HARTFORD, Conn. (Legal Newsline) - The Connecticut Supreme Court upheld the dismissal of a medical-monitoring lawsuit on behalf of workers who had been exposed to asbestos during a reconstruction project, saying they failed to provide enough evidence showing they’d suffered some type of injury from the incident.
The decision delicately sidesteps the question of whether Connecticut law allows medical-monitoring claims at all, with the justices saying there was no need to decide the issue at this time. It was enough for the trial judge to determine that plaintiff experts failed to raise a question of fact about whether the workers needed to be monitored for future signs of asbestos-related disease, the court said.
“Although medical monitoring is no longer a novel theory of recovery in many states, whether such recovery is permitted in Connecticut is still an open question of law,” Chief Justice Richard Robinson wrote in a unanimous decision originally issued last September and published June 29. “Even if we were to recognize a medical monitoring claim in the absence of any physical manifestation of injury under Connecticut law, the plaintiffs nevertheless failed to establish a genuine issue of material fact as to certain elements of the claim, in particular, whether the provision of medical monitoring is reasonably necessary for them.”
Danny Dougan sued Sikorsky Aircraft, now a unit of Lockheed Martin, and others in 2012 following a 2009 incident in which he and other workers discovered they had been working on a power-plant reconstruction site that contained small amounts of asbestos in some of the insulated pipe. Dougan’s lawyers formed a proposed class action on behalf of all the workers on the site, seeking money for medical monitoring to detect any future signs of asbestos-related disease.
The defendants moved for summary judgment, saying the plaintiffs didn’t supply any evidence they had been injured and it was against public policy for Connecticut courts to recognize a claim for medical monitoring in the absence of physical harm. Only Dougan submitted a medical report and even his expert, M. Saud Anwar, acknowledged “a significant percentage of people who are exposed to and inhale asbestos …never develop clinical symptoms.”
The trial judge granted the motion in March 2017, saying no expert had examined the medical records of any other plaintiffs and no one had been diagnosed with an asbestos-related disease. Dougan died of apparently unrelated causes before the end of the year, eliminating the only plaintiff with any medical evidence at all.
The plaintiffs appealed, saying the trial court incorrectly concluded Connecticut doesn’t allow claims for medical monitoring in the absence of physical injury.
The Connecticut Supreme Court upheld the summary judgment in a 20-page opinion. The court began by laying out the history of medical monitoring. State and federal courts started to allow such claims in the 1980s, including one decision establishing a fund to provide neurological monitoring of children who survived a plane crash. The U.S. Supreme Court rejected medical monitoring in 1997, however, ruling in Metro-North v. Buckley that a federal law to compensate injured employees didn’t allow for it. State courts subsequently tended to reject medical monitoring claims by plaintiffs with no detectable injuries.
The plaintiffs urged the Connecticut Supreme Court to adopt the reasoning of the high court in Massachusetts, which approved a medical monitoring claim for smokers who showed cellular changes that could indicate future susceptibility to disease. The Connecticut court refused to go that far, although it said it accepted, without deciding, that Connecticut could recognize a claim for “subclinical cellular injury that substantially increased the plaintiffs’ risk of cancer and other asbestos related diseases.”
Unfortunately, the court noted, “the expert affidavit in the present case is ambiguous at best about whether each plaintiff actually suffered subcellular harm that substantially increased his risk of injury.”
Absent that evidence, or an expert opinion supporting the idea medical monitoring is reasonably necessary, the court concluded, summary judgment was justified.