By Scott Lauck
Acknowledgment came for the first time last week that groups exposed to toxins but displaying no injuries can form class-action lawsuits seeking money to monitor their medical progress.
The court on March 20 reversed and remanded the St. Louis City Circuit Court's denial of class-action certification in Lani Meyer, By and Through Her Next Friend, Rebecca Coplin v. Fluor Corporation, et al. A group of about 200 children in Herculaneum is suing the Doe Run lead smelter located near where they've grown up. The Missouri Department of Health found in 1993 that the smelter posed a threat to public health.
The plaintiffs are suing under the tort theory of medical monitoring. In such a suit, plaintiffs seek damages not for the harm done to them but rather to cover the costs of determining if harm has been done to them. It's similar, supporters say, to a victim of a car crash undergoing x-rays to see if anything has been broken and recovering the costs of those diagnostics even if nothing turned out to be wrong.
Medical monitoring suits have been accepted in some states, rejected in others. Whether such a suit represents common-sense evolution of the law or a potentially disastrous expansion of tort law that was better left to the Legislature depends on whom you ask.
Kevin Hannon a lawyer from Denver who is heading up the case and has worked on cases in Herculaneum since 1995, called it "very much a groundbreaking decision."
"I think what this does is put Missouri at the top in terms of courts that have given thoughtful consideration to what the elements of medial monitoring are," he said.
Edward "Chip" Robertson of Bartimus, Frickleton, Robertson & Gorny, who argued the lawsuit before the court in January, said in his view medical monitoring suits keep the law abreast of society.
"People that don't like it are going to suggest it's new and it's activist judges, or whatever the phraseology is these days," said Robertson, a former Supreme Court judge. "But this is a common-law cause of action. It's what the courts have done for hundreds of years, not only here but in England. It's exactly what the court should consider doing when faced with the kinds of new injuries that our modern technology can foist on people who are exposed to the hazards of some of those technologies."
When the case was argued in January, it drew interest from free-market groups who argued that a major expansion of tort law should be left in the hands of the legislature, rather than the courts, and that recognition of medical monitoring suits would invite economic disaster. The Reston, Va.-based Product Liability Advisory Council, for instance, said in an amicus brief that recognizing medical monitoring would bring "meritless litigation and waste of Missouri's resources." The group's local representative didn't return a call seeking comment.
Attorneys for Doe Run have previously argued that allowing such suits is a "significant departure from existing Missouri tort principles." Calls to attorneys for the company were not returned.
Tort law has 'evolved'
In its 4-3 opinion signed by Judge Richard Teitelman, the court wrote that "widely recognized" tort law, premised on plaintiffs showing present injuries, can't effectively deal with injuries that won't show up for months or years, and that as a result the law has "evolved." The opinion cites supporting decisions in 13 others states.
"Recognizing that a defendant's conduct has created the need for future medical monitoring does not create a new tort," the court wrote. "It is simply a compensable item of damage when liability is established under traditional tort theories of recovery. Recovery for medical monitoring damages is thus consistent with a touchstone of Missouri law, the principle that a plaintiff is entitled to full compensation for past or present injuries caused by the defendant."
Although the court allowed for the class-action suit to proceed, it declined to establish exactly what plaintiffs must prove to recover medical monitoring damages.
The circuit court decision had denied the class-action certification because it concluded that the plaintiffs have more individual issues than common ones. The Supreme Court held that those issues had to do with personal injuries, which didn't matter in this suit.
"Under this theory of liability, the individual factors identified by the circuit court are not particularly relevant because the need for monitoring is based on a common threshold of exposure," the court said. "Whether Plaintiff is able to prove this theory is, at this stage, irrelevant because the sole issue is whether Plaintiff met the requirements for a cause of action, not whether Plaintiff will ultimately prevail.
Judge Teitelman's majority was joined by Chief Justice Michael Wolff and Judges Laura Denvir Stith and Ronnie White. Judges William Ray Price and Mary R. Russell dissented, as did Judge Stephen N. Limbaugh Jr. in a separate opinion.
The dissents do not give an opinion on medical monitoring suits. Instead, they focus on the fact that the named plaintiff in the case, Lani Meyer, wasn't typical of the class, as she has filed a separate personal injury lawsuit - "an undeniable admission that the interest of the class and her own interests are not the same, but are in conflict."
Impact unclear
Robertson said he thinks the effects of the law will be "far more limited than the doom criers will suggest," noting that such lawsuits only work in situations where there has been some kind of mass injury that won't show itself for a long time.
"It's not going to be one of those causes of action that's going to be grabbed and run with by a lot of folks," he said.
Hannon said he is also involved in a class-action lawsuit in St. Francois County that could benefit from the ruling. Apart from that, he predicted that other states would look to Missouri's decision for guidance.
"I don't think there's any medical monitoring decision that has occurred that hasn't analyzed the medical monitoring law of other states," he said.
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March 26, 2007
