California Civil Jury Instructions (CACI) (2017)

3903B. Medical Monitoring - Toxic Exposure (Economic Damage)

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3903B.Medical Monitoring—Toxic Exposure (Economic Damage)
[Insert number, e.g., “2.”]The cost of future medical monitoring. To
recover damages for this item, [name of plaintiff] must prove both of the
following:
1. That as a result of the toxic exposure, the need for future
monitoring is reasonably certain; and
2. That the monitoring is reasonable.
In deciding these issues, you should consider the following:
(a) The significanc and extent of [name of plaintiff]’s exposure to the
chemical(s);
(b) The toxicity of the chemical(s);
(c) The relative increase in [name of plaintiff]’s chance of getting the
disease as a result of the exposure, when compared to:
(i) [his/her] chances of developing the disease had [he/she] not
been exposed, and
(ii) the chances that members of the public at large will develop
the disease;
(d) The seriousness of the disease that may result from the exposure;
[and]
(e) The medical benefi of early detection and diagnosis; [and]
(f) [Insert other relevant factor(s).]
[[Name of defendant] is not required to pay for medical monitoring that
is required for reasons other than [name of plaintiff]’s exposure to toxic
chemicals.]
[[Name of defendant] is only required to pay for additional or different
monitoring that is required because of the toxic exposure.]
New September 2003
Sources and Authority
• “In the context of a toxic exposure action, a claim for medical monitoring seeks
to recover the cost of future periodic medical examinations intended to facilitate
early detection and treatment of disease caused by a plaintiff’s exposure to toxic
substances.” (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965,
1004–1005 [25 Cal.Rptr.2d 550, 863 P.2d 795], internal citation omitted.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
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damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
consequence of a plaintiff’s toxic exposure and that the recommended
monitoring is reasonable. In determining the reasonableness and necessity of
monitoring, the following factors are relevant: (1) the significanc and extent of
the plaintiff’s exposure to chemicals; (2) the toxicity of the chemicals; (3) the
relative increase in the chance of onset of disease in the exposed plaintiff as a
result of the exposure, when compared to (a) the plaintiff’s chances of
developing the disease had he or she not been exposed, and (b) the chances of
the members of the public at large of developing the disease; (4) the seriousness
of the disease for which the plaintiff is at risk; and (5) the clinical value of
early detection and diagnosis. Under this holding, it is for the trier of fact to
decide, on the basis of competent medical testimony, whether and to what
extent the particular plaintiff’s exposure to toxic chemicals in a given situation
justifie future periodic medical monitoring.” (Potter, supra, 6 Cal.4th at p.
1009.)
• “The crucial distinction, in other words, is in the nature of the monitoring, not
the nature of the harm. ‘[E]ven if a defendant negligently exposes a smoker to
toxins that significantl increase the smoker’s risk of cancer, that defendant is
not liable for reasonably certain future medical monitoring costs unless the
recommended monitoring calls for tests or examinations that are in addition to
or different from the type of monitoring that the smoker should prudently
undertake regardless of the subsequent toxic exposure.’ This accords with the
policy concern being addressed in that part of [Potter], which was to avoid
‘open[ing] the floodgate of litigation.’ If ‘the plaintiff already remains
responsible for any monitoring that is shown to be medically advisable due
solely to his or her smoking or other preexisting condition,’ he or she will have
no incentive to sue for contribution from a subsequent tortfeasor who has
caused no need for additional or different monitoring.” (Gutierrez v. Cassiar
Mining Corp. (1998) 64 Cal.App.4th 148, 156 [75 Cal.Rptr.2d 132], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1670
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.20A
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.01[3][b] (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew
Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
DAMAGES CACI No. 3903B
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