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Medical Monitoring Damages: Issues Concerning the Administration of Medical Monitoring Programs

Published online by Cambridge University Press:  24 February 2021

Jesse R. Lee
Jesse R. Lee*
Affiliation:
Maryland Circuit for Baltimore County; University of Maryland at College Park; Boston University School of Law
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Extract

Toxic disasters violate all the rules of plot. Some of them have clearly defined beginnings, such as die explosion that signaled the emergency at Chernobyl… but [they] never end. Invisible contaminants remain a part of the surroundings—absorbed into the grain of the landscape, the tissues of the body, and, worst of all, into the genetic material of the survivors. An ‘all clear’ is never sounded. The book of accounts is never closed.

Type
Articles
Information
American Journal of Law & Medicine , Volume 20 , Issue 3 , 1994 , pp. 251 - 275
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1994

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Footnotes

This article has benefitted greatly from the suggestions of Stephanie Pitcher and Owen Jones.

References

1 Kai Erikson, quoted in EARTHWATCH 29 (Jan/Feb 1993).

2 See infra parts I, II.

3 Blumenberg, Amy B., Note, Medical Monitoring Funds: The Periodic Payment of Future Medical Surveillance Expenses in Toxic Exposure Litigation, 43 Hastings L.J. 661, 668 (1992)Google Scholar (footnote omitted). See also infra note 16.

4 Toxic substances generally are defined as “any chemical, biological, biochemical or radioactive materials that cause an immediate or long-term harm to people, animals or the environment.” Slagel, Allen T., Note, Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 Ind. L.J. 849, 849 n.l (1988)Google Scholar.

5 Weiler, Paul C. et al., Enterprise Responsibility for Personal Injury, 2 A.L.I. Reporters’ Study 375 (1991)Google Scholar [hereinafter “ Reporters’ Study“]. See infra part H.A.

6 Reporters’ Study, supra note 5, at 321. See infra part II.A.

7 See Reporters’ Study, supra note 5, at 376. The American Law Institute (“ALI“) demonstrates that simply tolling the applicable statute of limitations still frustrates the consolidation of a plaintiff class, since “latency periods are not equal in all individuals.” Id. Statute of limitations problems will be discussed intermittently infra notes 37-38 and accompanying text.

8 This Article will discuss several major judicial responses to medical monitoring infra. For a thorough review of both federal and state courts’ reactions, see generally Barbara, Wrubel, Damage Issues Within Toxic Tort Litigation, in Toxic Tort Litigation 67Google Scholar (Richard J. Lippes et al. eds., 1992).

9 A great deal of commentary strongly advocates the adoption of medical monitoring damages in one form or another. See supra part III.B. See also Leslie, Gara, Medical Surveillance Damages: Using Common Sense and the Common Law to Mitigate the Dangers Posed by Environmental Hazards, 12 Harv. Envtl. L. Rev. 265, 266 (1988)Google Scholar; Elfenbein, Linda A., Future Medical Surveillance: An Award for Toxic Tort Victims, 38 Rutgers L. Rev. 795 (1986)Google Scholar. See infra part III.B for discussion regarding whether medical monitoring damages should include substantive treatment costs in addition to diagnostic costs.

10 See Slagel, supra note 4, at 867.

11 See infra part II.C.

12 See infra notes 36-46 and accompanying text

13 A review of Wrubel, supra note 8, reveals a growing number of cases that have either awarded medical monitoring damages or have at least set out the factors a court should consider when deciding whether to grant such an award. See infra part II.C.

14 The lone naysayer may be found in McCarter, George W.C., Medical Sue-Veillance: A History and Critique of the Medical Monitoring Remedy in Toxic Tort Litigation, 45 Rutgers L. Rev. 227 (1993)Google Scholar. McCarter presents his article as an attempt to fill the “void” of criticism. Id. at 230.

15 It goes without saying that the more comfortable the bench is with respect to administrative feasibility, the more likely it is to award this form of damages at all.

16 Blumenberg, supra note 3, at 668. Some commentators refer to these injuries as “snapshot injuries.” See Green, Michael D., The Paradox of Statutes of Limitations in Toxic Substances Litigation, 76 Cal. L. Rev. 965, 972 n.25 (1988)Google Scholar [hereinafter Statutes of Limitations]. See also Strand, Palma J., Note, The Inapplicability of Traditional Tort Analysis to Environmental Risks: The Example of Toxic Waste Pollution Victim Compensation, 35 Stan. L. Rev. 575, 575 (1983)Google Scholar (noting that traditional tort law was developed to address “individual, immediate wrongs” and that toxic waste disposal injuries “create a basic incongruity with the tort system“).

17 See, e.g., Reporters’ Study, supra note 5, at 324.

18 Id. See also Peter H. Schuck, Agent Orance on Trial: Mass Toxic Disasters in the Courts (2d ed. 1987); Brennan, Troyen A., Causal Chains and Statistical Links: The Role of Scientific Uncertainty in Hazardous-Substance Litigation, 73 Cornell L. Rev. 469 (1988)Google Scholar [hereinafter Causal Chains]; Schwartzbauer, Edward J. & Sidney, Shindell, Cancer and the Adjudicative Process: The Interface of Environmental Protection and Toxic Tort Law, 14 Am. J.L. & Med. 1 (1988)Google Scholar. For an interesting discussion concerning the potential use of “DNA fingerprinting” to determine “genetic injury” with a high degree of causal certainty, see Ellinger, Mark S., DNA Diagnostic Technology: Probing the Problem of Causation in Toxic Torts, 3 Harv. J. Law & Tech. 31 (1990)Google Scholar.

19 see generally Statutes ofLimitations, supra note 16, at 995-1001. See also Steve, Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence, 96 Yale L.J. 376 (1986)Google Scholar; Robinson, Glen O., Probabilistic Causation and Compensation for Tortious Risk, 14 J. Legal Stud. 779 (1985)Google Scholar.

20 Causal Chains, supra note 18, at 509. See also Reporters’ Study, supra note 5, at 324-25 (citing Weinberg, Alvin M., Science and Trans-Science, 10 Minerva 205 (1972)Google Scholar).

21 Reporters’ Study, supra note 5, at 325. Interestingly, ALI notes that this matter of “policy” suffers from vulnerability to political debate. Id. at 325 n.17.

22 See Landau, Jack L. & O'Riordan, W. Hugh, Of Mice and Men: The Admissibility of Animal Studies to Prove Causation in Toxic Tort Litigation, 25 Idaho L. Rev. 521, 521 (1989)Google Scholar (finding “precious little evidence” concerning human response to substances typically encountered in toxic tort litigation). Generally, scientists extrapolate data obtained from tests on animals, typically rats or mice. Id. But cf Causal Chains, supra note 18, at 504 n.189 (finding a very high correlation between animal and human response to carcinogens).

23 Reporters’ Study, supra note 5, at 326-27; Causal Chains, supra note 18, at 512.

24 Reporters’ Study, supra note 5, at 326. ALI offers the example of asbestos workers who incur a certain risk of contracting lung cancer due to their exposure to asbestos. Id. Smoking, however, also entails a certain risk of contracting lung cancer. Thus, smoking workers have a summarily higher risk of contracting lung cancer, than do non-smoking workers. Id.

As long as available information exists, however, one may hone the statistical data further with the use of “attributable fractions” of disease, also known as “risk ratios.” Id. at 326-37. That is, disparities in the smoking group versus the non-smoking group can allow for calculation of the smokers’ risk of contracting lung cancer (1) solely due to exposure, and (2) solely due to smoking. Id. See infra part II.B.

25 Reporters’ Study, supra note 5, at 327-28. See also Theodore Colton, Statistics in Medicine 125-26 (1974). Cf. generally Ellinger, supra note 18.

26 Reporters’ Study, supra note 5, at 321-32; Causal Chains, supra note 18, at 507. See also Colton, supra note 25, at 126; Brennan, Troyen A., Helping Courts With Toxic Torts: Some Proposals Regarding Alternative Methods for Presenting and Assessing Scientific Evidence in Common Law Courts, 51 U. Pitt. L. Rev. 1 (1989)Google Scholar [hereinafter Helping Courts].

27 Reporters’ Study, supra note 5, at 321; Causal Chains, supra note 18, at 502.

28 Reporters’ Study, supra note 5, at 321. Cluster analysis may be ideal for locating a “signature disease“; i.e., a disease “rarely found outside the particular type of exposed population…. [A]n ‘effect’ has been observed, and the search is for a potential ‘cause.’ “ Id. at 321-22. However, such diseases often occur sporadically, even without any exposure whatsoever, thereby detracting from the cluster analyses’ overall effectiveness. Id. at 322.

29 Id at 323; Causal Chains, supra note 18, at 503.

30 Reporters’ Study, supra note 5, at 323; Causal Chains, supra note 18, at 503.

31 Reporters’ Study, supra note 5, at 323; Causal Chains, supra note 18, at 503.

32 See Landau & O'Riordan, supra note 22, at 521-22. These bioassays are more difficult, timeconsuming, and costly than short-term molecular assays. Causal Chains, supra note 18, at 504.

The genuine usefulness of animal testing remains in considerable doubt. Landau & O'Riordan, supra note 22, at 539. While intuitively it may seem obvious that human responses to toxicity should parallel animal responses, “[c]areful analysis … reveals that animal studies actually provide little reliable insight into human responses.” Id. Indeed, Landau and O'Riordan conclude that“[a]nimal studies have no place in the courtroom. They suffer from inherent and incurable defects that make them entirely unreliable as proof of human response to toxic substances. They fail to account for astonishing differences between animal species and humans…. They involve wholly arbitrary choices [among] competing mathematical extrapolation models which produce risk assessments that can vary by factors of more than a hundred thousand, depending on the model selected.” Id at 565-66.

33 “Epidemiology is the application of statistical techniques to the study of disease in groups of individuals.” Reporters’ Study, supra note 5, at 324. See also Causal Chains, supra note 18, at 506-09. The advantages and disadvantages of epidemiological studies are explored in Green, Michael D., Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 654-56 (1992)Google Scholar [hereinafter Expert Witnesses].

34 Reporters’ Study, supra note 5, at 324; Causal Chains, supra note 18, at 507. “The epidemiologic study attempts to explore and clarify a possible association between a factor and a disease within individuals in a population.” Bert, Black & Lilianfeld, David E., Epidemiologic Proof in Toxic Tort Litigation, 52 Fordham L. Rev. 732, 755 (1984)Google Scholar. For a discussion concerning various types of epidemiological studies, see Expert Witnesses, supra note 33, at 646-49. Usually, no substantial body of epidemiological evidence exists for any particular toxic substance. Id at 680. Green argues that the very availability of epidemiological evidence should influence a court's requisite standard of causal proof in each case. Id at 681-82.

35 Statutes of Limitations, supra note 16, at 995. See also Sabrina Strawn & Marvin S. Legator, Epidemiology and Toxic Torts, Trial, Apr. 1991, at 60; see generally, Gurry, Christine M., Note, Evidence—Scientific Testimony—Epidemiological Evidence May Be Used to Establish Causation in Toxic Tort Litigation Provided that the Applicable Standards of Admissibility are Met: Landrigan v. Celotex Corp., 24 Seton Hall L. Rev. 447 (1993)Google Scholar. Gurry documents a trend of greater judicial readiness to accept epidemiological proof of causation. Id. at 447-48.

36 This Article adopts the terms “procedural obstacles” and “practical obstacles” from Blumenberg, supra note 3, at 667-75. Other commentators use different terms to discuss largely the same concepts. For example, two commentators speak in terms of access bias (“factors that work systematically for or against the interests of plaintiffs as they seek to get their public risk claims into court in the first place“), and process bias (“factors that work systematically for or against the interests of plaintiffs once their public risk claims reach the courtroom“). Gillette, Clayton P. & Krier, James E., Risk, Courts, and Agencies, 138 U. Pa. L. Rev. 1027, 1044-45 (1990)Google Scholar (emphasis in original). In fairness, one should note that Gillette and Krier write about a broad range of factors, some of which arguably cut in favor of plaintiffs’ interests by heavily deterring public risks. Id. at 1043.

37 The latency period represents “the period from the onset of exposure to the toxic agent to the point when insidious disease symptoms are clinically diagnosable.” Statutes of Limitations, supra note 16, at 973 n.31 (citing N. Sax, Cancer Causing Chemicals 23 (1981)). Green notes that asbetotic diseases have a latency period from fifteen to fifty years, and other diseases (DES-associated diseases, for example) may have latency periods of a generation or more. Id. at 973.

38 See Blumenberg, supra note 3, at 669; Reporters’ Study, supra note 5, at 362, 375.

39 See Reporters’ Study, supra note 5, at 376. Furthermore, some individuals still might not discover their injury until after the extended limitations period has passed. Id.

40 Green advocates the total abolition of statutes of limitation in toxic tort cases. See generally Statutes of Limitations, supra note 16. See also Note, The Fairness and Constitutionality of Statutes of Limitations for Toxic Torts Suits, 96 Harv. L. Rev. 1683, 1702 (1983) (concluding that concerns for “utility and fairness” suggest that courts abolish toxic tort statutes of limitations as “violations of due process“). These articles were written, however, before medical surveillance damages were seriously proposed as a workable solution. The more recent commentary cited supra, notes 3-5, most notably the ALI study, advocate the retention of a modified statute of limitations in conjunction with several other features (including, of course, medical monitoring). See infra part II.B.

41 See Epstein, Richard A., The Temporal Dimension in Tort Law, 53 U. Chi. L. Rev. 1175, 1181-82 (1986)Google Scholar.

42 “Biological diversity may cause some individuals to develop their carcinogen-induced tumors in five years and others to develop tumors fifteen years after the exposure. As tumors occurred, new cases would be brought in an erratic fashion. The consolidated class concept of environmental tort litigation would be frustrated.” Reporters’ Study, supra note 5, at 376.

43 See infra notes 89-90 and accompanying text.

44 See Blumenberg, supra note 3, at 669 n.37 (citing Daniel W. Hindert Et Al., Structured Settlements and Periodic Payment Judgments § 1, at 1.6, 1.7 (1986 & Supp. 1988)).

45 See Slagel, supra note 4, at 855-56.

46 An ever-increasing amount of political, social, and academic concern focuses on this phenomenon of environmental racism/inequality. “Race is the single most accurate predictor of the location of hazardous waste sites…. Communities with an African-American majority are far more likely to be die location of major [industrial] polluters and pollution hazards.” Vice President Al Gore, quoted in Stan Grossfeld, The Exhausted Earth: Life in the Poison Zones, Boston Sunday Globe, March 28, 1993, at 1. Furthermore, “individuals confronted with hazardous substances in dieir homes or at work are often of limited financial means,… [and] are usually ill-equipped financially to pursue their claims against well financed corporate or government defendants. As a result… toxic exposure victims settie earlier and for less money than odier plaintiffs.” Blumenberg, supra note 3, at 672 (footnote omitted). See generally Robert Bullard, Dumping in Dixie: Race Class, and Environmental Quality (1990); United Church of Christ, Toxic Waste and Race in the United States (1987); Jay M. Gould, Quality of Life in American Neighborhoods: Levels of Affluence, Toxic Waste, and Cancer Mortality in Residential Zip Code Areas (1986); Frank B. Cross, Environmentally Induced Cancer and the Law: Risks, Regulation, and Victim Compensation (1989).

47 See supra note 40 and accompanying text.

48 See, e.g., Dan, Drazan, The Case For Special Juries in Toxic Tort Litigation, 72 Judicature 292 (1989)Google Scholar.

49 See Lester, Brickman, The Asbestos Litigation Crisis: Is There a Need For an Administrative Alternative?, 13 Cardozo L. Rev. 1819 (1992)Google Scholar; Deborah R., Hensler, Fashioning a National Resolution of Asbestos Personal Injury Litigation: A Reply to Professor Brickman, 13 Cardozo L. Rev. 1967 (1992)Google Scholar; Mullenix, Linda S., Class Resolution of the Mass-Tort Case: A Proposed Federal Procedure Act, 64 Tex. L. Rev. 1039 (1986)Google Scholar; E. Donald, Elliott, Why Courtst Comment on Robinson, 14 J. Lecal Stud. 799 (1985)Google Scholar (“[W]e [shjould legislate a compensation system for toxics that w[ill] rely on institutions other than courts and juries to decide who is entitled to compensation, and how much tiiey should receive.” Id at 800-01); Robert L., Rabin, Some Thoughts on the Efficacy of a Mass Toxics Administrative Compensation Scheme, 52 Md. L. Rev. 951 (1993)Google Scholar. Creating and maintaining an administrative body to oversee medical monitoring involves a number of issues distinct from those discussed here. For example, one must consider how the administrative agency will receive funding, how much funding it should receive, and where, exacdy, jurisdiction of tort remediation should end and that of administrative remediation should begin. See generally sources cited immediately supra.

The present Article speaks mainly in terms of court-administered programs. The issues raised here, however, should receive careful consideration, regardless of whether a court, an administrative agency, or an altogether different entity shoulders responsibility for a program's implementation.

50 See Reporters’ Study, supra note 5, at 381-82.

51 Id. at 381. The court can directly appoint an expert using Federal Rule of Evidence 706 in an effort to glean unbiased data from an unbiased source, as opposed to relying upon a battle of “partisan experts.” Id at 332. See also Helping Courts, supra note 26, at 7. Both ALI and Brennan argue vigorously for a liberal use of Rule 706 in this capacity. Experts and science panels would serve on a collective “Federal Science Board,” the functions and limitations of which are discussed in Reporters’ Study, supra note 5, at 339-50. See also Lee, Tahirih V., Court-Appointed Experts and Judicial Reluctance: A Proposal to Amend Rule 706 of the Federal Rules of Evidence, 6 Yale L. & Pol'Y Rev. 480, 488, 492-94 (1988)Google Scholar. Lee argues that “[t]he judge is the only player in a stymied litigation” that can break the stalemate of directly conflicting testimony offered by plaintiff and defendant. Id. at 493. Lee deplores the “plague” of “hired-gun experts” present within toxic tort litigation. Id. at 490. As an example of such practices, Lee cites $277,000 in “fees” paid for false testimony supporting the safety of the Dalkon Shield. Id. at 490 n.36 and accompanying text. But cf. E. Donald Elliott, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence, in Environmental Litigation (Ali-Aba Course of Study No. C427, 1989). Elliott argues that Americans, with good reason, no longer believe that a “neutral, objective expert” exists. He remains dubious as to the overall practicality and utility of a science panel, citing numerous problems with respect to the deliberative procedure, deciding whom to appoint to the panel, and the panel's attendant cost. Id at 25-26.

Interestingly, some commentators note that federal courts have a greater tendency to “probe the scientific underpinnings” of proffered expert testimony than do state courts. G. Mark Whitehead & Larry D. Espel, Admissibility of Expert Testimony: Past, Present, and Future, in Toxic Tort Case Essentials: Strategies, Experts, Motions, and Adr, at 49 (PLI Litig. & Admin. Practice Course Handbook Series No.446, 1992).

52 Reporters’ Study, supra note 5, at 362, 381. This relaxation of the statute of limitations requirements should be achieved via adoption of the “discovery rule,” id. at 364, as enacted in the 1986 Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-75 (1988). The discovery rule provides that the applicable statute of limitations for CERCLA claims begins to run on the “date the plaintiffs knew (or reasonably should have known) that the personal injury … [was] caused or contributed to by the defendant's activity.” 42 U.S.C. § 9658(b)(4)(A) (1986). Note that this is not the only form that a discovery rule may take. Depending on the jurisdiction, the discovery rule might require discovery of “simply the injury, the injury and it's cause; and the injury, its cause, and the availability of a legal remedy.” Statutes of Limitations, supra note 16, at 978 (footnote omitted). ALI's proffered version apparently fits within the second of these three categories. See also Slagel, supra note 4, at 854.

53 Reporters’ Study, supra note 5, at 381. Attributable fractions are sometimes termed “risk ratios.” A simple example illuminates the concept: In a given case, suppose the epidemiological evidence suggests that plaintiff A's disease has three potential sources. One of these potential sources is the groundwater, which has been contaminated by defendant's illegally-dumped and leaking drums of benzene solution. If A is 35% likely to have contracted his disease as a result of defendant's tortious conduct, then A will recover 35% of his total damages from the defendant. This calculation assists plaintiffs in avoiding the traditional “preponderance of the evidence” problem, whereby a court might deny any recovery whatsoever if the likelihood of exposure-related disease appears to be less than 50% or 51%. (The particular percentage in question depends on the substantive tort law of the state). Enthusiasm for attributable fractions is not universally shared. See infra note 109.

54 Reporters’ Study, supra note 5, at 381-82.

55 Slagel, supra note 4, at 864 (emphasis in original). See also Ayers v. Township of Jackson, 525 A.2d 287, 312-13 (N.J. 1987) (rejecting plaintiffs’ “claim for damages based on their enhanced risk of injury“). The Ayers court noted that the plaintiff's “claim seeks damages for the impairment of plaintiffs’ health, without proof of its likelihood, extent, or monetary value. In contrast, the medical surveillance claim seeks reimbursement for specific dollar costs of periodic examinations that are medically necessary notwithstanding the fact that the extent of plaintiffs’ impaired health is unquantified.” Id. at 313 (emphasis added). Ayers recognized a cognizable medical monitoring claim as one that seeks compensation for “post-exposure, pre-symptomatic injuries.” Id. at 302-03. See also Gara, supra note 9, at 273 (“[P]ublic policy dictates that where a need for diagnostic examinations is caused by another, that need, even absent any physical injury, should be considered ‘injury’ itself“).

56 See Slagel, supra note 4, at 864-69. Slagel writes about such future injury in terms of “avoidable consequences.” Id. at 864.

57 Again, this section is intended only as background. Much more thorough overview may be found in the cited sources. Specifically, seeWrubel, supra note 8, at 67; McCarter, supra note 14, at 230-42.

58 Wrubel, supra note 8, at 69. See generally Plummer v. Abbott Labs., 568 F. Supp. 920 (D.R.I. 1983); Betts v. Manville Injury Personal Trust, 588 N.E.2d 1193, 1218 (111. 1992) (specific reference to the possibility of future cancer is “highly inflammatory” and “unnecessary,” constituting “just a thinly veiled way of getting evidence of future risk of cancer before the jury in the hope of receiving an enhanced judgment“); Morrissy v. Eli Lilly & Co., 394 N.E.2d 1369, 1376 (111. 1979) (“The nexus … between exposure to DES in utero and the possibility of developing cancer or other injurious conditions is an insufficient basis upon which to recognize a present injury…. [P]ossible future damages in a personal injury action are not compensable unless reasonably certain to occur.“); Ash, Gregory L., Toxic Torts and Latent Diseases: The Case for an Increased Risk Cause of Action, 38 Kan. L. Rev. 1087 (1990)Google Scholar.

59 See, e.g., Miranda v. Shell Oil Co., 7 Cal. Rptr. 2d 623 (Cal. Ct. App. 1992); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990), cert, denied, sub nom. General Electric Co. v. Knight, 499 U.S. 961 (1991); Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990), vacated in part, 793 F. Supp. 898 (1992). These cases and others are synopsized in Wrubel, supra note 8, at 125-30. 60 746 F.2d 816 (D.C. Cir. 1984).

61 This case involved a plane-load of children airlifted out of wartime Vietnam. The plane crashed and the cabin depressurized, causing injuries which potentially could prove irreparable if not treated early. Id. at 816, 818. For a discussion of this case, see Gara, supra note 9, at 277-78; McCarter, supra note 14, at 233-35.

62 916 F.2d at 852.

63 Id “These factors would, of course, be proven by competent expert testimony, see [Ayers v. Townships of Jackson, 525 A.2d 287, 312 (NJ. 1987)].” Id

64 Ayers, 525 A.2d at 312. See also Gara, supra note 9, at 280. For an extended discussion of Ayers, see McCarter, supra note 14, at 242-53; O'Brien, James F., Ayers v. Township offackson: Damages for the Enhanced Risk of Future Disease, 5 Pace Envtl. L. Rev. 257 (1987)Google Scholar. See also Meyerhoff v. Turner Constr. Co., 509 N.W.2d 847 (Mich. Ct. App. 1993); Merry v. Westinghouse Elec. Corp., 684 F. Supp. 847, 850 (M.D. Pa. 1988) (citing Habitants Against Landfill Toxicants v. City of York, [1985] 15 Envtl. L. Rep. (Envtl. L. Inst.) 20,937 (Pa. C. 1985) (requiring a showing of “(1) exposure to hazardous substances, (2) the potential for injury, and (3) the need for early detection and treatment” in order to award medical monitoring).

65 788 F.2d 315, modified, 797 F.2d 256 (5th Cir. 1986).

66 Ayers, 525 A.2d at 300. See also Blumenberg, supra note 3, at 669.

67 Hagerty, 788 F.2d at 320-21. See also Blumenberg, supra note 3, at 669 n.39. See supra note 52, regarding the discovery rule and the running of statutes of limitations.

68 557 F. Supp. 96 (M.D. Pa. 1982).

69 Blumenberg, supra note 3, at 703.

70 Id.

71 No. C-l-85-0149, 1989 WL 267038 (S.D. Ohio, Sept. 29, 1989).

72 Blumenberg, supra note 3, at 706 n.255, 707.

73 Id. at 707.

74 Id.

75 Blumenberg, supra note 3, notes that: (1) Judges recognized a claim for medical monitoring and retained jurisdiction over the settlement fund; (2) Plaintiffs’ nonbinding summary judgment verdict encouraged the defendants to settle promptly; (3) a local university set up a monitoring facility at a convenient location; (4) Plaintiffs themselves supported the idea of medical monitoring; (5) the court appointed three “very capable trustees” to administer the settlement fund; and (6) the trustees consulted with legal, medical, and scientific experts who had experience in prior toxic exposure litigation. Id.

76 42 U.S.C. §§ 6901-87 (1988).

77 Battle, Jackson B. & Lipeles, Maine I., Environmental Law: Hazardous Waste 1 (4th ed. 1993).Google Scholar

78 Id. at 3.

79 42 U.S.C. §§ 9601-75 (1988). Note that CERCLA does not preempt any state law claims relevant to the previous discussion. “Nothing in this chapter shall be construed or interpreted as preempting any state from imposing any additional liability or requirements with respect to the release of hazardous substances within such state.” Id. at § 9614(a). See generally Hand, Kathryn E., Comment, Someone to Watch Over Me: Medical Monitoring Costs Under CERCLA, 21 B.C. Envtl. Aff. L. Rev. 363 (1994)Google Scholar.

80 See Dan A., Tanenbaum, When Does Going to the Doctor Serve the Public Health ? Medical Monitoring Response Costs Under CERCLA, 59 U. Chi. L. Rev. 925, 929 (1992)Google Scholar.

81 26 U.S.C. § 9507 (1988). The Superfund is set up within CERCLA's Hazardous Substance Response Trust Fund. The Superfund provides money which the “federal government is authorized to spend on dump clean-up or to compensate other governmental or individual parties who have incurred certified response costs.” Allan, Kanner, Medical Monitoring: State and Federal Perspectives, 2 Tul. Envtl. L.J. 1, 5 (1989)Google Scholar (footnote omitted). The Superfund arm of CERCLA remains distinct from CERCLA's provision authorizing citizen suits for clean-up cost recovery from responsible parties. Id.

82 Battle & Lipeles, supra note 78, at 180.

83 See Tanenbaum, supra note 80, at 926.

84 “Section 101 (25) defines response as ‘remove, removal, remedy and remedial action.’ Section 101(23), in turn, defines remove and removal as including ‘any actions necessary … to monitor, assess or evaluate a release or threat of release of hazardous substances.’ “ D. Alan Rudlin & Lindsey W. Stravitz, Innovative Remedies and Damages Theories, in Toxic Tort Case Essentials: Strategies, Experts, Motions, and Adr, at 73 (PLI Litig. & Admin. Practice Course Handbook Series No. 446, 1992). See also Blumenberg, supra note 3, at 676; Medical Monitoring Cost, 59 U.S.L.W. 2543 (Mar. 12, 1991).

85 See Brewer v. Ravan, 680 F. Supp. 1176, 1179 (M.D. Tenn. 1988) (disallowing recovery of substantive treatment costs, but allowing damages for assessment of potential or actual threats to public health); Williams v. Allied Automotive, 704 F. Supp. 782 (N.D. Ohio 1988); Fishel v. Westinghouse Elec. Corp., 617 F. Supp. 1531 (M.D. Pa. 1985); Adams v. Republic Steel Corp., 621 F. Supp. 370 (W. D. Tenn. 1985). See also David J. Hayes et al., CERCLA Rights and Liabilities, in the Impact of Environmental Law on Real Estate and Other Commercial Transactions, at 1 (ALI-ABA Course of Study No. C643, 1991).

86 See, e.g., Ambrogi v. Gould, Inc., 750 F. Supp. 1233 (M.D. Pa. 1991) (medical-related costs are not cognizable as response costs); Keister v. Vertac Chemical Corp., 21 Envtl. L. Rep. (Envtl. L. Inst.) 20,677 (E.D. Ark. 1990); Werlein v. United States, 746 F. Supp. 87 (D. Minn. 1990) (denying medical monitoring under CERCLA because relief sought was primarily for personal treatment of disease and, as such, unrelated to public health). For a discussion of related court decisions, see Hand, supra note 79. See also Strand, supra note 16, at 596-98 (discussing t h e “Post-Closure Liability Trust Fund“); Rudlin & Stravitz, supra note 84, at 78-80. Rudlin & Stravitz argue that CERCLA's statutory structure and legislative history (including the provisions of the Superfund Reauthorization Act of 1986 (SARA), 42 U.S.C. § 7401 et seq.) support the denial of medical monitoring damages. Id.

87 Tanenbaum, supra note 80, at 926. See also Kanner, supra note 81, at 4. Tanenbaum explores the possibility of plaintiffs working with and benefitting from the Agency of Toxic Substances and Disease Registry (ATSDR). Tanenbaum, supra note 80 at 935, 945-46. The ATSDR was created by an enabling provision in CERCLA. 42 U.S.C. § 9604 (i) (1).

88 CERCLA's legislative history supports this conclusion, as does the Tenth Circuit's opinion in Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir. 1992). See Sweeney, Kristen E., Daigle v. Shell Oil Company and the Bumpy Road to the Recoverability of Medical Monitoring Expenses Under CERCLA, 47 Vand. L. Rev. 235 (1994)Google Scholar; Hand, supra note 79, at 376. CERCLA's drafters specifically excised statutory language that allowed for recovery of private medical expenses. This was part of the effort to achieve enough compromise support for CERCLA's passage before Ronald Reagan took office in 1980. See Tanenbaum, supra note 80, at 925-26; Kanner, supra note 81, at 11.

89 See Gara, supra note 9, at 286.

90 See generally Gara, supra note 9, at 285-295; Marrs, Scott D., Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and “Fear of Disease” Cases, 28 Tort & Ins. Lj. 1 (1992)Google Scholar (concluding on the basis of a state-by-state survey that plaintiffs are litigating fear-of-disease cases with greater frequency of success); Thompson, Melissa M., Enhanced Risk of Disease Claims: Limiting Recovery to Compensation for Loss, not Chance, 72 N.C. L. Rev. 453 (1994)Google Scholar. ALI responds to judicial reluctance to recognize risk by assuring that medical monitoring does not constitute compensation for “cancerophobia.” Reporters’ Study, supra note 5, at 380. See generally Kristen, Chapin, Toxic Torts, Public Health Data, and the Evolving Common Law: Compensation for Increased Risk of Future Injury, 13 J. Enercy Nat. Resources & Envtl. L. 129 (1993)Google Scholar.

91 7 F.3d 1487 (10th Cir. 1993).

92 Id. at 1490.

93 Id. at 1492-93; Building & Const. Trades Dept. v. Rockwell Int'l Corp., 756 F. Supp. 492, 496 (D. Colo. 1991). The Circuit Court stated that it “is not unsympathetic to the position in which plaintiffs find themselves. However, the Colorado legislature has granted employers broad immunity from common law liability in favor of defined statutory liability under the [Act]. What remedies are available under the Act in lieu of common law remedies is up to die Colorado legislature.” Rockwell, 7 F.3d at 1494. See also Jones v. Utilities Painting Corp., 603 N.Y.S.2d 546 (N.Y. App. Div. 1993).

94 Rockwell, 7 F.3d at 495.

95 See, e.g., Barth v. Firestone Tire & Rubber Co., 673 F. Supp. 1466 (N.D. Cal. 1987). The Barth court held that the alleged physical injuries were entirely beyond the scope of the California workers’ compensation statute because in enacting the statute the legislature had not contemplated injuries for which there exists “no present impairment of earning capacity and no clearly perceptible manifestation of physical disfunction or disease.” Id. at 1473. The court held alternatively that certain provisions of the statute afforded die plaintiffs an exception to the otherwise exclusive remedy afforded by workers’ compensation. Id. at 1476. See also Koslop v. Cabot Corp., 631 F. Supp. 1494, 1498 (M.D. Pa. 1986) (recognizing intentional tort exceptions to exclusivity of workers’ compensation where plaintiffs alleged sufficient facts to support a claim of systematic, intentional misconduct). Cf. Acevedo v. Consolidated Edison Co., 596 N.Y.S.2d 68, 71 (N.Y. App. Div. 1993) (recognizing a statutory exception to workers’ compensation, but holding that plaintiffs were not entided to medical monitoring because they did not satisfy the requirement of proving “willful intent to harm“).

96 See supra, parts I, II.

97 See In re Fernald Litig., No. C-l-85-149, 1989 WL 267038 (S.D. Ohio Sept. 29, 1989). See also Kanner, supra note 81, at 14 (predicting a wider acceptance and implementation of medical monitoring damage awards in the future).

98 See Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992); Simon v. Eastern Ky. Welfare Rights Organ., 426 U.S. 26 (1976); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973). A detailed discussion of standing lies beyond the scope of this Article. Depending on the legal right of action asserted, however, the plaintiffs might expect litigation on die issue.

99 See Rabin, supra note 49, at 966.

100 Such experts would be found on the science panel advocated by the ALL See supra part II.B. A potential claimant might secure a seat in the class by demonstrating diat (1) the defendant produced or administered a chemical substance which generates a substantial risk of harm, (2) the harm suffered corresponds to exposure to the chemical substance, and (3) the claimant has in fact been exposed to that substance. See Rabin, supra note 49, at 967. Rabin notes that in die cases involving a “signature disease,” proving these three elements establishes a rebuttable presumption of liability. Once established, this presumption is very difficult to overcome. Id. Defining the plaintiff class becomes much more troublesome in the more typical case involving a disease with no single chemical signature. See id. at 967-69.

101 Where the boundary falls can have a highly significant impact on die size of the class. For instance, “while the [Fernald] class originally was established to contain 14,000 individuals, that number jumped to 30,000 when the geographic class boundary was changed from five miles from the center of die Fernald facility to five miles from the outer boundary of the facility.” Blumenberg, supra note 3, at 706 n.255.

102 This was the structure of the Fernald program. Id. at 707.

103 This Article explores this problem infra, at notes 113-14 and accompanying text.

104 This raises constitutional concerns. See infra part V.B.

105 See supra part II.C. See also Slagel, supra note 4, at 871 (compensation for diagnostic expenses constitutes an “incomplete remedy” because “victims of toxic torts have suffered more harm than incurring the expense of medical surveillance testing“).

106 See, e.g., Slagel, supra note 4, at 871. Slagel argues in favor of including treatment expenses in defendants’ medical monitoring costs, noting that “the barriers to recovery when a latent disease manifests itself are very substantial, [thereby creating] the anomaly that while the victim has the funds for early detection … , she may not have the funds to treat the disease when it manifests itself” (footnote omitted). Id.

107 The defendant, of course, shoulders the liability by this point in the case.

108 All of the arguments presented in this section apply with equal force against the defendant who wishes to pay only for medical monitoring, while avoiding substantive treatment costs. Note that the defendant might prove that for certain plaintiffs, earlier detection might lead to higher longterm treatment costs due to the longer life expectancy (and therefore a longer treatment period).

109 For an in-depth discussion of proportionate compensation, see Reporters’ Study, supra note 5, at 369-75 (advocating a model where courts, in the presence of reliable statistical evidence, award compensation mirroring proportionate causation and liability). “Once the attributable [fraction drops] below 20 percent, the assumption would be that there was no causation of injury [and therefore no attendant compensation would follow]. For exposures causing an attributable fraction greater than twenty percent, each individual harmed would receive a fraction of his or her total damages, equal to the attributable fraction. To create symmetry and fairness, any injuries that involved an attributable fraction greater than 80 percent would be compensated at a level of 100 percent.” Id at 374-75. But cf. Fischer, David A., Proportional Liability: Statistical Evidence and the Probability Paradox, 46 Vand. L. Rev. 1201 (1993)Google Scholar. Fischer believes that the courts are overzealous in using proportional liability instead of the common law “all or nothing” rule, mainly because potential wrongdoers have difficulty determining the optimum level of investment in safety precautions. See id. at 1206, 1226.

110 For a discussion of this issue in the context of a proposed no-fault scheme, see Rabin, supra note 49, at 971-74.

111 As will be discussed infra in part IV.D., this applies most strongly when plaintiffs are treated on a fee-for-service basis, where more treatment corresponds to more charges. If physicians are paid on a capitated (fixed sum) basis, the disincentive to overtreat will come from the physicians directly, and limited funding will be less of an issue. See generally Harvard Medical Practice Study, Patients, Doctors, and Lawvers: Medical Injury, Malpractice Litication, and Patient Compensation in New York, the Report of the Harvard Medical Practice Study to the State of New York (1990). Of course, the plaintiff can augment with his own money—this should require only a modicum of coordination with the Administrator. The only foreseeable complication occurs when an individual plaintiff wishes to contribute his own money so as to visit an entirely different health care provider. Every individual plaintiff who chooses to do this adds to the administrative burden of the program.

112 See supra part III.B.

113 This apparently was the result of the Ayers damage award. See Ayers, 525 A.2d at 312-13; Reporters’ Study, supra note 5, at 379 n.59.

114 See, e.g., Blumenberg, supra note 3, at 661. See also McCarter, supra note 14, at 256 (“[a]llowing plaintiffs to recover monetary damages to spend for unrelated personal purposes might serve the deterrent aspects of tort law, but in a world of finite resources, such a windfall to an arbitrarily selected class of healthy individuals is not just“). The present author takes exception to McCarter's portrait of “arbitrary,” “healthy” plaintiffs receiving a “windfall,” but, for the reasons oudined in this section, he agrees generally that plaintiffs should not even have the opportunity to spend medical monitoring funds on unrelated purposes. See infra part IV.D.

115 Of course, this will be a difficult judgment call, once again requiring medical advice. The latter option is indeed a harsh result, but it would be easier to administer and would send a stronger message to the other participants. In curbing a non-participant's recovery, the Administrator must remain sensitive to the individual's circumstances. For example, a certain individual might face daunting transportation problems every time he travels to the provider. Furthermore, careful attention must be given to the finality and reviewability of the Administrator's decision; this issue partially overlaps with other constitutional concerns. See infra part V.B.

116 Blumenberg, supra note 3, at 714.

117 Id.

118 For instance, changing incentives might arise due to health care reform, shifting political winds, etc.

119 This parallels the structure of Consent Decrees under CERCLA. The courts's continued involvement affords the plaintiff a speedy means of enforcement via contempt-of-court sanctions. Without this means of enforcement, the plaintiff would have to bring a new contract action against the defendant, asserting breach of settlement duties. See, e.g., Thomas, John R., United States v. Fisher: “Posner's Dilemma” and the Uncertain Triumph of Outcome Over Process, 21 Envtl. L. 427, 434-35 (1991)Google Scholar.

120 This holds more true for toxic spills that disperse slowly, such as leaky landfills. Proximity becomes less related in flowing water systems, and less still when toxins hit the airstream. See Brennan, Troyen A., Environmental Torts, 46 Vand. L. Rev. 1, 9–12 (1993)Google Scholar [hereinafter Environmental Torts] (geographically modelling a “risk envelop,” the risk distribution as a function of geographical proximity to a pollution source).

121 As mentioned supra in note 75, in the Fernald case the plaintiffs were able to take advantage of a single university clinic located near their residences.

122 Close proximity of die parties reduces the prospect of multidistrict litigation and the attendant choice-of-law issues. See Rabin, supra note 49, at 966.

123 “Reasonably available” does not constitute a legal standard. However, litigation might arise over this issue.

124 Such expertise must come from an impartial panel, for all the reasons previously discussed. See generally Reporters’ Study, supra note 5, at 332-33.

125 Careful attention must be given to potential providers’ qualifications. Indeed, treating physicians often encounter difficulties and/or render misdiagnoses, due to a general lack of bio-physiological understanding, a lack of symptomatic manifestation, and unfamiliarity with uncommon toxic diseases. See Statutes of Limitations, supra note 16, at 975-76.

126 See supra note 111..

127 See Environmental Torts, supra note 120, at 68. Brennan argues that courts should not permit plaintiffs to receive medical monitoring funds directly, “so that they can, if they like, seek additional medical attention.” Id. (footnote omitted).

128 Id.

129 Reporters’ Study, supra note 5, at 379.

130 Id. at 380.

131 See Blumenberg, supra note 3, at 706 (discussing In re Fernald Litigation).

132 A firm may be “insolvent in the balance sheet sense,” because its projected liabilities (tort and otherwise) exceed its assets. But the same firm might not be “insolvent in the equity sense,” if it can meet its debt over time. See Alan, Schwartz, Products Liability, Corporate Structure, and Bankruptcy: Toxic Substances and the Remote Risk Relationship, 14 J. Legal Stud. 689, 720 (1985).Google Scholar

133 See Blumenberg, supra note 3, at 690-91.

134 An in-depth analysis of long-term financial structures lies far beyond the scope of this Article. The author intends this section to serve as a basic framework of plaintiffs’ options. The concepts and ideas presented here draw heavily from John Jefferies’ compact but sophisticated article, Structured Settlement Security: Reality or Facade?, 27 TRIAL 26 (Aug. 1991). See also Schwartz, supra note 132.

135 Jefferies, supra note 134, at 26.

137 Such assignment is not necessarily subject to the claimant's approval. The claimant must accept the assignee, if the assignee itself purchases the annuity. Id.

138 This phase of the program design can swiftly become complicated. The Administrator might feel compelled to employ briefly the services of sophisticated financial analysts. The Administrator's involvement here will probably vary as a function of whether the medical monitoring program germinates from settlement negotiations between the parties, or as a court-ordered equitable remedy, following judgment. The latter case naturally allows for more administrative oversight.

139 Jefferies, supra note 134, at 29. The court would be wise to anticipate resistance to this idea. A defendant company might closely guard its corporate and trade secrets, as well as information pertaining to its own fiscal soundness.

140 See Daniel W. Hindert Et Al., Structured Settlement Periodic Payment Judgments § 10, at 18 (1986 & Supp. 1988). See Blumenberg, supra note 3, at 690 n.158 and accompanying text.

141 Duff & Phelps, Moody's, and Standard & Poor's, for instance. Jefferies, supra note 134, at 28-29.

142 This occurs most often when the annuity issuer is in the same insurance conglomerate as the assignee. Jefferies, id. at 27.

143 Id. at 28. The plaintiffs obtained a superior credit position in Henderson, Roger C., Designing a Responsible Periodic Payment System for Tort Awards: Arizona Enacts a Prototype, 32 Ariz. L. Rev. 21, 32 (1990).Google Scholar

144 Id. at 33-34.

145 See, e.g., Blumenberg, supra note 3, at 697-700 (discussing constitutional issues surrounding legislation that provides for periodic payments of damages). See also Hindert Et Al., supra note 140 at 18; Henderson, supra note 143, at 34.

146 525 A.2d 287 (N.J. 1987).

147 See supra part II.B.