Over two years ago, I wrote regarding significant updates to the Restatement of Torts that would permit medical monitoring claims even absent a present physical injury to the plaintiff(s). Now, with the American Law Institute poised to vote on the revised language that would permit medical monitoring claims, companies and insurers absolutely must pay attention to the outcome of the vote to change the language, as it will have enormous impacts on toxic tort litigation for years to come. While the focus of my prior articles was on medical monitoring claims in the PFAS realm, companies must understand that the impact will be felt well beyond merely PFAS litigation and theoretically to any chemical or alleged toxin to which plaintiffs can reasonably present a risk of future harm argument.

Medical Monitoring Costs – The Current Landscape

Medical monitoring costs is not a new topic for certain litigation, more specifically the PFAS litigation – it is something that plaintiffs’ counsel push for either as a damages component to a cause of action or as a term for settlement negotiations in PFAS cases. Yet, to date, very few states allow for medical monitoring costs to be pled as a cause of action unto itself. Instead, states either require an underlying harm to be proven before the courts will consider awarding medical monitoring costs or states have outright rejected the medical monitoring theory of damages altogether.

The American Law Institute (ALI) is a prestigious legal organization that develops “Restatements” of various laws in the United States, including tort law. The ALI’s work and the Restatements, while not binding on courts, are widely regarded by attorneys, judges and legal scholars as a comprehensive understanding of many of the nuanced parts of legal theories. Through decades of work and revisions, the Restatement (Third) of Torts is now nearing the final stages of completion.

Significantly, the Restatement (Third) is contemplating including recommendations that courts allow plaintiffs to recover monetary damages for medical monitoring expenses, even though the plaintiffs do not have any present bodily harm. With respect to PFAS litigation, medical monitoring costs have been awarded in some states or through settlements to plaintiffs alleging some degree of injury from chemicals, including PFAS. The Restatement (Third) approach, though, opens the door to citizens in the country with no bodily injury from a chemical to participate in free (to the plaintiffs) medical monitoring to ensure that health issues do not arise related to the chemical in question. Companies that manufactured the chemicals or companies that utilized the chemicals would be responsible for funding these multi-million dollar medical monitoring programs.

The ALI’s approach to medical monitoring is a topic that is hotly contested in many legal circles, as awarding medical monitoring costs absent any injury is a highly controversial recommendation that seems to upend decades of tort law. Opponents argue that one of the very tenants of tort law is that there is an injury to the plaintiff – without an injury, there is no tort. Courts are currently split on whether they permit medical monitoring costs to be awarded to plaintiffs without any injury.

Impact On Companies

Many toxic torts litigations are already shifting in such a way that downstream commerce companies (i.e. – companies that did not manufacture chemicals, but utilized the chemicals in manufacturing or products) are being named in lawsuits for personal injury and environmental pollution at increasing rates. Allowing a medical monitoring component to the recoverable costs that can pled would significantly raise the risks and potential liability costs to downstream companies. It is of the utmost importance that businesses along the whole supply chain in various industries evaluate their risk, with those in the PFAS supply chain being perhaps most at risk in the current climate.