Evidence Of A "Significantly Increased Risk", DD, 3/08

Defense Digest

Pennsylvania - Environmental/Toxic Tort

Evidence Of A "Signficantly Increased Risk" Must Be Established To State A Claim For Medical Monitoring In Pennsylvania
By Thomas C. DeLorenzo, Esq. & Ronda K. O'Donnell, Esq.*

Medical monitoring is a relatively new legal theory for asymptomatic individuals who do not yet have any existing physical injury but who seek the costs of periodic medical examinations necessary to detect the onset of physical harm. The highest courts of only a handful of states have directly addressed a cause of action for medical monitoring. Further, because an individual award for medical monitoring may not, in and of itself, create a significant financial incentive for experienced plaintiffs' counsel to pursue, the plaintiffs' bar typically attempts to certify a class of plaintiffs for medical monitoring in order to "increase the pot," urging courts to establish a fund from which counsel can collect their fees.

In Redland Soccer v. Department of the Army, 548 Pa. 178, 696 A.2d 137 (1997), the Pennsylvania Supreme Court recognized for the first time an independent cause of action for medical monitoring in Pennsylvania. Although the Supreme Court recognized this rather novel cause of action, it put a number of conditions on it. The Court held that in order to prevail on such a claim, a plaintiff must prove each of the following seven factors: (1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant's negligence; (4) as a proximate result of the exposure, the plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.

We recently successfully defended a beryllium manufacturing client in a hotly contested toxic tort case which addressed the issue of what a plaintiff must prove to make out a case for medical monitoring under Pennsylvania law. In Pohl, et al. v. NGK Metals Corporation, et al., 2007 PA Super 306, __ A.2d __ (Pa. Super, October 11, 2007), the Superior Court upheld summary judgment in favor of the defendants (including our client) because the plaintiffs could not establish that they were at a significantly increased risk of contracting a serious latent disease, one of the seven elements required under Pennsylvania law for a medical monitoring claim.

Originally, the three named plaintiffs attempted to bring the case as a medical monitoring class action on behalf of as many as 200,000 present and former residents of the Reading, Pennsylvania, community, arguing that all needed to be medically monitored for potential health effects from beryllium exposure. The plaintiffs alleged that as a result of living in the vicinity of our client's beryllium alloy manufacturing plant, they were at risk of contracting chronic beryllium disease (CBD), a pulmonary disease which can result from inhalation of beryllium dust.

The trial court denied the plaintiffs' motion for class certification, and that decision was affirmed by the Superior Court in Pohl v. NGK Metals, 863 A. 2d 1239 (Pa. Super. 2004). One of the key reasons class certification was denied was because the three named plaintiffs could not prove that they themselves were at a significantly increased risk of contracting CBD. In order to contract the disease, one has to have a genetic susceptibility to beryllium and must be "sensitized" to beryllium (akin to being allergic to the substance). Sensitization is a necessary precursor to CBD; unless one is sensitized, one will not contract CBD. Since the three named plaintiffs had not established that they were sensitized to beryllium, they could not establish that they were even within the class of at-risk people they sought to represent.

After class certification was denied, the three named plaintiffs continued to pursue their individual medical monitoring claims under Redland Soccer. However, the individual plaintiffs still could not offer evidence that they themselves were sensitized to beryllium. We, therefore, moved for summary judgment in the individual cases, contending that in light of this, they could not prove that they were at a significantly increased risk of contracting a serious latent disease, a necessary element of Redland Soccer. The plaintiffs responded by arguing that they were at a significantly increased risk simply by virtue of their alleged exposure to beryllium from the plant and that they did not need to prove that they were sensitized in order to meet the requirements of Redland Soccer. They argued that they should be awarded medical monitoring because they, at some point in the future, might be found to be sensitized to beryllium.

The trial court rejected the plaintiffs' claims and held that because of the nature of CBD, specifically the genetic component to the disease, the plaintiffs could not prove that they were at a significantly increased risk of contracting CBD unless they could prove that they were sensitized to beryllium and were, therefore, capable of contracting the disease. Without this, the trial court found that they could not prove that they had any risk of contracting the disease, let alone a significantly increased risk. Summary judgment was, therefore, granted in favor of the defendants.

On appeal, the Superior Court affirmed. In reviewing the medical expert evidence in the case, the Superior Court noted that the plaintiffs' experts acknowledged that only those individuals genetically predisposed to have an allergic reaction to beryllium may contract beryllium sensitivity upon exposure and that sensitization is a precursor to developing CBD. Further, only a subset of those who become sensitized will actually go on to develop CBD. The court also noted that plaintiffs' expert physician could not positively determine whether the plaintiffs had the genetic make-up to render them susceptible to beryllium. As such, the plaintiffs had failed to produce evidence of facts essential to their cause of action for medical monitoring. Therefore, summary judgment was appropriate.

A cause of action for medical monitoring is still new enough in Pennsylvania that it remains to be seen whether medical monitoring will become a routine theory of liability or damages in the future or whether difficulties in pursuing such claims (as was demonstrated in our case) will cause them to fade away over time.

* Tom and Ronda are shareholders in the Philadelphia, Pennsylvania, office. Tom can be reached at (215) 575-2741 or tcdelorenzo@mdwcg.com. Ronda can be reached at (215) 575-2697 or rkodonnell@mdwcg.com.