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

Judicial Council of California Civil Jury Instructions (2023 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);

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

821

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 (11th ed. 2017) Torts, § 1846 et seq.

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

822

Page last reviewed May 2023