Medical Monitoring Claims
When people have been exposed to toxic chemicals and harmed as a result, they may be able to file a personal injury lawsuit and recover compensation for their injuries. But what if they have been exposed to hazardous substances and face the possibility of developing health problems later on, making it necessary to undergo diagnostic tests and other procedures?
Under tort law, people who sue for toxic exposure have traditionally been required to show proof of harm to be awarded damages. Starting in the 1980s, however, some courts began supporting claims for the costs of diagnostic testing for the early detection of disease related to toxic exposure. These claims, called medical monitoring claims, may be allowed as a legal remedy among plaintiffs who do not have demonstrable injuries. Increasingly, courts agree with the logic of making polluters pay for medical monitoring.
If the residents of your community have been exposed to toxins and are at risk of disease, you may qualify for a medical monitoring lawsuit. Learn your legal options during a free case review.
Which States Allow Medical Monitoring Claims?
Medical monitoring claims are a type of toxic tort class action lawsuit that address circumstances where industrial pollutants have not yet caused injury, but may do so in the future. A number of federal and state courts have recognized claims for medical monitoring. However, the law in this area is not uniform. Among states that do permit medical monitoring claims, some require plaintiffs to prove the existence of a physical injury. Others allow such claims without proof of a physical injury.
Momentum appears to be gathering for broader acceptance of medical monitoring claims. In recent years, courts in New Hampshire, Vermont, and other states have supported for the first time claims for medical monitoring damages. The influential American Law Institute (ALI) recommended in 2020 that courts allow recovery for medical monitoring expenses “even absent present bodily harm.”
Also, a bill introduced in Congress in 2021 would permit federal medical monitoring lawsuits against companies that release toxic per- and polyfluoroalkyl (PFAS) chemicals and cause “significant exposure” to nearby residents.
Currently, according to ALI, only Arizona, Florida, Maryland, Massachusetts, Missouri, Nevada, New Jersey, and Utah allow medical monitoring claims absent injury. Colorado, Connecticut, the District of Columbia, Montana, Ohio, and Vermont are “likely” to allow such claims, says ALI. In other jurisdictions, people cannot file a legal claim until they are sick with an exposure related condition.
Why Are Medical Monitoring Claims Handled as Class Actions?
Class action lawsuits are a way for many people with relatively small claims to take action together. Through class action litigation, cases that would not be practical individually become collectively viable.
Typically, people who are concerned about exposure to toxic chemicals like PFAS undergo blood testing to measure the concentration of the chemical in their bodies. They may also need to be screened for specific health problems associated with PFAS exposure, such as kidney and testicular cancers, high cholesterol, ulcerative colitis, and thyroid disease. These tests may not be covered by health insurance and can be quite expensive. For example, a test for PFOA and PFOS, which is only available from a handful of laboratories in North America, runs approximately $300 - $800.
That’s a lot of money for some people. In addition, the test may have to be repeated on a regular basis, for as long as the person has an increased risk of developing a disease linked to PFAS exposure. Add in screening tests, and the costs are even high.
Even if somebody has medical monitoring costs in the several thousands of dollars, though, the amount may not be enough to justify an individual lawsuit once legal costs are factored in. A lawsuit could easily cost as much—or more—than the cost of medical monitoring.
But because pollution often affects entire communities, with thousands of people potentially exposed, medical monitoring claims may be brought on a large scale. By combining thousands of medical monitoring claims into a single class action lawsuit, the plaintiffs are able to share costs that would be prohibitive on a case-by-case basis.
Medical monitoring lawsuits still must meet the strict federal rules that apply to class action lawsuits. Each state might have their own requirements for medical monitoring lawsuits as well. Per the terms of a settlement, an independent science panel may be set up to carry out exposure and health studies, identify specific disease links, and establish testing protocols.
For context, the proposed PFAS health monitoring law would apply to persons who are exposed to PFAS for a year or more from a plant that produces or uses the chemical. They must also show they have PFAS in their blood or body and show that they have an increased risk of developing a disease associated with PFAS exposure. The bill would allow federal courts to not only order companies to pay for medical monitoring, but to also pay for other PFAS studies, including epidemiology and toxicity studies.
Morgan & Morgan’s Medical Monitoring Practice
Kevin Hannon, the Head of Morgan & Morgan’s Toxics and Environmental Litigation Group, has committed himself to establishing law supporting medical monitoring claims. He is one of the leading lawyers in the country for medical monitoring matters, having established groundbreaking standards and precedents in several states. Kevin also lectures and publishes on the law supporting claims for medical monitoring damages.
Kevin’s past work on medical monitoring lawsuits includes the following cases:
- Wilks v. Inspiration: Kevin negotiated the establishment of a medical monitoring program for those using water contaminated by mining waste in Arizona.
- Meyer, et al. v. Fluor, et al.: This class action established groundbreaking standards in Missouri for medical monitoring.
- Hermens v. Textile Coated, Incorporated: A New Hampshire Superior Court ruled for the first time that New Hampshire law supports medical monitoring damage claims.
- Brown et al. v. Saint Gobain et al.,: Kevin defeated Saint Gobain’s motion to dismiss a medical monitoring claim.
- Bell et al. v. 3M Company et al.: Kevin briefed the successful defeat of 3M’s motion to dismiss a medical monitoring claim for damages from exposure to AFFF contamination at Peterson Airforce Base.
- Giovanni v. United States Dep't of the Navy: Kevin authored an Amicus Curiae brief supporting medical monitoring damages that the court gave special recognition to for its helpfulness.
For the People, for the Planet
It’s not fair that communities have to bear the burden of proving that chemicals released by big polluters are causing harm. Companies that release toxins into communities should be required to pay for health monitoring programs.
Corporate polluters can’t be trusted to do the right thing. It takes legal action to force their hand. And it takes a big law firm to take on a big polluter. Morgan & Morgan, the nation’s largest plaintiffs’ firm, is dedicated to protecting the people and the planet, against the powerful. Please contact us to discuss a potential medical monitoring lawsuit.