American Journal of Law & Medicine

Medical monitoring damages: issues concerning the administration of medical monitoring programs.

Toxic disasters violate all the rules of plot. Some of them have clearly

defined beginnings, such as the explosion that signaled the emergency

at Chernobyl . . . but [they] never end. Invisible contaminants remain

a part of the surroundings-absorbed into the grain of the landscape,

the tissues of the body, and, worst of all, into the genetic material of

the survivors. An `all clear' is never sounded. The book of accounts is

never closed.(1)

I. INTRODUCTION

Toxic torts present the traditional American tort structure with terribly difficult problems. The special nature of toxic torts and the corresponding inadequacies of the classic tort structure have been the subject of a wealth of legal commentary.(2) The traditional common law tort system evolved from an effort to "address conflicts raised by simple, straightforward traumatic injuries.(3) Environmental injuries from toxic substances,(4) however, often entail diseases that have a significant latency period before manifestation.(5) That is, a person exposed to one or more hazardous substances might not discover her illness for many years, perhaps in the tragic form of birth defects in her children. Additionally, while certain diseases manifest themselves after exposure to certain environmental toxins, it is often impossible to establish a direct causal link between a specific toxin from a specific source, and a specific injury.(6) Part 11 of this Article outlines the types of causal uncertainty common in toxic tort litigation. It also briefly examines how such departures from traditional tort injuries frustrate the confident determination and assignment of liability.

Toxic torts also present difficult issues beyond those associated with establishing liability. Specifically, one of the more problematic areas of hazardous substance litigation involves the appropriate damages award flowing to a prevailing plaintiff or plaintiff class. Indeed, as a preliminary matter, variations in latency periods ensure that an uncertain number of exposed individuals might contract some form of toxin-induced disease. Thus it becomes a practical impossibility to construct a completely representative plaintiff class.(7)

In response to this problem, and to the more general problem of awarding damages amidst causal uncertainty, legal commentators and some courts advocate the use of "medical monitoring damages."(8) Toxic tort victims need a form of damages that realistically, consistently and adequately addresses their needs. Medical monitoring seeks to do this by collecting and disbursing funds that enable individual plaintiffs to receive ongoing diagnostic evaluations.9 The ongoing evaluations are designed to detect the presence of an exposure-related disease at an early stage in its development. This early detection leads to lower substantive treatment costs and better preservation of the victims' health.10

Some courts enthusiastically support medical monitoring, and others balk at the concept.(11) Serious causation problems understandably frustrate many courts. Certain procedural and practical obstacles associated with medical monitoring also present the tort system with extremely difficult challenges.(12)

Judicial cognizance of and respect for medical surveillance damages appears to be growing.(13) The legal commentary on the subject presents a practically united front, arguing vigorously and convincingly for judicial recognition of this damages structure.(14) Part II presents an overview of courts' reservations about implementing medical monitoring damages and of how courts that awarded these damages dealt with some of the related problems.

One may safely stop short of expecting courts to unanimously hail the wisdom of awarding medical surveillance damages in certain cases. Some litigants, however, will successfully argue for these damages, perhaps with growing frequency in the years ahead. This Article therefore addresses the courts' next level of concern: if we recognize the equity of ongoing medical diagnoses in this case, how then are we to administer such a program? Obviously, every medical monitoring damages award will have a different optimal form and level of administration associated with it. This Article advocates a serious, in-depth inquiry of issues surrounding medical monitoring's administrative feasibility, once the plaintiff or plaintiff class succeeds in obtaining the damage award.(15) Part III discusses preliminary administrative concerns surrounding the definition of the plaintiff class and the general level of liability assessed to the defendant. Part IV discusses issues arising during the ongoing management of the damages fund. Part V discusses protections against future insolvency and briefly addresses potential constitutional concerns. In addition to the judges involved, the litigants themselves should have a firm grasp of the administrative issues that might apply to their respective situations.

II. BACKGROUND

A. PROBLEM AREAS THAT TOXIC TORTS PRESENT FOR THE TRADITIONAL TORT STRUCTURE

As mentioned previously, the common law tort system was designed to "address conflicts raised by simple, straightforward traumatic injuries," such as injuries incurred from industrial accidents, explosions, and the like.(16) The typical toxic tort, however, involves some level of scientific causal uncertainty.(17) That is, the injuries that typically stem from toxic exposure (cancer, lymphoma, leukemia, birth defects, etc.) very often have no precisely discernible origin. In general, one can only observe that a group exposed to some toxin experiences more incidences of cancer, for example, than does a similar group that suffers no such exposure. Some cancers are caused by the toxin, some are not; medical science to date affords us no means of determining to a causal certainty which cancers directly result from exposure.(18)

Causation becomes so difficult to determine because reliable evidence is difficult or simply impossible to obtain.(19) At one level, "trans-scientific" uncertainty involves issues "cast in scientific terms [but] not practically amenable to scientific resolution."(20) In other words, evidence obtained through a carefully administered scientific study might not prove reliable if the study itself is founded on incorrect or unprovable assumptions. An example best illustrates this problem: we accept, as a matter of policy, that substances carcinogenic to animals are also carcinogenic to humans.(21) Yet one cannot prove this with any rigor, since humans do not undergo the same testing procedures as do animals.(22)

"Individual attribution characteristics" insert another type of uncertainty into statistical evidence.(23) While statistical evidence addresses certain characteristics of and effects on a group, at some point it fails to address how individuals differ within the group. Individual attributes make some members of the group more susceptible than others to certain diseases.(24) Thus, when individuals do in fact contract a disease (i.e., lung cancer) with several attributable sources (i.e., exposure to asbestos, smoking, living in a smog-ridden urban environment, etc.), then one might not be able to pinpoint the disease's actual source with a high degree of confidence.(25)

Scientists have several sophisticated methods of addressing the uncertainties inherent in toxicological causation.(26) Toxicological evidence may be obtained through "cluster analyses."(27) This entails a "review of `clusters' of cases of rare diseases and a search for a common exposure as a potential cause."(28) A generally more reliable method of gathering toxicological evidence involves short-term molecular assays.(29) This fairly inexpensive and quickly-completed test relies on metabolic similarities between humans and other life forms, such as bacteria.(30) Mutations in bacteria can indicate a substance's toxicity/ carcinogenicity.(31)

Animal bioassays constitute the next level of evidentiary sophistication. These bioassays consist of programs using animals in control groups and in test groups. After subjecting the test group to certain potentially hazardous conditions, scientists compare the traits of the two groups. The scientists then offer general assertions about the effects of a certain toxin on the animals' health, from which they draw conclusions regarding the effects on human health.(32)

Finally, the most sophisticated type of toxicological evidence consists of epidemiological cohort studies.(33) This type of evidence searches for statistical correlations of disease among exposed individuals, in an effort to pinpoint the actual cause of an observed effect.(34) An epidemiological study represents the best evidence of a toxin's capacity to induce a certain disease, but it is an expensive and time-consuming undertaking.(35)

These problems of uncertainty and methods of analysis concern purely causation issues. A plaintiff class foreseeably will face a number of procedural and practical obstacles as well.(36) One such procedural obstacle arises from the latency(37) of the toxic tort injury's manifestation. An exposed individual foreseeably might detect his illness after the applicable statute of limitations has passed.(38) Simply extending the statute of limitations will not sidestep this bar to plaintiff recovery, given that latency periods differ widely among individuals.39 True, completely doing away with the statute of limitations would allow plaintiffs to sue at any point in the future.(40) This remedy, however, contravenes the reasons for having a. statute of limitations at all-encouragement of timely adjudication and provision for defendants' eventual peace of mind.(41) The latency phenomenon therefore presents a frustrating problem for the mass tort case; it becomes a practical impossibility to serve the twin goals of speedy adjudication of disputes and accurate, representative compilation of the plaintiff Class.(42)

An injured party may wish to sue for injuries manifesting themselves after a toxic tort claim has been litigated (and liability/damages issues determined). For reasons discussed infra,(43) this plaintiff might argue that he was actually injured at the time of exposure. In this case, the plaintiff might encounter a procedural obstacle known as the "single controversy rule." Judicial economy prefers that all claimants in a lawsuit bring an action together. Accordingly, the single controversy rule bars all future claims resulting from a certain injury, after initial litigation on the issue draws to a close.(44) Consistent with traditional tort doctrine, the underlying assumption here rests with the concept that a potential plaintiff suffered an immediate, traumatic injury.

Heavy practical obstacles also confront potential claimants in the toxic tort scheme. After a sizeable latency period, plaintiffs might find it practically impossible to identify the correct parties to sue. This obstacle grows even more formidable in the context of covert, illegal dumping. Additionally, once the plaintiff identifies the allegedly culpable party, that party may be out of business and therefore unreachable under traditional tort laws. Also, extremely burdensome litigation expenses might prevent a plaintiff class from suing,(45) especially considering the typically lower-income neighborhoods that end up suffering from toxic exposure.46

B. PROPOSED SOLUTIONS TO THE TOXIC TORT PROBLEM

Many different proposals advocate partial or total reform of the toxic tort system. Professor Michael Green calls for the abolition of statutes of limitations applicable to the toxic tort plaintiff.(47) Others suggest replacing the traditional lay jury with a panel of qualified and impartial experts.48 Some commentators feel that administrative agencies, as opposed to Article III courts, often constitute a more appropriate forum in which to adjudicate toxic torts.(49)

The American Law Institute ("ALI") published a Reporters' Study that argued for multi-faceted reform. In addressing problems of environmental liability, the study advanced four "interrelated and mutually dependant proposals."(50) First, ALI advocates the "use of science panels and court-appointed experts to assist courts with difficult causation issues."(51) Second, ALI advocates relaxing statute of limitations requirements, in conjunction with careful use of strict liability standards.(52) Third, ALI calls for compensation to individual plaintiffs based on their "attributable fractions' of disease.(53)

Fourth, and of central concern here, in order to "provide a vehicle for early litigation over tortious exposure creating substantial risk of long-latency disease, [ALI proposes] awarding medical monitoring damages to fund appropriate surveillance and investigation of the path followed by the disease within the exposed population."(54) Proponents of medical monitoring damages argue that medical diagnostic costs do not constitute compensation for only a risk of incurring disease. Rather, the exposure itself constitutes the injury, thereby necessitating the plaintiff's submission to "medical tests which she would not have undergone but for her exposure to the toxic substance."(55) As a partial solution to the toxic tort problem, the driving rationale behind ongoing medical surveillance lies in arresting future, ever-accumulating damage to exposed (and diseased) individuals. This damage manifests itself in a greater degradation of health and in the attendant increase of medical treatment costs associated with letting a disease exacerbate over time.(56)

C. JUDICIAL RESPONSE TO MEDICAL MONITORING DAMAGES(57)

Courts have responded to the option of medical surveillance damages with varying degrees of enthusiasm. Certain issues consistently crop up as sticking points for courts hostile to medical monitoring claims. Plaintiffs that premise their basis of recovery solely on an increased risk of injury typically do not recover medical monitoring damages.(58) Some courts do not require plaintiffs to establish that future injury is reasonably certain to occur, but rather that clinical examination is deemed medically appropriate.(59) For example, in Friends for All Children, Inc. …

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