The Gulf Coast States: Can Asymptomatic Plaintiffs Obtain Medical Monitoring?

Transcription

1 The Gulf Coast States: Can Asymptomatic Plaintiffs Obtain Medical Monitoring? Arthur F. Foerster* & Christine G. Rolph** INTRODUCTION The April 2010 explosion on the Deepwater Horizon drilling rig has been called by President Obama the greatest environmental disaster of its kind in our history. There are over 205 million gallons of oil estimated to have leaked into the Gulf of Mexico from the busted well. 1 After more than a year since the explosion, hundreds of lawsuits have been filed in federal and state courts of the Gulf Coast. In numerous lawsuits, various plaintiffs have claimed they are entitled to medical monitoring damages for potential human health effects related to the spill. For over twenty-five years, American courts have considered the availability of medical monitoring or medical surveillance as either a remedy or a separate cause of action. 2 Medical monitoring plaintiffs typically exhibit no objective signs of any illness linked to a hazardous substance, but seek to recover the costs of long-term diagnostic tests and examinations for poten- * Arthur Foerster is a partner based in the Chicago office of Latham & Watkins and has practiced with the firm since Mr. Foerster s practice focuses on environmental law and litigation. In particular, he has litigated toxic tort actions and matters under CERCLA, the Clean Water Act, the Clean Air Act and numerous state statutes and regulations. ** Christine Rolph is Global Co-Chair of Latham & Watkins Products Liability, Mass Torts and Consumer Class Action Practice Group and is a partner in the firm s Washington, D.C. office. She has extensive litigation expertise across a broad range of products liability, toxic tort, insurance coverage and multi-plaintiff actions. 1. Maureen Hoch, New Estimate Puts Gulf Oil Leak at 205 Million Gallons, PBS NEWSHOUR: THE RUNDOWN, August 2, 2010, org/newshour/rundown/2010/08/new-estimate-puts-oil-leak-at-49-million-barrels.html. 2. The United States Court of Appeals for the D.C. Circuit s decision in Friends for all Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (1984), is typically viewed as the origin of medical monitoring claims.

2 140 Corporate Counsel Review tial latent diseases that could result from an exposure. The Gulf Coast states almost uniformly have rejected medical monitoring claims brought by plaintiffs who do not exhibit a manifest, present injury. Class actions are even more rare. Most courts deny class certification because they correctly recognize that medical monitoring claims involve too many individual issues (e.g., differing amounts, duration, pathways and periods of exposure) to qualify for class treatment. Courts have found that the problems inherent in managing these individual issues outweigh any benefits that could be gained by allowing the class action to proceed. Thus, asymptomatic plaintiffs likely cannot obtain medical monitoring damages related to the oil spill. MANIFEST, PRESENT INJURY REQUIRED Since the United States Supreme Court s 1997 decision in Metro-North Commuter Railroad Company v. Buckley, 521 U.S. 424 (1997), the majority of states considering claims for medical monitoring and medical surveillance have rejected these claims, as did the Supreme Court, in the absence of a manifest, present injury. As a result, asymptomatic plaintiffs who claim that their hazardous-substance exposure necessitates long-term medical surveillance are increasingly unable to obtain recoveries. The Gulf Coast states largely follow this trend. For example, in Hinton v. Monsanto Company, 813 So. 2d 827 (Ala. 2001), the Alabama Supreme Court ruled that hazardous-substance exposure, without a manifest, present injury, does not give rise to a cognizable claim of medical monitoring under Alabama law. The Hinton plaintiff, on behalf of himself and a putative class of similarly situated others, sought medical monitoring costs he contended were necessitated by exposure to PCBs. 3 No present physical injury was alleged, but the plaintiff claimed monitoring was needed to detect future injuries. 4 The Court held that Alabama provides no redress for a plaintiff who has no present injury or illness. 5 Although recognizing the concerns exposed persons may face, the Court found it inappropriate to stand Alabama tort law on its head in an attempt to alleviate these concerns about what might occur in the fu- 3. Hinton, 813 So. 2d at Id. at Id. at

3 The Gulf Coast States 141 ture. 6 Approving such a claim, the Court explained, would result in the courts of this State deciding cases based upon nothing more than speculation and conjecture. 7 Similarly, the Mississippi Supreme Court, in Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1 (Miss. 2007), held that Mississippi law does not recognize a claim for medical monitoring for hazardous-substance exposure without proof of a current actionable injury attributable to that exposure. 8 The Mississippi Supreme Court, in answering a certified question from the United States Court of Appeals for the Fifth Circuit in which workers sought the establishment of a medical monitoring trust fund as a result of exposure to beryllium-containing products, found that exposure to a dangerous substance is not an injury. 9 In particular, neither fear of contracting a disease nor increased risk of future illness presents a cognizable claim under Mississippi law. 10 Notably, the plaintiffs alleged that the beryllium exposure caused sub-cellular, cellular and subclinical changes, but the Mississippi Supreme Court held that without more the claim for medical monitoring, as Plaintiffs present it, lacks an injury. 11 In Louisiana, the Legislature enacted a statute in 1999, overruling the Louisiana Supreme Court s decision in Bourgeois v. A.P. Green Industries, 716 So. 2d 355 (La. 1998). The Court s ruling in Bourgeois had permitted asymptomatic plaintiffs exposed to hazardous substances to recover the costs of medical monitoring. 12 Under the terms of the amended statute, [d]amages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly re- 6. Id. at 831 (emphasis in original). 7. Id. at 830; see also Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712, 718 (Ala. 2002) ( Opening the courts generally for compensation for fear of future disease would be a dramatic change in the law and could engender significant unforeseen and unforeseeable consequences.... ). 8. Paz, 949 So. 2d at Id. at Id. 11. Id. at 3; see also Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, (5th Cir. 2009) (discussing plaintiffs allegations). Based upon the Mississippi Supreme Court s decision, the Fifth Circuit held that beryllium sensitization ( BeS ), which the parties agreed was a physiologic change, was not an actionable injury under Mississippi law. Paz, 555 F.3d at Id.

4 142 Corporate Counsel Review lated to a manifest physical or mental injury or disease. 13 As explained by the Louisiana Supreme Court in a subsequent opinion, the amendment effectively eliminated medical monitoring as a compensable item of damage in the absence of a manifest physical or mental injury or disease. 14 And subsequent courts applying Louisiana s amended statute have precluded medical monitoring claims absent such a manifest injury or disease. 15 The legislators and highest courts of the other Gulf states have not directly weighed in on the viability of medical monitoring claims in the absence of manifest injury. However, the district courts and intermediate appellate courts generally seem skeptical. For example, in Norwood v. Raytheon Co., 414 F. Supp. 2d 659 (W.D. Tex. 2006), the United States District Court for the Western District of Texas predicted that, if faced with the issue, the Texas Supreme Court would refuse to recognize a claim for medical monitoring absent present physical injuries. 16 In reaching its determination, the federal court relied upon the Texas Supreme Court s decision in Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999), which rejected a claim for mental anguish damages based solely on asbestos exposure and without any present physical injury. 17 The federal district court concluded that the policy considerations offered by the Texas Supreme Court in the mental anguish context (e.g., unpredictable liability and claim proliferation) apply equally to medical monitoring. 18 Indeed, as explained by the federal district court, the Texas Supreme Court relied in part on the United States Supreme Court s decision in Metro-North, which rejected both medical monitoring and mental anguish claims for largely the same policy reasons La. Civ. Code art Bonnette v. Conoco, Inc., 837 So. 2d 1219, 1230 n.6 (La. 2003). 15. Woods v. Reynolds Indus. Contractors, Inc., No. 1:05-CV-02048, 2010 WL , at *4 (W.D. La. Mar. 30, 2010) (holding Louisiana law does not support an award for medical monitoring where plaintiff was exposed to asbestos but had not yet been diagnosed with any asbestosrelated disease). 16. Norwood, 414 F. Supp. 2d at 664, Id. at Id. 19. Id. at But see Petito v. A.H. Robins Co, Inc., 750 So. 2d 103, 104 (Fla. Dist. Ct. App. 1999) (holding that cause of action for medical monitoring exists even when the party seeking relief has yet to develop any identifiable physical injuries or symptoms ).

5 The Gulf Coast States 143 Thus, increasingly, the fear or increased risk of developing a future illness from hazardous-substance exposure by themselves are not sufficient to support a cognizable claim for medical monitoring. Courts rejecting such claims appropriately recognize the difficulties raised by these speculative liability theories including, inter alia, the very real potential for a flood of cases that might absorb resources better left to those with manifested illnesses as well as the burden from virtually unlimited liability. 20 Moreover, courts are uncomfortable that recognizing these claims essentially would require an unprecedented and unfounded departure from the long-standing traditional elements of a tort action. 21 Absent some present manifestation of a disease linked to the hazardoussubstance exposure namely, some identifiable injury the law does not support asymptomatic plaintiffs recovering the costs for medical monitoring and surveillance. CLASS ACTIONS ARE RARE Additionally, federal and state courts have overwhelmingly denied certification in recent years to proposed medical monitoring classes. This trend is one that the Gulf Coast states also have embraced. 22 Courts have ruled that medical monitoring 20. See Hinton, 813 So. 2d at 831 (quoting Metro-North Commuter Railroad Company v. Buckley, 521 U.S. 424 (1997)). 21. Paz, 949 So. 2d at See, e.g., Myers v. BP Am., Inc., No , 2009 WL (W.D. La. July 29, 2009) (denying medical monitoring class certification and holding that exposure issues could not be tried representatively given the variance in individual exposures and the lack of a single common injury); In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, (S.D.N.Y. 2008) (applying Louisiana and Florida law and denying class certification to medical monitoring plaintiffs because almost every element of a medical monitoring claim... would present case-specific questions that were central to whether class members were entitled to recovery, and class members might be subject to individual defenses... such as comparative negligence and assumption of the risk ); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., MDL No , 2008 WL (E.D. La. Dec. 29, 2008) (involving states of Louisiana, Texas, Alabama and Mississippi and holding that medical monitoring sub-class did not meet superiority or predominance requirements for class certification because alleged injuries and exposures varied widely); Hoyte v. Stauffer Chem. Co., No CI-7, 2002 WL (Fla. Cir. Ct. Nov. 6, 2002) (denying class certification and ruling that individualized differences and chemical exposures required plaintiff-byplaintiff analysis); Wyeth, Inc. v. Gottlieb, 930 So. 2d 635 (Fla. Dist. Ct. App. 2006) (rejecting medical monitoring class under Florida law); In re

6 144 Corporate Counsel Review claims involve multiple individual issues, such as differences in duration of exposure, type of exposure, and quantity of exposure, and plaintiffs with unique medical histories and background risks of disease. Courts also have recognized that plaintiffs typically lack a single common injury or medical concern, often instead complaining of dozens of symptoms or conditions which could not be tried by representative class plaintiffs. Thus, courts have found that medical monitoring considerations are highly individualized and are inappropriate for class wide adjudication. Medical monitoring claims arising from the Gulf spill similarly should not qualify for class treatment. The claims asserted by potential class members will require individualized proof of (1) specific causation, including the location of each person and the proximity to the oil or other related harmful material(s), and (2) medical causation, including pre-existing medical history, age, breathing rate, metabolic processes, uptake, absorption and elimination rates, susceptibility to illness, as well as potentially analysis of individualized test results and data. 23 Potential class members likely will have been exposed, if at all, for different amounts of time, in different ways, and over different periods. They also would incur different medical expenses (if any) because any monitoring and treatment will depend on singular circumstances and individual medical histories. Each of these many issues is unique to every class plaintiff. Individualized factual issues predominate over any potential common issues. CONCLUSION Given the magnitude of the spill and the potential dollars at stake, it will not be a surprise if numerous medical monitoring actions ultimately are filed throughout the Gulf. Hundreds of other lawsuits have been filed in the federal and state courts Vioxx Prods. Liab. Litig., 239 F.R.D. 450 (E.D. La. 2006) (denying class certification for medical monitoring plaintiffs regarding prescription pain medication); Zehel-Miller v. AstraZenaca Pharm., LP, 223 F.R.D. 659 (M.D. Fla. 2004) (denying class certification for medical monitoring plaintiffs regarding a depression drug); Perez v. Metabolife Int l, Inc., 218 F.R.D. 262 (S.D. Fla. 2003) (holding that medical monitoring class of users of an over-the-counter dietary supplement was not properly defined where individual determinations would have to be made regarding dosage and duration of use). 23. See, e.g., Myers, 2009 WL , at *6 (noting the importance of such factors in denying class certification).

7 The Gulf Coast States 145 of the Gulf Coast related to the Deepwater Horizon spill and many plaintiffs are seeking medical monitoring damages. As a result, it is critical for companies to understand how these claims have been treated in order to gird themselves against any attacks to change or contravene existing law that currently precludes asymptomatic plaintiffs from recovery. By doing so, companies may be able to cut these actions off early and, thus, avoid unnecessary expense.

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