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Philip Morris Inc. v. Angeletti5/16/2000
refore, because plaintiffs have alleged with particularity a common course of conduct by the defendants against the entire putative class, the Court concludes that the party opposing class certification has allegedly acted on grounds generally applicable to the class for which final injunctive relief with respect to the class as a whole is warranted. (Cir. Ct. Mem. Op. at 67-68 (footnote and citation omitted)).
This Court has never considered whether a demonstrated need for medical monitoring creates a valid cause of action in Maryland or generates a permissible form of relief under this State's more traditional tort actions, although several courts around the country more than a decade and a half ago began to consider this type of claim and permitted it to proceed. See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984); Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242 (N.Y. App. Div. 1984); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn. 1982). Over the intervening years, several state appellate courts have followed suit in recognizing medical monitoring as a legitimate cause of action or form of relief under their respective tort law. See, e.g., Burns v. Jacquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1987); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993); Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987); Hansen, 858 P.2d 970 (Utah 1993). Nonetheless, the embrace of medical monitoring as a viable claim has not been universal. See, e.g., Metro North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-440, 117 S. Ct. 2113, 2121-22, 138 L. Ed. 2d 560 (1997) (rejecting particular plaintiff's medical monitoring claim because of lack of compensable injury under Federal Employers' Liability Act and because intermediate court's envisioned potential award of medical monitoring to asymptomatic plaintiff in form of lump sum damages went beyond bounds of "evolving common law" as it now stands); Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir. 1991) (ruling that medical monitoring is not cognizable claim under tort law of Virginia or West Virginia absent manifestation of physical injury).
Medical monitoring has been defined as "one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances." Paoli I, 916 F.2d at 849. See also Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R.5th 327, ยง 3 (stating that courts have "defined a medical monitoring claim as a claim for the costs of periodic medical examinations to detect latent diseases or disorders caused by a defendant's culpable conduct, the object of which is to facilitate early diagnosis and treatment of diseases or disorders"). In a claim for medical monitoring, the plaintiff seeks to recover only the quantifiable costs of periodic medical examinations necessary to monitor plaintiffs' health and to facilitate early diagnosis and treatment of disease(s) caused by exposure to chemicals, or as in the instant case, tobacco. See Ayers, 525 A.2d at 308; see also Paoli I, 916 F.2d at 849 and 850. The theory underlying the recognition of this claim is that the diseases or injuries caused by various toxic substances are often latent, leading to "problems when the claims are analyzed under traditional common law tort doctrine because, traditionally, injury needed to be manifest before it could be compensable." Id. at 850. Thus, some courts have recognized medical monitoring claims that permit relief even in the absence of present manifestations of physical injury. See id. The injury in a medical monitoring case not bei
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