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Fifth Consecutive State High Court Rejects Medical Monitoring

By Mark A. Behrens
February 03, 2007
Recently, the Mississippi Supreme Court, in Paz v. Brush Engineered Materials, Inc., became the fifth consecutive state court of last resort to reject a cause of action for medical monitoring in the absence of an identifiable injury. The case came to the court on a certifi ed question from the Fifth Circuit Court of Appeals and involved employee claims of beryllium exposure while working at defendants’ manufacturing facilities. Class action plaintiff s sought the creation of a courtsupervised medical monitoring fund to detect the possible development of Chronic Beryllium Disease, typically a latent disease which impairs the lungs and often causes death. The court held that adoption of a medical monitoring action for asymptomatic plaintiff s “would require an  unprecedented and unfounded departure from the long-standing traditional elements of a tort action.” The Alabama, Nevada, Kentucky, and Michigan Supreme Courts—the four other courts of last resort to recently consider the issue—have all rejected medical monitoring absent a present physical injury....