No Medical Monitoring Without Physical Harm
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.
The plaintiff's bar continues to look for fresh targets in the asbestos litigation, utilizing increasingly creative theories of liability, as the original targets of plaintiffs' lawsuits have been largely forced into bankruptcy. One of the new asbestos battlegrounds centers around the liability of parts manufacturers, such as pump and valve manufacturers, who never manufactured or sold asbestos-containing materials ("ACM"). Plaintiffs typically argue that these manufacturers may be liable for asbestos-containing products manufactured by different companies that they can reasonably anticipate will be used with their equipment. However, in recent months, there have been a handful of appellate decisions suggesting that liability will not be extended to equipment manufacturers that neither sold nor included with their equipment ACM. At the end of last year, the Supreme Court of Washington issued two decisions that rejected plaintiffs' claim that defendants should be held liable for failing to warn of the hazards of another manufacturer's product that is applied to or incorporated into the defendants' products. The Supreme Court of Washington articulated a blanket rule that a duty to warn under common law negligence "is limited to those in the chain of distribution of the hazardous product." The court also concluded that the defendants were not strictly liable for manufacturing a defective product because, not being product sellers or manufacturers, they could not translate their knowledge of the product's dangerous aspects into a cost of production against which liability insurance could be obtained. Thus, the court held, it would be manifestly unfair to hold a defendant liable for another party's product. There is a good discussion of these cases, Simonetta v. Vlad Corp. and Braaten v. Saberhagen, in a 
in the product liability defense bar, has authored a thoughtful piece titled, .jpg)
My hometown newspaper 
People living near manufacturing plants increasingly seek judicial solutions to environmental issues. In the wake of an environmental incident (such as a release of contaminants into the air or groundwater), fear and suspicion hinder constructive dialog and problem solving by manufacturers and their communities. Environmental issues, as much as any other corporate concern, tend to have a ripple effect, often causing repercussions with far-reaching impact on company business. An accidental release may result in adverse public relations, worker safety disputes, boycott of company products in the market place, adverse regulatory consequences and bad feeling in the community. How a company responds to media attention at the outset has an important effect on how the community, including elected officials, health authorities, regulatory agencies and prospective jurors, react to the issues presented. Accordingly, a company must plan in advance how it will respond to an environmental crisis and what steps it will take to minimize the fallout from such a crisis. 
Whether electricity supplied to a homeowner by the local electric utility is viewed as a "product" or a "service" may have significant ramifications in litigation. If providing electricity constitutes a "product", injured plaintiffs can seek recovery under a theory of strict liability. If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care. In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court held that once electricity entered the homeowner's residence, it constituted a "product" rather than a "service" and that plaintiff could proceed under the Connecticut Product Liability Act ("CPLA"). In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers' insureds, Linda and Michael Murphy, resulting in property damage. Apparently, the Murphy's had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed. After paying the claim,
Lost in the learned treatises written in the wake of the Rhode Island Supreme Court's decision in 