Medical Monitoring Claims

The August 9-15, 2004 issue of the Chemical Market Reporter published a report of court action in Michigan pertaining to speculative medical monitoring claims.  At issue is the present liability to be associated with the potential development of a medical condition, and medical monitoring related thereto.

The American Chemistry Council (ACC) is urging the Michigan Supreme Court to reject claims for ongoing medical monitoring by plaintiffs who are not injured.

In a brief filed last week, the ACC urged the court to overturn a lower court's order allowing medical monitoring in the case of Henry v. Dow Chemical Company.  The brief argues that the lower court order, if allowed to stand, would have a significant adverse effect on plaintiffs who have suffered an injury, the state court system, and the business community.

The issue presented in this case is whether the State of Michigan permits individuals who have been exposed to a potentially hazardous substance, but who are not actually injured, to bring a lawsuit for "medical monitoring."

Unlike traditional lawsuits, such claims would not require any showing of a present, physical injury. Instead, plaintiffs could obtain monetary awards based on a speculative potential of the plaintiff developing a medical condition in the future.

Despite two separate decisions by the Supreme Court of Michigan in 1993 and 1998 rejecting such claims, lower courts have at times wither ignored those decisions or taken advantage of perceived ambiguity in the language to allow medical monitoring claims to move forward.

The brief notes that in the few jurisdictions that permit medical monitoring claims, such as West Virginia, entrepreneurial plaintiffs' lawyers have brought lawsuits on behalf of thousands of healthy individuals. It says one West Virginia Supreme Court Justice has stated that the practical effect "is to make almost every [resident] a potential plaintiff in medical monitoring cause of action."

If the Supreme Court of Michigan does not take action, the brief cautions, "Michigan courts could become clogged with speculative medical monitoring claims." As a result, "access to justice for those with present, serious, physical injuries may be delayed or denied."