. Either you reached a certain level of the disease, you got it, you took the drug. You get paid a flat amount — the age of the plaintiff is the only variable.

But whether you're a millionaire or driving the pick-up truck down at a company that I used to be involved in Nitro, West Virginia, doing something like that. Having lived through Agent Orange, and having debated with my former law school professor, Judge Weinstein, on the medical issues and causation and the first time a case dealing with all of those issues, having successful never won an argument in front of Judge Weinstein, of all the times I've appeared in front of him — the biggest hang-up was trying to get some consensus on the chemical exposure issue. (in what, the agent orange case?)

You can never get consensus on the chemical exposure issue. Twelve doctors are worse than twelve lawyers when they attempt to give an opinion. You can develop objective standards and you can try to work around a parameter. But in the Fen-Phen litigation, this was not an issue. You look at it, if you took the drug, you get a disease, you can get tested on that disease, you can get the level — bing, get paid.

JUSTICE MAYNARD: Something needs to be added. A group of lawyers in West Virginia left your litigation. They have instituted litigation separately, based on our medical monitoring decision. Fen-Phen class actions are underway in West Virginia representing people not only in-state, but in Pennsylvania, Texas, Illinois, New Jersey, and Washington.

Consider the numbers. We have 60,000 people in West Virginia alone who took Fen-Phen. The lead lawyer in this case has said he wants one thousand dollars for each of those 60,000 plaintiffs. You do the math. He wants $60 million.
His fee will be $20 to $30 million of that amount, and not a penny of that or what remains is going into any fund. There's no guarantee it will be spent for medical monitoring or anything but pick-up trucks. As Paul Harvey says, "that's the rest of the story."

AUDIENCE MEMBER: What I'm hearing from the panel is virtual agreement that the West Virginia medical monitoring opinion is not well written. It is a deviation from the law in the rest of the country and it's a real problem. Here's my question.

In the interest of practicality, the law has always required an injury for people to come into court. This is a self-governing mechanism so that people sort themselves out. Now imagine three situations, A, B, and C. In A, you have a group of people who approach a lawyer for help. Some of them have suffered very serious injuries from exposure; some have been exposed and have not suffered serious injury. In situation B, people have been exposed to something dangerous but none have suffered a serious injury. They feel that as a result of their exposure that someday they may. In situation C, you have people who have been exposed to something, but they do not have a present injury and it is unlikely that they ever will.

As a result of class actions and various aggregation mechanisms, there are lawyers in our profession who are willing to aggregate this latter group's claims. In doing so, they exert considerable pressure on defendants. This doesn't add to the credibility of the legal profession. In fact, it detracts from what our profession does. I don't see courts distinguishing between these three situations, which to me are very different and merit different treatment. Can anyone speak these three situations, particularly in the context of class actions or aggregation mechanisms in situation C?

MR. LOCKS: I think you missed a fourth category where people have an injury that is hidden. I subscribe to litigation in this instance, particularly in the Fen-Phen situation, because after a very non-invasive test you can actually determine if an injury exists. If symptoms do not arise within the specified time limits — five years from cessation of exposure — you're not going to have an injury. Once injuries are diagnosed, medical follow-up is available that can prevent injuries from getting worse. This is a good medical monitoring program. To create a medical monitoring program for people who have no injury, no real likelihood of disease developing, or no hope of cure, I agree: what's the sense of monitoring? I can't speak to the motivation of people who aggregate claims, but of course, lawyers will sometimes aggregate claims for rewards that may not necessarily dribble down to the clients themselves.

There's merit to your objection, but there's also merit to having alternatives available. And again, I have a lot of faith in judicial thinking in this area — I prefer it to legislation.

MR. SIMON: I've written extensively about the aggregation of claims. If you think this discussion has been contentious, you can only imagine the disputes among plaintiffs' lawyers when we discuss that issue, but some generalizations can be made.

If cases are handled on an individual basis, they sort out where there's some at a very high level of injury and some at a very low level. When cases are aggregated, this tends to raise the lower-level cases and provide collective benefits, such as medical monitoring or things of that nature. Aggregation tends to put a ceiling on what those with high-level injuries can claim. Opinions about this method have quite a bit to do with the first law of political science, namely, where you stand depends on where you sit. If you've got a few catastrophically injured people, the aggregation of the claims is not in your favor. If you've got lots of claims amenable to injured people, aggregation is in your interest.

MR. BEHRENS: Most of the time medical monitoring cases are not going to be as clear-cut as the Fen-Phen cases. With Fen-Phen, we know who took the drug. As in the Friends for All Children v. Lockheed case: we know who was affected. In other instances, it is really difficult to pinpoint what somebody may have been exposed to and whether that is likely to cause an injury. As I suggested in my earlier comments, risk is everywhere. Who should pay when somebody is suffering an ailment that may be hereditary or may have been caused by a hundred different factors? My guess is that those who will be asked to pay will be either the most controversial defendants, because they are unpopular with juries, or the wealthiest defendants, because they have the "deepest pockets." There is going be unfairness in the way medical monitoring evolves if it is adopted by courts.

JUSTICE MAYNARD: The question suggests one of the central problems will all mass tort litigation. You have a widely disparate group of folks with different kinds of claims and with different degrees of injury. This is another argument, in my view, for having the legislature manage this kind of mass tort litigation. Legislatures could set standards which would eliminate frivolous claims and, in doing so, restore confidence in the judicial system. I think we all agree that people who took Fen-Phen ought to have some medical monitoring. If I were in the legislature, I would vote for that. But I would want to make sure that the money was used for that purpose.

PANEL III - The Legislative Battleground Ahead

MR. FREESE: As a final part of the program, we will think about how medical monitoring disputes will play out in the future using Louisiana as a case study. Tyson Shofstahl is a partner in the New Orleans office of Adams & Reese. He has a wide range of experience in the area of general litigation. He practices in the areas of products liability and toxic tort. He has both an appellate and government relations practice. Most importantly, for our purposes, Mr. Shofstahl argued a major medical monitoring case before the Louisiana Supreme Court and, regrettably, lost. He went on to advise the Louisiana legislature on legal reform in this area. He argued successfully for a revision to the Louisiana Civil Code, which repealed medical monitoring causes of action.

TYSON SHOFSTAHL: You have heard numerous opinions today on the pros and cons of medical monitoring. The focus of my comments will be on a different question: are courts equipped to adopt the kind of remedies that you see in medical monitoring cases or should the creation of such remedies be left to legislatures? My conclusions are drawn from my experiences in Louisiana.

Prior to July 8, 1998, Louisiana did not allow recovery for future medical expenses unless a plaintiff could correlate the expenses with an actual injury or disease. There was a reason for this prohibition: such damages are speculative in nature, since they have not occurred and may never occur, and Louisiana law did not allow awards for speculative damages. There was, however, a narrow exception. In situations where people had sustained actual injuries, the courts allowed them to recover their future damages so they didn't have to repeatedly file suit. Plaintiffs could bring all of their claims at one time, in one action. The requirement of a real injury to support an award of future medical expenses, then, provided a concrete foundation to ground an otherwise speculative award.

In 1998, the Louisiana Supreme Court changed Louisiana tort law by dispensing with the manifest injury requirement. In Bourgeois v. A.P. Green Industries, Inc., 716 So. 2d 355 (La. 1998), a group of shipyard workers filed a lawsuit to recover the costs of medical monitoring as a result of their alleged asbestos exposure. The court abandoned the traditional rule of requiring an injury to support an award of future medical damages and decided to adopt, instead, a little-used common law test. In doing so, the court recognized a medical monitoring remedy under Louisiana law. The court acknowledged that dispensing with the manifest injury requirement could create an atmosphere of unlimited and unpredictable liability in the state. It believed, however, that the test that it had adopted from the common law was stringent enough to alleviate these concerns.

Although the court had admirable intentions in adopting the medical monitoring remedy, it unfortunately succeeded in creating an atmosphere of unpredictable and unlimited liability. In the approximately eight-months after Bourgeois, several appellate court decisions were handed down in Louisiana that dealt with medical monitoring. In these decisions, the courts recognized the new remedy and approved it in class-action contexts against employers, product manufacturers and premises owners. The remedy was also applied to a class-action suit by Jones Act seamen. Up to that point, no other court in the country had recognized such a claim. And this was in spite of the fact that federal law requires maritime law to be uniform and most states had not recognized a medical monitoring remedy. Most significantly, however, the courts summarily recognized the availability of medical monitoring damages with respect to things that happened thirty and forty years ago.

In this explosive environment, a group of my colleagues and I assembled and considered the implications of the new medical monitoring cause of action. We evaluated how it would affect our clients and their future business ventures. Two things became immediately clear. The first was that the legal test for medical monitoring was fatally flawed. It created an indefensible subjective claim for speculative damages which did not discriminate between exposures. Second, in making the public policy decision to allow medical monitoring claims, the courts had counteracted — and, in some cases, entirely defeated — other public policy choices made by the legislature.

We delivered this news to our clients who were, not unexpectedly, concerned. As a result, a coalition was formed to approach the Louisiana legislature and lobby for remedial legislation. We were successful in our efforts. In essence, the legislature returned Louisiana law to where it was prior to Bourgeois. Today, for the recovery of future medical expenses, a plaintiff must prove that expenses correlate to a manifest injury or disease.

Without debating the general merits of medical monitoring, I would like to now concentrate on some of the specific public policy issues and arguments that emerged during the legislative process. When we arrived at the legislature, one of the first things we did was break down the specifics of the Bourgeois case. We saw that what had been created was a subjective cause of action for speculative future damages. This occurred because the legal test for medical monitoring damages removed the focus of damage off of an objective component — i.e., an injury — and placed it on a subjective claim of exposure. Why is this important? If someone claims that they have an injury, there are objective ways to test for that injury. You can conclusively determine if someone has a broken arm or a chemical burn or something similar in nature. When you remove the concrete injury component and replace it with exposure, you do away with the only objective criteria in the tort action and invite subjective claims for damages. Mere testimony about exposure becomes sufficient evidence to prevail on a medical monitoring claim in a court of law. When a person claims that they have been exposed to something, the duty then falls upon the defendant to try to disprove that claim. It is virtually impossible to disprove a claim of exposure when you do not require a plaintiff to prove some physical manifestation of the exposure.

Consider the subjectivity of the medical monitoring legal criteria. First, a plaintiff must prove that significant exposure to a proven hazardous substance occurred. Most courts have held that such exposure must be significant in intensity or duration. However, these same courts have taken this to mean that a plaintiff must prove exposure greater than normal background levels. Although this sounds reasonable, none of the courts have adequately described what normal background levels are. Is normal background level an air sample taken out of a "normal" neighborhood? Does that mean that any direct contact with a chemical or hazardous substance is greater than normal background levels? There's no real meaning to this criteria.

Second, a plaintiff must prove that as a proximate result of exposure, he suffers a significantly increased risk of contracting a serious latent disease. The courts go on to say, however, that no particular level of quantification is necessary to satisfy the requirement of increased risk. Does that mean that the increased risk only has to be one percent? Or half a percent? How much increased risk do you need?

Third, a plaintiff must prove that his risk of contracting a serious latent disease must be greater than the risk of contracting the same disease had he or she not been exposed, or the risk faced by the general public. Since most people believe, at some point in their lives, that they have been exposed to something toxic, few will hesitate to claim that their vulnerability is greater than it was pre-exposure. Moreover, most jurors will automatically assume that vulnerability is greater than it was pre-exposure.

To summarize, the only evidence a plaintiff, himself, is required to marshal in a medical monitoring case is evidence of exposure. As I stated earlier, that can be accomplished by simply walking into court and citing exposure to green gas at a facility, or recalling the smell of chemicals while walking through a corridor. All of the other criteria in these cases can be established, quite easily, through hired expert testimony on the need for medical monitoring. The results an indefensible subjective claim for speculative damages. Note, too, that the criteria does not distinguish between exposures. Anybody can be a plaintiff and anybody can be a defendant. Anyone can prove through their own hired experts that they experienced exposure to a hazardous substance; similarly, anybody can be sued for medical monitoring because the liability standard is so low.

By dispensing with the physical injury component and adopting something less — here, exposure — counts inadvertently deviate from well settled standards of liability. For instance, negligence normally is whether a person knew (or should have known) that his or her conduct would create harm. If the harm is a physical injury or disease, then you are negligent if you knew (or should have known) that your conduct would injure another. However, if harm becomes whether you submitted someone to an exposure above background levels, then you are negligent if you knew or should have known that the person would be exposed.

Virtually anybody could be sued under this criteria. These suits are not restricted to chemical manufacturers or companies that manufacture asbestos. One of the examples that we considered in the legislature was a hospital. People who work in hospitals are exposed to hazardous substances on a daily basis. They're exposed to infectious medical diseases, chemicals, radiation, hazardous waste, and all types of other dangerous things. If somebody claims exposure to those materials greater than normal background levels, they could, with adequate expert testimony, win medical monitoring money damages.

Similarly, labor unions will become primary targets in medical monitoring cases. Labor unions are, after all, the groups that negotiate the safety conditions for their members. Unions also send their members into dangerous environments. Under the tests adopted in states that recognize medical monitoring, a case can be made for their liability, particularly since they knowingly send employees into hazardous working environments.

Another aspect of medical monitoring we raised in the legislature was its incompatibility with the state's system of workers' compensation. There was serious concern that medical monitoring was not covered by workers' compensation. Under Louisiana's compensation law, you need a statutorily defined injury to effectuate the title. An injury is defined as something physical or some type of disease. Medical monitoring, by definition, is not a physical injury — it's an economic injury. Because it's an economic injury, it is not covered by the compensation scheme. In addition, even if it monitoring was covered, it could easily be argued that intentionally sending someone into a potentially hazardous environment to work constitutes an intentional tort, a classic exception to compensation immunity. Hence, an employer could be deprived of his compensation immunity, even if the actual monitoring damages are covered by the statutory scheme. Another question arises: are medical monitoring damages covered by general liability insurance policies? This, once again, comes back to the complications of medical monitoring being an economic injury. Most general liability policies do not cover economic injuries. Why would general liability insurance policies cover this type of claim?

The medical monitoring cause of action also reopened the door to punitive damages in the state of Louisiana. Louisiana, unlike most other states, did not have a punitive damage statute until 1984. In 1984, the legislature passed Article 2315.3 of the Louisiana Civil Code to recognize a cause of action for punitive damages in situations where people acted wantonly or recklessly in the handling, storage, or transportation of hazardous or toxic materials. In 1996, the legislature repealed that statute. Unfortunately, the medical monitoring cause of action opened a whole new door to punitive damage claims. It gave people who did not traditionally have standing — i.e., plaintiffs without an injury — the ability to walk into court and couple an economic injury claim for medical monitoring damages with a punitive damage claim. If your jurisdiction's standard of liability for punitive damages is wanton and reckless conduct and a claimant argues that an employer intentionally sent him into a dangerous environment, the intentional conduct will more than likely be sufficient to prove a wanton and reckless case. In this manner, medical monitoring claims can expose employers and others to punitive damages in situations where the were previously unrecoverable. This new vulnerability, of course, presents a great threat to businesses.

Another observation that arose in the legislature was that, the medical monitoring cause of action virtually rendered ineffective the state's statute of limitations. In Louisiana, we refer to the statute of limitations as prescription—you have to be aware of the conduct that caused the injury as well as the resulting damages to commence the running of prescription. If the damages sought have not yet occurred, how does that affect prescription? Can you ever have a limitations period on damages that have not yet happened? I know some courts have tried to deal with this subject and they've come to different conclusions; this remains, however, another problem with medical monitoring claims.

I think the most important consideration, here, is that there is a series of due process violations when courts recognize new remedies and then try to impose them retroactively. If a statute was passed by a legislature that created a new liability or a new cause of action, courts would normally say that it applies prospectively only. When courts make those decisions, however, their opinions usually apply retroactively. Damage remedies recognized by courts can be applied to conduct that occurred thirty, forty, sometimes fifty years ago. How is this possible? There is no way to bar the claim for conduct that occurred decades ago if there's no limitations period. There's no way for employers to defend themselves against these actions because at the time they acted, they behaved within the law. This brings me, again, to problems with insurance coverage. If, in fact, medical monitoring claims are not covered by general liability policies, how fair is it to retroactively impose a liability on someone when they couldn't have prepared for the contingency?

Luckily for us, we have a part-time legislature in Louisiana. Most of the legislators have their own businesses; they could understand the problems that the medical monitoring cause of action presented for the business community as well as individuals in positions of authority. There was heated debate for about two months. The different sides presented their cases—trial lawyers, community groups, business interests. Because of this spirited debate, legislators were able to appreciate the problems and concerns on all sides of the issue. In the end, they were able to come to intelligent conclusions. They decided not to recognize a cause of action for medical monitoring, and passed a statute repealing the Bourgeois decision.

Whether you're for or against medical monitoring, I submit that the legislature is the place to debate the issues and is the appropriate body to decide what type of action should be taken. Courts are limited in their focus to the particular facts that are set before them in cases, so they do not have the opportunity to look at other issues. They, necessarily, can not take into consideration the effect that new remedies will have on the entire fabric of the law. Given this fact, they should not endeavor to make sweeping changes in public policy.

AUDIENCE MEMBER: What the Louisiana courts do with the new law?

MR. SHOFSTAHL: There was an exception filed by one of the defendants in the Bourgeois case on the basis of the new statute. The court ruled that the statute was unconstitutional. There was, however, a procedural defect in the proceeding because the plaintiffs did not put the attorney general on notice, and therefore we have to go back to the trial court. A motion to have the statute declared unconstitutional was recently filed. This time around, the attorney general was notified. We have not yet had a hearing on the new motion. If the court again rules that the statute is unconstitutional, it will go on direct appeal to the Louisiana Supreme Court.

  1. See Johnson v. BP Chems., Inc., 707 N.E.2d 1107 (Ohio 1000).
  2. See Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907 (W. Va. 1978).
  3. See Unfinished Business: A Comparative Assessment Of Environmental Problems. Available on line at
  4. See American Law Institute, 2 Enterprise Responsibility for Personal Injury — Reporters' Study 379 (1991).
  5. Professor Ashford's publications may be found at



2001 The Federalist Society