New Standards for Medical Monitoring and Fear of Cancer Claims
April 1, 2013
AMERICAN BAR ASSOCIATION - MASS TORTS & DEVELOPMENTS
Exxon Mobil Corp. v. Albright
No. 15, Sept. Term 2012 (Md. Feb. 26, 2013)
Exxon Mobil Corp. v. Ford
No. 16, Sept. Term 2012 (Md. Feb. 26, 2013)
The Court of Appeals of Maryland has adopted standards for medical monitoring and fear-of-cancer claims in a pair of companion decisions regarding alleged exposure to methyl tertiary-butyl ether (MTBE) and benzene arising out of an underground gasoline leak. See Exxon Mobil Corp. v. Albright, No. 15, Sept. Term 2012 (Md. Feb. 26, 2013); Exxon Mobil Corp. v. Ford, No. 16, Sept. Term 2012 (Md. Feb. 26, 2013). The court also addressed the sufficiency of the plaintiffs' fraud, punitive-damages, and property-damage claims.
While the court of appeals found that Maryland law recognized recovery for medical monitoring and fear of cancer, it held that the elements for establishing such claims focus on requiring plaintiffs to establish an actual toxic exposure and a significantly increased risk of disease. Thus, the court appears to have struck a balance, recognizing that these theories have evolved in toxic-tort law and have been permitted by other jurisdictions but maintaining an adherence to the need for scientific proof consistent with the axiom of toxicology that the dose makes the poison. Some might argue, however, that the court's balance was not quite 50/50, insofar as the court relied upon regulatory standards, which are not based on principles of legal causation, as the starting point for its analysis of the toxicity and risk elements.
The contamination at issue arose from a release of 26,000 gallons of gasoline from a station owned by the defendant, as a leak went undetected for more than 30 days due to a problem with the station's leak-detection system. The gasoline migrated into the aquifer, which served the wells of nearby households. More than 500 residents and business owners asserted claims in two lawsuits, which resulted in verdicts totaling $632 million in compensatory damages for emotional distress/fear of disease, medical monitoring, and property damage, and $1 billion in punitive damages, based on findings of fraud in withholding information relating to the leak. The court of appeals reversed the overwhelming majority of the awards, allowing to stand only certain claims for diminution in property value where wells tested above regulatory thresholds and one fear-of-cancer claim.
Fear of Cancer
With respect to the recovery for emotional distress damages for fear of cancer, the court of appeals held that a plaintiff must show that (1) he or she was actually exposed to a toxic substance due to the defendant's tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a disease; and (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination. Albright, at 54.
To determine whether the first and second elements of the standard—actual exposure and objectively reasonable fear—were satisfied, the court looked to the test results for MTBE and benzene in the plaintiffs' wells. In instances of non-detected levels, the court held that the claims failed for lack of proof of an actual exposure. Where the substances were detected but at levels below the "relevant EPA and MDE action levels," the court concluded that the plaintiffs had sustained an actual exposure, but could not demonstrate "an objective, reasonable fear of developing cancer." Id. at 55–59. For the small number of plaintiffs who offered test results at or above the regulatory-action levels, the court held that those plaintiffs "still must prove, however, a physical injury resulting from their objectively reasonable fear." Id. at 60. Only one plaintiff presented evidence "sufficient to create a jury question as to whether [she] suffered an injury capable of objective determination." Id. at 70.
While the court seemed to correctly impose a substantial burden on the plaintiffs to establish a fear-of-cancer claim via evidence of a harmful exposure, consistent with the precept that the dose makes the poison, the reliance on regulatory-action levels as the threshold does raise an issue as to whether the standard adheres to principles of legal causation. Regulatory standards are generally predicated on curtailing public-health risks that are much less than likely. See, e.g., Mann v. CSX Transp., Inc., 2009 U.S. Dist. LEXIS 106433, at *15–16 (N.D. Ohio Nov. 10, 2009) (observing that the EPA's threshold soil-cleanup levels are based on "one in a million risk" and insufficient to predicate medical-monitoring relief).
Maryland now joins the group of those states whose highest courts have adopted some form of medical-monitoring recovery (an almost equal number have rejected such relief). The court of appeals articulated the elements that a plaintiff must establish to be entitled to recover medical-monitoring relief as compensable damages under a traditional tort theory (but not as an independent cause of action) as follows:
(1) that the plaintiff was significantly exposed to a proven hazardous substance through the defendant's tortious conduct; (2) that, as a proximate result of significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) that monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.
Id. at 84.
Similar to the analysis for the fear-of-cancer claims, the court focused of the severity of the exposure (i.e., the dose makes the poison) and rejected medical monitoring for those plaintiffs whose wells tested below governmental action levels to be unable to "prove as a matter of law that they suffer[ed] a significantly increased risk of developing a latent disease justifying an award of damages for medical monitoring." Id. at 86–87. For those plaintiffs whose wells tested above the action levels, the court reasoned that those plaintiffs passed the initial threshold of showing at least some risk, but were required to quantify the risk, by presenting expert testimony indicating a "particularized, significantly-increased risk of developing a disease in comparison to the general public." Id. at 88. The plaintiffs failed to adduce such expert opinions; rather, their experts testified merely that "any exposure to MTBE or benzene is unacceptable from a public health standpoint" without offering any plaintiff-specific testimony. The court of appeals found that such "level of generalization" is insufficient evidence to sustain a medical-monitoring claim.
The court's apparent requirement of plaintiff-specific risk quantification raises the issue as to whether Maryland's now-recognized medical-monitoring relief would be a matter ripe for class certification. It would seem more likely that, to the extent such risk quantifications must be plaintiff-specific, a toxic-tort action would not proceed as a class action under Maryland law based on the inclusion of a medical-monitoring claim.
Finally, as to the plaintiffs' property-damage claims, akin to its treatment of the fear-of-cancer and medical-monitoring claims, the court of appeals concluded that those plaintiffs whose wells did not show detectable amounts of MTBE or benzene could not recover for loss of enjoyment or diminution in value. (The court further (i) rejected the plaintiffs' claims for emotional distress for the property damage, as a result of the court's reversal of the fraud claims, which were the necessary predicate for such damages; and (ii) upheld certain remaining property claims but remanded for the retrial of damages.)
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