Cause of Action for Medical Monitoring Rejected by North Carolina Court of Appeals
For a number of years, environmental toxic tort plaintiffs have sought to recover future medical monitoring expenses because of alleged exposures to chemicals even though they may not have any present physical injury. Appellate courts in several jurisdictions have recognized such claims. See, e.g., Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993); Meyer v. Fluor Corp., 2007 WL 827762 (Missouri March 20, 2007); Redland Soccer Club Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). However, appellate courts in other jurisdictions have declined to do so, holding that a present physical injury is a prerequisite. See, e.g., Paz v. Brush Engineered Materials, Inc., 2007 WL 14891 (Miss. Jan. 4, 2007); Henry v. Dow Chem. Co., 701 N.W.2d 684 (Mich. 2005); Hinton v. Monsanto Co., 813 So.2d 827 (Ala. 2001). Often, appellate courts state thatcreation of new causes of action is better left to the legislature.
In December 2007, the North Carolina Court of Appeals issued a decision in Curl v. American Multimedia, Inc., 654 S.E.2d 76 (N.C. Ct. App. 2007), declining to recognize a medical monitoring claim in the absence of a present physical injury. The plaintiffs in Curl alleged that their drinking water wells were contaminated with trichloroethene and tetrachloroethene. Because of the exposures they had experienced, plaintiffs’ asserted that they were at increased risk of certain illnesses and therefore they needed to undergo periodic medical monitoring to ensure early detection of those illnesses. Plaintiffs had no present illnesses or other physical injuries. The court noted that, to allow such a claim to proceed, it would need to recognize a new cause of action. Because of the “complex policy questions” presented by plaintiffs’ request, and the need to “balanc[e] the humanitarian, environmental, and economic factors implicated,” the court determined that the question was better left to the legislature and not the courts. The court declined to create a new cause of action. 654 S.E.2d at 80-81.
