Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

BNA Toxics Law Reporter reported this morning that a Rhode Island trial court in Providence rejected a  claim for medical monitoring by the mother of a child suffering from lead poisoning, in the absence of any physical manifestation of harm related to the diseases that plaintiff's expert contends the child is now at greater risk of developing.  Although the court found that the plaintiff had submitted sufficient medical evidence to permit her to sue for compensatory damages for her son's alleged cognitive deficits due to lead exposure, she failed to prove that her son manifested a sign or symptom of the diseases for which she believed medical monitoring was warranted.  In denying the claim, Judge Alice Bridget Gibney, in Miranda v. Dacruz, R.I. Super Ct., No. PC 04-2210, 10/26/09) held that, "This Court is not persuaded to open the damages flood gates to indefinite future monitoring". Judge Gibney distinguished the case before her from Donovan v.  Philip Morris USA, Inc., in which the Massachusetts Supreme Judicial Court ruled last month that a medical monitoring claim by long-term smokers related to the early detection of lung cancer could proceed.  In that case, Judge Gibney noted, plaintiffs exhibited sub-cellular or other physiological changes, which although not symptoms of a disease, are warning signs.  I believe Donovan sets a dangerous precedent.  The "damages flood gates" that concerned Judge Gibney are more likely to open if the burden of medical monitoring plaintiffs is reduced to demonstrating a sub-cellular or physiological change rather than an injury or disease.  Under this loosened standard, a sun tan, a skin blemish, a sneeze or elevated cholesterol could justify permitting a medical monitoring claim to proceed.

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In his  recent article, "Made in China: Consumer Product Lawsuits Imported to the United States", Seattle defense lawyer and IADC member Gregory Shelton offers American importers several good suggestions for avoiding potential liability from imported products.  These include: (1) requiring the exporter to comply with all applicable U.S. product quality standards and product safety regulations; (2) obtaining legal counsel in the exporter's home jurisdiction; (3) requiring the exporter to obtain appropriate insurance coverage from an American or international insurer that will protect the importer in the event of a recall or lawsuit; and (4) retaining good legal counsel early.  I would add to Greg's checklist: (5) having an independent U.S. consultant available to test, if necessary, the components of imported products, particularly if an American consumer reports a complaint to the company or to the CPSC.  Early independent product evaluation can be critical for an importer in planning its next steps, such as whether to perform a recall or halt future shipments until an issue can be addressed.  There are many good consultant firms to chose from. One excellent consultant up-to-speed on the new CPSC requirements is Exponent.

However, we disagree with Mr. Shelton when he argues that Chinese imports are more likely to result in lawsuits or recalls than imports from other countries.  There is simply no empirical evidence to support this assertion.  To the contrary, China has made enormous progress, particularly over the last year, to police its domestic suppliers.  To blame China for the spate of recalls over the last couple of years is to ignore the past lack of adequate funding for the CPSC, the agency that provides regulatory oversight of consumer products.  Moreover, blaming China results in Americans turning a blind eye to problems in our domestic product supply chain. 

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Lost in the learned treatises written in the wake of the Rhode Island Supreme Court's decision in State of Rhode Island v. Lead Industries Association, Inc.  (July 1, 2008),  which properly held that manufacturers of lead pigment are not liable under a nuisance theory for the harm caused by the use of lead paint, is discussion of the significant loss of market capitalization and shareholder value to Sherwin Williams and other manufacturer defendants who have been defending these nuisance claims for the past several years.  Apparently, there is no mechanism in Rhode Island for a defendant to file an interlocutory appeal to challenge a trial court's denial of a defendant's motion to dismiss a complaint as a matter of law.  Had an interlocutory appeal been available to the lead pigment manufacturers, there is no doubt that the Rhode Island Supreme Court would have ended years ago the State Attorney General's misguided crusade to have the defendants pay billions of dollars to remediate lead contamination in an estimated 240,000 houses  and apartments, 12,969 seasonal housing units, 419 child care centers and 339 elementary schools.  Notions of basic fairness suggest that a defendant facing a potential liability of this magnitude should be able to obtain appellate review of the plaintiff's right to proceed before having to incur the cost and uncertainty of a court trial.  A defendant with less resources than the lead pigment manufacturers might have been forced into a premature settlement with the State or even sought bankruptcy protection prior to waiting out the lengthy appeals process. 

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