March 05, 2021 Articles

Medical Monitoring?: Depends on Where You Live

Three recent PFAS cases around the country had very different results.

By James P. Ray
Whether a claim or request for medical monitoring is available varies from jurisdiction to jurisdiction.

Whether a claim or request for medical monitoring is available varies from jurisdiction to jurisdiction.

Pexels | Martin Lopez

Several decisions in PFAS (per- and polyfluoroalkyl substances) litigation over the last year show the difference in the availability of medical monitoring for toxic tort plaintiffs. PFAS is a term denoting a family of compounds used extensively since the 1950s due to their water- and stain-resistant properties. Claimants in these cases allege that they have been exposed to PFAS, and those claimants having no current physical injuries or illness seek to recover the costs of medical surveillance for early detection of illness associated with that exposure. (Similar claims can also arise in, for example, pharmaceutical, asbestos, and medical device litigation.) Depending on the jurisdiction, the claim for medical monitoring may be asserted as an independent cause of action for medical monitoring but is more typically asserted as a form of relief based on another tort theory. But whether such a claim or request for relief is available varies from jurisdiction to jurisdiction.

In three PFAS cases decided in the last year, each court looked at the issue of whether a current physical injury was required before a claim for medical monitoring could be asserted, and each court reached a different result. The courts focused on the availability of medical monitoring as a claim for damages for those plaintiffs who did not have a present physical injury or illness. A court in Alabama dispensed with the issue quickly, holding that there is no tort cause of action absent a physical injury. A court in Vermont held the opposite. Finally, the U.S. Court of Appeals for the Second Circuit permitted a cause of action to proceed, but based on a definition of physical injury that included only elevated PFAS levels in blood serum. These decisions are discussed chronologically below.

Bennington, Vermont, PFAS Litigation

On December 27, 2019, U.S. District Court Judge Geoffrey Crawford of the District of Vermont held in Sullivan v. Saint-Gobain Performance Plastics Corp. that “the court will permit Plaintiffs to seek a medical monitoring remedy at trial.” Case No. 5:16-cv-125 (D. Vt. Dec. 27, 2019).

Sullivan is a class-action lawsuit brought by neighbors whose drinking water supplies were allegedly impacted by the release of PFAS compounds from two manufacturing facilities, one in Bennington and one in North Bennington, Vermont. The facilities used PFAS-containing Teflon beginning in 1969 to coat fabrics to improve water resistance. In 2016, the PFAS compound perfluorooctanoic acid (PFOA) was found in drinking water wells in the Bennington area as high as 3,000 parts per trillion (ppt). For context, the current health advisory level established by the Environmental Protection Agency for PFOA is 70 ppt (though many states are establishing much lower permissible levels, including Vermont at 20 ppt). The plaintiffs, individuals whose wells were contaminated, are seeking a medical monitoring program to detect health conditions suspected of being caused by PFOA exposure. The defendant moved for summary judgment, arguing that “the Court should not permit medical monitoring damages unless the plaintiff can demonstrate a present physical injury.” Id.

Crawford held, in a 37-page opinion, that

this case falls much closer to the cases in which medical monitoring has been permitted by the highest courts in other states because of the presence of an objective test for exposure and the relatively small, defined class of people who tested positive for PFOA after consuming water within the affected area.

Id.

Crawford first acknowledged that Vermont follows most states that require a physical injury for many torts. He then evaluated a series of factors to determine whether the rule requiring a present physical injury should preclude the remedy of medical monitoring in environmental contamination cases. The factors he considered included the purpose of the physical injury rule, the possible definitions of physical injury, including those found in relevant portions of the Restatement (Second) and Restatement (Third) of Torts, the availability of equitable remedies, Vermont statutory law, and cases from other jurisdictions rejecting and permitting medical monitoring. After extensive analysis and discussion, the court concluded that “this is the type of case in which Vermont decisional law will follow cases permitting proof of the elements of a medical monitoring remedy.” Id. (Those elements are briefly identified in the conclusion, below.)

Decatur, Alabama, PFAS Litigation

Three months later, on March 26, 2020, U.S. District Court Judge Abdul Kallon of the Northern District of Alabama held in Lindsey v. 3M Co. that “because the Plaintiffs do not allege a present injury, they cannot recover for costs associated with diagnostic testing. Any claims for remedies of these costs are due to be dismissed.” Civil Action No. 5:15-cv-01750-AKK (N.D. Ala. Mar. 26, 2020).

Lindsey is a putative class action brought by owners and possessors of properties in the Decatur, Alabama, area who allegedly consumed PFAS-impacted water supplied by local water utilities. The impacts are alleged to have been caused by discharges of PFAS compounds from a 3M facility into the Tennessee River. The plaintiffs allege personal injuries from exposure to PFAS, including elevated levels of PFAS compounds in their blood serum. They were seeking damages “in the form of the cost of diagnostic testing to determine the harm from their exposure to Defendants’ toxic chemicals.” Id. The defendants moved to dismiss the claims for diagnostic testing because “Alabama does not recognize such a claim without a present physical injury.” Id.

Judge Kallon dealt with the issue quickly, issuing an eight-page decision dismissing any claims associated with diagnostic testing because the plaintiffs did not allege a present physical injury. The court held that “Alabama law requires that plaintiffs currently have a disease as a result of exposure in order to recover in tort.” Id. (emphasis in original).

The court relied on the Alabama Supreme Court’s 2001 decision in Hinton v. Monsanto Co., in which a similar claim for “medical monitoring” without a “manifest, present injury” was denied. Id. (quoting Hinton, 813 So. 2d 827, 829 (Ala. 2001). An increased risk of harm was not enough to support the plaintiffs’ claims. In Hinton, the Alabama Supreme Court stated that “we acknowledge that other jurisdictions have recognized medical monitoring as a distinct cause of action or as a remedy under other tort causes of action, even in the absence of a present physical injury.” Id. (quoting Hinton, 813 So. 2d at 829).

Hoosick Falls, New York, PFAS Litigation

Finally, on May 18, 2020, the Second Circuit held, in Benoit v. Saint-Gobain Performance Plastics Corp., that a “clinically demonstrable presence of toxins” in the plaintiff’s body was enough to satisfy the required allegation of physical injury, and that the “plaintiff may be awarded, as consequential damages for such injury, the costs of medical monitoring.” 959 F.3d 491, 501 (2020).

The plaintiffs in Benoit are residents of the Village of Hoosick Falls, New York. They brought personal injury and property damage claims against the current and former owners of a manufacturing facility that used and disposed of PFOA in a manner allegedly causing contamination of the village drinking water supply. The plaintiffs allege that they have elevated levels of PFOA in their blood, causing an increased risk of serious health problems. They are seeking, among other requests for relief, an order establishing a medical monitoring protocol.

The district court had denied the defendants’ motion to dismiss, in which they argued that “mere accumulation of elevated levels of PFOA in the blood did not constitute physical injury and that the personal injury claims of those plaintiffs who could not allege more than such an accumulation should be dismissed.” Id. at 497.

The Second Circuit had to consider New York Court of Appeals precedent in Caronia v. Phillip-Morris USA, Inc., where the court rejected an independent cause of action for medical monitoring for cigarette smokers seeking costs for early detection of lung cancer. The court did not abandon the physical injury test but looked critically at Caronia and other relevant precedent to evaluate what constituted “physical injury.” The court stated the following:

[W]e interpret Caronia II’s recounting of the general New York tort law principles, together with its apparent approval of the test enunciated in Abusio—“clinically demonstrable presence of [toxins] in the plaintiff’s body, or some indication of [toxin]-induced disease, i.e., some physical manifestation of [toxin] contamination”—to mean (a) that an action for personal injury cannot be maintained “absent allegation of any physical injury”; (b) that it is, however, sufficient to allege “some injury”; and (c) that the meet the requirement to plead “some” physical injury, it is sufficient to allege that “in the plaintiff’s body” there is either a “clinically demonstrable presence of toxins” “or some physical manifestation of toxin contamination.”

Id. at 501 (quoting Caronia, 22 N.Y.3d 439, 982 N.Y.S.2d 40, 5 N.E.3d 11 (2013) (emphasis added by Benoit).

The Benoit plaintiffs had alleged that the village water supply contained high levels of PFOA (as high as 18,000 ppt), they had been exposed to PFOA by consuming the village drinking water, and as a result they had elevated PFOA levels in their blood. The court concluded that “the observable and measurable presence of that toxin in the blood clearly passes the Abusio threshold for what constitutes personal injury sufficient under New York law to ground a tort cause of action.” Id. at 501–02.

 Conclusion

These PFAS cases show that the availability of medical monitoring for plaintiffs who have been exposed to toxins but have not suffered a present physical injury (or at least an injury in the traditional sense) varies throughout the country.

Courts allowing plaintiffs to seek such a remedy often require proof of several elements, including that there has been an exposure due to the defendant’s tortious conduct, that such exposure increases the risk of getting a disease, that testing is reasonably necessary, and that early detection and treatment are possible and beneficial.

But before courts will entertain evidence as to these elements (usually involving expert testimony), the plaintiff usually must first survive a motion in which the defendants will argue that a claim for medical monitoring cannot be brought unless the plaintiff has a present physical injury. The outcome of such a motion may depend on where you live.

James P. Ray is a partner in the Environmental, Energy & Telecommunications Practice Group at Robinson & Cole LLP in Hartford, Connecticut.

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