Third Circuit won't make Del. SC's mind up for it

By John O'Brien | Aug 24, 2010


PHILADELPHIA (Legal Newsline) - A federal appeals court has decided not to predict whether the Delaware Supreme Court would recognize medical monitoring claims as valid, overturning a lower court decision that said it would.

The U.S. Court of Appeals for the Third Circuit said such a prediction "requires several 'leaps' from the current state of law" and also ruled that summary judgment was properly granted to A.I. DuPont Hospital for Children in Wilmington.

Medical monitoring requires defendants to pay medical costs even in the absence of a current injury. Cardiologists at the hospital implanted a covered stent that was not approved by the Food and Drug Administration while trying to repair a congenital heart defect.

"Even if the Delaware Supreme Court would recognize a 'standard' medical monitoring claim... which requires a plaintiff to demonstrate that a defendant's negligence caused the plaintiff to be exposed to a proven hazardous substance that resulted in a significantly increased risk of contracting a serious latent disease, the plaintiff here cannot demonstrate that she has been exposed to a proven hazardous substance, nor can she prove that such exposure resulted in a significantly increased risk of contracting a serious latent disease," Judge Marjorie Rendell wrote.

The plaintiff was a minor referred to by the initials "M.G."

Supreme courts in Massachusetts, Missouri, Pennsylvania, Utah and West Virginia have all allowed medical monitoring as a form of relief.

The Alabama, Nevada, Kentucky, Michigan, Mississippi, New Jersey and Oregon supreme courts have all chosen not to recognize medical monitoring claims.

U.S. District Judge R. Barclay Surrick predicted in early 2009 that the Delaware Supreme Court would allow a medical monitoring claim.

"In this case, several considerations militate in favor of allowing Plaintiff to proceed with a medical monitoring claim," Surrick wrote.

"It is undisputed that Plaintiff has a Class III medical device in her body. Moreover, it is undisputed that the device did not have premarket approval from the FDA at the time the Medical Defendants implanted it in Plaintiff and was thus considered an 'adulterated' device.

"Plaintiff had contact with the adulterated device. Indeed, it remains in her body."

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