Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

In Mann v. CSX Transportation, Inc., Case No. 1:07-cv-3512, Slip op. (N.D. Ohio Nov. 10, 2009), plaintiffs sought medical monitoring as a result of a train derailment near Painesville, Ohio that resulted in a chemical fire that burned for 60 hours and forced the three-day evacuation of residents within a mile-and-a-half radius.  Plaintiffs filed their putative class action within 24 hours of the evacuation being lifted.  After discovery, the defendant moved for summary judgment, challenging the plaintiffs' expert proof in support of their claim.  The court granted the defendant's motion, holding that plaintiffs failed to establish the necessary elements of damages and causation in their negligence cause of action, as well as the prerequisites to medical monitoring.

Ohio recognizes medical monitoring as a form of damages for an underlying tort.  Slip op. at 5.  The defendant had conceded the elements of duty and breach of duty on plaintiffs' negligence claim, but challenged plaintiffs' proof on damages and proximate causation.  The court held that plaintiff's expert proof failed to meet their burden on these issues because the experts merely relied on dioxin's classification as a carcinogen, but did not include any independent assessment of the causal link between dioxin from the fire and disease.  The court concluded that "it is not appropriate for one set of experts to bring the conclusions of another set of experts into the courtroom and then testify merely that they 'agree' with that conclusion."  Id. at 6.  

More important, plaintiffs' experts failed to establish that the putative class members were exposed to dioxins in amounts that would cause a reasonable physician to order medical monitoring.  None of the named plaintiffs had evidence that a doctor had examined them or their medical records and opined that they were at increased risk of disease.  Moreover, none of the experts had measured dioxin in or outside the homes of five of the plaintiffs, and although they had measured elevated dioxin levels in one couple's home, they failed to exclude other sources of dioxin -- such as the couple's cigarette smoking.  Id. at 8.

Plaintiffs' experts pointed to the Environmental Protection Agency's soil contamination levels to justify medical monitoring.  But the court observed that the EPA's threshold level for soil cleanup could not be equated with a "danger point above which individuals require medical monitoring."  Id. at 9.  Indeed, the court said that "even if government regulations are relevant to showing increased risk, a conservative soil cleanup level should be used in place of a medically-based risk assessment or evidence of the actual dose level at which dioxin truly causes cancer -- the danger point critical to a medical monitoring determination."  Id.  Moreover, the EPA threshold level only represented a .0001% increase in the risk of developing cancer from the baseline level for the general population.  The court noted that this "one in a million risk" is much lower than what courts have found to be insignificant as a matter of law.  Id. at 10.

For all of these reasons, the court granted summary judgment on the plaintiffs' claims.

Plaintiffs also had moved for sanctions against the defendant for so-called "spoliation" of evidence:  (1) failing to conduct an exposure/risk assessment at the fire site, (2) failing to complete an air dispersion model and collect and analyze the smoke plume, (3) failing to monitor the smoke from the rail cars for dangerous particulates, (4) conducting destructive testing of smoke samples.  The court held that plaintiffs had no authority for imposing a duty on defendant for any of the things identified by plaintiffs.  In addition, the plaintiffs had not been prejudiced because the evidence in dispute was also available to plaintiffs and ultimately would not have impacted their case; the real measurements should have been at plaintiffs' homes and offices where they allegedly were exposed, not at the fire site.  Id. at 13.

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Today the Supreme Judicial Court of Massachusetts issued an opinion in Donovan v. Philip Morris USA, Inc., 2009 WL 3321445 (Mass. Oct. 19, 2009), recognizing a cause of action under Massachusetts law for medical monitoring.  Because colleagues at my firm were involved in this case, I'll just stick to some selected quotations with no commentary.

A federal district court had certified two questions to the Massachusetts Supreme Judicial Court:

"1.  Does the plaintiffs' suit for medical monitoring, based on subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a cognizable claim and/or permit a remedy under Massachusetts state law?

"2.  If the plaintiffs have successfully stated a claim or claims, has the statute of limitations governing those claims expired?"

The state court answered the first question "yes," and the second question "no."

On medical monitoring, the court stated:

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.  No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change.  This should address any concern over false claims, . . . yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. . . . The expense of medical monitoring is thus a form of future medical expense and should be treated as such.

In conclusion, each plaintiff must prove the following:  (1)The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury, (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness, or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.  Proof of these elements usually will require competent expert testimony.

2009 WL 3321445 at *7-*8 (citations omitted).

On the statute of limitations issue, the court said:

In this case, it is not merely the risk of cancer of which the plaintiffs have notice, but the substantial increase in the risk of cancer, as reflected in their complaint.  Because the harm involves subclinical changes that only will be discovered by a physician, notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing conformably with the medical standard of care.  In short, the statute [of limitations] begins to run when (1) there is a physiological change resulting in a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance.

Id. at *9.

The court noted that its "opinion addresses only individual claims, not a class action.  We express no view about the superiority of a class action (the use of a court-supervised medical monitoring program) over an individual adjudication of claims and an award of monetary damages."  Id. at n.10.  The court also advised that the medical monitoring claim "would, of course, remain subject to all affirmative defenses, such as contributory negligence."  Id. at n.11.

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The judicial branch is one of three branches of government, and although it has considerable powers, it has inherent limitations, too.  The doctrine of standing -- requiring an injury and causation as a prerequisite to judicial intervention -- is grounded on the practicalities of institutional competence and a recognition that courts do not have the tools to be effective legislators and regulators.

In Rhodes v. E.I. DuPont de Nemours & Co., 2009 WL 3080188 (S.D. W. Va. Sept. 28, 2009), the court was faced with summary judgment motions that raised those fundamental questions of institutional competence.  In Rhodes, the Defendant was alleged to have periodically released perfluroctanoic acid ("PFOA") from its plant in Wood County, West Virginia.  Plaintiffs claimed that the PFOA contaminated the water supply in the Parkersburg Water District, and they brought a class action asserting negligence, gross negligence, private nuisance, public nuisance, trespass, battery, and medical monitoring.  Plaintiffs alleged that they had no present physical injury; rather, they claimed to have an increased risk of disease.

Before conducting its analysis, the court observed that "[i]ssues of institutional competence . . . caution against judicial involvement in regulatory affairs" because "[c]ourts are designed to remediate, not regulate."  Id. at *1.

The court first analyzed whether the plaintiffs had Article III standing to bring their claims where the only injuries alleged were increased risk of disease.  After summarizing the case law, the court noted that "[e]ven courts that express doubt as to whether injuries premised on increased risk constitute an injury-in-fact acknowledge that such claims are cognizable in the context of environmental harms and toxic exposures."  Id. at *4.  The court thus concluded that plaintiffs had standing to bring their claims.

With respect to the merits of the summary judgment motions, the court first looked at negligence.  The court determined that plaintiffs had provided sufficient evidence to create a material fact question on causation in their expert reports.  (The court refused to rule on the motion to strike the reports because of the timing of their filing.)  But it held that the plaintiffs had not alleged injury sufficient to support their negligence claims.  Unlike for standing, negligence requires proof of either a present injury or "'reasonably certain' future injury."  Id. at *11.  Because plaintiffs could not prove that their potential future injuries were "reasonably certain" to occur, their negligence claim for damages failed.

Next, the court analyzed nuisance law.  It held that plaintiffs' private nuisance claim failed because the complaint did not allege an interference with the private use and enjoyment of land, but rather alleged interference with the public water supply.  (The contamination did not reach the groundwater beneath the plaintiffs' property.)  Id. at *11-*12. 

And it held that the public nuisance claim failed because the plaintiffs did not meet the special standing requirement applicable to such claims.  Ordinarily, the government is the one to file and prosecute a public nuisance claim.  West Virginia -- and most other states -- requires that private plaintiffs who seek to assert a public nuisance claim must establish that they have suffered a "special injury" different in type and degree from the segment of the public impacted by the public nuisance.  The court observed that the plaintiffs here only suffered an increased risk of disease, which is the same type of injury allegedly suffered by the other consumers of the municipal water supply.  Thus, they failed to meet the "special injury" standing requirement for public nuisance.  Id. at *13.

The court granted summary judgment on the trespass claim because there was no "invasion" of plaintiffs' property that interfered plaintiffs' use and enjoyment.  The PFOA was not alleged to have actually reached plaintiffs' property.

The court also granted summary judgment on the battery claim because plaintiffs have not alleged a present physical injury, and thus have failed to meet the element of "harmful contact."  The court opined that "[a]bsent any such demonstration that their contact with PFOA caused them harm, or that the PFOA present in their blood has altered the structure or function of some body part, the plaintiffs cannot sustain their battery claim based on the mere presence of PFOA in their blood."  Id. at *16.

But the court refused to grant summary judgment on the medical monitoring claim.  Under the decision in Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999), a medical monitoring plaintiff must prove that:

(1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

522 S.E.2d at 432-33.

The court discussed the trend after Bower generally rejecting medical monitoring claims, but then applied Bower to conclude that the negligence allegations and the evidence of increased risk of disease created a disputed issue of fact regarding the medical monitoring claim.  Rhodes, 2009 WL 3080188 at *19-*21.  Thus, although plaintiffs lacked an injury sufficient to assert a negligence claim, they could proceed to trial on the medical monitoring claim.

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