CACI No. 3903B. Medical Monitoring - Toxic Exposure (Economic Damage)

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
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/nonbinary pronoun] chances of developing the disease
had [he/she/nonbinary pronoun] 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.]
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
775
Copyright Judicial Council of California
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 (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)
CACI No. 3903B DAMAGES
776
Copyright Judicial Council of California

© Judicial Council of California.