One of the key activities of the American Law Institute (ALI) has been the researching, writing, and publication of Restatements.[1] According to the ALI’s website, the basic idea was that the ALI “should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was.” This self-appointed task has a huge influence on the development of the law in the United States, and indeed around the world, mostly for the better. Restatements can and often do reduce uncertainty and eliminate unnecessary complexity and obfuscation. The ALI also holds itself out “promote those changes which will tend better to adapt the laws to the needs of life.” The ALI has thus characterized its Restatements as having a “critical and constructive” goal as well as a clarifying and simplifying function.
This ambiguity in its mission statement makes ALI Restatement provisions occasionally controversial on occasion. Controversy can arise from the ALI’s addressing factual situations “not yet discussed by courts or dealt with by legislatures….” Perhaps more disconcerting, however, are situations that have been addressed by courts and legislatures at length, but where the ALI attempts to impose its policy judgments in place of those that carry the imprimatur of a majority of jurisdictions in the United States.
Take the ALI’s recently proposed “restatement” [sic] of medical monitoring law in the Restatement (Third) of Torts: Concluding Provisions:[2]
“A person can recover for medical monitoring expenses, even absent present bodily harm, if:
(a) an actor’s tortious conduct has exposed a person to a significant risk of serious future bodily harm;
(b) the exposure makes medical monitoring reasonable and necessary in order to prevent or mitigate the future bodily harm;
(c) the person has incurred the monitoring expense, will incur the monitoring expense, or would incur the monitoring expense if he or she could afford it; and;
(d) the actor’s liability is not indeterminate.”
Remarkably, the ALI has “restated” the law of medical monitoring to dispense with the requirement of present injury. The ALI Council Draft claims a slim majority of courts favor the abandonment of a present injury predicate, but the scholarship for this claim is shaky at best, as shown in an important recent article by Mark Behrens and Christopher Appel.[3]
Each subpart of the ALI’s proposed rule is problematic. Subpart (a) creates a requirement of “significant risk of serious future bodily harm.” Although there might be general agreement on what is serious bodily harm, the predicate of “significant risk” is incredibly vague. Risk is undefined, and by all rights should represent a cause ex ante, but the lawsuit industry often uses “risk” to connote a possible cause. At the very least, the ALI should clarify that the risk of subpart (a) is one that would pass muster as a general cause under the relevant substantive and evidentiary law. Furthermore, what might appear to be a “significant” risk, may be trivial. Consider an exposure to amphibole asbestos that doubled the risk of mesothelioma. If the baseline annual risk of mesothelioma were one in a million, the exposed claimant would consequently have a two in a million risk. A doubling of risk sounds significant and ominous, but the absolute annual attributable risk would be one in a million. The rule leaves open whether the significance of risk should be evaluated by subjective reactions of the jury, or some quantitative measure. If the latter, the rule leaves open whether the measure is relative or absolute risk.
Subpart (b) specifies that “the exposure makes medical monitoring reasonable and necessary in order to prevent or mitigate the future bodily harm.” Some medical monitoring regimens can allow for earlier interventions that are potentially curative, but others simply increase the time between diagnosis and death by moving up the diagnosis date. This subsection leaves open exactly what counts as mitigation of the future harm.
Subpart (c) ignores that many medical monitoring regimes are already a potential claimant’s personal responsibility, and they involve procedures that are covered by health insurance contracts. Given that any “significant risk” would not change the pre-existing need for such screening procedures as mammography in women, prostate-specific antigen in men, lung cancer screening in adults who have engaged in habitual tobacco self-abuse, and the like, this subpart leaves unclear why and how the burden paying for such routine screening should be shifted to the alleged tortfeasor.
Subpart (d) specifies that the rule would not apply if the defendant’s liability is indeterminate, presumably because of the number of potential claimants. Comment g to the Council’s draft provision attempts to explain:
“defendant whose conduct exposes a vast number of people to risk-creating agents or behaviors is not subject to liability for medical monitoring if the defendant is able to show that liability would be highly unpredictable and virtually unlimited.”[4]
Comment g goes on to suggest that the proposed rule would not apply if the liability it creates were:
“likely to exceed the defendant’s resources and insurance coverage and thereby meaningfully reduce monies available to those exposed persons who ultimately develop bodily harm.”[5]
What subpart (d) leaves unclear is how the defendant is suppose to satisfy this burden to prove “indeterminancy.” If the first case in court is one individual’s claim for medical monitoring costs, how does the defendant show that the aggregate liability will become indeterminate at some later date? Is the defendant suppose to present evidence of its insurance coverage, and perhaps interplead its carrier who had denied coverage? Comment g suggests a completely unworkable proof scheme for trial.
One of the key limitations on strict liability was its requirement of “physical harm.” As the Restatement (Second) of Torts made clear:
“harm implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person that person suffers harm.”[6]
For this reason, juries are permitted to return no cause or no damage verdicts in cases brought by asbestos claimants with pleural plaques or pleural thickening without pulmonary impairment.[7]
Although not universal, the better rule, which the ALI should adopt, was articulated by the United States Supreme Court, in Metro-North Commuter Railroad v. Buckley,[8] when it rejected medical monitoring claims for asymptomatic asbestos claimants. In Buckley, the Court acknowledged[9] the obvious without relegating it to an affirmative defense: unlimited and unpredictable liability is sufficient reason in the abstract to going down the road of imposing medical monitoring liability.
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[1] See Am. L. Inst., Capturing the Voice of The American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 3 (rev. ed. 2015).
[2] Restatement (Third) of Torts: Concluding Provisions, Council Draft No.
1, Medical Monitoring (Aug. 24, 2020); Restatement (Third) of Torts: Concluding Provisions, Prelim. Draft No. 1, Medical Monitoring (Feb. 3, 2020).
[3] Mark A. Behrens & Christopher E. Appel, “American Law Institute Proposes Controversial Medical Monitoring Rule in Final Part of Torts Restatement,” 87 Defense Counsel J. 1 (2021).
[4] Id. at cmt. g.
[5] Id.
[6] Restatement (Second) of Torts § 7 (1965).
[7] See, e.g., Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 605 A.2d 1092 (1992) (rejecting claim that pleural thickening is an injury as a matter of law that requires the assessment of damages). See also James Beck & Mark Herrmann, “No Injury Cheat Sheet,” Drug & Device Law Blog (July 3, 2008).
[8] Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 433 (1997).
[9] Id. at 433 (quoting Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 557 (1994)). See also Herbert L. Zarov, Sheila Finnegan, Craig A. Woods, and Stephen J. Kane, “A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?” 12 DePaul J. Health Care L. 1 (2009).
