The NAM and 8 other organizations filed an amicus brief urging the Sixth Circuit to uphold a trial court ruling that a company should not be held liable to pay for medical monitoring for individuals who lived near the site of a train derailment, and who failed to establish that they were exposed to a hazardous substance in an amount warranting a reasonable physician to order medical monitoring. We argued that a one-in-a-million risk is too speculative to justify imposing expensive medical monitoring requirements (here, costing hundreds of millions of dollars) on any defendant.
Allowing medical monitoring claims based on remote hypothetical risks would invite frivolous or speculative litigation, subject defendants to enormous costs with little or no corresponding public benefit, threaten payment to sick claimants now and in the future, and impose a huge administrative burden on the courts as a result of having to fashion and supervise medical monitoring programs for years on end.
On Sept. 8, 2011, the Sixth Circuit agreed, holding that one-in-a-million risk is too small and speculative to lead a reasonable doctor to prescribe medical monitoring. To recover, plaintiffs must have a discernable injury, and an increased risk of disease is not enough unless a reasonable physician would order medical monitoring. The court left open the door for ordering medical monitoring in a case where plaintiffs could show that they faced a one-in-a-million increased risk of getting cancer.