On March 9, 2010, the NAM and nine other business groups filed an amicus brief urging the 3rd Circuit to reject a claim that a manufacturer should pay for medical monitoring of a plaintiff that has no proven physical injury from the use of the manufacturer’s product. The U.S. Supreme Court and a majority of state supreme courts over the last decade have rejected such claims. We argued that Delaware courts have repeatedly affirmed the need for a physical injury in tort cases, and radical changes in public policy should be made by the legislature, not the courts.
This case involves an implanted medical device (stent) that did not have FDA pre-market approval. Even if special considerations were to apply in this case, the plaintiff still would not satisfy them because there has been no exposure to a proven hazardous substance.
On August 24, the Third Circuit ruled that trial court erred in extending Delaware law
"beyond the bounds of the recognized medical monitoring claim in which a plaintiff
alleges long-term exposure to a proven toxic substance with known tendencies to produce
serious future medical injuries." In this case, the implanted stent was not a toxic or hazardous substance, and there was no risk of "contracting a serious latent disease." Because the Delaware Supreme Court has not recognized any variant of a standard medical monitoring claim, the Third Circuit declined to agree to the plaintiff's version.