California Civil Jury Instructions (CACI)

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 significance 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 benefit 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.]

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 xaminations 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 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 significance 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 justifies 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 significantly 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 floodgates 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 (9th ed. 1988) Torts, § 1408

4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss, § 52.01[3][b] (Matthew Bender)

California Tort Damages (Cont.Ed.Bar 2001 supp.) Bodily Injury, § 1.20A

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

(New September 2003)