The American Law Institute (ALI) will hold its Annual Meeting in Washington, DC on May 22-24. On Monday, May 22, at 10:30am, the organization’s membership will consider whether to adopt a controversial proposal in the pending Restatement of Torts, Third: Miscellaneous Provisions that endorses no-injury medical monitoring claims. The proposed black letter rule states:

§ __. Medical Monitoring 
An actor is subject to liability for the expenses of medical monitoring, even absent manifestation of present bodily harm, if all of the following requirements are satisfied: 
(1) the actor has exposed a person or persons to a significantly increased risk of serious future bodily harm; 
(2) the actor, in exposing the person or persons to a significantly increased risk of serious future bodily harm, has acted tortiously, the tortious conduct is a factual cause of the person’s need for medical monitoring, and the monitoring is within the actor’s scope of liability; 
(3) a monitoring regime exists that makes expedited detection and treatment of the future bodily harm both possible and beneficial; 
(4) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and 
(5) the prescribed monitoring regime is reasonably necessary, according to generally accepted contemporary medical practices, to prevent or mitigate the future bodily harm.

ALI members who oppose allowing medical monitoring claims for uninjured claimants have filed motions seeking to change the organization’s treatment of medical monitoring. A lead motion by ALI Council Member John Beisner, which is accompanied by a 50-state survey of medical monitoring case law, seeks to strike the proposed medical monitoring rule. It explains that the ALI’s proposed approach does not reflect the law of any jurisdiction, and that the significant variations in approach among the minority of jurisdictions that have permitted some form of no-injury medical monitoring make restating a rule inappropriate.

If the Beisner motion is not adopted, there are fallback amendments being offered by several other ALI members. A motion by Jim Beck, which is similarly accompanied by a 50-state survey of medical monitoring case law, proposes to have the Restatement more accurately describe existing common law, whereby courts in 28 states have rejected no-injury medical monitoring claims, as has the U.S. Supreme Court in Federal Employees’ Liability Act (FELA) cases (Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997)). Separate motions by ALI members Malcolm Wheeler, Terrence Dee, Susan Sharko, Evan Stephenson, and Luther Munford seek to amend the elements of the proposed medical monitoring rule to more narrowly tailor and limit the rule’s application. A motion by this author would amend the ALI’s proposed rule to incorporate a present physical injury requirement. Finally, a motion by Victor Schwartz and Chris Appel proposes the ALI take a neutral position by restating separate rules that accept and reject no-injury medical monitoring without endorsing either approach.

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