The Alabama Supreme Court's ruling on the question of medical monitoring earlier this month in an Anniston PCB-related lawsuit answered one simple question: Can plaintiffs sue for medical monitoring on the basis of hazardous exposures, if they aren't already hurt?
The justices all agreed the answer is no.
Their vehement, 12-page opinion favoring Monsanto Co. will likely be cited in future medical monitoring cases all over the United States. "As more and more states address this issue, this is going to be a case that defendants point to regularly," said legal expert Dr. Andrew Klein, author of an often-cited essay, "Rethinking Medical Monitoring."
His essay was cited by the Products Liability Council, Inc., based in Washington, D.C., in its plea to the state Supreme Court on behalf of Monsanto Co., which was sued for the expense of medical monitoring for local residents exposed to PCBs. PCBs and many other chemicals are believed to increase a person's risk of cancer and other diseases long after the exposures occurred.
Klein and many others have mixed feelings about medical monitoring, even though the concept is capturing plenty of attention from the public health community. Several states have already passed legislation for "environmental health tracking" for certain diseases and health problems, like asthma and birth defects. Also, the Centers for Disease Control is now using a technique called "biomonitoring" to directly measure chemicals in human blood and urine samples.
Most experts will agree that medical monitoring is an appropriate cause for legal action, or as a remedy, under certain severe circumstances - such as a hazardous exposure known to result in a specific disease. Some, like Klein, support the concept, but feel it should be handled by state legislatures rather than the courts.
However, the picture that gets painted in courtrooms is much more stark. In their attempts to discredit medical monitoring claims, defendants and business associations typically groan about a coming "flood" of frivolous lawsuits or depict medical monitoring as "junk science."
One example of this occurred last month, when Stan Starnes, legal counsel for the Alabama Medical Association, argued on behalf of Monsanto Co., telling the Alabama Supreme Court that the concept of medical monitoring is bogus.
His tone was typical - in that it has been used by corporate defenders in courtrooms all over the country - but it caused some observers to cringe because Starnes represents the medical community.
"You'd think we'd be a little more advanced than this," said Suzi Ruhl, president of the Legal Environmental Assistance Foundation, based in Tallahassee.
In many legal/medical scenarios, monitoring has proven to be beneficial, Ruhl said, citing previous case settlements in Florida and Alabama in which corporations provided funding for monitoring for hypertension. Exposures to DDT (in Triana, Ala.) and consumption of Fen-Phen were linked to an increased risk of heart disease.
In the Triana case, Ruhl explained, clinicians could measure increases of triglyceride in blood samples, a side effect of DDT exposure which can result in hypertension.
The responsible party for DDT contamination, Olin Chemical Co., established a $5 million fund for the exposed population which, 20 years later, is still doling out financial aid for medical screenings.
In the Monsanto case, the Alabama Supreme Court did not avail itself of the opportunity to create protocols for medical monitoring, as other states have done, Klein said.
"Other courts have done a number of things to address it," he said. For instance, they have established thresholds in order eliminate frivolous lawsuits, including but not limited to: how serious is the risk of exposure to this particular toxin; how greatly is the chance of disease elevated by the exposure; whether there are suitable mechanisms available to screen and prevent the disease; and when a recovery is justifiable, whether the plaintiffs should be given a lump sum or a perpetual fund.
Critics of the Alabama Supreme Court decision say the court was not fully to blame, because the justices were handicapped by a "bad question."
Whether there are appropriate techniques to monitor for PCB or other hazardous exposures was never discussed. Neither was the open question of whether plaintiffs can sue for medical monitoring as a "remedy."
"There are a good many courts who have ruled that the need for medical monitoring, itself, constitutes a personal injury," Klein said.
However, all the court was asked to do was answer: "Does a complaint which does not allege any past or present personal injury to the plaintiff state a cause of action for medical monitoring and study?"
The justices decided to keep with current Alabama law, which requires a "manifest, present injury" before a plaintiff may recover civil penalties.
"Although we acknowledge that other jurisdictions have recognized medical monitoring as a distinct cause of action or as a remedy
even in the absence of a present physical injury, we do not and need not know how such jurisdictions coordinated that recognition with the traditional tort-law requirement of a present injury," the justices wrote in their majority opinion, published Sept. 14.
Although Monsanto has already begun to use the court's decision in other local PCB cases, some feel the court's ruling was ineffectual and, at worst, inconsiderate.
"I disagree with their analysis and the depth of their analysis," said Shane Luckado, an attorney with Shelby & Cartee, the Birmingham law firm that brought the medical monitoring case to federal court in 1999.
"While I respect the function of the court, it is obvious they wrote the opinion to accomplish an end and that they did not consider the interests of Alabama citizens at all," Luckado said. "The opinion fails to recognize that the people in Calhoun County Alabama have suffered economic harm because of their exposure."
As many special interests - such as the Products Liability Council - have joined manufacturers in counterattacks against medical monitoring claims, at least three other states - Nevada, Louisiana and Kentucky - have reached similar conclusions as Alabama's highest court did, all within the last two years.
Those states have looked to the U.S. Supreme Court, which ruled in 1997 that a federal employee must allege "present injury" in order to recover the expenses of medical monitoring.
"I think that Alabama has joined the most current trend," said Adam Peck, an attorney on Monsanto's legal team.
Meanwhile, environmentalists like Ms. Ruhl hope concepts of medical monitoring and scientific knowledge about toxins will one day conquer legal terms like "present injury."
"The law has not caught up with the science," she said. "There is a latency period for toxic chemicals."
Most important, she said, is the need for free medical services in polluted communities like western Anniston.
"If you want to revitalize blighted communities, you have to have healthy people."
Monsanto recently agreed, as part of a $40 million settlement in the Owens v. Monsanto case, to provide $3.5 million over a period of four years for a western Anniston health foundation and a $6 million trust fund for minors in the case. Plaintiffs' attorneys had envisioned a health subsidy program, like the one established for DDT victims in Triana. "But it's still up in the air," said attorney Drew Wright, one of the plaintiffs' attorneys.
Medical monitoring will not be part of the program, Peck said. The fund is "not an endorsement of that concept."
