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.