Claims And Classes In Medical Monitoring Cases

Law360, New York (January 23, 2014, 1:36 AM EST) -- Since 1984 when the first court recognized the claim, courts have been divided whether to allow a cause of action for medical monitoring. Even now, almost thirty years later, although several courts have allowed a cause of action for medical monitoring absent present physical injury, most other courts require plaintiffs to prove a present injury before recognizing such a claim. In the typical product liability lawsuit, a plaintiff alleges that ingestion or use of a "product" has caused physical harm. See Restatement (Second) of Torts § 402A. The absence of an existing injury is a failure to state a claim for which relief may be granted. Thus, if courts were to accept plaintiffs' theory that the claimed "injury" is an increased risk of developing an illness or disease, the courts would essentially be creating a new cause of action, which courts are generally unwilling to do....

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