Although some plaintiffs may attempt to pursue a medical monitoring claim even when support for such a claim is dubious, they should think twice about such an approach. As reported by Weil’s Product Liability Monitor contributor Keith Gibson, the Sixth Circuit recently upheld the imposition of FRCP 11 sanctions against two attorneys for their continued pursuit of medical monitoring for plaintiffs despite an admitted lack of evidence of individualized exposure. And, last week, in a toxic exposure lawsuit, a federal district court judge dismissed with prejudice plaintiffs’ medical monitoring claims. See Slemmer et al. v. McGlaughlin Spray Foam Insulation, Inc., No. 2:12-cv-06542-JD (E.D. Pa.).
In the case, plaintiffs brought a purported class action lawsuit against the manufacturer and the certified installer of a home insulation spray — spray polyurethane foam (“SPF”). According to the plaintiffs, SPF is toxic and creates health hazards for people residing in homes where it is used. The court found, though, that plaintiffs had not identified in their original complaint a serious latent disease that would require medical monitoring. The court dismissed the medical monitoring claim without prejudice and plaintiffs filed an amended complaint again asserting a medical monitoring claim.
While Pennsylvania allows medical monitoring claims, plaintiffs must allege specific facts in a complaint supporting the elements that plaintiffs will later have to show: (1) exposure greater than normal background levels, (2) to a proven hazardous substance; (3) caused by defendants’ negligence; (4) as a proximate result of the exposure, plaintiffs have a significantly increased risk of contracting a serious latent disease; (5) a monitoring program procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of exposure; (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.
In their amended complaint, plaintiffs alleged that: SPF can release toxins that can cause respiratory ailments and breathing problems as well as skin, eye and throat irritation; class members were thus at a “significantly increased risk of contracting serious latent diseases, including [ ] lung damage, and throat, eye and nose irritations”; medical monitoring, including “diagnostic exams” and “pharmaceutical interventions” would prevent or mitigate the adverse consequences of SPF exposure; and, the monitoring procedures are different than those normally recommended in the absence of exposure. The defendants again moved to dismiss the medical monitoring claim, arguing that plaintiffs had not sufficiently pled the requisite elements.
Because plaintiffs’ only claimed vaguely that SPF can cause lung “damage,” “ailments,” and “problems,” the court found that plaintiffs failed to identify a serious latent disease that would give defendants fair notice of the claim, as required by Twombly, 550 U.S. 544 (2007). The court also found that the monitoring procedures proposed by plaintiffs – “diagnostic tests” and “pharmaceutical interventions” – were not specific enough to meet the pleading requirements. Having previously allowed the plaintiffs to amend their complaint to address the defects in their medical monitoring claim, the court this time dismissed the claim with prejudice.
This case illustrates how powerful a tool Twombly can be in trimming away claims at the outset of a litigation in federal court. And, like the Sixth Circuit case, it is a good example of a court refusing to entertain claims that are legally or factually unsupported.