In two recent decisions, courts have continued to preclude “classic” tort claims without proof of a current symptomatic condition and to place substantial limits on medical monitoring clams under state common law. In Benoit v. Saint-Gobain Performance Plastics Corporation, No. 17-3941 (2d Cir. 2020), the Second Circuit affirmed a district court’s denial of defendants’ motion to dismiss medical monitoring damages based on personal injury but cast significant doubt of the viability of such relief in the absence of any physical manifestation of exposure.  And in Letart v. Union Carbide Corporation, No. 2:19-cv-00877 (S.D. W.Va. 2020), the Court granted a motion to dismiss plaintiffs’ common law claims but allowed medical monitoring claims related to ethylene oxide (“EtO”) emissions to proceed, yet without addressing or determining whether the plaintiffs can meet the evidentiary requirements for such claims. 

On May 18, 2020, in Benoit, the Second Circuit affirmed the district court’s denial of defendants’ motion to dismiss medical monitoring claims based on physical injury related to perfluorooctanoic acid (“PFOA”).  However, the Court’s decision was grounded on the fact that the plaintiff alleged a “physical manifestation of or clinically demonstrable presence of toxins in the plaintiff's body,” which itself was sufficient to state a personal injury claim.  To recover damages for medical monitoring, the Court held that under New York law one must establish that there is an existing physical consequence present, and not merely a fear of future illness or injury.   

Just as importantly, the Court did not rule on whether mere injury to property was sufficient to give rise to medical monitoring damages.  Indeed, the Court called into question the plaintiff’s reliance on imprecise language in an earlier New York case, and instead noted that there was no precedent for medical monitoring as relief where there was no finding of personal injury.  Thus, the Court concluded that “whether New York law will allow medical monitoring to be ordered solely on the basis of damage to property is unclear, but that that issue is not ripe for resolution.” 

In West Virginia, the plaintiffs in Letart claimed that the defendant has been emitting EtO, an allegedly hazardous air pollutant, into the surrounding community since the late 1970’s and that the class members living in the vicinity of defendant’s plant are more likely to develop cancer. Under West Virginia law, the presence of a toxic substance in one’s blood is not sufficient to establish a justiciable injury, nor does increased exposure to a toxic substance create the requisite showing that it is “reasonably certain plaintiffs would develop future injuries.”  Therefore, the court dismissed the plaintiffs’ claims under traditional tort theories of negligence, willful and wanton conduct, and ultrahazardous activity/strict liability.  The class’s medical monitoring claim, however, survived the motion to dismiss because of the Court found that West Virginia law does not require plaintiffs to establish present physical harm resulting from the tortious exposure in order to bring the claim.  Rather, the Court held that the Complaint alleged facts that made it “plausible” that  there was “an exposure to a harmful substance and the concomitant need for medical testing,” which was sufficient for the claim to proceed.  Nevertheless, while the cause of action survived the pleading stage, the plaintiffs will still face a significant factual and evidentiary burden in establishing that there is a sufficient likelihood of developing an illness for which regular medical testing is appropriate.

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