Complex Litigation: Medical Monitoring

Abstract

Commentary and analysis of the emergence of the medical monitoring class in mass tort litigation under various Rule 23 provisions. Plaintiffs seek certification of a medical monitoring class when claimants have been exposed to a toxic substance or have used a medical device but may not manifest a medical condition or injury until years later. Plaintiffs have sought medical monitoring in various mass tort cases, including exposure to radioactive nuclear substances, polychlorinated biphenyls (PCBs), asbestos, lead paint, and other chemical contamination. Plaintiffs also have sought medical monitoring in actins relating to heart valves, pacemakers, and tampons. In seeking a medical monitoring class, plaintiffs typically request that the defendant create a fund to bear the expense of future medical monitoring of the class members’ conditions. The article reviews the ways in which federal and state courts have dealt with requests for certification of medical monitoring classes, including appropriate characterization as a claim or a form of relief. The article focuses on the decision from the Pennsylvania Supreme Court, in Redland Soccer Club Inc. v. Department of the Army, in which the court recognized a claim for medical monitoring, setting forth the elements of this claim. The article also discusses other medical monitoring decisions in Day v. NLO, 144 F.R.D. 330 (S.D. Ohio 1992) (approving a medical monitoring class) and Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998) (affirming decertification of a medical monitoring class). Finally, the article explores whether plaintiffs have a Seventh Amendment right to a trial by jury of medical monitoring class claims.