Risk not high enough for medical monitoring, Sixth Circuit rules

By Jessica M. Karmasek | Sep 12, 2011


CINCINNATI (Legal Newsline) - The U.S. Court of Appeals for the Sixth Circuit last week upheld a district court's decision to grant summary judgment to CSX Transportation in a medical monitoring class action.

Following a train crash that allegedly exposed a small town to cancer-causing agents, plaintiffs Jonathan Hirsch, Jeanne Myers and Christopher Mann sought damages on behalf of a putative class.

The U.S. District Court for the Northern District of Ohio, at Cleveland, granted summary judgment for the train company.

The district court said the plaintiffs had not established general or specific causation and, as a matter of law, any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring.

The Sixth Circuit affirmed Thursday, agreeing that the plaintiffs presented such a remote risk of disease from exposure to fumes from the fire that medical monitoring expenses would be unreasonable. Judge Danny J. Boggs authored the appeals court's eight-page opinion.

"What makes the present claim conceptually unique is that the Plaintiffs -- though no doubt distraught from the stress of a train crash and evacuation -- have, even by their own admission, as of now not suffered any discernable compensable injury. Rather, their alleged injuries consist solely of the increased risk of -- and corresponding cost of screening for -- certain diseases that, according to Plaintiffs, are more likely to occur as a result of the train crash," Boggs wrote.

However, not every increased risk of disease warrants increased medical scrutiny, Boggs said. The expenses must be reasonable.

"In other words, for the Plaintiffs to prevail, there must be evidence that a reasonable physician would order medical monitoring for them," the judge wrote.

The appeals court said the plaintiffs failed to produce evidence creating a genuine issue. Instead, they point only to Dr. James Kornberg's conclusory statement that "a reasonable physician would prescribe for the Plaintiffs and the putative class a monitoring regime."

"Although juries are generally free to believe expert witnesses, a plaintiff cannot survive summary judgment with an expert's bare opinion on the ultimate issue," Boggs wrote.

For that reason, the appeals court ruled that Kornberg's affidavit is plainly insufficient.

"Dr. Kornberg not only accepted the risk of one in a million as the threshold for monitoring, but appears to have halved it," the court said.

It continued, "There is little explanation as to why Dr. Kornberg believed that reasonable physicians would order expensive and burdensome testing for such a small risk, but he agreed in his deposition that his proposal for Painesville was 'to err on the side of patient safety.'"

The appeals court called the doctor's assessment -- that the residents' risk might, or might not, be about 50 percent of a one-in-a-million additional risk of developing cancer -- "small."

"Indeed, it is proverbially small. If something has a one-in-a-million chance of causing cancer in an individual, then it will not cause cancer in 999,999," it wrote.

Compare that to other statistics, the appeals court said.

According to the National Safety Council, a person's risk of dying in a motor vehicle accident is 1 in 88. The risk of being killed by lightning is roughly 1 in 84,000. The risk of being killed in a fireworks discharge is about 1 in 386,000.

"These risks -- of death, not disease -- are all much smaller than what the Plaintiffs allege in this case: lifetime odds of developing cancer at 50 percent of 1 in 1,000,000," the appeals court said.

The National Association of Manufacturers and eight other organizations, including the American Tort Reform Association, the U.S. Chamber of Commerce and the American Insurance Association, had filed an amicus brief arguing that a one-in-a-million risk was too speculative to justify imposing expensive medical monitoring requirements on any defendant.

Legal Newsline is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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