Medical Monitoring and Limits to Federal Equitable Jurisdiction

No-injury medical monitoring is distinctive, if not unique, in that it exists solely as a by-product of a procedural rule—the general availability of class actions as a method of aggregating litigation.  This dependency on the class action mechanism means that most significant litigation in which currently uninjured plaintiffs seek “medical monitoring” relief now occurs in federal court, thanks to the minimal diversity provision of the Class Action Fairness Act.  28 U.S.C. §1332(d)(2).

The existence of medical monitoring as a claim or a remedy is a matter of state law.  Currently, thirteen states have appellate or statutory authority allowing presently uninjured plaintiffs to recover out-of-pocket costs of monitoring for latent medical conditions that claimed exposure to purported toxic substances has allegedly placed them at greater risk of developing. By contrast, a greater number of states, either 21 or 23 depending on whether “sub-cellular” damage is considered a present injury, have appellate or statutory authority rejecting medical monitoring claims brought by presently uninjured persons.

Read the full article at Washington Legal Foundation.