by Samuel Goldblatt, Laurie S. Bloom and Andrew M. Burns
Medical monitoring claims were virtually unheard of twenty years ago. While asserted with increasing frequency, courts still grapple with basic issues surrounding these claims. These issues include whether there is an independent cause of action for medical monitoring; whether a present physical injury is required; whether the claim is appropriate for treatment as a class action; what statute of limitations applies and how accrual is determined; and whether the claim is strictly a creature of common law or has a basis in federal law, specifically CERCLA, 42 U.S.C. §9601 et seq.
I. Is There an Independent Cause of Action for Medical Monitoring?
1. Definition of Medical Monitoring Claim:
A medical monitoring (or medical surveillance) claim seeks to recover the quantifiable costs of periodic, future medical examinations intended to detect the onset of latent injuries or diseases caused by exposure to toxic substances. The purpose of such a claim is to facilitate early diagnosis and treatment. When asserting a medical monitoring claim, plaintiffs generally do not seek a lump sum damage award. Rather, they seek the establishment of a judicially administered fund to cover the extra costs of the medical monitoring and testing that is reasonably certain to be required as a result of the exposure to the toxic substance. The claim is often pled both as a request for injunctive relief to establish and administer the fund and as a request for money damages. See generally Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987); Miranda v. Shell Oil Co., 15 Cal. Rptr. 2d 569 (5th Dist. 1993).
2. Contrast with Similar Claims:
Increased or enhanced risk of future harm. An increased or enhanced risk claim seeks damages for the increased risks to plaintiff’s well-being by developing cancer or other diseases even though the plaintiff is suffering no present, physical injury or disease. Thus, an enhanced risk claim seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur. See generally In re Paoli R. Yard PCB Litigation, 916 F.2d 829, (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991); Ayers, 525 A.D.2d at 304. Fear of developing a serious injury or disease. A fear of future of disease claim seeks damages for the present emotional distress resulting from a plaintiff’s fear of contracting a future disease (typically cancer) proximately caused by exposure to a disease-causing agent or substance. See generally Simmons v. Pacor, Inc., 674 A.2d 232 (
3. Present Physical Injury not Required:
Many courts have recognized or upheld a medical monitoring claim despite the fact that the plaintiff has not yet suffered a physical injury, and may never suffer a physical injury.
One of the earliest cases discussing medical monitoring was Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984). There, suit was brought on behalf of 149 Vietnamese orphans who survived an airplane crash. Although the orphans did not display any physical symptoms, plaintiffs alleged that the orphans suffered from a neurological disorder known as Minimal Brain Dysfunction (MBD) as a result of cabin decompression and the impact of the crash. Plaintiffs sought injunctive relief to compel Lockheed to create a fund from which the costs of various diagnostic examinations could be drawn. Lockheed argued that such a cause of action was not cognizable without proof of an actual physical injury. In concluding that proof of an actual injury was not required, the D.C. Circuit hypothesized the following simple, everyday accident:
Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.
Friends For All Children, 746 F.2d at 825. Given the hypothesis, the court concluded that even in the absence of a physical injury, Jones should be entitled to recover the cost for the various diagnostic examinations proximately caused by Smith’s negligent action. The court accepted plaintiffs’ evidence that the orphans were at increased risk of brain damage as a result of the crash, and that they had a need for periodic diagnostic tests. Accordingly, the court ordered Lockheed to pay for the costs of the tests.
Another early case addressing medical monitoring is Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987). Ayers involved claims by 339 residents who alleged that their well water was contaminated by toxic pollutants leaching from a landfill established and operated by the defendant. Among other things, the jury awarded plaintiffs $8,204,500 to cover the costs of annual medical surveillance that plaintiffs’ expert testified would be necessary because of plaintiffs’ increased susceptibility to cancer and other diseases. The New Jersey Supreme Court upheld the medical monitoring award:
We hold that the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary….
We find the proofs in this case were sufficient to support the trial court’s decision to submit the medical surveillance issue to the jury, and were sufficient to support the jury’s verdict.
(Ayers, 525 A.2d at 312-313.)
The court also noted that the use of court-supervised fund to pay medical monitoring claims, rather than a lump-sum verdict award, would generally be more efficient, and should be the general rule unless it was shown that it would be impractical or inappropriate in the particular case.
In In re Paoli R. Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990), numerous plaintiff who either worked or lived adjacent to the Paoli railroad alleged that they suffered from a variety of illnesses as a result of exposure to PCBs on the site. Among other things, plaintiffs asserted a medical monitoring claim. After analyzing the various cases discussing the issue, the Court predicted that
Medical monitoring claims acknowledge that, in a toxic age, significant harm can be done to an individual by a tortfeasor, notwithstanding latent manifestation of that harm. Moreover, as we have explained, recognizing this tort does not require courts to speculate about the probability of future injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate. Allowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals by defendants and encourages plaintiffs to detect and treat their injuries as soon as possible. These are conventional goals of the tort system as it has long existed in
In re Paoli, 916 F.2d at 852. See also Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996) (Supreme Court of Pennsylvania recognized cause of action for plaintiffs diagnosed with asbestos-related asymptomatic pleural thickening); Redland Soccer Club, Inc. v. Department of the Army and Dept. of Defense, 696 A.2d 137 (Pa. 1997) (recognizing claim for plaintiffs who played soccer on site previously used as toxic waste dump).
Numerous other cases have also held that a medical monitoring claim could be asserted absent a present physical injury:
4. Need for a Present Physical Injury:
Some courts have rejected medical monitoring claims where plaintiffs are asymptomatic. In Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 1997 U.S. Dist. LEXIS 3867 (1997), the Supreme Court addressed whether an asymptomatic railroad worker negligently exposed to asbestos could recover medical monitoring costs under the Federal Employers Liability Act (FELA), 45 U.S.C. §51 et seq. After reviewing those cases that have permitted such actions, the Court concluded that the plaintiff had failed to show that he was legally entitled to recover medical monitoring costs based on policy considerations:
[T]ens of millions of individuals may have suffered exposure to substances that might justify some form of substance—exposure-related medical monitoring… . And that fact, along with uncertainty as to the amount of liability, could threaten both a “flood” of less important cases … and the systemic harms that can accompany “unlimited and unpredictable liability.”
[W]e are more troubled than the dissent by the potential systemic effects of creating a new, full-blown, tort law cause of action—for example, the effects upon interests of other potential plaintiffs who are not before the court and who depend upon a tort system that can distinguish between reliable and serious claims on the one hand, and unreliable and relatively trivial claims on the other. The reality is that competing interests are at stake … .
We have not tried to balance these, or other, competing considerations here. We point them out to help explain why we consider the limitations and cautions to be important—and integral—parts of the state-court decisions that permit asymptomatic plaintiffs a separate claim for monitoring costs.
This limited conclusion disposes of the matter before us. We need not, and do not, express any view here about the extent to which the FELA might, or might not, accommodate medical cost recovery rules more finely tailored than the rule we have considered.
(Buckley, 1997 U.S. LEXIS 3867 at *33-37.)
Other cases have also concluded that plaintiffs must be suffering a present physical injury to assert a medical monitoring claim:
5. Elements of a Medical Monitoring Claim:
In general, the following elements are required to prove a claim for medical monitoring:
See, e.g., In re Paoli, 916 F.2d at 852 (3d Cir. 1090); Hansen, 858 P.2d at 979.
II. Class Action Treatment of Medical Monitoring Claims.
Often, medical monitoring claims are presented as class actions on behalf of a group of persons claiming exposure under similar circumstances or from a single source. Whether such claims are appropriate for class treatment is the subject of considerable debate.
1. Class Action Criteria:
In order to obtain class treatment, class proponents must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure (“FRCP”), or the corresponding class action statute of the state in which suit is brought. Most state class action statutes are similar to FRCP 23.
FRCP 23(a) provides that a party seeking class certification must establish each of the following criteria:
If a party successfully establishes all four criteria, it must further demonstrate that at least one of the three requirements of FRCP Rule 23(b) is also present:
2. Class Actions in Mass Torts Generally:
The debate over class action status in medical monitoring claims almost invariably involves the long-standing question of whether mass torts of any kind are appropriate for class action treatment. The general trend in the law is that mass torts are typically not well suited to class treatment.
The Federal Manual for Complex Litigation, Third §33.26 (1995) discusses the propriety of affording class treatment to mass torts as follows:
In general, those mass torts in which general causation has become relatively clear over time are likely to be candidates for large consolidations or even class action treatment. Fairness may demand that mass torts with few prior verdicts or judgments be litigated first in smaller units—even single-plaintiff, single-defendant trials—until general causation, typical injuries and levels of damages become established. Thus, “mature” mass torts like asbestos or Dalkon Shield may call for procedures that are not appropriate for incipient mass tort cases, such as those involving injuries arising from new products, chemical substances or pharmaceuticals.
Medical monitoring claims are relatively new to the tort arena and have not yet achieved “mature tort” status. Courts are still struggling with whether such claims are even legally cognizable (see Section I above), and have not yet addressed their intricacies.
Historically, federal courts have not been favorably inclined toward certifying class actions in mass tort actions where individual issues must be addressed. See, e.g., Barreras—Ruiz v. The American Tobacco Co., 180 F.R.D. 194 (D.P.R. 1998) (denying motion to certify class of cigarette smokers); Fisher v. Bristol-Myers Squibb Co., 181 F.R.D. 365 (N.D. Ill. 1998) (denying certification of class harmed by drug); In re Ford Motor Co. Vehicle Paint Litig., 182 F.R.D. 214 (E.D. La. 1998) (denied class certification motion in mass tort fraudulent concealment case); Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) (class certification requirements not satisfied by proposed class action seeking to achieve global settlement of asbestos claims); Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997) (class allegations dismissed in case of alleged exposure to toxic substances from battery plant); Barnes v. The American Tobacco Co., 176 F.R.D. 479 (E.D. Pa. 1997) (decertifying class of cigarette smokers in
As these cases demonstrate, cases rejecting class treatment generally focus on the necessity for direct proof of individual exposure and risk, the presence of highly individualized defenses and the formidable case management problems presented by class action treatment.
Nevertheless, some courts have expressed a willingness to certify mass personal injury tort cases. See, e.g., O’Connor v. Boeing North Am., Inc., 1998 U.S. Dist. LEXIS 15433 (C.D. Cal. July 13, 1998) (certifying class in toxic tort landfill case); In re Agent Orange, 818 F.2d 145 (2d Cir. 1987) (Second Circuit affirmed certification of a class solely with respect to a class-wide military contractor defense, although court stated that “were this an action by civilians based on exposure to dioxin in the course of civilian affairs, we believe certification of a class action would have been in error”); In re Diamond Shamrock Chemicals Co., 725 F.2d 858 (2d Cir. 1984) (declining to issue a writ of mandamus to decertify Agent Orange class, whose central issue was military contractor defense), cert. denied, 465 U.S. 1067 (1984); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (upheld class certification in toxic tort landfill case); In re Copley Pharmaceutical, Inc. “Albuterol” Products Liability Litigation, 158 F.R.D. 485 (D. Wyo. 1994) (court certified a national class of persons as to the common issues of liability, strict liability, negligence per se, breach of warranties and declaratory relief), reaffirmed, 161 F.R.D. 456 (D. Wyo. 1995).
In Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 1997 U.S. LEXIS 4032 (1997), the Supreme Court, while denying class certification in that specific case, reaffirmed that certification of mass torts is not foreclosed in all cases:
Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 Revision of Rule 23, it is true, noted that “mass accident” cases are likely to present “significant questions, not only of damages but of liability and defenses of liability, … affecting the individuals in different ways.” Ibid. And the committee advised that such cases are “ordinarily not appropriate” for class treatment. Ibid. But the text of the rule does not categorically exclude mass tort cases from class certification, and district courts, since the late 1970s, have been certifying such cases in increasing number.
(Amchem, 1997 U.S. LEXIS at *59-60.)
See also Cook v. Rockwell Int’l Corp., 181 F.R.D. 473 (D. Co. 1998) (decertifying medical monitoring class but refusing to decertify property class stating that mass tort cases are not per se uncertifiable in light of recent case law, including Amchem).
3. Cases Rejecting Class Treatment for Medical Monitoring Claims:
Like mass torts in general, most courts addressing class treatment for medical monitoring claims have rejected class treatment.
In Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242 (4th Dept. 1984), the putative class of plaintiffs claimed the need for medical monitoring due to exposure to toxic waste from the defendants’ landfill located in Niagara Falls, New York. The trial court denied class certification and upon appeal the appellate court affirmed holding:
The fact that the future expense of medical monitoring may be recovered as an element of consequential damages, however, does not mean that in cases such as the one at hand class certification should necessarily be allowed.
…[T]here is no way to determine as a threshold matter the identity of those persons who may need medical monitoring. Thus, plaintiffs have not satisfied their burden of showing the existence of a genuine class and we conclude that certification of a class encompassing persons requiring medical monitoring was properly denied.
(Askey, 477 N.Y.S.2d at 247-248.)
In Kuhn v. Skyline Corp., 1984 U.S. Dist. LEXIS 24589 (M.D. Pa. 1984), the judge who certified the medical monitoring class in In re Three Mile Island (TMI) Litigation, 87 F.R.D. 433 (M.D. Pa. 1980), declined to certify a medical monitoring class for plaintiffs alleging latent injuries from exposure to formaldehyde in mobile homes. Despite meeting the criteria of Rule 23(a), the court rejected class treatment because individual issues would predominate over issues common to the class. In addition, the court held that plaintiffs’ reliance on the court’s earlier certification of a medical monitoring class in TMI was misplaced:
Although we accepted the Magistrate’s recommendation and certified [the TMI] class, and although we stated at the time that a class certification ruling is not the appropriate vehicle for determining whether the plaintiffs have a claim upon which relief can be granted, we will not, for the sake of formalistic consistency, compound an error. The medical monitoring class in TMI never came to fruition … . Upon reflection this court now is of the opinion that had the above-cited settlement not been achieved, the TMI class action would likely have been decertified for reasons similar to those raised by the defendants here.
Dist. LEXIS 24589 at *15.) U.S.
In Brown v. SEPTA (Paoli Railroad Litigation), 1987 U.S. Dist. LEXIS 5095 (E.D. Pa. 1987), plaintiffs sought certification of, inter alia, a medical monitoring class arising out of alleged exposure to PCBs at or from the Paoli railroad yard. The district court denied class certification, largely because medical monitoring claims require individualized inquiries:
In this action, no amount of judicial innovation can overcome the imperfect fit between Rule 23 and the facts of this case, which involve the effect of PCB contamination on a diverse group at varying degrees over a ten-year period.
Any entitlement to this type of relief [medical monitoring] will depend on individualized questions of causation and personal medical history… . Certification of a medical monitoring class in this case would pose great difficulties and create enormous management problems.
Dist. LEXIS 5095 at *4, *38) U.S.
In Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990), vacated in part, 793 F. Supp. 898 (1992), plaintiffs sought to certify a medical monitoring class for residents residing near two sites from which trichloroethylene and other chemicals were allegedly discharged into the environment and the water supply. The court stated that “[t]o recover medical monitoring damages, a plaintiff will have to prove that he or she is at an increased risk of harm… . Such proof is not workable in a class action format.” Werlein, 746 F. Supp. at 912. The court also declined to certify a medical monitoring class against the
In Barnes v. The American Tobacco Company, 176 F.R.D. 479 (E.D. Pa. 1997), aff’d, 161 F.3d 127 (3d Cir. 1998), plaintiffs’ initial attempt to certify a medical monitoring class for cigarette smokers was rejected by the court because plaintiffs could not satisfy the superiority and predominance requirements, and because the relief sought was deemed primarily compensatory as opposed to equitable. Plaintiffs filed an amended complaint and again sought certification of a medical monitoring class. The court, noting that plaintiffs had addressed many of the issues that initially made certification inappropriate, granted certification. Upon defendants’ motion for reconsideration, the court decertified the class, holding that “the individual issues implicated by the facts and circumstances of this case preclude continuing this case as a class action.” Barnes, 176 F.R.D. at 501.
Other courts have similarly refused to certify a class seeking medical monitoring:
4. Cases Granting Class Certification of Medical Monitoring Claims:
Some courts have expressed a willingness to certify medical monitoring classes, although such certifications often do not survive to final disposition, or are conditional.
In In re Three Mile Island Litigation, 87 F.R.D. 433 (M.D. Pa. 1980), the district court certified a medical monitoring class pursuant to FRCP 23(4)(A) for persons claiming damages as a result of Three Mile Island incident. But see Kuhn v. Skyline Corp., 1984 U.S. Dist. LEXIS 24589 (M.D. Pa. 1984) (same court stated that had the case not settled, the class would have been decertified) (discussed above).
In Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991), the court certified a class asserting a medical monitoring claim under FRCP 23(b)(1)(A) arising out of alleged exposures to emissions from defendants’ facility. The court held that the “proof would be virtually identical in each case. It would be neither efficient nor fair to anyone, including defendants, to force multiple trials to hear the same evidence and decide the same issues.” Boggs, 141 F.R.D. at 67.
In Day v. NLO. Inc., 144 F.R.D. 330 (S.D. Ohio 1992), the district court held a medical monitoring class was “certifiable” under FRCP 23(b)(2) for persons who worked at or frequented defendant’s facility and were allegedly exposed to radioactive materials. However, the court rejected plaintiffs’ class definitions and ordered amended class definitions. By subsequent order, the class was properly defined. On defendants’ motion for reconsideration, the court held that defendants had waived their right to oppose class certification and on that basis, reaffirmed the certification. Day v. NLO. Inc., 811 F. Supp. 1271 (S.D. Ohio 1992 ), petition for mandamus denied sub nom., In re NLO, Inc., 5 F.3d 154 (6th Cir. 1993).
In Cook v. Rockwell International Corporation, 151 F.R.D. 378 (D. Co. 1993), the district court certified a medical monitoring class under FRCP 23(b)(2) for persons claiming exposure to radioactive and non-radioactive substances from the Rocky Flats weapons production facility. The Court held that “despite the fact that there would be some issues of individual proof, injunctive relief in the form of medical monitoring would seem appropriate to the class as a whole.” The court later ruled that it was “constrained to reverse” its earlier holding and to decertify the class in light of the Tenth Circuit’s holding in Building and Construction Dep’t. v. Rockwell Int’l Corp., 7 F.3d 1487 (10th Cir. 1993) that medical monitoring relief is “essentially a suit for damages” and thus cannot be considered injunctive relief under FRCP 23(b)(2).
Other cases have also certified class actions asserting medical monitoring claims:
III. What is the appropriate statute of limitations to be applied to a medical monitoring claim?
In general, no special statute of limitations has been created or applied in medical monitoring claims. Rather, the few courts that have addressed the issue of statute of limitations for medical monitoring claims have applied a personal injury statute of limitations to those claims. Thus, if the applicable state statute of limitations is governed by a discovery rule, then that discovery rule is applied to determine whether the medical monitoring claim was timely commenced. See, e.g., Barnes v. American Tobacco Co, Inc., 984 F. Supp. 842 (E.D. Pa 1997) (plaintiffs’ claims for medical monitoring accrued when plaintiffs were placed at a significantly increased risk of contracting a serious latent disease), aff’d, 161 F.3d 127 (3d Cir 1998); Carey v. Kerr-McGee Chemical Corp., 999 F. Supp. 1109 (N.D. Ill. 1998) (court predicted that Illinois would recognize a claim for medical monitoring, that two year limitations period under Illinois’ discovery rule applied, and that plaintiffs claims were time-barred because they knew or reasonably should have known of the potential health hazards [of thorium] more than two years prior to the filing of suit).
IV. Are medical monitoring claims recoverable "response costs" under CERCLA?
1. Nature of Claim:
The majority of medical monitoring claims are asserted in reliance on state common law tort theories. However, some plaintiffs have sought recovery for medical monitoring damages under Section 107 of CERCLA, 42 U.S.C. §9607, arguing that they constitute necessary “response costs” recoverable under CERCLA.
CERCLA provides that responsible parties (that is, persons or entities who allegedly are responsible for releasing or causing the releases of hazardous substances into the environment) may be held financially liable for, inter alia, “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. §9607(a)(4)(B).
The statute does not define “necessary costs of response.” It defines “response” as a “removal action” or “remedial action.” See 42 U.S.C. §9601(23), (24). Cases endeavoring to determine whether medical monitoring claims are “response costs” under CERCLA invariably turn to the definitions of removal action and remedial action for guidance.
Most courts addressing this issue have focused on CERCLA’s overall goal of remediation of hazardous waste sites and have found recovery for costs of medical monitoring to be inconsistent with that goal. Thus, the greater weight (and more recent) authority rejects the contention that private plaintiffs seeking to recover for the costs of future medical monitoring can make a claim for such costs as a “response costs” under CERCLA.
2. Cases Rejecting Monitoring Costs as CERCLA Response Costs:
In Daigle v. Shell Oil Co., 972 F. 2d 1527 (10th Cir. 1992), the Tenth Circuit became the first circuit court to address this issue and concluded that medical monitoring costs are not recoverable as response costs. The court based its conclusions on the following analysis:
The statutory language of CERCLA suggests that “response costs” are those that are incurred in connection with containing and cleaning up hazardous substance releases. The court held that assisting plaintiffs in the prevention or early detection of disease “clearly has nothing to do” with that function. Medical monitoring costs are unlike (categorically) other enumerated response costs such as trenches, fences, etc.
CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR) and vested in that agency the power to assess the health effects of releases and threatened releases of hazardous waste. 42 U.S.C. 9604(i)(6)(A). This not only suggests that Congress did not intend for such costs to be recoverable under CERCLA for private litigants, but also that they are not “response costs” because the mechanism created by Congress is separate and distinct from response costs.
A medical monitoring claim “smacks of a cause of action for damages resulting from personal injury.” Yet, the legislative history of CERCLA reflects a rejection of private damages unrelated to the clean up effort, including medical expenses.
In Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994), the court stated that “we agree with the reasoning of the Daigle court and likewise hold that medical monitoring costs are not response costs under CERCLA.” Specifically, the court held:
The specific examples §9601(23) are all designed to prevent or mitigate damage to public health by preventing contact between the spreading contaminants and the public. Monitoring long-term health has nothing to do with preventing such contact.
(Price, 39 F.3d at 1016-17.)
Other courts have likewise rejected the claim that medical monitoring claims are recoverable as “response costs” under CERCLA:
3. Cases Recognizing Monitoring Costs as CERCLA Response Costs:
A few courts have held that medical monitoring damages are recoverable as response costs under CERCLA. These cases were largely decided before any circuit court expressed an opinion on the subject or are decided on unique facts.
The law applicable to medical monitoring claims is constantly evolving. It can reasonably be expected that claims of this nature will be asserted with increasing frequency and in new and creative forms. The opportunities and challenges to counsel who find themselves embroiled in these claims, either as proponents or opponents, are exciting and diverse.
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