NCPA - National Center for Policy Analysis

Sue Now To Monitor For Injuries Later

October 13, 1999

Legal scholars point out that for 200 years tort law has required that a plaintiff in a personal injury suit establish that he has, indeed, been injured by some action of the defendant. But recently lawyers have begun filing so-called "medical monitoring suits," which experts say represent a disturbing legal trend.

  • Typically, plaintiffs who have been exposed to a toxic substance sue to obtain periodic medical tests to detect the possible onset of disease -- even if no symptoms are present currently.
  • Five states -- California, Colorado, Pennsylvania, Utah and West Virginia -- allow such suits, and Nevada may soon join the list.
  • Legal observers warn that if uninjured people are allowed to sue, a tidal wave of abusive claims may result -- with such industries as asbestos, chemical and pharmaceutical firms being particularly vulnerable.
  • If lawyers can refocus the suit away from actual harm toward risk of harm, they can avoid having to prove causation on an individual basis -- opening the way for massive class-action suits.

"Medical-monitoring class actions represent an attractive way for plaintiffs' lawyers to get all the benefits of a class action without having to meet the procedural requirements," warns California defense attorney Brian Anderson.

Source: Kevin Butler, "Suing Just in Case You Get Ill," Investor's Business Daily, October 13, 1999.


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