Mich. Supreme Court Could Be Next Battleground for Medical Monitoring Claims

December 19, 2003

The Coalition for Litigation Justice, Inc., a nonprofit association formed by insurers to improve the toxic tort litigation environment, this week filed a “friend of the court” brief with the Michigan Supreme Court, urging the Court to hear an appeal that may determine whether claimants in Michigan can recover damages based on the mere possibility of a future injury.

The plaintiffs in Henry v. The Dow Chemical Corp. are alleging exposure to ground contamination and want Dow Chemical to pay damages equivalent to the cost of having their health monitored for any illnesses that may result from their alleged exposure. Claims for such medical monitoring or surveillance are novel and controversial, in part, because they do away with the time-honored rule that liability should be imposed only when an individual has sustained a present injury.

In recent years, the U.S. Supreme Court and several state supreme courts have reportedly rejected medical monitoring claims. In a 1997 asbestos case, the Supreme Court refused to recognize medical monitoring as a cause of action for railroad workers suing their railroad employers under the Federal Employers’ Liability Act. Over the past two years, the Supreme Courts of Nevada, Alabama, and Kentucky all rejected medical monitoring claims related to a wide range of alleged exposures, from environmental tobacco smoke to groundwater pollution to prescription drugs.

“The Coalition is asking the Michigan Supreme Court to take this case because we believe that resources should be directed to the truly injured rather than be diverted to people who have no present injury and may never develop an illness at all,” said Mark Behrens, counsel to the Coalition and an attorney with the law firm of Shook Hardy & Bacon L.L.P. in Washington, D.C.

“On a daily basis, almost everyone comes into contact with numerous materials that they could argue warrants medical monitoring. Recognition of medical monitoring could create a flood of litigation,” Behrens added. He also noted “many claimants already receive standard medical testing through their regular health insurance. Medical monitoring recoveries for these individuals would basically amount to a transfer of wealth with no real health benefit.”

Behrens also explained: “Medical monitoring awards are subject to serious abuse. Common sense experience suggests that if medical monitoring is awarded on a lump sum basis, the money is most likely going to be spent like a lottery winning – to purchase a new car, a television, or to take a trip. The jackpot will not be hoarded and spent on periodic monitoring.”

The Coalition was joined on its brief by the Chamber of Commerce of the United States, American Tort Reform Association, National Association of Manufacturers, and American Chemistry Council.

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