PHILADELPHIA – When it reconvenes this week, members of the Philadelphia-based American Law Institute are expected to discuss and further revise the group’s proposed guidelines on the topic of medical monitoring - a project which critics say may expand damage recoveries in tort cases.
While the ALI publishes the Restatement of Torts and other projects that aim to serve as summaries of certain areas of law that judges can use, some have accused the group of straying from that goal by trying to create law instead of summarizing it.
For example, its insurance liability law Restatement was called “litigation fuel,” leading a number of judges and lawmakers in several states to reject it.
Here, the proposed medical monitoring portion of the ALI’s “Restatement of Torts, Third: Concluding Provisions” would authorize recovery of medical monitoring costs in the absence of any bodily harm (or costs to detect the possible onset of a future injury). Defendants forced to cover medical monitoring costs essentially pay for regular doctor visits for uninjured people in case an injury occurs, greatly increasing damages (and attorneys fees taking a percentage).
What makes such a provision controversial is that the existence of an injury has historically been a fundamental tort law requirement, and the ALI has never before adopted a Restatement tenet approving a tort recovery for unimpaired claimants.
The concept of medical monitoring is appearing more often in toxic tort cases, including those centered around claimed injuries as a result of exposure to Perfluoroalkyl and Polyfluoroalkyl substances (known as PFAS).
Nationwide case law on the subject of medical monitoring for uninjured plaintiffs is divided, with no clear trend toward either adoption or rejection: One-third of states in the U.S. either authorize or appear to authorize such recovery, with about an equal amount of states that reject recovery of medical monitoring; while the remaining states’ legal precedents are either unclear or no case law yet exists on the point.
This particular Restatement project is authored by its Reporters, professors Nora Freeman Engstrom of Stanford Law School and Michael D. Green of the Washington University School of Law. The duo is advised by three Associate Reporters and dozens of fellow professors, practitioners and judges.
ALI Life Member Victor E. Schwartz and ALI member Christopher E. Appel of Shook Hardy Bacon in Washington, D.C., spoke more about the concept of medical monitoring, how it can be applied and the controversy surrounding it.
“Some think it’s pro-consumer, but it isn’t necessarily,” Schwartz said.
Schwartz recounted a situation with a substance called Diethylstilbestrol (DES), which was once used for a variety of medical purposes, including to treat pregnant women who suffered recurring miscarriages.
“It was a synthesized hormone that was made by a number of drug companies. About 20 years after the woman took it or less, a number of women, about 300, developed an unusual form of vaginal cancer which was traced to DES. But millions of women took the drug, about 10 or 20 million,” Schwartz said.
“If medical monitoring had been allowed and you had these millions of claims, the people who really were hurt, the people who were injured would not have gotten any money. The companies would have been bankrupt. So medical monitoring is a tricky thing. It’s more tricky than a lot of other tort doctrines as to who’s helped and who’s hurt.”
Appel explained that the debate surrounding medical monitoring is due to the concept of tortious exposure, which holds the potential for injury to a plaintiff.
“If you allow it, it has the potential to drain the resources of a business or company. If everyone and their mother is filing a medical monitoring claim, those costs, while they may be small in individual cases, if you expose 10,000 people to something and you have to pay their medical monitoring costs, it can add up real quick. And if that company goes bankrupt, then when people start developing cancer 30 years later, there’s no money to pay those cancer victims,” Appel said.
Appel added that this point of view was recently taken by the Supreme Court of Illinois; a “fairly liberal court,” in Appel’s view.
Turning to the progress of the medical monitoring provision, Appel said that usually when the ALI adopts a minority rule, such as medical monitoring, it follows a trend in the law heading in a given direction – but that in this case, no such prevailing trend exists.
“They’re just aligning with the courts that have adopted it, and focusing less on the courts that haven’t,” Appel said.
According to Schwartz, since the federal government enjoys protections under statutes, such as the Federal Tort Claims Act, which do not apply to individual citizens, the true area of concern for medical monitoring is the private sector.
“West Virginia and Missouri have very open-ended medical monitoring. Other courts have provisions to try to limit it to very serious cases, where there’s a very high probability that somebody might be injured. We might call something ‘medical monitoring’, but they’re not all the same. To me, that gives another reason for the ALI to stay out of it, because the [rule] is very amorphous,” Schwartz stated.
Schwartz opined that in the case of good works produced by the ALI where the Reporters have not chosen a clear majority rule, the authors of the project explain their rationale for doing so – but felt that was not done in the case of medical monitoring.
“The draft [for medical monitoring] originally looked more like a brief, at least in my judgment, than it did an ALI provision,” Schwartz said.
When reached for comment, Reporter Green explained the project and its provisions related to medical monitoring are currently in transition and have yet to be finalized.
“Right now, the medical monitoring provisions we drafted are in flux and remain to be addressed and resolved by the ALI. Once that happens, we’ll be delighted to talk to about them, but it is premature for us to comment now,” Green stated.
American Tort Reform Association President Tiger Joyce remarked that the project seems to symbolize the ALI’s ongoing attempts to expand the law, rather than restate it.
“ALI’s mission appears to have shifted over the past decade from that of a scholarly institution that was safely above the fray in broader policy disputes, to that of an advocacy group proposing novel expansions in liability law. It is disappointing to see the ALI ignore concerns raised by various legal groups and double down by proposing an even more expansive medical monitoring rule,” Joyce said.
“The ALI’s approach to medical monitoring is controversial because the existence of an injury has traditionally been a fundamental tort law requirement. The ALI has never before adopted a Restatement rule endorsing a tort recovery for unimpaired claimants.”
If the provision is approved by the ALI Council this week, it may be considered by the general ALI membership along with other sections of the “Restatement of Torts, Third: Concluding Provisions” at the ALI’s Annual Meeting, being held virtually in May.
While Appel explained it was a possibility that the ALI could issue a rule both in favor and opposing medical monitoring to split the difference, as opposed to making a definitive rule, he expected that it would get an affirmative nod.
“If I were a betting person, it probably will get approved in some form. As Victor mentioned, there are a lot of nuances in it that either can help tailor the rule or make it very open-ended. But assuming some pro-medical monitoring rule goes forward, it will be voted on at the Annual Meeting in May,” Appel said.
“And just to be clear, the Annual Meeting approval does not mean that it’s [automatically] part of the ALI Restatement. The Restatement will still take a number of years to complete.”
Schwartz concluded that even though an ALI Restatement isn’t a “gold” standard until it’s been approved, he believed members of the plaintiffs’ bar would attempt to use a medical monitoring rule, even in a partially approved form, to persuade courts and judges to give the go-ahead to such financial recovery.
“It’s a good lever to get money. The plaintiffs’ lawyers see it as a money pot and a very good potential source of leveraging huge settlements, the defense community is worried about it and I believe the consumer groups who ally themselves with the plaintiffs’ lawyers may have to judge for themselves,” Schwartz said.
“For a long time, the plaintiffs’ bar has wanted to establish in tort law, exceptions to the fundamental tort rule that a tort contains three parts: A basis of liability, causation and injury. They want to redefine ‘injury’, so that there would be no-injury claims. If they can secure a no-injury claim in medical monitoring, they may be able to secure it elsewhere.”
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com