Yes, the per curium opinions in Exxon Mobil Corp. v. Ford, et al., No. 1804, September Term, 2009 (Md. Spec. App Feb. 9, 2012) are over a month old, but at 309 pages, it isn’t light reading.  It takes a while to digest the five different opinions and try to reconcile, in any reasonable fashion, what they say.  And while several issues were addressed by the court, we’re going to focus here on a favorite tort – medical monitoring.

When last we looked at Maryland, whether a medical monitoring claim existed was an undecided issue.  In Philip Morris Inc. v. Angeletti, 752 A.2d 200 (Md. 2000), the court declined to rule on whether medical monitoring is a cognizable claim under Maryland law but a few years later, a federal court sitting in New York predicted that Maryland would permit medical monitoring, either as an independent cause of action or as a component of damages.  In re Methyl Tertiary Butyl Ether Products Liability Litigation, 457 F. Supp. 2d 298 (S.D.N.Y. 2006).  So, does it?  Evidently, yes.  But not here.

Over the course of 37 days, a gas station leaked more than 700 gallons of gas, contaminating the groundwater of 88 households in Baltimore County.  That’s a lot of gas, and the jury and the trial court awarded the plaintiffs over $145 million in compensatory damages for property damage, emotional distress for fear of cancer and medical monitoring.  Although somewhat reduced on remittitur, it was still a lot of money to pay, even for Exxon, so it appealed.   A panel of nine judges heard the appeal.

The  first opinion, in which four judges joined, gets around to the medical monitoring claim at page 60 of its 71 page opinion and holds that “Maryland common law permits a plaintiff to recover damages for the quantifiable costs associated with medical tests and examination necessary to monitor the plaintiff’s health and to facilitate early detection of future diseases made more likely by the defendant’s tortious conduct.”  It also agreed with the trial court that, in order to establish such a claim, a plaintiff must prove “(1) significant exposure to (2) a substance proven hazardous to humans (3) because of the defendant’s negligence, (4) resulting in the plaintiff having a ‘significant increase in risk,’ compared to the general population, or developing a serious latent disease for which (5) there are medical tests making early detection possible, and the tests (6) are not medically necessary for the general population, but (7) are medically necessary for the plaintiff due to the increased risk.”  Phew.  And, the judges joining this opinion found that the plaintiffs had presented sufficient evidence on these elements to support the award for medical monitoring damages.

Ah, but not so fast.  The second opinion, a 203 page tome by Judge James Eyler (not to be confused with Judge Deborah Eyler of the same court) in which one other judge joined, begins the medical monitoring analysis with 10 pages of lengthy block quotes from several cases as well as the A.L.R.5^th, eventually concluding that only a plaintiff who has proven some physical injury, disease symptoms, or, it appears reluctantly, a [presumably increased] probability of contracting a disease in the future, may assert such a claim.  For the purposes of the case, these two judges found that there was insufficient proof of any of these things.  Moreover, although dicta, these judges would limit the remedy to the creation of a medical monitoring fund to be administered by an independent trustee.  Further, there should be no recovery – through the establishment of a fund or otherwise – for the type of disease detection and monitoring that would last the lifetime of each plaintiff.  The establishment of such a fund “should be ordered only in situations in which the claimed monitoring is for a period of time and the evidence demonstrates a level of exposure that would, at the very least, establish a greatly enhanced risk of disease that would manifest itself within that period of time.” 

OK, two opinions down, three to go.  Next is Judge Graeff’s delightfully short opinion, which, in a mere five (5) sentences, states that he agrees that Maryland permits a claim for medical monitoring under the conditions set forth in the first opinion, but that the plaintiffs hadn’t met their burden of proof that they faced a “significantly increased risk” of contracting a serious latent disease. 

So, at the end of the third quarter, there are 7 judges finding that Maryland law supports a claim for medical monitoring, but only 4 of whom find that the elements have been met in the case before the court.

And that’s pretty much where the game ends for the plaintiffs.  Judge Watts, who writes for himself only, refuses to take a position one way or another as to whether Maryland recognizes such claim, but agrees with Judge James Eyler and Judge Graeff that, to the extent such a claim is cognizable, the plaintiffs failed to meet their burden.  And finally, Judge Deborah Eyler, who writes furiously about what she sees as a clearly unjust award on a number of bases, does not even mention the medical monitoring claims, but addresses only the property damage and “fear of cancer” claims.

So, for all that diligent reading, the net result with respect to medical monitoring appears to be that you can move Maryland over to the “yes” column, although whether such a claim (a) requires some physical manifestation of injury or symptom or (b) results in a damage award or the establishment of a medical monitoring fund – among the numerous other issues that arise in any claim for medical monitoring – remains undecided.

If I have the energy, we may return to this decision in a week or two to review how the court dealt with the “fear of cancer” claims but for now, I’m going to rest my eyes.

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