45 RULR 227
Rutgers Law Review
MEDICAL SUE-VEILLANCE: [FNa1] A HISTORY AND CRITIQUE OF THE MEDICAL MONITORING REMEDY IN TOXIC TORT LITIGATION
Rutgers Law Review
*227 MEDICAL SUE-VEILLANCE: [FNa1] A HISTORY AND CRITIQUE OF THE MEDICAL
MONITORING REMEDY IN TOXIC TORT LITIGATION
George W. C. McCarter [FNaa1]
Copyright © 1993 by George W. C. McCarter
TABLE OF CONTENTS
I. INTRODUCTION ................................................ 229
II. Ayers AND ITS ANTECEDENTS .................................. 231
III. THE FIVE Ayers CRITERIA AND THEIR LIMITATIONS ............. 242
IV. THE FORM OF THE REMEDY--LEGAL OR EQUITABLE? ................ 253
V. DEFENSES TO MEDICAL MONITORING CLAIMS--THE ISSUE OF 'USE' ... 264
VI. THE TESTING PROTOCOL--FIRST DO NO HARM ..................... 273
VII. MISCELLANEOUS POLICY ISSUES ............................... 280
VIII. CONCLUSION ............................................... 282
*229 I. INTRODUCTION
The 1980s will be remembered as a decade of concern for victims of so-called "toxic [FN1] torts," [FN2] i.e., persons claiming harm from exposure to chemicals, and particularly those who had not yet suffered a physical injury and thus were faced with the ancient legal doctrine that "[t]he threat of future harm, not yet realized, is not enough." [FN3] Numerous courts, commentators, and advocates, pointing to the inadequacy of existing tort remedies to deal with what they saw as an insidious threat to public health, [FN4] and to the perceived absence of any legislative *230 impulse to address the problem, advanced novel rules and remedies to circumvent the barriers to recovery that traditional jurisprudence had placed in the way of arguably deserving plaintiffs. One of the more notable of these new approaches was "medical monitoring" or "medical surveillance," a remedy intended to provide presently healthy plaintiffs with "medical testing necessary to facilitate the early detection of diseases caused by toxic substances." [FN5] Although the concept has been developing for over a decade and has
been discussed or cited in numerous reported trial level opinions, [FN6] it has generated remarkably little appellate scrutiny or academic criticism. [FN7] This Article is an attempt to fill part of that void.
*231 The next section of this Article will trace the history of the medical monitoring remedy from its origins in dicta relating to an injured plaintiff's right to recover for future medical treatment, [FN8] to its limited application as an equitable remedy in an aircraft disaster case, [FN9] to its ambiguous apotheosis as a major element of damages in toxic tort litigation in the leading case of Ayers v. Jackson Township. [FN10] Part III will focus on the criteria for the remedy as set forth in Ayers and related cases, and it will discuss refinements of those criteria. [FN11] Part IV will endorse the implication in Ayers that the preferred form of the remedy is equitable, rather than money damages at law. Part V will focus on defenses to medical monitoring claims, with particular emphasis on questioning the sincerity of many plaintiffs' demands for comprehensive future monitoring. Part VI will consider whether, as assumed in Ayers and other cases, medical monitoring is invariably useful and desirable for toxic tort plaintiffs, and Part VII will briefly address miscellaneous related issues.
II. Ayers AND ITS ANTECEDENTS
The earliest reported reference to "medical monitoring" as a
*232 remedy in a toxic tort case occurred in 1979 in Morrissy v. Eli Lilly & Co., [FN12] a purported class action by daughters of women who had ingested diethylstilbesterol ("DES"). One of the demands of the Morrissy plaintiffs was to establish "several funds totalling $41,250,000 to be administered by the court" to provide, among other things, "each Class member with the opportunity to obtain adequate medical management of her condition for the rest of her life." [FN13] In affirming the denial of class certification, the court noted that because each class member's case history was different, "a separate inquiry would be required as to each mother to determine whether her ingestion of DES was of sufficient quantity or longevity to require any medical monitoring of the daughter at all." [FN14] Since class certification was denied, the opinion offered little discussion of the remedy, other than to note that "[i]n Illinois, possible future damages in a personal injury action are not compensable unless reasonably certain to occur," [FN15] a showing that the class as a whole was unable to make.
A more explicit endorsement of the remedy, albeit in dictum, appears in Askey v. Occidental Chemical Corp., [FN16] another would-be class action brought by neighbors of a toxic landfill in New York state. The trial court had denied class certification, and the issue on appeal was whether plaintiffs should be deemed a class "for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of
the development of disease." [FN17] Askey is most notable for its historic perspective--it traced the right to medical monitoring damages to the notorious decision of the New York Court of Appeals in Schmidt v. Merchants Despatch Transp. Co., [FN18] which held that the statute of limitations for harm from exposure to chemicals begins to run from the date of last exposure, "even though the injured party may be ignorant of the existence of the wrong or injury." [FN19] According to Schmidt, upon exposure a plaintiff may recover *233 "reasonably anticipated" consequential damages, although "at the time of trial they may not yet exist." [FN20] With Schmidt in mind, the Appellate Division in Askey reasoned that if a plaintiff must sue shortly after exposure, regardless of his health at the time, he could include "future medical expenses" in his claim, provided that expert testimony demonstrated "with a degree of reasonable medical certainty . . . that such expenses will be incurred." [FN21] Although this test of reasonable medical certainty (or probability) has been followed in several other states, no subsequent appellate court has cited Schmidt as a basis for awarding future medical monitoring damages. [FN22]
A 1984 opinion of the United States District Court for the District of Columbia [FN23] is the first case containing an extended discussion of remedy and leading to an actual award, but it was not a toxic tort case. Moreover, many of the plaintiffs were already severely injured; they were
Vietnamese orphans who had been passengers in a Lockheed C-5A transport plane that had depressurized and crashed while attempting to evacuate them from Saigon in 1975. [FN24] The case was litigated exhaustively for nearly a decade after the accident, [FN25] leading *234 to delay in preliminary diagnostic examinations for certain infant plaintiffs living in jurisdictions where such examinations were not available from public health authorities. After noting that "[e]ven Lockheed could not find a respectable expert to testify that there should be no medical examination whatsoever of a child following a crash under the circumstances it alleges," [FN26] the court held that "the entire group of foreign infant plaintiffs was placed at risk of injury by the crash, and that diagnostic examinations are necessary to determine whether the risk has become reality in particular cases." [FN27] Finding that "the equitable remedy of in-kind provision of diagnostic examinations now" [FN28] was preferable to legal damages proved later at trial, the court ordered Lockheed, the manufacturer of the aircraft, to pay $450,000 into the court registry to "adequately reimburse expenses incurred in the provision of comprehensive diagnostic examinations" for approximately forty children. [FN29] The children's guardians were to submit vouchers for withdrawals from the fund, which were subject to review by Lockheed. [FN30] The funds were to be placed in an interest bearing account, and the "balance plus interest remaining in the fund following the examinations shall be
refunded to the defendant on a date certain absent good cause shown by plaintiffs." [FN31] In Friends for All Children, Inc. v. Lockheed Aircraft Corp., [FN32] the Court of Appeals for the District of Columbia Circuit sustained these requirements in their entirety. [FN33]
Friends has an anomalous place in the genealogy of the modern medical monitoring remedy. It was not a toxic tort case, and it did not rest upon the traditional rationale of the *235 injured plaintiff's right to future medical expenses that had been cited in Askey. The remedy was limited to diagnostic testing, and did not extend to lifetime monitoring. [FN34] Perhaps most important, Friends chose equitable relief over the chance for money damages as the preferred remedy for a particularly compelling medical monitoring claim. The New Jersey Supreme Court relied heavily on the appellate affirmance of Friends three years later in Ayers v. Jackson Township. [FN35] Moreover, Friends' emphasis upon equitable principles to fashion a remedy in the best interests of the affected plaintiffs remains instructive in addressing mass toxic tort cases. [FN36]
In the same year that the Friends litigation concluded, the Supreme Court of Delaware in Mergenthaler v. Asbestos Corporation of America [FN37] affirmed the dismissal of a complaint seeking, among other things, "medically required surveillance" for asbestos workers' wives who feared contracting cancer from washing their husbands' work clothes. The ostensible ground for the
decision was that plaintiffs could show "no present physical injury," [FN38] but the court's distinguishing of the trial level opinion in Ayers [FN39] suggests that failure even to show contact with asbestos, much less a physical injury, was the real reason for dismissing the claim. Other than the trial court opinion in Ayers, the Delaware court cited no medical monitoring cases, and its discussion of the issue may be described as cursory. Mergenthaler's significance lies in having first raised the issue of dose-- whether the alleged toxin ever entered the plaintiff's body. Since medical monitoring plaintiffs by definition have not yet suffered any physical injury, a showing of dose is essential for standing to assert a medical *236 monitoring claim. [FN40]
In 1986 the Fifth Circuit became the first appellate court to affirm medical monitoring damages as part of an unrestricted cash award. In Hagerty v. L & L Marine Servs., [FN41] a case tried under federal maritime law, the plaintiff had twice been drenched with a carcinogenic chemical containing benzene, toluene, and xyolene, resulting in "[d]izziness, leg cramps, and a persistent stinging sensation in feet and fingers." [FN42] The Fifth Circuit panel held that plaintiff was "entitled to recover for the continuing expense of his periodic medical checkups." [FN43] Because the case was governed by federal law, the court avoided state common law precedents such as New York's "degree of reasonable medical certainty" standard, [FN44] holding instead
that plaintiff need merely show that future monitoring was "medically advisable." [FN45] The court suggested a duty on the part of the plaintiff to seek out such monitoring to minimize future damages under the "avoidable consequences rule." [FN46]
*237 The Third Circuit also addressed the issue of medical monitoring damages in 1986. It adopted a traditional analysis in holding that "the cost of preventative monitoring occasioned by a tort" was an element of damages under New Jersey law, if such "'prospective consequences may, in reasonable probability, be expected to flow from the past harm."' [FN47] The court concluded that it was error to keep the plaintiff's claim for future monitoring expenses from the jury merely because the enhanced risk of cancer claim had been barred. [FN48] There was no discussion of why the standard for medical monitoring damages was different from that for enhanced risk, nor how the plaintiffs met the "reasonable probability" standard set in the opinion, nor was there any analysis of any other medical monitoring cases. The court did not even acknowledge that medical monitoring was in any respect an unusual remedy. [FN49]
The modern culmination of medical monitoring jurisprudence is Ayers v. Jackson Township. [FN50] The plaintiffs in Ayers, several hundred residents of Jackson Township, New Jersey, sued the municipality for contamination of their well *238 water by toxic chemicals leaching from a
municipal landfill. [FN51] The case was governed by the New Jersey Tort Claims Act, [FN52] which limits the extent to which New Jersey governmental agencies may be sued in tort. The trial court had dismissed claims for enhanced risk of disease before trial, [FN53] but had permitted the related claim for medical monitoring damages to go to the jury based on expert evidence that such monitoring was necessary to diagnose warning signs of disease. [FN54] Although none of the 339 plaintiffs claimed any present physical injury from their exposure, [FN55] the jury awarded them a total of $15,854,392.78 in various categories of damages, the largest of which was $8,204,500 for medical monitoring. [FN56]
On intermediate appeal, the Appellate Division not only affirmed the denial of enhanced risk damages but reversed the medical monitoring awards because the record did not "rule out the probability that such increase [in risk of disease] is so microscopically small as to be meaningless." [FN57] After granting certification, the Supreme Court of New Jersey, in an opinion by Justice Stein, affirmed the rejection of enhanced risk on the ground that plaintiffs' expert "could not quantify the extent of the enhanced risk of cancer because of the lack of scientific information concerning the effect of the interaction of the various chemicals to which plaintiffs were exposed." [FN58] Nevertheless, the court reversed the Appellate Division on the issue of medical monitoring and restored the $8 million jury award, holding that
"recognition of the medical surveillance claim is not necessarily dependent on recognition of the *239 enhanced risk claim." [FN59] The court rejected the notion of a quantified standard and adopted instead an amalgam of subjective criteria:
Accordingly, we hold that the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. [FN60]
The court did not address the Appellate Division's concern that monitoring may have been sought for risks that were "so microscopically small as to be meaningless." [FN61] Instead, Justice Stein simply held that "medical science may necessarily and properly intervene where there is a significant but unquantified risk of serious disease." [FN62] The court's ipse dixit conclusion that the risk in Ayers was "significant" is open to several interpretations. Logic suggests that the court was either making a de novo finding that the risk was not microscopic after all, or was holding that even microscopic risks are significant. But either of those alternatives would have
required some explanation. Since none was forthcoming, the simple answer may be that the court was ready to approve the medical monitoring remedy and so chose to characterize the record in a way most congenial to the desired result.
The court used precedent selectively. Unlike the Appellate Division [FN63] and the Third Circuit, [FN64] which had premised their *240 analyses of medical monitoring on the ruling in Coll v. Sherry, [FN65] the Ayers analysis made no mention of Coll. That case had ruled that if expenses for "future operative treatment" might "in reasonable probability, be expected to flow from the past harm, plaintiff is entitled to be indemnified for them." [FN66] Because the point of the exercise was to avoid a quantification requirement for medical monitoring plaintiffs, the justices in Ayers looked instead to the Court of Appeals opinion in Friends, which they characterized as holding that "a reasonable need for medical examinations is itself compensable." [FN67] Rather than setting a quantified standard (such as reasonable probability), Friends had required evidence which was "neither speculative nor resistant to proof," that defendant caused plaintiffs to require diagnostic examinations. [FN68] In addition to ignoring Coll's "reasonable probability" standard, Ayers also declined to discuss an important distinction between the facts before it and the facts in Friends: ongoing "medical surveillance" in a toxic tort case [FN69] is a far broader remedy than one time only diagnostic examinations necessitated by a single
The Ayers court was on firmer ground in citing Hagerty v. L & L Marine Servs. [FN70] and Askey v. Occidental Chem. Corp., [FN71] since both were toxic tort cases. The court noted that the Fifth Circuit rejected the enhanced risk claim on grounds similar to those in Ayers, but still approved medical monitoring damages. [FN72] And although Hagerty's double drenching in toxic chemicals was more comparable to the discrete trauma in Friends than to the typical toxic tort case of long-term *241 unconscious exposure to chemicals, his injury, extensive chemical contact with potential latent effects, was similar to the "potential but unrealized injury" [FN73] claimed in Ayers. Hagerty was probably the Ayers court's most comparable precedent, despite the justices' apparent preference for Friends, with its appealing plaintiffs.
The court's discussion of Askey was brief, since the tentative endorsement of medical monitoring in that opinion was indisputably dictum, and the New York court's reliance on the conservative opinion in Schmidt v. Merchants Transp. Co., [FN74] may have been an embarrassment to the New Jersey justices. Ayers ignores Askey's historical analysis tracing the right to future medical monitoring damages to Schmidt's insistence upon the earliest possible limitations date in toxic tort cases. [FN75] Since New Jersey law did not follow Schmidt, [FN76] the New Jersey Supreme Court
was not bound by that decision's emphasis on early filing and was not likely to mention it as a justification for approving the monitoring remedy.
But, by not even mentioning Coll and similar cases endorsing recovery of future medical expenses by injured plaintiffs, [FN77] the New Jersey Supreme Court made its Ayers opinion appear more innovative than it actually was. Drawing attention to itself for "groundbreaking" decisions is not uncharacteristic of that court. [FN78] A review of Ayers's *242 antecedents suggests, however, a more conventional lineage than either the court acknowledged or some of the decision's more fervent admirers may have assumed. Close scrutiny of the decision itself also permits a narrower reading than that which much of the earlier commentary has endorsed.
III. THE FIVE Ayers CRITERIA AND THEIR LIMITATIONS
In endorsing medical monitoring in the case before it, the Ayers court gave surprisingly little attention to setting limits for the remedy in future cases, where the facts might be far less compelling. The opinion purports to set forth the standard but does so in a series of five unquantified generalities:
1. significance and extent of exposure;
2. toxicity of the chemicals;
3. the seriousness of the diseases for which the individuals are at risk;
4. the relative increase in the chance of onset of disease in those exposed; and
5. the value of early diagnosis. [FN79]
In the five years since Ayers was decided, no reported case in New Jersey or elsewhere has attempted to interpret these criteria, although there have been numerous decisions approving the medical monitoring remedy almost without discussion. [FN80]
The first Ayers criterion, "significance and extent of exposure," is perhaps the most ambiguous. [FN81] The Webster's Third New International Dictionary defines "expose" as "to . . . make accessible to something that may prove detrimental," [FN82] as one might be "exposed" to a communicable disease by being in close proximity to a sufferer. But being "accessible" to a toxin does not mean the toxin takes advantage of that access to enter the body; it merely suggests an opportunity to do so. *243 Chemicals do not produce toxic effects based on mere opportunity; thus, in toxicology, "exposure" means that a chemical has "reach[ed] appropriate sites in the body at a concentration and for a length of time sufficient to produce the toxic manifestation." [FN83] Since it is not always as obvious as it was in Ayers that opportunity led to bodily entry, by failing to define "exposure," the Ayers decision permits an argument that mere opportunity is enough. This Article argues against medical monitoring liability unless a plaintiff can persuade the
trier of fact that it is more likely than not that exposure resulted in a "dose" [FN84] of the toxin.
Although most toxic tort cases do not use the word "dose," they recognize various methods of bodily entry: the toxin may be "injected," [FN85] or enter by "ingestion," [FN86] or by "inhalation and absorption." [FN87] But these cases do not address the distinction between opportunity and dose, and so are not dispositive in arriving at a meaningful legal definition of exposure. For example, Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock, [FN88] reports that a plaintiff answered "I don't know" when asked whether a toxin had entered his body, and yet four lines later the court cites the plaintiff's "understandable" fear of disease as a result of "inhalation and absorption of dioxin," as if such inhalation and absorption had *244 indubitably occurred. [FN89] Where the toxin is pervasive radiation, or well-water contamination as in Ayers, perhaps dose may be assumed for certain plaintiffs in the toxin's vicinity. [FN90] But where, as in Ironbound, the toxin (dioxin) exists in the environment primarily in soil and silt, [FN91] no inference of an actionable dose should arise from mere physical proximity.
Few reported decisions analyze the concept of exposure, although several courts have held or implied in varying contexts that mere opportunity for a dose will not engender liability. In the Mergenthaler case, [FN92] the
Supreme Court of Delaware denied medical monitoring damages to family members of asbestos workers on the ground that "no evidence was presented to show that they actually inhaled asbestos fibers." [FN93] In a case challenging O.S.H.A. standards for benzene exposure in the workplace, the Fifth Circuit rejected the agency's ban on dermal contact, noting that "[s]ince entry to the body by dermal contact was not established, the record will not support a finding that the prohibition of all dermal contact with benzene will result in quantifiable benefits in terms of a reduced risk of leukemia justifying the costs of the provision." [FN94] In a case applying the Federal Employer's Liability Act, [FN95] the Third Circuit held that "mere exposure to asbestos" without "manifestation of injury" could not support a cause of action. [FN96] A federal court in Pennsylvania held that "mere exposure" to a toxin is insufficient to support a claim for emotional distress damages, [FN97] but the decision did not discuss *245 the distinction between opportunity for a dose and dose itself. In Cook v. Rockwell Intern. Corp., [FN98] another federal court found insufficient a complaint alleging that the operator of a nuclear power plant had caused plaintiffs living in the vicinity to be at risk of exposure to radiation. "[T]he allegation of mere risk of exposure and not exposure in fact is inadequate." [FN99] The Cook court's use of "exposure" is equivalent to what this article refers to as "dose."
One of the relatively few cases to use the word "dose" is the long and widely noted opinion in Allen v. United States, [FN100] a case involving claims of injury caused by atomic radiation. The court explained that "[r]adiation exposure higher than background dose is the first of the factual contentions . . . that a plaintiff must establish." [FN101] Thus, Allen suggests a third component of exposure analysis, beyond opportunity and dose. That is whether the dose present in the plaintiff's tissue exceeds the "background" level that may be present in the general population.
This concept of "background levels" is essential to a proper judicial response to toxic torts. It is axiomatic that citizens of modern industrial society have "background" levels of many toxins in their tissues, derived even from benign sources such as diet soft drinks, coffee, tea, fruit juice, and mineral water, each of which contains small quantities of carcinogens. [FN102] In *246 order for the "exposure" component in Ayers to have any meaning at all, it must require evidence, under New Jersey's admittedly ill-defined "reasonable medical probability" standard (or the equivalent in other states), that defendant caused plaintiff to receive a dose above "background" level, sufficient to cause a toxic effect. [FN103] This definition does not require evidence that the dose will in fact cause a toxic effect, just competent expert testimony that the dose is capable of doing so. The Ayers court barely alluded to this concept. [FN104]
Another conundrum of toxic tort law is that, even when a dose is established, medical science cannot prove conclusively that the dose caused a given disease when it finally occurs. [FN105] *247 Just as there are background levels of toxins in all human bodies, there are background levels of disease in given populations. [FN106] Thus, the second element of Ayers, "toxicity of the chemical," may be defined as a measure of "the number of excess . . . cases [of disease] that are likely to be induced by exposure to the substance." [FN107]
Debate continues as to whether evidence of toxicity should be derived from epidemiological [FN108] studies of humans, as opposed to extrapolation from high dose experiments with laboratory animals, one court having noted that "almost any substance can be shown to be [toxic] at some dose in some species." [FN109] The better view appears to be that, if available, human epidemiological data should be used to put the findings of animal-based mathematical models in perspective. [FN110] In the words of one commentator, the human data should serve as a "reality check." [FN111] Of course, where the human data are sufficient to draw conclusions as to the toxicity of the *248 substance to humans, it is illogical to rely on contrary studies in animals. [FN112] Common law cases are not bound by the strictures of the Delaney Clause. [FN113]
It is unclear whether the "toxicity" of the chemical was intended to be a
separate criterion from the next component, the "seriousness" of the diseases that the chemical may cause. Almost by definition, a highly toxic chemical causes "serious" diseases. In Ayers, the primary feared condition was cancer, [FN114] and the court assumed without discussion that cancer is "serious" enough to warrant monitoring. Ayers gives no guidance as to whether the "seriousness" component would be met by a plaintiff who faces something less than a life-threatening condition. Arthritis, for example, is generally considered an unpleasant but not fatal affliction, [FN115] yet in a later case, the Supreme Court of New Jersey volunteered in dictum that monitoring might be available for an injured *249 person who feared future arthritis. [FN116]
The next Ayers criterion, "the relative increase in the chance of onset of disease in those exposed" refers to the same "enhanced risk" of disease that the court held was not separately compensable unless quantified. In so holding, the court went out of its way to emphasize that the criteria for medical monitoring were different from those for enhanced risk. [FN117] Since the proofs in Ayers were sufficient for medical monitoring damages but insufficient for enhanced risk damages, the standard for medical monitoring must be easier to meet.
The only hint as to how much easier the medical monitoring standard is to meet can be gleaned from the court's discussion of the quantification needed to
obtain enhanced risk damages. In a subsequent opinion, Mauro v. Raymark Indus. Inc., [FN118] the court adopted a "reasonable-medical probability standard" for the recognition of enhanced risk claims, [FN119] but instead of defining the standard, the opinion meanders in different directions. Mauro initially endorses the dictionary definition of probability, [FN120] characterizing claims that fail to meet the *250 standard as those that are "prospective, speculative, and less than likely to occur." [FN121] The court in Mauro even quotes with approval a lower court opinion suggesting that perhaps "'reasonable certainty' . . . [and] 'reasonable probability' . . . have the same significance in relation to quantum of proof, and so may be used interchangeably." [FN122] However, notions of "certainty" and "probability" evaporate when the court notes that in an earlier unreported opinion, [FN123] where the likelihood of future disease was put as low as 40%, the court "appeared to adopt the reasonable probability standard." [FN124] Plaintiffs are sure to argue that, by extrapolation, the standard for medical monitoring under Ayers is significantly lower than 40%.
Nevertheless, the increased risk, however slight, must be shown to exceed "background" risk. [FN125] The Ayers court acknowledged this requirement when it observed that "[e]ven if the likelihood that these plaintiffs would contract cancer were only slightly higher than the national average, medical intervention may be completely appropriate in view of the attendant
circumstances." [FN126] Professor Rosenberg has argued convincingly that there is no social utility in requiring defendants to bear the cost of background risk. [FN127] He asserts *251 that if risk is due to an unknown source or to the victim's own negligence, loss shifting is justifiable only when society decides to bear the loss collectively. [FN128]
The technical community that has emerged with the growth of the environmental movement has developed "risk assessment" procedures that may serve as surrogates for some of the Ayers criteria. "Risk assessment" is a process that considers toxicology, epidemiology, environmental transport data, and exposure information to evaluate a potential health hazard in terms that are useful to regulators. [FN129] The four steps of risk assessment, "hazard identification, dose-response assessment, exposure assessment, and risk characterization," [FN130] roughly parallel the first four Ayers factors. Its advocates suggest that risk assessment gives courts the information needed to decide whether an environmental toxin poses a significant risk. [FN131] While conflicting "risk assessments" offered by qualified experts on opposite sides suggest it is not an exact science, [FN132] its focus on dose response data, for example, can help objectify the subjective criteria in Ayers. However, in using "risk assessments," courts should understand that some models used by risk assessment experts assume that any contact with a carcinogen increases the risk of cancer. [FN133] Even if such conservatism is
appropriate in a regulatory context, courts adjudicating toxic tort cases have no comparable duty to resolve all doubt in favor of the plaintiff's point of view. [FN134]
*252 The last Ayers criterion is "the value of early diagnosis." [FN135] The Ayers court assumed, with little discussion, that "[t]he value of early diagnosis and treatment for cancer patients is well- documented," citing an earlier concurring opinion by a member of the court who declined to join in the Ayers opinion. [FN136] By avoiding any discussion of the pros and cons of regular testing for asymptomatic individuals, the court skirted an emerging area of disagreement within the medical community. [FN137] The court also ignored the obvious issue of whether early detection of an untreatable condition has any real "value" at all. [FN138]
Perhaps more important is the court's wholehearted endorsement of early diagnosis sets the stage for tortfeasors to assert the avoidable consequences rule as an affirmative defense in subsequent litigation by plaintiffs who later incur the feared disease but who unreasonably failed to obtain regular monitoring of their health. [FN139] It is hard to imagine a *253 more "unreasonable" failure than one by a plaintiff who was awarded medical monitoring at defendant's expense while still healthy but who failed to take advantage of it. [FN140] One suspects, however, that courts will require defendants who assert the avoidable consequences rule to demonstrate that early
detection would have led to a more favorable medical outcome. No less should be required of plaintiffs who demand medical monitoring from defendants. [FN141]
IV. THE FORM OF THE REMEDY--LEGAL OR EQUITABLE?
Evaluating the criteria for awarding the remedy is only the first step. If plaintiffs meet the criteria, the court must next decide the form of the remedy, i.e., whether to award monetary damages at law or to use the court's equitable powers to require the defendant to furnish or pay for such examinations as plaintiffs actually choose to undergo. Although legal principles may assist in the decision, the ultimate choice is likely to depend on what a court considers to be the purpose of the remedy. If that purpose is deterrent or punitive, and if one wishes to encourage the filing of the maximum number of claims, money damages will be preferred. [FN142] But if the remedy is intended as a public health measure, [FN143] and if one wishes to encourage "exposed" plaintiffs to undergo the tests their experts describe as medically necessary, a court must look to *254 its equitable powers.
Parts of Justice Stein's opinion in Ayers can be read as justifying either alternative, although in the end the court seems to come down on the side of public health. The court's ambivalence is attributable to one unusually
compelling factor favoring a cash award: "The medical surveillance issue was tried as if it were a conventional claim for compensatory damages susceptible to a jury verdict in a lump sum. The jury was so instructed by the trial court, and neither plaintiffs' nor defendant's request to charge on this issue sought a different instruction." [FN144] The Ayers opinion appears to struggle for a rationale to permit the plaintiffs to keep what they won by rules agreed to by all parties.
Recognizing that one cannot recover money damages without first proving an "injury," Ayers cites the Friends for All Children case for the proposition that "the need for diagnostic examination [is] a compensable injury." [FN145] The opinion then cites Hagerty v. L. & L. Marine Services, Inc. [FN146] for the proposition that "[a] plaintiff ordinarily may recover reasonable medical expenses, past and future, which he incurs as a result of a demonstrated injury." [FN147] Upon those premises, the court affirmed the $8 million damage award for future monitoring, noting the defendant's failure to object at trial. [FN148]
However, sensing a vast potential liability for municipal defendants like Jackson Township, the court prospectively endorsed a different remedy. It stated that "the use of a court-supervised fund to administer medical surveillance *255 payments in mass exposure cases, particularly for claims under the Tort Claims Act, is a highly appropriate exercise of the Court's
equitable powers." [FN149]
The court's emphasis on "claims under the Tort Claims Act" and its characterization of the trust fund as merely "appropriate," rather than mandatory, have left unsettled whether plaintiffs suing private defendants may still collect money damages at law. However, the Ayers court's enumeration of the virtues of the trust fund device suggests strongly that such a device is the appropriate remedy in all cases. According to Justice Stein, using the court's equitable powers [FN150] to set up a court-ordered payment facility in lieu of cash damages has the advantage of "limit[ing] the liability of the defendants to the amount of expenses actually incurred," [FN151] and furthers the public interest in a "mechanism that encourages regular medical monitoring for victims of toxic exposure." [FN152]
Anyone who has undergone rigorous medical examinations will acknowledge that they often involve inconvenience, discomfort and some degree of risk. [FN153] This suggests two *256 policy considerations: (1) a person will not lightly submit to such procedures and so should not be lightly compensated for them, and (2) when such procedures are indeed "medically necessary," a person should be encouraged to undergo them, despite the associated risk and inconvenience. To award unrestricted money damages for medical monitoring is to ignore both considerations.
Justice Stein observed in Ayers that a trust fund "will encourage
plaintiffs to safeguard their health by not allowing them the option of spending the money for other purposes." [FN154] Since the court did not (as it could not) confine that perception to plaintiffs injured by municipalities, the dicta is strong authority for the proposition that money damages are to be avoided in all cases, not just those involving public entity defendants. Allowing plaintiffs to recover monetary damages to spend for unrelated personal purposes might serve the deterrent aspect of tort law, but in a world of finite resources, such a windfall to an arbitrarily selected class of healthy individuals is not just. Moreover, money damages for a claim based in large part on "the relative increase in the chance of onset of disease" [FN155] would vitiate the Ayers court's prohibition of damages for unquantified increased risk. [FN156]
The trust fund mechanism ensures that hale and hearty plaintiffs who are not concerned enough about their health to undergo examinations will not receive windfalls. And, by guaranteeing that funds will be available to pay for such examinations as are undergone, it encourages those who need them to seek them out. But in confining relief to those who actually submit to examinations, the equitable remedy deprives uninjured plaintiffs of their best prospect of money damages. By diminishing the overall cash award, it may also reduce counsel's contingent fee recovery. It is therefore likely to be resisted by many plaintiffs and their counsel.
It is no mystery why the Ayers plaintiffs resisted the trust fund device: more than half of their cash recovery was for *257 medical monitoring. [FN157] Had the court imposed the trust fund retroactively in Ayers, the 339 plaintiffs would have lost an average of $24,202 each in damages recovered. Additionally, counsel's fee might have been reduced by several million dollars. The $8 million cash recovery by then healthy plaintiffs (who retained the right to sue again if they ever developed a feared disease) was surely sizeable enough to encourage more suits brought by plaintiffs who have been in the vicinity of toxic substances. The size of the award also raises the provocative question of how much of it was actually spent for medical monitoring. [FN158]
*258 Although trial courts appear to have routinely approved monetary damages for medical monitoring, perhaps, as in Ayers, without objection from defense counsel, there are substantial grounds for a more cautious approach. If, as numerous courts aver, a defendant may be held liable only for monitoring expenses that are "reasonably probable" to occur, [FN159] what better means than a fund to ensure that the remedy is so confined? The Ayers court relied heavily on Friends, expressly approving the trust fund device against Lockheed, a private defendant. [FN160] In a putative class action by persons exposed to chemicals associated with tire *259 manufacturing, a federal court in California held that "the monitoring program sought here is not a
remedy available at law," and allowed a plaintiff to maintain his equitable demand to create a "medical monitoring fund." [FN161] Class action plaintiffs in New York also suggested the trust fund as a means of delivering the medical monitoring remedy. [FN162]
Perhaps the fairest reading of Ayers is that it authorizes trial courts to impose the trust fund mechanism in all cases where future medical monitoring is warranted. Yet, the Ayers' court was not then prepared to require it in cases involving private party defendants. Thus, Ayers probably precludes any argument under New Jersey law that an equitable remedy be limited to a mere order to pay for examinations, without a fund to secure the payments.
Since no reported case confines the equitable remedy to a mere order to pay, and since Ayers and Friends are powerful endorsements of the fund mechanism, in most cases the options are likely to be limited to monetary damages versus a trust fund. [FN163] In addition to ensuring use of the money for the intended purpose, Professor Rosenberg has described other advantages of such a fund:
By enabling courts to determine liability and issue a final judgment as soon as the excess risk became apparent rather than only after victims became ill, insurance fund judgments could significantly reduce the danger that the responsible firm would lack the assets to compensate victims of its tortious conduct. In addition, insurance funds would increase the deterrent
effect of mass exposure cases by preventing firms from using latency periods to evade the tidal waves of claims that later rolled in. Similarly, the possibility of an insurance fund judgment would reduce any inclination on the part of a firm's officers to underestimate the impact on their careers and fortunes on remote liability for mass exposure *260 torts. [FN164]
While Professor Rosenberg's comments are addressed to a cause of action for increased risk of disease, the timeliness and deterrence features he mentions are applicable to medical monitoring funds as well. The main difference is that insurance is not necessary, since unliquidated damages for future disease are not the issue. A discrete fund, with a predetermined term of existence as in Friends of All Children, can readily finance the predictable cost of regular medical examinations.
Ayers is regrettably vague about how the fund mechanism is to be structured, except to note that, as with all equitable remedies, this is a function for the court, not the jury. [FN165] More explicit guidance can be found in Friends of all Children, where the court directed that the fund be placed "in interest bearing accounts or securities" with the balance remaining at termination to revert to the defendant. [FN166] Determination of the amount to be deposited into the fund is within "the sound discretion of the trial court." [FN167]
In toxic tort cases, duration of the trust is likely to be a contentious
issue. The appellate division opinion in Ayers noted that the demand was for "lifetime" monitoring. [FN168] The Supreme Court, however, merely referred to an immediate initial examination for each plaintiff "for the purpose of establishing baseline data," to be followed by "regular medical surveillance examinations" beginning ten years later "at the *261 onset of the risk of disease," and "continu[ing] annually thereafter." [FN169] Plaintiffs may argue that monitoring should continue until the last exposed plaintiff dies, but a more reasonable solution would be to extend it for the latency period associated with the feared disease, [FN170] beginning with the time of the last probable dose.
Compensation of the fund trustee or administrator is plainly an obligation of the defendant, [FN171] but Ayers is silent as to compensation for plaintiffs' counsel. Plaintiffs' counsel are likely to claim that the trust device is a "fund in court" [FN172] from which they are entitled to recover fees. The Supreme Court of New Jersey has held that equity traditionally permits "the payment of counsel fees out of a fund in court to a litigant who has created or protected the fund for the benefit of the *262 class which he represented." [FN173] The difficulty in a medical monitoring suit is that the fund is intended to provide specific relief, not money damages. Deducting counsel fees from the fund will reduce the fund's ability to provide the service it is established to provide. Adding an amount on top for plaintiffs'
counsel fees would seem inappropriate in most states, absent statutory authority for shifting fees to losing parties. [FN174]
It may be true that if fees are not assessed against the defendant, "the incentive for plaintiff attorneys to seek medical surveillance costs as a redress will be significantly reduced." [FN175] John McNamara has suggested a legislative solution to this problem "similar to the one the United States Congress has fashioned in the area of civil rights." [FN176] Absent such statutory authority, the common law is indifferent to whether the lawyer collects a fee, except to admonish him that his own interest is subordinate to that of his client. [FN177]
In a recent note favoring the fund device, Amy Blumenberg discusses the concept of periodic payments from the fund. [FN178] If a fund is structured to pay plaintiffs over time, Blumenberg argues, the contingent fee to counsel may be paid periodically as well. [FN179] But problems may arise from tying counsel fees to periodic payments made directly to plaintiffs. If a plaintiff is paid in anticipation of each monitoring exam but before the exam itself occurs, there is no assurance the plaintiff will use the disbursement for that end, thus defeating the ostensible *263 purpose of the fund. On the other hand, if a plaintiff is reimbursed only after making payment to the provider for a monitoring exam, then the fee to counsel must come from plaintiff's separate resources, a disincentive to seeking the examinations in the first
place. Blumenberg herself seems to rule out the former option, [FN180] and she does not address the microeconomic effects of the latter.
In any event, since uninjured toxic tort plaintiffs may, in many jurisdictions, recover emotional distress damages, damages for quantified enhanced risk of disease, and even punitive damages, [FN181] it is unlikely that counsel advancing those claims will be deterred from adding a count for medical monitoring merely because they may have difficulty obtaining separate compensation for that component of the final judgment. [FN182] The proofs necessary to establish the other claims will go far toward satisfying the monitoring claim as well. [FN183] The question of compensation to counsel for bringing successful medical monitoring claims is best left to the creativity of the plaintiffs' bar and individual negotiations between attorney and client.
The remedy, regardless of form, needs little encouragement. [FN184] It may even be that the $8 million cash *264 recovery in Ayers, combined with loose prerequisites, including the lack of any stated requirement to prove physical injury or even dose, have caused many plaintiffs' counsel to focus their efforts on securing a quick cash settlement for medical monitoring, avoiding the more difficult proof requirements for other toxic tort remedies. [FN185]
No reported case has rejected Ayers's arguments in favor of the trust fund
device. One federal district court implied that plaintiffs may plead either a demand for money damages or for a lump sum to be deposited in a trust fund, or both. [FN186] The only appellate court to consider the issue since Ayers was the Arizona Court of Appeals in Burns v. Jaquays Mining Corp., [FN187] which quoted Ayers at great length to hold that a court- supervised fund is an appropriate remedy. [FN188] The Arizona court did not mention that the trust fund ruling in Ayers was technically limited to claims against municipalities under the Tort Claims Act, and even used ellipses to conceal that limitation when quoting Justice Stein's reference to "a highly appropriate exercise of the Court's equitable powers." [FN189]
V. DEFENSES TO MEDICAL MONITORING CLAIMS -- THE ISSUE OF "USE"
Section VI below discusses the parameters of medical monitoring protocols, which defendants will seek to keep *265 within reasonable limits. And, as recommended in Section IV, converting the relief awarded from money damages to a trust fund under court supervision may be more effective than many legal defenses in limiting a defendant's liability. Those "defenses" go to the quantum or form of damages. Defenses to liability itself are more risky. [FN190] Moreover, there is little precedent regarding defenses to liability to guide a practitioner.
As with any claim, the plaintiff's failure to prove the elements of his cause of action is a defense. Thus, defense attorneys should make sure that medical monitoring claimants satisfy all of the Ayers criteria.
The Ayers court did not state whether each of the five elements must be established, or instead whether they may be "balanced" together so that, for example, a person who ingests a high dose of a potent carcinogen may be entitled to medical monitoring even if the value of early diagnosis is low. Since Ayers rejected precise quantification, some degree of balancing is unavoidable. Nevertheless, the logic of Justice Stein's opinion suggests that the Ayers criteria are conjunctive, that all must be satisfied to some degree in order to make out a claim. The lack of any one of the criteria [FN191] breaks the logical link to the ostensible objective. Without exposure (however defined) there is no point in looking for what exposure might have caused. Without proof of toxicity, there is no point in *266 monitoring for non-toxic effects. If there is no increased risk of disease, then the exposure did no harm, and if early intervention has no value, monitoring is futile.
Any plaintiff who cannot satisfy a fact-finder that the defendant probably caused him to receive a dangerous dose of the toxin cannot separate himself sufficiently from the general population to entitle him to relief, either at law or equity. Courts that have addressed the question recognize the
distinction between opportunity and dose, [FN192] and medical monitoring defendants would do well to insist upon it at trial.
As stated above, the "toxicity" and "seriousness" elements of Ayers are closely related. It may be difficult for defendants to argue that any medical condition convincingly linked with the toxin at issue is not "serious." However, a defense asserting that the risks and drawbacks of monitoring itself [FN193] outweigh the gravity of the feared disease might in some cases succeed. As for "toxicity," defendants (and courts) should not uncritically accept data solely from animal studies, uncorroborated by any empirical data from human beings. [FN194]
At least in New Jersey, Ayers precludes a defense that a plaintiff must quantify "the relative increase in the chance of onset of disease" to the level of reasonable medical probability required for increased risk damages at law. [FN195] But that does not mean that no quantification whatever is required. If the relative increase in risk caused by the defendant is de minimis, especially as compared to the background risk for the general population, only redistributionist theories of justice can rationalize shifting the expense of monitoring to the defendant. [FN196] Even the Ayers court's off-hand suggestion that *267 monitoring may be ordered when the risk is "only slightly higher than the national average" [FN197] is hedged with cautionary language. [FN198] A serious medical monitoring plaintiff should present
evidence that the marginal increase in risk caused by the defendant was such that a reasonable physician would recommend a monitoring regime different from, and more expensive than, one appropriate for that same plaintiff, based on age, sex, occupation, and similar factors, in the absence of the claimed exposure. The question might be asked as follows: if there were no background risk, would a reasonable physician recommend monitoring for this risk alone? [FN199]
In addition to background risk, risks from other exposures must be considered. For example, a plaintiff making a claim based on a recent exposure, but who had previously been exposed to a toxin for decades in the course of prior employment, should be required to prove that the monitoring he needs is directly related to his most recent exposure. [FN200]
*268 The final Ayers criterion, "the value of early diagnosis," may be of more logical than practical interest from the defense's point of view. While physicians might agree it makes little sense to monitor for an untreatable condition, experts will likely be found to testify that some form of treatment, even if only psychological counseling, would be of "value" to the plaintiff. [FN201] And even if a court suspects that a plaintiff would be better off unaware of the early onset of an untreatable disease, when the plaintiff affirms in court that he wants to know, his evidence may be hard to refute. Particularly where the value of early diagnosis is in doubt, where pleadings insist that a healthy plaintiff wants to know as soon as possible that he has
lung cancer or AIDS, even if there is little that can be done to ameliorate these conditions, [FN202] the court should remove the lure of money damages and confine the remedy to an equitable one, as discussed previously in Part V.
Ayers requires that the five elements be proved, "through reliable expert testimony" to an extent sufficient to demonstrate that monitoring "is reasonable and necessary." [FN203] Thus, defenses may be addressed to the competence of the expert and his reasoning [FN204] and to the reasonableness and necessity of the monitoring regime he advocates. [FN205] This aspect of Ayers plainly permits defendants to challenge the sufficiency of de minimis showings of the five elements. If the *269 background risk of cancer is 10% in the general population, [FN206] and if the dose claimed by plaintiff was at a level associated with a risk of one increased death from cancer per million, is it reasonable to order monitoring solely due to that one in a million risk? [FN207] To the extent mesothelioma is incurable and fatal, [FN208] is it reasonable (not to mention necessary) to monitor for its onset, no matter what the plaintiff claims he wants?
Perhaps the most fruitful defense is one not mentioned in Ayers but adverted to in earlier New Jersey cases discussing recovery of future medical expenses, [FN209] and in several medical monitoring cases from other states: [FN210] Are the claimed monitoring expenses reasonably certain and probable to occur? This "use" issue (i.e., whether the plaintiff will actually
use the monitoring services if awarded by the court) may be more meaningful to a fact finder than technical arguments about the value of early diagnosis or the likelihood of dose.
In Friends, upon which the Ayers court relied so heavily, the monitoring plaintiffs were infants with court-appointed guardians. [FN211] Once the court had determined that diagnostic examinations were appropriate and had established a fund to pay for them, there was little doubt that the guardians would submit the children for examination. However, the typical toxic tort monitoring claim is very different. There is usually no sudden trauma, and the plaintiffs seem to be in good health. Instead of a one-time-only diagnostic examination, toxic tort *270 plaintiffs often demand lifetime surveillance. Adult plaintiffs have no fiduciary to make them do what is good for them. Common sense and a knowledge of human nature compel the suspicion that many medical monitoring plaintiffs will not actually undergo the examinations they say they want, particularly if money damages are offered in their place. To make this intuitive judgment plain to a jury, cross-examination of plaintiffs at trial may focus on the extent to which they took advantage of monitoring opportunities already available to them to bring circumstances of their exposure to the attention of a physician. Depending on the facts of the case, this line of inquiry can be productive for the defense. [FN212]
*271 Since Ayers does not mention the "use" issue, plaintiffs
may argue it is not an element of the cause of action and need not be proved. If successful, that argument would prevent cross-examination such as occurred in the Ironbound case, [FN213] and *272 would leave the issue of "use" as, at most, an affirmative defense, forcing defendants to prove the negative, that plaintiffs would not use monitoring if it were available. Nothing in Ayers requires the reversal of the ordinary burden of proof. Ayers's silence on "use" as a necessary element of proof need not be interpreted as overruling the court's express holding in Coll v. Sherry [FN214] that incurrence of future medical expenses must be proved by a standard of "'reasonable probability' or its equivalent." [FN215] If an injured plaintiff under Coll must prove he will in fact incur future medical expenses, the need for similar evidence from uninjured toxic tort plaintiffs is at least as compelling.
Cross-examination on "use" will lead to questions about communications between patient and physician. Although the physician-patient privilege [FN216] might arguably extend to comments made by a physician concerning the consequences of exposure, the privilege should not bar inquiry into whether the plaintiff raised the subject. If the plaintiff did not raise it, there was no communication and hence no privilege; if he did, it is unlikely he will hesitate to tell the jury about it. [FN217] Of *273 course, once it becomes known that defense counsel will raise this issue, plaintiffs may be
advised by their own lawyers to preempt it by raising their exposure concerns with every physician they encounter.
The dearth of post-Ayers cases denying the remedy does not mean there are no defenses to it. Forcing plaintiffs to demonstrate the five Ayers factors to an extent that monitoring is "reasonable and necessary" may eliminate many questionable claims. Probing the issue of "use" (and securing it with an equitable, rather than a legal remedy) may weed out many more.
VI. THE TESTING PROTOCOL--FIRST DO NO HARM
Particularly if the fund mechanism is adopted, the court must also determine the testing protocol, a process that can be broken down into two separate issues: (a) which diseases will be monitored, and (b) which tests will selected to do the monitoring. [FN218]
Defendants will insist that they not be required to pay for tests that the plaintiff would undergo regardless of exposure. [FN219] For example, a defendant should be excused from funding routine examinations generally appropriate for certain individuals, such as breast examinations [FN220] and Papanicolaou *274 smears [FN221] for adult females. Plaintiffs who wish to counter that argument may point to a distinction between the "reasonable" and "necessary" components of the Ayers formulation. [FN222] If a test
was merely "reasonable" for the plaintiff before exposure, but an expert provides competent evidence that the dose received from the defendant made the test "necessary" thereafter, then the issue may go to the jury. [FN223] Courts may feel more comfortable including routine tests in the monitoring protocol when plaintiffs are required to prove "use" and when the remedy is an equitable one, not cash in the plaintiff's pocket.
Courts should be leery of demands to monitor for a multitude of diverse risks. [FN224] Cancer is found in specific organs, [FN225] and the author is unaware of any one toxin that causes a dozen or more forms of cancer. Vascular disease also occurs in several forms, [FN226] and demands to monitor for "heart disease" [FN227] should meet similar skepticism. The remedy should be limited to monitoring for specific diseases associated *275 with the particular toxin, despite the inevitable tendency of plaintiffs and their experts to insist upon broad testing protocols suitable (if not necessary) for general health maintenance. [FN228]
The National Institute for Occupational Safety and Health (NIOSH) has issued "medical surveillance" guidelines for hundreds of hazardous substances frequently found in the workplace, [FN229] and these may be useful to courts in reviewing expert claims as to the nature of testing to be reimbursed from the fund. Unlike the United States Environmental Protection Agency's standards for exposure, [FN230] the surveillance tests recommended by NIOSH tend to be
conservative in the cases of asymptomatic individuals. [FN231] Ayers merely suggests that the tests should be "consistent with contemporary scientific principles." [FN232]
Such contemporary principles require that proposed testing regimes be scrutinized both for predictive value (sensitivity and specificity), [FN233] and the reproducibility of the results of the test, [FN234] and that the frequency of the illness at risk within the exposed population also be taken into account. [FN235] A test with *276 high predictive value will accurately identify persons with the disease or condition (sensitivity) and exclude those without it (specificity). [FN236] Reproducibility of results (reliability) [FN237] will require courts to insist upon standard techniques and quality control procedures. [FN238] As explained in greater detail below, predictive value cannot be measured accurately without knowledge of disease frequency.
Courts must disabuse themselves of the notion, implicit in Ayers, that medical testing is invariably useful or beneficial to the person tested. In the first place, there can be medical risk associated with the testing procedures themselves. [FN239] Furthermore, protocols that pay insufficient heed to predictive value will produce large numbers of false positives in asymptomatic individuals, subjecting them to additional unnecessary procedures [FN240] that may be painful, [FN241] stressful, *277 and even risky. [FN242]
Nor should one lightly dismiss the dread and anxiety that false positives will cause for a statistically inevitable cohort of subjects and their families, [FN243] especially where cancer is concerned.
The likelihood of false positives increases with the rarity of the disease tested for in a given population, so that even tests with very high selectivity and specificity can produce more false diagnoses of disease than correct ones. An example devised by the United States Preventive Services Task Force illustrates this point:
A population of 100,000 in which the prevalence of a hypothetical cancer is 1% would have 1000 persons with cancer and 99,000 without cancer. A screening test with 90% sensitivity and 90% specificity would detect 900 of the 1000 cases, but would also mislabel 9900 healthy persons . . . . Thus, the PPV (the proportion of persons with positive test results who actually had cancer) would be 900/10,800, or 8.3%. If the same test were performed in a population with a lower cancer prevalence of 0.1%, the PPV would fall to 0.9%, a ratio of 111 false positives for every true case of cancer detected. [FN244]
False-positives at levels even approaching these are likely to foster a "cry wolf" attitude in all participants, a result that is the functional equivalent of false negatives for the few who are indeed sick.
Just as dangerous as false positives are "true" false negatives, since
persons wrongly assured they are in no peril are less likely to improve their health habits, and may even delay seeking treatment when warning symptoms appear. [FN245] For that reason many specialists in preventive medicine stress *278 that behavior modification, focusing on diet, exercise, and substance abuse, is far more important for maintaining health than is medical monitoring in asymptomatic individuals. [FN246] It is widely recognized that heredity plays a significant role in development of cancer in individuals. [FN247] While no amount of medical monitoring and early detection will alter a person's genetic fate at the present stage of science and bioethics, behavioral adjustments can have an undeniable effect upon a person's vulnerability to environmental initiators and promoters [FN248] of disease.
Apart from the question of false negatives and false positives, courts must consider whether the well-being of an asymptomatic individual is increased by insisting that he be constantly on guard against the onset of fatal disease. If a plaintiff were to heed the blandishments of the court and submit to a monitoring regime, he would be subject to risks and disruptions that might be entirely unnecessary. [FN249] *279 Moreover, one cannot ignore the plaintiff's state of mind. A medical monitoring award indicates to a person who feels perfectly healthy that a jury of his peers [FN250] believed the rhetoric of disease, fear, and death that his counsel doubtlessly employed at trial. Such an award tells him that the judge, who embodies the dignity and
circumspection of "The Law," agrees that he is in peril and must take extraordinary precautions to safeguard his health. It confirms to him that the defendants, often large corporations or other visible public institutions, breached their part of the social compact by covertly "injuring" him in a life- threatening way. None of this is likely to enhance this otherwise healthy plaintiff's ability or desire to function as a productive member of society. [FN251]
Healthy plaintiffs are not the only ones who may suffer emotional damage from promiscuous resort to the medical monitoring remedy. Even those who actually should benefit from monitoring may be adversely affected if the monitoring process labels them "diseased" before they feel any symptoms. The Canadian Task Force on the Periodic Health Examination noted, for example, that "[i]n the case of symptomless hypertension, labelling may lead to increased absenteeism among workers and decreased psychosocial function." [FN252] The *280 Task Force further noted that "the early detection--in terms of social costs and benefits--would produce more harm than good for those whose early detection does not lead to a better outcome than would have followed upon symptomatic detection." [FN253] Persons may suffer needlessly, if, for example, they learn they have contracted a fatal and untreatable disease long before the appearance of any symptoms. [FN254] Some authorities maintain that "early diagnosis merely lengthens the time over which a person knows he suffers from
the disease, but does nothing to alter the natural history of the condition, or the ultimate fatality." [FN255] For example, a substantial body of literature suggests that by the time a breast cancer with metastatic potential is detectable, it will already have spread to other body sites. [FN256] Survival rates for some forms of cancer have not increased substantially since 1950, despite dramatic technological and diagnostic advances. [FN257] These data suggest that the Ayers criterion of "the value of early diagnosis" should be taken even more seriously than the Ayers court indicated. [FN258]
VII. MISCELLANEOUS POLICY ISSUES
Another relevant issue is whether data gathered during the monitoring process should be made available to the defendant who is paying for its assembly. [FN259] The normal presumption of *281 the physician-patient privilege would suggest not. However, if one considers that a purpose of medical monitoring is to determine whether the defendant's chemicals caused or will cause increased incidence of disease in the plaintiff population, the defendant's right to comparative data seems more compelling. If a given plaintiff tests positive for cancer and files a new suit against the defendant claiming present injury, the defendant will want to know the overall incidence
of cancer within the monitoring group, i.e., whether or not it exceeds the average level within the larger population. Given the likelihood of litigation by monitoring plaintiffs who ultimately develop the anticipated diseases, it would be fair to make data (perhaps with names blocked, if privacy is a concern) available to all parties in the event of litigation.
The cases and academic commentary addressing medical monitoring give little attention to the priority of the remedy's claim upon scarce medical resources. In Canada, where, unlike the United States, virtually the entire health care burden is absorbed by taxpayers, [FN260] the Task Force on Periodic Health Examinations rejected the practice of routine annual physicals for all adults. [FN261] It explained, "[w]e consider that the routine general annual check- up is nonspecific and casts a searching net far too broadly, particularly in the adult, is inefficient and, at times, is potentially harmful." [FN262] Moreover, in the United States, discussion has focused on the tendency of the third party payment system to overstimulate both supply and *282 demand for health care services resulting in ever escalating costs. [FN263] Wide availability of medical monitoring for asymptomatic plaintiffs will aggravate that condition. [FN264] Regarding the liability of particular defendants, at least one court has noted that "defendants' pockets or bank accounts do not contain infinite resources. Allowing today's generation of exposed but uninjured plaintiffs to recover may lead to tomorrow's generation of exposed
and injured plaintiff's [sic] being remedyless." [FN265] As of 1991, fifteen former asbestos manufacturers had been forced into bankruptcy, in large part due to the burden of defending toxic tort litigation. [FN266] The addition of yet another element of tort liability to the already substantial burden of environmental compliance faced by American industry is not without its economic costs. [FN267]
There is nothing especially novel or remarkable about the medical monitoring remedy when it is applied in circumstances similar to those in Friends of All Children. There, the district court used its equitable powers to make sure that the defendant responsible for the injuries of the children provided them with the diagnostic services they undisputedly and immediately needed. Even the $8 million cash award in Ayers may not shock everyone's conscience because the certainty that the plaintiffs had ingested the toxin went far to resolve the *283 ambiguity of "dose" that often affects medical monitoring claims. [FN268]
Unfortunately, monitoring demands are often asserted by more dubious claimants, [FN269] and the enthusiasm of the Ayers court for the remedy should not be read as endorsing it for anyone who has ever been near a "toxic"
substance. While evidence of present physical injury or a quantified risk of future disease is not required, Ayers's insistence that monitoring be shown to be "reasonable and necessary" [FN270] should be taken seriously. Proof of exposure requires evidence of a medically significant dose. Moreover, the "toxin" must be demonstrated to have adverse effects in human beings, and the increased risk of disease caused by the alleged "exposure" must be sufficient to justify shifting the expense of monitoring to the defendant.
Perhaps most important, monitoring plaintiffs must be required to demonstrate the sincerity of their claims. If unrestricted money damages are available to uninjured plaintiffs who have merely been in the vicinity of a toxic hazard, the potential for abuse is apparent. Since by definition, medical monitoring contemplates providing future relief for damages not yet incurred, it is ideally suited for an equitable remedy. Healthy plaintiffs should not be lured into protracted litigation by the prospect of money damages for future medical monitoring, when many will have little real interest in submitting to a monitoring regimen and others little likelihood of benefiting from one if they do. Some form of equitable relief, such as the trust fund endorsed in Ayers for governmental defendants, is the sole valid objective of future medical monitoring claims.
[FNa1]. The crude pun in the title has its origins in John K. McNamara's
Note, Perfect Together: Ayers v. Jackson Township and Presymptom Medical Surveillance Awards in Toxic Torts, 5 J. CONTEMP. HEALTH L. & POL'Y 339 (1989), where the page-top title headings throughout the article appeared as: "Pre-symptom Medical Sueveillance Awards" (emphasis added). Although Mr. McNamara assured the present author at the time of publication that this was a typographical error, its aptness to a primary theme of this article (that cash damages for medical monitoring may provoke lawsuits by insincere plaintiffs) argued strongly for its commemoration here.
[FNaa1]. Copyright 1993 George W.C. McCarter. Mr. McCarter received his A.B., magna cum laude, from Princeton University in 1971 and his J.D. from the University of Virginia School of Law in 1975. He has been a partner in the Newark, New Jersey, firm of McCarter & English since 1983 and was defense counsel in the Diamond Shamrock dioxin litigation referred to throughout this Article.
[FN1]. The word "toxic" refers to a substance causing "some observable detriment to a living entity." HUGH D. CRONE, CHEMICALS AND SOCIETY 28 (1986).
[FN2]. Toxic torts have been defined as:
an alleged personal injury and related harm resulting from exposure to a
toxic substance--usually chemical, but perhaps a biological or radiological agent. Generally, in toxic torts: (1) the injury is neither traumatic nor an acute toxic response, but results in genetic or biochemical disruption; (2) exposure is typically, though not necessarily, chronic and repeated; (3) injury manifests itself after a latency period.
Steve Gold, Note, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence, 96 YALE L.J. 376, 376 n.1 (1986).
[FN3]. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 165 (5th ed. 1984).
[FN4]. "'Insidious disease' is any carcinogenic, mutagenic, or teratogenic condition . . . . The diseases are insidious in that they appear only after long periods of undetectable dormancy or progression--periods that frequently span two or more decades following the critical toxic exposure." David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 HARV. L. REV. 851, 852 n.3 (1984).
"There is typically a long latency period between exposure and the appearance of health effects. The effects are rare and may be characterized as "nonsignature" diseases. In other words, not everyone exposed to a toxic chemical will become sick, and those who do may not be aware that the illness
results from the exposure. In addition, it may be impossible to reconstruct which chemical (if any) caused the illness or when the exposure occurred.
John S. Applegate, The Perils of Unreasonable Risk: Information, Regulatory Policy, and Toxic Substances Control, 91 COLUM. L. REV. 261, 264 (1991). See also Allan T. Slagel, Note, Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 IND. L.J. 849, 849-50 (1988) (discussing drawbacks associated with postponing litigation until a latent disease actually manifests itself).
[FN5]. Slagel, supra note 4, at 850. Mr. Slagel's definition actually refers to "the cost of medical testing," id. (emphasis added), but this Article has omitted the reference to "cost" due to the arguments in Part IV, infra, that the remedy should be solely equitable and should not extend to money damages. Another definition that refers to the substance rather than the cost of the remedy may be found in Nicholas A. Ashford et al., Human Monitoring: Scientific, Legal and Ethical Considerations, 8 HARV. ENVTL. L. REV. 263, 265 (1984) ("[M]edical surveillance is designed . . . to detect adverse health effects (or health status) resulting from hazardous exposures."). The terms "medical surveillance" and "medical monitoring" are synonymous. Although academic writers and some earlier cases seem to have preferred the former, "medical monitoring" has emerged in recent years as the phrase of choice among
lawyers and judges. This Article will use that term.
[FN6]. See, e.g., Cain v. Armstrong World Indus., 785 F. Supp. 1448, 1451 (S.D. Ala. 1992) (jury award for medical monitoring held excessive); Cook v. Rockwell Int'l Corp., 778 F. Supp. 512, 514 (D. Colo. 1991) (medical monitoring claim akin to claim for future medical expenses); Barth v. Firestone Tire & Rubber Co., 673 F. Supp. 1466, 1477-78 (N.D. Cal. 1987) (medical monitoring recoverable in equity, not at law); Neal v. Carey Can. Mines Ltd., 548 F. Supp. 357, 381 (E.D. Pa. 1982); Nutt v. A.C. & S., Inc., 466 A.2d 18, 21 (Del. Super. Ct. 1983) (claim that employer failed to provide monitoring); Devlin v. Johns-Manville Corp., 495 A.2d 495, 500 (N.J. Super. Ct. Law Div. 1985) (monitoring claim allowed for uninjured plaintiff); Acevedo v. Consol. Edison Co., 572 N.Y.S.2d 1015, 1016 (Sup. Ct. 1991) (right to recover costs of continuous monitoring acknowledged).
For unreported cases that address medical monitoring, see Leslie S. Gara, Note, Medical Surveillance Damages: Using Common Sense and the Common Law to Mitigate the Dangers Posed by Environmental Hazards, 12 HARV. ENVTL. L. REV. 265 (1988).
[FN7]. What discussion there has been of medical monitoring in legal journals has been almost exclusively enthusiastic and uncritical. See Amy B.
Blumenberg, Note, Medical Monitoring Funds: The Periodic Payment of Future Medical Surveillance Expenses in Toxic Exposure Litigation, 43 HASTINGS L.J. 661 (1992); McNamara, supra note *; Slagel, supra note 4; Gara, supra note 6; Linda A. Elfenbein, Note, Future Medical Surveillance: An Award for Toxic Tort Victims, 38 RUTGERS L. REV. 795 (1986). But see Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 HARV. J.L. & PUB. POL'Y. 541, 576-77 (1992) (brief negative comments about medical monitoring).
[FN8]. See Morrissy v. Eli Lilly & Co., 394 N.E.2d 1369, 1375 (Ill. App. Ct. 1979).
[FN9]. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 587 F. Supp. 180 (D.D.C.), modified, 593 F. Supp. 388 (D.D.C.), aff'd, 746 F.2d 816 (D.C. Cir. 1984).
[FN10]. 525 A.2d 287 (N.J. 1987). Ayers has been characterized as "the first instance where a state's highest court has upheld a jury verdict awarding plaintiff annual medical surveillance costs as a compensable item of damages for toxic exposure, even if the plaintiff's risk of disease is unquantifiable." McNamara, supra note *, at 344.
[FN11]. The analysis will be confined to a remedy for future medical expenses. Claims for medical expenses already incurred, whether for monitoring or otherwise, are outside the scope of this Article. The cost of past diagnostic examinations necessitated by the defendant's wrongful conduct are generally recoverable, even if they find no disease or injury. See 22 AM. JUR. 2D Damages § 103 (1965) and cases cited therein.
[FN12]. 394 N.E.2d 1369 (Ill. App. Ct. 1979).
[FN13]. Id. at 1372.
[FN14]. Id. at 1377 (emphasis added).
[FN15]. Id. at 1376.
[FN16]. 477 N.Y.S.2d 242 (App. Div. 1984).
[FN17]. Id. at 244.
[FN18]. 200 N.E. 824 (N.Y. 1936).
[FN19]. Id. at 827.
[FN20]. Id. at 824.
[FN21]. 477 N.Y.S.2d at 247.
[FN22]. For cases citing the reasonable probability standard, see infra note 159. In Gerardi v. Nuclear Util. Servs., Inc., 566 N.Y.S.2d 1002 (Sup. Ct. 1991), the court followed Askey's approval of the medical monitoring remedy, despite "the legislative recognition of the 'time of discovery' rule of CPLR § 214-c," id. at 1003, which overruled Schmidt in toxic tort cases. The Gerardi court read Askey as if its endorsement of medical monitoring was made solely as a matter of sound policy and had nothing to do with the holding in Schmidt.
[FN23]. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 587 F. Supp. 180 (D.D.C.), modified, 593 F. Supp. 388 (D.D.C.), aff'd, 746 F.2d 816 (D.C. Cir. 1984).
[FN24]. Id. at 182.
[FN25]. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 87 F.R.D. 560 (D.D.C. 1980); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 533 F. Supp. 895 (D.D.C. 1982); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 563 F. Supp. 552 (D.D.C. 1983); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 567 F. Supp. 790 (D.D.C. 1983); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 587 F. Supp. 180 (D.D.C. 1984); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 717 F.2d 602 (D.C. Cir. 1983); Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984).
[FN26]. 587 F.Supp. at 184-85.
[FN27]. Id. at 200.
[FN28]. Id. at 201.
[FN29]. Id. at 202.
[FN31]. Id. In an earlier opinion, the court emphasized that the fund "will not be used to compensate plaintiffs for the effect of any permanent disability arising from any brain injury, nor will it be available to compensate plaintiffs for any of the other claims which they raise, including prior medical expenses, pain and suffering, or psychological trauma." Friends for All Children, Inc. v. Lockheed Aircraft Corp., 87 F.R.D. 560, 568 (D.D.C. 1980).
[FN32]. 746 F.2d 816 (D.C. Cir. 1984).
[FN33]. Id. at 818.
[FN34]. This Article disagrees with Mr. Slagel's suggestion in his Note, supra note 4, at 850 n.8, that "[t]he terms 'medical surveillance,' 'diagnostic testing' and 'preventive monitoring' are used interchangeably by the courts and commentators." Contrasting the limited remedy in Friends with the possible right to lifetime monitoring under Ayers suggests that "diagnostic testing" is not synonymous with "medical monitoring" as now understood.
[FN35]. 525 A.2d 287, 309-10 (N.J. 1987).
[FN36]. See infra Part IV.
[FN37]. 480 A.2d 647 (Del. 1984).
[FN38]. Id. at 649.
[FN39]. Id. at 651. The court explained, "[i]n Ayers there was a direct contact with the contaminant by the plaintiffs. Here, there was no direct contact by the plaintiff-spouses with the asbestos, and no evidence was presented to show that they actually inhaled asbestos fibers." Id.
[FN40]. See, e.g., In re Paoli R.R. Yard PCB Litig., 706 F.Supp. 358, 371 (E.D. Pa. 1988) (noting that most plaintiffs had undergone blood tests to ascertain whether their levels of PCBs were greater than that of the general population), rev'd on other grounds, 216 F.2d 892 (3d Cir. 1990), cert. denied, 111 S.Ct. 1584 (1991). See also extended discussion of dose, infra notes 81-113 and accompanying text.
[FN41]. 788 F.2d 315 (5th Cir. 1984), reh'g denied, 797 F.2d 256 (5th Cir. 1986).
[FN42]. Id. at 317.
[FN43]. Id. at 319.
[FN44]. Askey v. Occidental Chem. Corp., 477 N.Y.S.2d 242, 247 (App. Div. 1984).
[FN45]. 788 F.2d at 319. A more controversial part of the Hagerty ruling was its describing as "unrealistic" the traditional requirement of showing "physical injury" or "impact" from contact with the chemical as a prerequisite for an emotional distress or fear of cancer claim. Id. at 318. Since the panel noted that Hagerty could prove such injury in any event, id. at 318 n.1, this aspect of the ruling was withdrawn when the opinion was later modified. Hagerty v. L. & L. Marine Servs., Inc., 797 F.2d 256 (5th Cir. 1986). The precedential validity of Hagerty is doubtful. Other than the New Jersey Supreme Court in Ayers, few courts have cited its medical monitoring ruling. E.g., Werlein v. United States, 746 F. Supp. 887, 904 (D. Minn. 1990) (citing Hagerty for the proposition that medically appropriate monitoring is a recoverable future medical cost), vacated in part, 793 F. Supp. 898 (D. Minn. 1992); Johnson v. Armstrong Cork Co., 645 F. Supp. 764,
769 (W.D. La. 1986) (citing Hagerty as allowing plaintiff's fears of contracting diseases to be admitted as evidence). And, the entire decision escaped en banc reconsideration only by a tie vote of 7-7 in the Fifth Circuit. 797 F.2d 256 (5th Cir. 1986).
[FN46]. 788 F.2d at 319. This traditional rule, and the related right of an injured plaintiff to recover future medical expenses, are discussed at greater length as justifications for medical monitoring in Slagel, supra note 4, at 863.
[FN47]. Herber v. Johns-Manville Corp., 785 F.2d 79, 83 (3d Cir. 1986) (quoting Coll v. Sherry, 148 A.2d 481, 486 (N.J. 1959)).
[FN48]. Id. at 84.
[FN49]. The Third Circuit returned to the issue in 1990 in In re Paoli R. R. PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990), cert. denied, 111 S. Ct. 1584 (1991), where the question was whether the Pennsylvania Supreme Court would recognize a medical monitoring claim. In deciding in the affirmative, the court barely mentioned the New Jersey Supreme Court's opinion in Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987), and stated it could find "only two
cases in which courts have purported to disallow recovery based on a medical monitoring theory." 916 F.2d at 851 n.25. Those cases were Morrissy v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill. 1979), and an unreported opinion, Rheingold v. E. R. Squibb & Sons, No. 74 Civ. 3420 (S.D.N.Y. Oct. 8, 1975). 916 F.2d at 851 n.25. The court apparently overlooked the Delaware Supreme Court's holding in Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647 (Del. 1984). Shortly after In re Paoli was handed down, the California Court of Appeal also rejected a medical monitoring claim on the ground that it did not show the likelihood of future cancer by "the requirement of reasonable certainty." Potter v. Firestone Tire & Rubber Co., 274 Cal. Rptr. 885, 897 (Ct. App. 1990), petition for review granted, 806 P.2d 308 (Cal. 1991).
[FN50]. 525 A.2d 287 (N.J. 1987).
[FN51]. Id. at 287.
[FN52]. N.J. Stat. Ann. §§ 59:1-1 to 12-3 (West 1982).
[FN53]. 525 A.2d at 297.
[FN54]. 461 A.2d at 190.
[FN55]. 525 A.2d at 297. But see Elfenbein, supra note 7, at 801 n.42 ("Plaintiffs did testify about unexplained rashes, kidney failures, liver ailments and the deaths of three small children. The plaintiffs' attorney is reported [in the press] as stating that 'the state of medical knowledge was not sufficient to make a direct causal connection between the chemicals and the unusually high number of diseases."').
[FN56]. 525 A.2d at 291. The jury also awarded $2,056,480 for emotional distress (which was reversed by the Appellate Division as not recoverable under the Tort Claims Act), $5,396,940 for deterioration in quality of life, and $196,500 in miscellaneous expenses. Id.
[FN57]. 493 A.2d at 1323.
[FN58]. 525 A.2d at 303 (emphasis in original).
[FN59]. Id. at 304.
[FN60]. Id. at 312. One commentator has assumed that this test was made deliberately vague in order to favor plaintiffs: "Although Ayers sets out
this test, due to the nature of toxic tort claims, most claims should invariably result in the provision of surveillance damages as most chemical exposures will satisfy these four [sic] prerequisites." McNamara, supra note *, at 350. The author presciently adds, "[t]his fact presents some practical problems of scope." Id.
[FN61]. 493 A.2d at 1322. Far from acknowledging this concern by the lower court, the Supreme Court characterized the Appellate Division as holding that medical monitoring claims must fail "if the risk of injury is not quantified, or, if quantified, is not reasonably probable." 525 A.2d at 309.
[FN62]. 525 A.2d at 309.
[FN63]. 493 A.2d at 1323.
[FN64]. Herber v. Johns Manville Corp., 785 F.2d 79, 83 (3d Cir. 1986).
[FN65]. 148 A.2d 481 (N.J. 1959).
[FN66]. Id. at 486.
[FN67]. 525 A.2d at 310.
[FN68]. 746 F.2d at 826.
[FN69]. Although the Supreme Court opinion did not resolve the issue of duration, the Appellate Division noted that plaintiffs sought to impose upon the defendant "the financial burden of lifetime medical surveillance for early clinical signs of cancer." 493 A.2d at 1323.
[FN70]. 797 F.2d 256 (5th Cir. 1986).
[FN71]. 477 N.Y.S.2d 242 (App. Div. 1984).
[FN72]. "Despite its dismissal of the enhanced risk claim because of the insufficiency of proof of the likelihood of disease, the [Fifth Circuit in Hagerty] viewed the cost of medical surveillance as an appropriate item of damage . . . . " 525 A.2d at 310.
[FN73]. Id. at 305.
[FN74]. 200 N.E. 824 (N.Y. 1936).
[FN75]. Askey, 477 N.Y.S.2d at 246-47 (discussing Schmidt v. Merchants Despatch Transp. Co. Felli, 200 N.E. 824 (N.Y. 1936)).
[FN76]. See Lynch v. Rubacky, 424 A.2d 1169 (N.J. 1981); Vispisiano v. Ashland Chem. Co., 527 A.2d 66 (N.J. 1987).
[FN77]. E.g., Buswell v. San Francisco, 200 P.2d 115, 121 (Cal. Dist. Ct. App. 1948); Petty v. Kansas City Pub. Serv. Co., 198 S.W.2d 684, 687 (Mo. 1946).
[FN78]. Opinions vary where the record of the New Jersey Supreme Court is concerned. Rutgers University professor Stanley Friedelbaum maintains that the New Jersey court has replaced California as the most "prestigious" state supreme court. Bill Blum, Toward a Radical Middle: Has a Great Court Become Mediocre?, 77 A.B.A. J. 48, 50 (1991). On the other hand, former New Jersey Governor Thomas H. Kean, the very model of a moderate Republican, was once provoked to describe a zoning law decision by the court as a "communist" concept that would lead to "judicial chaos." Robert Haley, Some Jersey Towns, Giving in to Courts, Let in Modest Homes, N.Y. TIMES, Feb. 29, 1984, at A1. For a journalistic account of the New Jersey court's activist bent, see, e.g.,
Reconstructing New Jersey, Guide to the State Supreme Court, The Wilentz Years: 1979-1991, N.J.L.J., Feb. 17, 1992, supp.
[FN79]. 525 A.2d at 312. Cf. In re Paoli R.R. PCB Litig., 916 F.2d 829, 852 (3rd Cir. 1990) (setting forth criteria for medical monitoring as a projection of how the Supreme Court of Pennsylvania would construe Pennsylvania law).
[FN80]. See supra note 6.
[FN81]. But see Slagel, supra note 4, at 873 (contending that "[p]roving exposure will often be the plaintiff's easiest obligation").
[FN82]. WEBSTER'S THIRD NEW INT'L DICTIONARY 802 (1976).
[FN83]. CASARETT & DOULL, TOXICOLOGY, THE BASIC SCIENCE OF POISONS 14 (Mary D. Amdur et al. eds. 4th ed., 1991).
[FN84]. Medicine has generally defined "dose" from a benign perspective, i.e.: "The proper amount of medicine, diathermy, ultraviolet rays, etc., to be taken at one time; enough of a medicine or any other curative agent, to be
taken at one time, for the accomplishment of the desired purpose." J.E. SCHMIDT, ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER, D-106 (1981). In the toxic tort context, the definition is identical to Casarett & Doull's definition of exposure. See supra text accompanying note 83. A slight refinement of Schmidt's definition of dose to include "the amount of a toxin taken into the body sufficient for the accomplishment of a toxic effect" makes it identical to Casarett & Doull's definition of exposure.
[FN85]. Novak v. United States, 865 F.2d 718, 725 (6th Cir. 1989).
[FN86]. Sterling v. Velsicol Corp., 855 F.2d 1188, 1200 (6th Cir. 1988).
[FN87]. Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248, 1249 (N.J. Super. Ct. App. Div. 1990).
[FN88]. Id. In Ironbound, the plaintiffs were denied recovery for emotional distress damages on the ground that they presented "no evidence of serious mental illness." Id. at 1250. The court avoided addressing the issue of whether any plaintiff had produced evidence of a dose of the toxin at issue.
[FN89]. Id. at 1249-50.
[FN90]. But since "[t]he quantity of a chemical required to produce an effect on the body is dependent on the way it is administered," CRONE, supra note 1, at 29, mere circumstantial proof of bodily entry, without direct evidence of method and amount, may permit defense challenges to the sufficiency of proof of toxicity.
[FN91]. Arnold Schecter, Dioxins and Related Chemicals in Humans and the Environment, in BIOLOGICAL BASIS FOR RISK ASSESSMENT OF DIOXINS AND RELATED COMPOUNDS 169, 202 (Michael A. Gallo et al. eds., 1991).
[FN92]. See discussion, supra notes 37-40 and accompanying text.
[FN93]. Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984).
[FN94]. Am. Petroleum Inst. v. Occupational Safety and Health Admin., 581 F.2d 493, 506 (5th Cir. 1978).
[FN95]. 45 U.S.C. §§ 51-60 (1988).
[FN96]. Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985), cert. denied, 474 U.S. 864 (1985).
[FN97]. Friedman v. F.E. Myers Co., 706 F.Supp. 376, 381 (E.D. Pa. 1989). Cf. Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock, 578 A.2d 1238 (N.J. Super. Ct. App. Div. 1990), discussed supra at note 88 and infra at note 116.
[FN98]. 755 F. Supp. 1468, 1477 (D. Colo. 1991).
[FN100]. 588 F. Supp. 247 (D. Utah 1984), rev'd on other grounds, 816 F.2d 1417 (10th Cir. 1987), cert. denied, 108 S.Ct. 694 (1988). Although the trial court's holding in Allen was reversed on the ground that the claims against the government involved discretionary, and thus non-compensable, actions, id., the New Jersey Supreme Court in Ayers relied on the trial court opinion, calling it a "thoughtful analysis." 525 A.2d at 301.
[FN101]. 588 F. Supp. at 248.
[FN102]. Dennis J. Paustenbach, Health Risk Assessments: Opportunities and Pitfalls, 14 COLUM. J. ENVTL. L. 379, 385 (1989). The author points out that even "the ambient air in the north woods of Maine contains detectable levels of polycyclic aromatics which are responsible for the pine odor, but which are carcinogenic in animals." Id. at 383. See also CASARETT & DOULL, supra note 83, at 183 ("A number of toxins are formed in nature by plants or microorganisms . . . . Compared to synthetics, relatively few of these have been tested for carcinogenicity, but nevertheless a wide variety has been found to induce cancer in test animals . . . or in livestock consuming toxin- containing diets.").
The Final Report of the Advisory Review by the National Toxicology Program Board of Scientific Counselors, 57 Fed. Reg. 31,721, 31,725 (1992) [[hereinafter NTP Final Report] recommends that "[e]mphasis equal to that of any industrially produced chemical with equivalent potential for human exposure and the equivalent suspicion of carcinogenicity [and] toxicity should be given to natural substances."
[FN103]. This refers to the dose-response relationship, "the most fundamental and pervasive concept in toxicology." CASARETT & DOULL, supra note 83, at 18. "All substances are poisons; there is none which is not a poison. The right dose differentiates a poison and a remedy." Id. at 13. "To say a
substance is poisonous is not meaningful unless a dose is also stated . . . 1 g of arsenic will kill a man, 1 mg will not." CRONE, supra note 1, at 28. See also Crown Cork & Seal Co. v. Vroom, 480 So.2d 108, 111 (Fla. Dist. Ct. App. 1985) (reinstating a defense verdict in a ground-water contamination case due to expert testimony that "the levels of the chemicals in plaintiffs' well water were far too low to have been either acutely or chronically toxic").
Further evidence of the relevance of the dose-response relationship may be found in "[r]ecent medical studies [that] show the body may be able to repair damage from exposure to low doses of some carcinogens." Bob Davis, What Price Safety: Risk Analysis Measures Need for Regulation But It's No Science, WALL ST. J., Aug. 6, 1992, at A4.
[FN104]. The Ayers court noted that "[e]ven if the likelihood that these plaintiffs would contract cancer were only slightly higher than the national average, medical intervention may be completely appropriate in view of the attendant circumstances." 525 A.2d at 312.
[FN105]. "[I]t may be impossible to reconstruct which chemical (if any) caused the illness." Applegate, supra note 4, at 264. Professor Rosenberg has noted:
Epidemiologists can estimate the proportion of disease incidence
attributable to the "excess risk" created by the toxic agent and the proportion attributable to the "background risk"--the cumulative risk attributable to all other factors. But given current limits on our knowledge of the etiology of insidious diseases, and given the generality of statistical data, it is impossible to pinpoint the actual source of the disease afflicting any specific member of the exposed population.
Rosenberg, supra note 4, at 857.
[FN106]. See Ashford, supra note 5, at 277-78.
[FN107]. Applegate, supra note 4, at 265 (emphasis added). The NTP Final Report, supra note 102, at 31,273, cites four "principal points" to consider in evaluating the alleged toxicity of a chemical:
(1) distinguishing an effect from an adverse (i.e., toxic) effect; (2) defining the dose-response relationship (including the criteria for selection of the high dose, the shape of the dose response curve at low doses, and the possibility of the existence of a threshold); (3) species to species extrapolation; and (4) interaction of chemicals (e.g., short term studies designed to discern mechanisms).
[FN108]. Epidemiology is defined as "the study of the occurrence of
illness." KENNETH J. ROTHMAN, MODERN EPIDEMIOLOGY 23 (1986).
[FN109]. Lynch v. Merrell-Nat'l Lab., 646 F. Supp. 856, 865 (D. Mass. 1986), aff'd, 830 F.2d 1190 (1st Cir. 1987).
[FN110]. "A risk assessment for humans made solely on the basis of animal data appears only meaningful if sufficient data for humans are not available." Diether Neubert et al., Comparison of the Effects of PCDDs and PCDFs on Different Species Taking Kinetic Variables into Account, in BIOLOGICAL BASIS FOR RISK ASSESSMENT OF DIOXINS AND RELATED COMPOUNDS 41, 46 (Michael A. Gallo et al. eds., 1991).
[FN111]. Paustenbach, supra note 102, at 397.
[FN112]. See Philip H. Abelson, Editorial: Exaggerated Carcinogenicity of Chemicals, 256 SCIENCE 1609 (1992), which criticizes the National Institute of Occupational Safety and Health for basing its workplace standard for butadene solely on experiments on mice. "The results of rat, monkey, and human tests showing major differences in uptake, retention, and metabolism, and far less risk of cancer, have been disregarded." Id. (emphasis added). See also Paustenbach, supra note 102, at 397.
[FN113]. 21 U.S.C. § 348(c)(3)(A) (1988). The Clause provides, "no additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal, or if it is found, after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animals." Id.
The Delaney Clause has been criticized as reflecting "the twin dogmas that animal and human susceptibilities to carcinogens are equivalent, and that no- effect thresholds at low doses do not exist." Gio Bata Gori, Overturning the Verdict on Carcinogens, WALL ST. J., Aug. 27, 1992, at A10. The authors of Casarett & Doull's textbook on toxicology note that protein and calorie rich diets have been associated with increased tumor incidence. CASARETT & DOULL, supra note 83, at 830. They continue, "thus, if an experiment is designed to test for the 'carcinogenicity' of protein or calories, the conclusion that must be drawn--according to the Delaney Clause--is that these nutrients are 'carcinogenic.' This is, in essence, the ad absurdum point of the Delaney Clause." Id.
[FN114]. 525 A.2d at 291.
[FN115]. "Treatment of rheumatoid arthritis is based a great deal on the
likelihood of the disease 'burning out' or subsiding spontaneously. In 75 to 85% of the patients the disease does subside." 2 LAWYER'S MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALITIES § 15.3 (Charles J. Frankel et al. eds., 3d ed. 1986).
[FN116]. In Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989), the New Jersey Supreme Court, in discussing the facts in another case, observed that "[u]nder our case law, the personal-injury plaintiff conceivably could claim medical surveillance damages and emotional-distress damages on the basis that the knee injury might cause arthritis . . . . " Id. at 264 (emphasis added). But see Slagel, supra note 4, at 874-75 ("The recovery of medical surveillance damages should be predicated upon the increased risk of a serious injury, most often cancer.").
One recent New Jersey case that did address "seriousness" is Ironbound Human Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248 (N.J. Super. Ct. App. Div. 1990), where the issue was whether the plaintiffs were entitled to recover emotional distress damages as a result of their alleged exposure to dioxin. Id. at 1249. After noting that "[t]here are no present symptoms of severe emotional disturbance or a recognized mental illness," id. at 1249, the court held that "[t]his case, involving no evidence of serious mental illness, belongs on the non-liability side of the line." Id.
at 1250. The opinion is helpful only to the extent of its faintly circular perception that in order to be "serious," an illness must be either "severe" or "recognized." Id. at 1249.
[FN117]. 525 A.2d at 304, 308.
[FN118]. 561 A.2d 257 (N.J. 1989).
[FN119]. Id. at 264.
[FN120]. WEBSTER'S NEW INTERNATIONAL DICTIONARY (2d ed. 1954) defines "probable" as "having more evidence for than against."
[FN121]. Mauro, 561 A.2d at 266.
[FN122]. Id. at 261 (quoting Budden v. Goldstein, 128 A.2d 730, 733 (N.J. Ct. App. Div. 1957)).
[FN123]. Gold v. Johns-Manville Sales Corp., No. 80-2907 (D.N.J. 1984).
[FN124]. Mauro, 561 A.2d at 266. The court in Mauro did not explain
how something that is 60% unlikely to occur can be called "medically probable."
[FN125]. "The excess risk caused by exposure to a toxic agent frequently does not exceed background risk . . . . " Rosenberg, supra note 4, at 858.
[FN126]. 525 A.2d at 312 (emphasis added). One commentator seems to endorse a more liberal standard: "Therefore, if medical surveillance damages are to be a viable recovery for toxic tort victims, any increased risk of disease is sufficient basis for recovery." Slagel, supra note 4, at 874 (emphasis added). Slagel may accept the "linear non-threshold assumption," which assumes "that a single molecule of a carcinogen can initiate the cancer process at the cellular level in such a way that the cell proceeds to a cancer endpoint." Elizabeth L. Anderson, Scientific Developments in Risk Assessment: Legal Implications, 14 COLUM. J. ENVTL. L. 411, 413 n.5 (1989). Anderson argues that linear non-threshold analysis should yield to "developing a more solid scientific basis for estimating both the likelihood of harm and the magnitude of the risk associated with past, current, and future exposures." Id. at 411.
[FN127]. Rosenberg wrote:
If, however, a firm is threatened with strict liability for losses in
excess of those its tortious conduct has caused, it will have an incentive to invest beyond the optimal care level. Although such excessive investments will minimize the firm's liability, they will actually increase the sum of all accident costs, because the firm's extra precautions cannot reduce the background risk.
Rosenberg, supra note 4, at 865.
[FN128]. Id. at 880.
[FN129]. Paustenbach, supra note 102, at 380. "Risk assessment should characterize the likelihood that a particular level of exposure to a given contaminant will produce a specific effect in humans or wildlife." Id.
[FN130]. CASARETT & DOULL, supra note 83, at 37.
[FN131]. Paustenbach, supra note 102, at 409.
[FN132]. See Davis, supra note 103, at A1.
[FN133]. Id. at A4.
[FN134]. For a thoughtful discussion of the contrasting missions of government regulators and the courts see John Endicott, Quack Medicine and Tort Litigation: The Scientific Method or "Methodology?," TOXICS L. REP., July 29, 1992, at 288, 294.
[FN135]. Ayers, 525 A.2d at 311.
[FN136]. Id. The court wrote:
Harm in the form of increased risk of future cancer attributable to delay in diagnosis and treatment has become so widely accepted by the medical community that the existence of such harm could be reasonably inferred from this professional common knowledge. A survey of the medical literature indicates that it is universally agreed within the medical community that delay in cancer diagnosis and treatment usually increases the risk of [ [disease].
Id. (quoting Evers v. Dollinger, 471 A.2d 405, 419 (N.J. 1984) (Handler, J., concurring)).
[FN137]. Prerna Mona Khanna, Health Costs: Value of Yearly Physical May Be Much Overrated, WALL ST. J., Aug. 17, 1992, at B1. See also Slagel, supra note 4, at 868. ("Due to the medical uncertainty about the etiology of cancer,
however, some medical authorities believe early detection does not necessarily improve the treatment or survival chances of a patient."). See extended discussion infra Part VI.
[FN138]. "Of course, it is no use suggesting screening unless there is . . . treatment which can alter the natural history of the disease." MICHAEL ALDERSON, OCCUPATIONAL CANCER 182 (1986). See also Slagel, supra note 4, at 876. ("However, as to diseases which cannot adequately be treated, medical surveillance testing is useless and an award of medical surveillance damages unwarranted.").
[FN139]. "The doctrine [of avoidable consequences] proceeds on the theory that a plaintiff who has suffered an injury as the proximate result of a tort cannot recover for any portion of the harm that by the exercise of ordinary care he could have avoided." Ostrowski v. Azzara, 545 A.2d 148, 151 (N.J. 1988).
[FN140]. "Plaintiffs should note, however, that judicial acceptance of medical surveillance damages in actions for manifested diseases will necessitate that they prove they underwent the prescribed medical tests." Slagel, supra note 4, at 866. See discussion infra Part IV, which argues for
confining the remedy to an equitable one, instead of cash damages, to encourage plaintiffs not to spend the damages for other purposes.
[FN141]. See discussion infra Part VI.
[FN142]. Regarding statutes offering bounties for private enforcement of environmental laws, one commentator has noted that "[p]rivate enforcers are driven by a desire to collect whatever rewards are offered, irrespective of the social consequences of their actions." Michael S. Greve, Private Enforcement, Private Rewards: How Environmental Citizen Suits Became an Entitlement Program, in ENVIRONMENTAL POLITICS, PUBLIC COSTS, PRIVATE REWARDS 105, 107 (1992).
[FN143]. See McNamara, supra note *, at 341 ("[T]he policy rationale of public health is the proper fulcrum upon which to balance the competing interests and dangers unique to toxic torts."). See also Gara, supra note 6, at 303 ("From a public health perspective, medical surveillance damages provide a remedy for the healthy--a legal rule which enforces prevention of illness, rather than waiting for its onset.").
[FN144]. 525 A.2d at 313.
[FN145]. Id. at 310. Ayers further quotes Friends as follows:
It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.
Id. (quoting Friends, 746 F.2d at 826) (emphasis added).
[FN146]. 788 F.2d 315 (5th Cir. 1986).
[FN147]. Ayers, 525 A.2d at 310. In Hagerty, the Fifth Circuit took great pains to point out that the plaintiff, who had twice been doused with toxic chemicals, and who suffered dizziness, leg cramps, and a persistent stinging sensation, showed an actual injury. 788 F.2d at 318 n.1.
[FN148]. 525 A.2d at 315 (noting defendants failure to object to the jury's power to return a lumpsum verdict).
[FN149]. Id. at 314 (emphasis added).
[FN150]. "Courts of equitable jurisdiction have wide discretion to condition relief that is granted to a litigant." Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 503 A.2d 392, 396 (N.J. Super. Ct. App. Div. 1986). In a diversity case in California, the federal court held that "no remedy at law exists that would permit a court to fashion an underlying remedy such as the medical monitoring fund sought here," but it permitted the plaintiff to maintain a claim for equitable relief. Barth v. Firestone Tire & Rubber Co., 661 F. Supp. 193, 205 (N.D. Cal. 1987).
The lack of an adequate remedy at law relates in part to the "use" issue discussed infra Part V. It may be difficult for uninjured, asymptomatic plaintiffs to prove that they would in fact "use" money damages awarded at law solely for monitoring examinations, instead of for unrelated personal purposes. Since monitoring may well be "reasonable and necessary" under Ayers despite the inability to prove "use," equitable intervention to provide the remedy in another form may be appropriate.
[FN151]. Ayers, 525 A.2d at 314.
[FN153]. Slagel, supra note 4, at 866. The United States Preventive Services
Task Force gives the example of "colonic perforation during sigmoidoscopy" as a risk associated with one particularly invasive form of medical monitoring. UNITED STATES PREVENTIVE SERVICES TASK FORCE, GUIDE TO CLINICAL PREVENTIVE SERVICES xxxiii (1989) [hereinafter PREVENTIVE SERVICES].
[FN154]. 525 A.2d at 314.
[FN155]. Id. at 312 (one of the five Ayers criteria).
[FN156]. Not only would the "quantification" rule be circumvented, but since the cash award would be for "medical monitoring," not "increased risk of future disease," the plaintiff would retain his right to sue again at the onset of disease, unlike a true increased risk plaintiff.
[FN157]. 525 A.2d at 291.
[FN158]. In her Note, Blumenberg reports the following regarding the settlement in Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ct. App. Ariz. 1988):
The average settlement award was $100,000 per plaintiff, with older plaintiffs receiving an average of $40,000 and younger plaintiffs receiving
an average of $200,000. Although their attorney, Mark Harrison, recommended to his clients that they use the money to set up a medical monitoring fund, the plaintiffs opted to take their settlements in lump sums. Telephone Interview with Mark Harrison, Attorney, Harrison, Harper, Christian & Dichter, of Phoenix, Ariz. (Nov. 21, 1991).
Blumenberg, supra note 7, at 708 n.266.
The present author attempted to conduct an informal survey of several dozen plaintiffs in Ayers whose addresses could be located in local telephone directories. The survey provided postage paid envelopes and offered ten dollar payments to answer the following questionnaire:
Did you sue Jackson Township for chemical contamination of your water? [ [Yes/No/Not Sure]
If you did sue and recovered money, in what year did you receive the compensation that you were awarded?
If you were a plaintiff, did you receive money to pay for future medical examinations? [Yes/No/Not Sure]
Did the money you received enable you to do anything that you otherwise would not have done or would not have been able to afford? [Yes/No]
If your answer is yes, please describe briefly.
Did the money you received cause you to consult a physician more frequently than you had done before receiving your share of compensation? [Yes/No]
Other than when you had a specific complaint, about how many medical examinations have you had since you received compensation in this case?
If you have had any such medical examinations, please identify the medical specialty of each doctor who examined you.
Were any of these examinations part of a periodic medical examination offered by your employer? [Yes/No]
Despite the promise that names of respondents would not be disclosed, only three plaintiffs returned the survey. One reported that he did receive medical monitoring damages, that he used them to buy a home, and that they did not cause him to see a physcian more often than he had done previously. The other two were not sure whether the damages they received included medical monitoring, but they denied seeing a physician more frequently as a result of the award. (Responses on file in author's office).
[FN159]. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 680-81 (Tex. App. 1991) ("Recovery for future medical expenses requires a showing that there is a reasonable probability that such medical expenses will be incurred in the future."); Elam v. Alcolac, Inc., 765 S.W.2d 42, 208-09 (Mo. App. 1988) ("The evidence of significant, albeit unquantified, risk of cancer [as well as other disease] . . . was competent to prove, as a separate element of damage, the need for medical surveillance of the immune system and other organs . . . .
Compensation for necessary medical expenses reasonably certain to be incurred in the future rests on well-accepted legal principle."); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1507 (11th Cir. 1985) ("Georgia law requires a claimant to prove with reasonable certainty not only that he will sustain future medical expenses, but also the amount of such expenses."); Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1372 (S.D. W.Va. 1990) (noting that "there are reasons which caution against imposing [medical monitoring] liability on defendants where the exposed individuals have not shown . . . that the costs are reasonably certain to be incurred.").
In Askey v. Occidental Chem. Co., 477 N.Y.S.2d 242, 247 (App. Div. 1984), the New York appellate court stated in dictum that medical monitoring expenses could be recovered, provided plaintiff established "with a degree of reasonable medical certainty through expert testimony that such expenses will be incurred." To the extent that the Askey dictum assumed that expert testimony alone (without additional proof from the plaintiffs concerning their own intentions) could show that medical monitoring expenses "will be incurred," this article disagrees with it.
[FN160]. Friends, 746 F.2d at 838 n.42.
[FN161]. Barth v. Firestone Tire & Rubber Co., 661 F. Supp. 193, 205
(N.D. Cal. 1987).
[FN162]. In Askey, the appellate division noted that the trial court had considered itself without power to establish "a medical monitoring fund." 477 N.Y.S.2d at 246.
[FN163]. "Plaintiffs' relief in a medical monitoring claim can take two forms. First, plaintiffs can be awarded a lump sum of money. Second, plaintiffs can be awarded a lump sum which is placed into a fund that is administered by the court." Cook v. Rockwell Int'l Corp., 778 F. Supp. 512, 515 (D. Colo. 1991).
[FN164]. Rosenberg, supra note 4, at 921-22.
[FN165]. The Ayers court wrote:
It is beyond the scope of this opinion to set down guidelines for trial courts in establishing and administering such funds. A court-appointed administrator will be required. The cost of administration should be borne by defendants. A procedure should be established for submission and review of claims for payment, and to determine the availability of collateral source benefits. We are confident that satisfactory procedures can be developed by
trial courts on a case-by-case basis.
525 A.2d at 314 n.14 (emphasis added).
[FN166]. Friends, 587 F. Supp. at 188.
[FN167]. Friends, 746 F.2d at 838 n.43. In so holding, the D.C. Circuit nonetheless urged the trial court to reconsider the $450,000 sum it had ordered on the ground that it was apparently twice the amount necessary to provide each plaintiff with an examination. Id.
[FN168]. 493 A.2d at 1321.
[FN169]. Ayers, 525 A.2d at 309 n.12. Of course, since the Ayers plaintiffs received cash damages, the details of the protocol were significant only to the extent they bore a reasonable relationship to the size of the cash award.
[FN170]. While many latency periods are unknown, examples of known ranges for for occupational carcinogens are (in years): arsenic, 34-46; tar, 1-50; X- radiation, 1-12; asbestos, 15-21; solar radiation, 15-40; chromates, 5-47. Averages are (in years): arsenic, 25; tar, 20-24; radiation, 7; asbestos, 18;
solar radiation, 20-30; chromates, 15. 5B LAWYER'S MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALTIES § 38.46h (Charles J. Frankel et al. eds., 3d ed. 1986).
[FN171]. See Ayers, 525 A.2d at 314 n.14.
[FN172]. Class actions are the best example of when counsel receive fees from the "fund in court." DAN B. DOBBS, HORNBOOK ON THE LAW OF REMEDIES § 3.8, at 200 (1973). Arguing that medical monitoring plaintiffs, "such as pesticide sprayers or homeowners sharing the same water supply, may have been exposed to the same level of the claimed toxin; hence, the question of exposure level will not have to be fully individualized," Ms. Gara contends medical monitoring claims may be particularly suited for class action treatment. See Gara supra note 6, at 297. Reported cases do not agree. See Morrissey v. Eli Lilly & Co., 394 N.E.2d 1369 (Ill. App. Ct. 1979) (A separate inquiry would be necessary as to each mother to determine whether the quantity of DES ingested would require any medical monitoring.); Askey v. Occidental Chem. Corp., 477 N.Y.S.2d 242 (App. Div. 1984) (Because costs for medical monitoring could be recovered as an element of consequential damages does not mean class certification should necessarily be allowed). In any event, class recovery of an equitable order to provide future medical monitoring, whether by trust fund
or otherwise, is not the kind of present cash recovery that is usually subject to counsel's contingent fee claim. See N.J. CT. R. 1:21-7(c).
[FN173]. Leeds v. Lippincott, 153 A.2d 45, 49 (N.J. 1959).
[FN174]. See, e.g., Cohen v. Fair Lawn Dairies, Inc., 206 A.2d 585, 588 (N.J. Super. Ct. App. Div. 1965). But see Friends, 533 F. Supp. at 900-01 (D.D.C. 1982) (holding that payment of a reasonable fee to a guardian ad litem for infant plaintiffs "may be properly taxed as costs, since it is an expenditure necessary to the performance of the judicial function").
[FN175]. McNamara, supra note *, at 353.
[FN176]. Id. McNamara cites the Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (1976), amended by 42 U.S.C. § 1988 (1981).
[FN177]. As Blumenberg asserts, "[a]n attorney should not place her interest in receiving a lump fee ahead of her client's interest in receiving the most advantageous damages award." Blumenberg, supra note 7, at 696 n.193.
[FN178]. Id. at 695-97 (discussing the ethical considerations raised by periodic payments of lawyer's fees).
[FN179]. Id. (citing Cardenas v. Ramsey County, 322 N.W.2d 191, 194 (Minn. 1982) and David Austern, The Ethics of Structured Settlements, 22 TRIAL, NOV. 1986, at 17).
[FN180]. She asserts that "a medical monitoring fund ensures that the money is used for medical monitoring by either reimbursing the claimant for medical testing she secures on her own or by providing her with the actual medical examinations." Id. at 702.
[FN181]. See Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989) (damages for "enhanced risk" of future disease and emotional distress); Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1988) (punitive damages).
[FN182]. From a policy perspective, the greater concern in the toxic tort area is precisely the opposite. See Schuck, supra note 7, at 564, noting "the practice of some labor unions and plaintiffs' lawyers who engage in aggressive claim solicitation campaigns on a mass basis designed to multiply the number of filed cases, thereby increasing the pressure on defendants to settle cases
[FN183]. See Gara, supra note 6, at 295.
[FN184]. Medical monitoring claims "have met with enough success . . . that similar claims can be anticipated in the future by those exposed to toxics, but who have not developed any impairment or diagnosable disease." Michael D. Green, When Toxic Worlds Collide: Regulatory and Common Law Prescriptions for Risk Communication, 13 HARV. ENVTL. L. REV. 209, 242 (1989). Blumenberg cites an unreported case, In re Fernald Litigation, No. C-1-85-0149 (S.D. Ohio Sept. 29, 1989), that included an $80 million medical monitoring fund. Blumenberg, supra note 7, at 706. She also reports that the average settlement in Burns v. Jacquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1987), was $100,000 per plaintiff, although it is not clear that all of that was for medical monitoring. Id.
[FN185]. See Schuck, supra note 7, at 557-58 n.69, for a brief discussion of the "troubling conflicts" that exist between plaintiffs' counsel and their clients when "early recoveries by a lawyer's clients will reduce the funds available for her other clients who happen to reach trial later."
[FN186]. See Cook v. Rockwell Int'l Corp., 778 F. Supp. 512, 515 (D. Colo. 1991). Although the Cook plaintiffs sought a trust fund "[i]f and to the extent that complete medical surveillance relief is not available at law," the opinion did not consider whether legal damages were in fact available. Id.
[FN187]. 752 P.2d 28 (Ariz. Ct. App. 1987).
[FN188]. Id. at 34.
[FN189]. Id. (quoting Ayers, 525 A.2d at 314). The Court of Appeals for the Third Circuit also addressed medical monitoring after Ayers in n re Paoli R. R. PCB Litig., 916 F.2d 829 (3d Cir. 1990), but the opinion gave no indication that the issue of remedy's form was raised by any party.
[FN190]. Indeed, when a disease at risk is undeniably serious, such as cancer, it may behoove a defendant to concede liability for monitoring altogether, concentrating any defense solely on the form and extent of the remedy. As the court in Betts v. Manville Personal Injury Settlement Trust, 588 N.E.2d 1193 (Ill. App. Ct. 1992), explained:
[T]he reference to the possiblity of cancer in the future is highly inflammatory. It is also unnecessary. The costs of future monitoring of
plaintiffs' condition could easily be discussed without ever referring to "cancer." Plaintiffs' medical witnesses could be instructed by the plaintiffs' attorney not to refer to the risk of cancer, but to refer only to the need for future monitoring of plaintiffs' conditions. (If, of course, a defendant challenges the need for future medical monitoring, as opposed to its reasonably expected cost, the defendant deserves having the jury hear the word 'cancer,' and invites it.)
Id. at 1218 (emphasis added).
[FN191]. The one possible exception being "seriousness," which is likely redundant in light of the "toxicity" requirement. See supra notes 107-16 and accompanying text.
[FN192]. See supra text accompanying notes 91-101.
[FN193]. See supra Part IV for a discussion of the risks and drawbacks of monitoring.
[FN194]. See supra notes 108-13 and accompanying text.
[FN195]. See Ayers, 525 A.2d at 303.
[FN196]. See supra notes 125-28 and accompanying text. Of course, the doctrine of strict liability originated in part in a redistributionist theory of justice. As Berger explained, the tort system "increasingly came to emphasize sociological goals connected with 'victim' compensation and the perceived ability of manufacturers to spread the risk of harm among the community-at-large." Robert G. Berger, The Impact of Tort Law Development on Insurance: The Availability/Affordability Crisis and its Potential Solutions, 37 AM. U. L. REV. 285, 287 (1988). No one, however, has suggested that society would benefit if chemical sellers and manufacturers paid for monitoring for all persons "exposed" to all chemicals, even if those persons' background risks far exceeded any that could be traced to the defendants. "There is little doubt that millions of people have suffered exposure to hazardous substances. Obviously, allowing individuals who have not suffered any demonstrable injury from such exposure to recover the costs of future medical monitoring in a civil action could potentially devastate the court system as well as defendants." Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1372 (S.D. W. Va. 1990), aff'd, 458 F.2d 36 (4th Cir. 1991), cert. denied, 112 S. Ct. 876 (1992).
[FN197]. 525 A.2d at 312.
[FN198]. Under those circumstances, monitoring "may be compeletely appropriate in view of the attendant circumstances." Id. (emphasis added).
[FN199]. Plaintiffs' experts may contend that the increase in risk created by the subject exposure, however small, was nonetheless a "substantial factor," RESTATEMENT (SECOND) OF TORTS, § 433 (1965), in causing monitoring to be "necessary" for the plaintiff. One questions whether medical practice is capable of such nice distinctions. Testimony to that effect more resembles a conclusion than an educated opinion and may be subject to challenge as an opinion "based merely on unfounded speculation and unquantified possibilities." Vuocolo v. Diamond Shamrock Chem. Co., 573 A.2d 196, 202 (N.J. Super. Ct. App. Div.), cert. denied, 585 A.2d 349 (N.J. 1990).
Because of the long lag and latent periods of occupational cancers, it is pertinent that data of possible carcinogenic exposures sustained during employment be obtained for a period of up to forty years preceding the appearance of a cancer. Occupational exposures sustained during the last one to two years before the cancer becomes manifest may prove to be least significant from a legal viewpoint.
5B LAWYER'S MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALTIES §
38.46g (Charles J. Frankel et al. eds., 3d ed. 1986).
[FN201]. In view of Alderson's caveat that monitoring is appropriate only if it can lead to "treatment which can alter the natural history of the disease," see ALDERSON, supra note 138, whether counseling constitutes such "treatment" is an issue defendants may wish to raise. See Part VI, infra, for a more detailed discussion of "the value of early diagnosis."
[FN202]. "[T]here is little convincing evidence that screening programs using radiography or cytology, either alone or in combination, actually succeed in reducing lung cancer mortality." PREVENTIVE SERVICES, supra note 153, at 68. Screening for AIDS may be more useful as a public health measure to limit the spread of the disease than as an early intervention leading to a more favorable outcome. Id. at 143.
[FN203]. 525 A.2d at 312.
[FN204]. See Landrigan v. Celotex Corp., 605 A.2d 1079, 1083-84 (N.J. 1992); Rubanick v. Witco Chem. Corp., 593 A.2d 733, 749-50 (N.J. 1991).
[FN205]. See Ayers, 525 A.2d at 312.
[FN206]. Gara, supra note 6, at 274.
[FN207]. The EPA's general boundary for "acceptable" risk of cancer is daily exposure to a chemical sufficient to cause one additional death in a population of one million. Adam M. Finkel, Dioxin: Are We Safer Now than Before?, 8 RISK ANALYSIS 161, 163 (1988).
[FN208]. "Mesothelioma involves the lining of the lung or abdominal cavity, growing slowly but persistently to encase the enclosed vital organs in a rigid grip which results in progressively severe symptoms and, inevitably, death." 5A LAWYER'S MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALITIES, § 33.54 (Charles J. Frankel et al. eds., 3d ed. 1986).
[FN209]. Future medical expenses for injured plaintiffs may be recovered under a standard of "'reasonable probability' or its equivalent." Coll v. Sherry, 148 A.2d 481, 486 (N.J. 1959) (citing Budden v. Goldstein, 128 A.2d 730 (N.J. Super. Ct. App. Div. 1957)). In other words, plaintiffs can recover only future expenses that are reasonably probable to occur. Id.
[FN210]. See supra note 159.
[FN211]. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 533 F. Supp. 895, 898-900 (D.D.C. 1982).
[FN212]. This Article's author was defense counsel in a case, Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248 (N.J. Super. Ct. App. Div. 1990), in which motion practice left medical monitoring as the only damage claim remaining to many plaintiffs. The sincerity of the plaintiffs' demands for monitoring was hotly contested. As noted in the reported opinion in Ironbound, when asked whether dioxin had been found in his body, one plaintiff answered, "I don't know. I don't know if I want to know." Id. at 1249. Plaintiffs were cross-examined regarding whether they had communicated their concerns about dioxin exposure to their present physicians and the extent to which they had taken advantage of "monitoring" opportunities already available to them. A number of representative responses are reprinted below:
Q. Did you discuss with the doctor your concerns about dioxin exposure?
A. I had no reason to. I was there to get my bus license.
[Testimony of S.E., December 17, 1991]
Q. Have you ever discussed your concerns about dioxin exposure with your own physician?
A. I have not.
Q. I see. Did you ever ask your own personal doctor to be tested for dioxin in your body?
A. I did not.
[Testimony of A.G., December 23, 1991]
Q. As a matter of fact, when we asked you at your deposition whether you even planned to see a doctor about your concerns over dioxin, you testified you weren't sure; isn't that correct?
A. Yes, sir.
[Testimony of A.H., December 23, 1991]
Q. Is that, in fact, true, that you did see a doctor for a physical exam within the year preceding the deposition in 1989?
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
A. Yes I guess, I've seen a doctor on occasion.
Q. Okay. Well, now, when you saw that doctor, you didn't mention to him your concerns about exposure to dioxin, did you?
A. No, it was--didn't come to my mind.
[Testimony of R.H., December 23, 1991]
Q. Now, you testified that you have not mentioned the fact of possibility of dioxin exposure to your doctor. It is true that you have a doctor that you see fairly often for diabetes, don't you?
Q. You also were eligible for free physical exams at your union at [your employer]?
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
And I take it then, Mr. [B], since you said you haven't spoken to your doctor about your dioxin exposure that it's also so that you haven't used any of your free physical exams for the purpose of discussing dioxin, have you?
[Testimony of R.B., December 30, 1991]
Q. In the course of those four or five visits with your personal doctor, have you ever mentioned to him your concern about possibly having dioxin in your body?
Q. Any particular reason why not?
Q. Was that your testimony?
[Testimony of C.R., December 30, 1991]
Q. I take it then, Mrs. [K], that you didn't discuss possible health effects of dioxin with your doctor?
[Testimony of M.K., December 30, 1991]
Q. Did you ever ask a doctor to test you for dioxin?
[Deposition testimony of F.D., read December 30, 1991]
Q. Now, have you discussed your concerns about dioxin with your personal physician?
A. Not really, no.
[Testimony of E.B., January 2, 1992]
Q. Did you discuss with your family doctor, Dr. [P], your concerns about risk of disease from dioxin exposure?
A. I don't think so.
[Testimony of R.S., January 2, 1992]
(Transcripts on file in author's office). The Ironbound case was settled during trial on terms favorable to the defense. See Richard Pliskin, Dioxin Case Ends with a Whimper, N.J.L.J., Feb. 3, 1992, at 1.
[FN213]. See supra note 212.
[FN214]. 148 A.2d 481 (N.J. 1959).
[FN215]. Id. at 486. On the contrary, in Mauro v. Raymark Indus. Inc.,
561 A.2d 257, 264 (N.J. 1989), the Supreme Court affirmed the continuing viability of Coll as the basis for recovering "medical surveillance" damages. Justice Stein's observation in Ayers that a monitoring trust fund "will encourage plaintiffs to safeguard their health by not allowing them the option of spending the money for other purposes," 525 A.2d at 314, confirms that the issue of "use" was very much on the court's mind in reference to future cases. One can argue that Ayers's failure to state "use" as an element of proof was due to the court's assumption that requiring trust funds in all future cases would render that issue moot. See supra Part IV. Of course, even where the remedy is limited to a trust fund, the remedy should only be imposed when plaintiffs meet their burden in persuading the trier of fact that they would use it.
[FN216]. In New Jersey, N.J. Stat. Ann. §§ 2A:84A-22.1 to 22.7 (West 1976).
[FN217]. At that point, defense counsel will want to probe the doctor's response, which in many cases is likely to be dismissive. Although the opinion of a plaintiff's personal physician regarding the nature of the toxic threat may be irrelevant to the medical monitoring claim (which will be premised on expert testimony from other physicians), since most uninjured toxic tort
plaintiffs also claim emotional distress damages, Schuck, supra note 7, at 575, defense counsel may argue that by placing the reasonableness of his alleged fear at issue, a plaintiff has waived the privilege with respect to his doctor's views on the subject. The opinion of one's personal physician is surely relevant to whether one has a reasonable fear of future disease.
[FN218]. In multi-plaintiff cases, the protocol should also address which plaintiffs will receive which tests, since evidence of dose is likely to vary from plaintiff to plaintiff and may affect which tests are "reasonable and necessary" for different individuals.
[FN219]. Slagel, supra note 4, at 875. Ayers affirmed inclusion of "conventional" tests in the protocol, although the opinion implies this may have been due to the defendant's failure to object at trial. 525 A.2d at 313 n.13.
[FN220]. SAM SHAPIRO ET AL., PERIODIC SCREENING FOR BREAST CANCER 5 (1988) reports that a breast cancer screening program "resulted in about a 30 percent reduction in mortality from breast cancer during the first ten years of follow- up in the total group of study women aged forty through sixty-four years at entry." However, when ages were further broken down, the reduction in mortality
was low among women in their forties, so that "there remained uncertainty about the effectiveness of starting to screen under the age of fifty." Id. at 6. See also Robyn R. Roberts, The Mammography Question, 10 HEALTH STATE, THE MAGAZINE OF UMDNJ, Summer 1992, at 24-26.
[FN221]. "Regular screening of women aged 35-60 should therefore form the core of organized screening." Working Group on Evaluation of Cervical Screening Programes, Int'l Agency for Research on Cancer, Screening for Squamous Cervical Cancer: Duration of Low Risk After Negative Results of Cervical Cytology and its Implication for Screening Policies, 293 BRITISH MED. J. 659, 663 (1986) [[hereinafter Screening for Squamous Cervical Cancer].
[FN222]. 525 A.2d at 312.
[FN223]. See supra note 199, discussing whether medical experts can reasonably be expected to make such fine distinctions.
[FN224]. See, e.g., Cottle v. Superior Court, 5 Cal. Rptr.2d 882, 884 (Ct. App. 1992), where the complaint claimed that hazardous oil wastes caused "liver damage, suppressed immune systems, increased susceptibility to leukemia, malignant neoplasms and other forms of cancer, risk of cancer, reproductive
toxicity, birth defects, chromosomal damage, environmental acquired immune deficiency syndrome, respiratory diseases, neurological damage, mutagenesis, [[and] still births."
[FN225]. These organs include: breast, colon/rectum, cervix, uterus, penis, prostate, bladder, lung, skin, testes, ovary, pancreas, and mouth. ALDERSON, supra note 138, at 162-78.
[FN226]. The forms include: coronary artery disease, high blood cholesterol, hypertension, cerebrovascular disease, and peripheral arterial disease. PREVENTIVE SERVICES, supra note 153, at xiii.
[FN227]. See Blumenberg, supra note 7, at 682 n.109, for an approving reference to the plaintiffs' "need for medical testing and preventive monitoring of heart disease" in the case of Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468 (D. Colo. 1991).
[FN228]. The temptation for experts to exaggerate the extent of testing necessary will naturally be greater if money damages are at stake, another reason to prefer the equitable remedy.
[FN229]. NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, PUB. NO. 81-123, OCCUPATIONAL HEALTH GUIDELINES FOR CHEMICAL HAZARDS (F. Mackison et al. eds., 1981), supplemented by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, PUB. NO. 89-104, Supplement II-OHG (1988) [hereinafter NIOSH Guidelines Supplement].
[FN230]. See supra note 207 for comment on the EPA's standards.
[FN231]. For example, NIOSH recommendations include "standardized questionnaires and tests of lung function" for workers exposed to antimony or hexone. NIOSH Guidelines Supplement, supra note 229, at 2. A more liberal commentator has suggested that "[t]he standard for acceptance of such a test should be whether a respectable minority of physicians recognize the test as beneficial in early detection of latent toxic substance diseases." Slagel, supra note 4, at 875 (citing Sprowl v. Ward, 441 So. 2d 898, 900 (Ala. 1983) and Downer v. Veilleux, 322 A.2d 82, 84 (Me. 1974)).
[FN232]. 525 A.2d at 309.
[FN233]. ALDERSON, supra note 138, at 182.
[FN234]. Ashford, supra note 5, at 277.
[FN235]. "Unless one knows the frequency of the condition in the population to be screened, one cannot estimate the test's predictive value." Ashford, supra note 5, at 277-78 (emphasis in original).
[FN236]. Ashford, supra note 5, at 277. See also PREVENTIVE SERVICES, supra note 153, at xxx.
[FN237]. But note that "[a]n accurate test with poor reliability, whether due to differences in results obtained by different individuals or laboratories (inter-observer variation) or by the same observer (intraobserver variation), may produce results that vary widely from the correct value, even though the average of the results approximates the true value." PREVENTIVE SERVICES, supra note 153, at xxxi.
[FN238]. PREVENTIVE SERVICES, supra note 153, at xxxi.
[FN239]. "Complications from sigmoidoscopy are relatively rare in asymptomatic persons but can be potentially serious. Perforations occur in approximately 1 out of 5000-7000 rigid sigmoidoscopic examinations." PREVENTIVE
SERVICES, supra note 153, at 49-50 (citations omitted). See also Jane E. Brody, Nationwide Tests Set for Prostate Cancer, But Doubts Surface, N.Y. TIMES, Sept. 20, 1992, § 1, at 1 (reporting claims that a nationwide program of free screening for prostate cancer may result in "little more than publicity stunts and money makers for participating centers, bringing thousands of men in for follow-up tests, biopsies and treatment that may not benefit them" and that may result in "complications like impotence").
"No one recommends base line or routine mammograms for women under 40 who are not at risk: The cost of the procedure and the radiation exposure, though minimal, do not warrant X-rays in these low-risk years." R.W. & Paula Dranov, Mammograms: When and Where?, AM. HEALTH, Sept. 1992, at 54 (emphasis added).
[FN240]. Although screening for cervical cancer in women over age 35 is recommended, "frequent screening of the age group 18-25 floods the cytology and treatment facilities with numerous possible precursor lesions--many of which would probably regress. This causes undue anxiety among the women affected and has little effect on the overall morbidity from cervical cancer." Screening for Squamous Cervical Cancer, supra note 221, at 663.
[FN241]. Alderson has acknowledged that "periodic cystoscopy" places the patient in "discomfort." ALDERSON, supra note 138, at 182.
[FN242]. Regarding chest radiographs to screen for lung cancer, "it is known that false-positive results from these films lead to unnecessary expense and morbidity in follow-up procedures." PREVENTIVE SERVICES, supra note 153, at 69 (citations omitted).
[FN243]. "There may also be psychological consequences. Persons informed of an abnormal medical test that is falsely positive may experience unnecessary anxiety until the error is corrected." PREVENTIVE SERVICES, supra note 153, at xxxi.
[FN246]. "Primary prevention as it relates to such risk factors as smoking, physical inactivity, poor nutrition, and alcohol and other drug abuse holds generally greater promise for improving overall health than many secondary preventive measures such as routine screening for early disease." Id. at xxii.
[FN247]. "In a specific setting, those genetically more sensitive will
display an adverse effect such as cancer, but those more resistant will not, or do so at an older age." CASARETT & DOULL, supra note 83, at 147.
"The occurrence of certain types of cancers in members of the same family, and in successive generations, is attributable to the existence of an inherited cancer proneness, probably related to an abnormal tissue reactivity to a known or unknown endogenous (within the body) or exogenous (outside the body) agent." 5B LAWYERS' MEDICAL CYCLOPEDIA OF PERSONAL INJURIES AND ALLIED SPECIALTIES § 38.2, at 273 (Charles J. Frankel et al. eds., 3d ed. 1986).
[FN248]. "Carcinogens that can directly mutate DNA are said to have 'initiating' activity, although at sufficiently high doses many of these substances can also 'promote' tumors. Compounds that have only 'promoting' activity presumably give mutant cells some growth advantage over normal cells in their vicinity, causing the proliferation of a malignancy." Adam M. Finkel, Dioxin: Are We Safer Now than Before?, 8 RISK ANALYSIS 161, 162 (1988). See also CASARETT & DOULL, supra note 83, at 186.
A broader concern is that some maneuvers may ultimately result in more harm than good. While this concern applies to all clinical practices, it is especially important in relation to preventive services because individuals
who receive these interventions are often relatively healthy. Minor complications or rare adverse effects that would be tolerated in the treatment of a severe illness take on greater significance in the asymptomatic population and require careful evaluation to determine whether benefits exceed risks.
PREVENTIVE SERVICES, supra note 153, at xx.
[FN250]. One assumes that it will be up to the jury to find as a fact whether medical monitoring is "reasonable and necessary," even if the court thereafter uses its equitable powers to determine the form of the remedy.
[FN251]. One commentator has even suggested that it is only "a short step" from recognition of a medical monitoring claim to allowing the same plaintiff to recover emotional distress damages as well: "Of course, allowance of [a medical monitoring] claim implicitly recognizes that the fears are reasonable and that there is a clear causal connection between the exposure and the emotional distress." Terry Morehead Dworkin, Fear of Disease and Delayed Manifestation Injuries: A Solution or a Pandora's Box?, 53 FORDHAM L. REVIEW 527, 570 (1984). The wisdom of liberal awards for emotional distress in toxic tort cases is beyond the scope of this article, but Dworkin's "bootstrap" analysis is something to consider before hastily awarding medical monitoring to
[FN252]. Canadian Task Force on the Periodic Health Examination, The Periodic Health Examination, 121 CAN. MED. ASS'N J. 1193, 1198 (1979) [[hereinafter Canadian Task Force].
[FN253]. Id. (emphasis added).
[FN254]. "The report of a positive antibody test has depressed some people to the point of committing suicide." Donald H.J. Hermann, Liability Related to Diagnosis and Transmission of AIDS, AIDS: ONE 255, 257 (James Vculek ed., 1988).
[FN255]. ALDERSON, supra note 138, at 182.
[FN256]. Corrine P. Parver, Defense of Delayed Diagnosis and Treatment of Breast Cancer, 30 MED. TRIAL TECH. Q. 34, 52-57 (1983).
[FN257]. James E. Enstrom & Donald F. Austin, Interpreting Cancer Survival Rates, 195 SCI. 847, 850 (1977). See also Everett E. Vokes et al., Medical Progress: Head and Neck Cancer, 328 NEW ENG. J. OF MED. 184, 191 (1993); Robert
Bazell, Growth Industry, NEW REPUBLIC, March 15, 1993, at 13.
[FN258]. See supra text accompanying notes 135-38.
[FN259]. Commentators see this feature as a major side benefit of medical monitoring awards, although they commonly focus on the potential benefit to public health in general or to subsequent plaintiffs: "[A] medical monitoring fund can pool and share knowledge about the health consequences of exposure to specific toxic substances." Blumenberg, supra note 7, at 702. See also Slagel, supra note 4, at 870-71 ("Such a fund would allow medical authorities monitoring the exposure victims' health to correlate data on disease incidence from exposure to the toxic substance."); Gara, supra note 6, at 270 ("[P] eriodic testing will produce needed evidence . . . where latent injuries do develop. This progressive evidence will be of great value to a factfinder in determining whether a resulting injury (or need for a medical procedure to prevent the full development of an injury) is causally linked to the defendant's hazard.").
Whether a group of plaintiffs in a lawsuit would constitute a representative sample of all persons "exposed" (however defined) to a toxin is a matter for debate. "Cohort studies are more subject to systematic bias than randomized trials because treatments, risk factors, and other covariables may be chosen by
patients or physicians on the basis of important (and often unrecognized) factors that are related to outcome." PREVENTIVE SERVICES, supra note 153, at xxxiv.
[FN260]. Norman Macrae, The Good Health Guide, NAT'L REV., Dec. 16, 1991, at 28, 32.
[FN261]. Canadian Task Force, supra note 252, at 1196.
[FN262]. Canadian Task Force, supra note 252, at 1196.
[FN263]. Richard Phalon, Health Junkies, FORBES, Feb. 3, 1992, at 60. See also Susan Dentzer, Work Care: Are Employers Good for your Health?, THE NEW REPUBLIC, June 1, 1992, at 18, 21 ("America is loading much of the risk onto the public sector--the taxpayer--even as it allows the private sector--doctors and hospitals--to spend without restraint. The last time we did something so stupid we created the S&L scandal.").
[FN264]. See Kenneth S. Abraham, Environmental Liability and the Limits of Insurance, 88 COLUM. L. REV. 942, 973 (1988), where the author notes that "liability for fear of contracting disease and for medical monitoring expenses
are themselves sufficiently open-ended to contribute to the uncertainty now troubling the insurance market."
[FN265]. Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1372 (S.D. W. Va. 1990), aff'd, 958 F.2d 36 (4th Cir. 1991), cert. denied, 112 S. Ct. 876 (1992).
[FN266]. Schuck, supra note 7, at 555.
[FN267]. See, e.g., Elizabeth S. Kiesche, A Smaller Role for the Chemical Industry in New Jersey, CHEMICAL WEEK, July 22, 1992, at 7, (attributing the decline of New Jersey's largest manufacturing industry in part to "[o]verly stringent environmental regulations").
[FN268]. In a state such as New Jersey where 10 to 12% of all domestic wells may be contaminated, Joseph Deitch, State Moves to Combat Well Pollution, N.Y. TIMES, Aug. 23, 1992, § 13, at 1, the availability of Ayers-like damages for all the users of such wells does indeed present "problems of scope." McNamara, supra note *, at 350.
[FN269]. See, e.g., note 212 (regarding monitoring claims by plaintiffs in
Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248 (N.J. Super. Ct. App. Div. 1990)).
[FN270]. 525 A.2d at 312.
END OF DOCUMENT