Miss. High Court Rejects Medical Monitoring Absent Injury

A divided Mississippi Supreme Court has refused to recognize a claim for medical monitoring without a current physical injury in a case brought by workers alleging they were exposed to beryllium at a Boeing Co. space shuttle facility.

Three members of the court dissented with the four-judge majority without issuing a separate written opinion.

The U.S. Court of Appeals for the 5th Circuit certified a question to the Mississippi high court asking whether state law allows plaintiffs to recover the costs of medical monitoring in the absence of a present injury from exposure to a toxic chemical.

According to attorney Mark Behrens of Shook Hardy & Bacon in Washington, the Mississippi Supreme Court is the fifth consecutive state high court to reject medical monitoring claims. The other states are Nevada, Alabama, Kentucky and Michigan.

Behrens submitted an amicus brief in favor of the beryllium manufacturers and sellers. in the Mississippi case on behalf of the Coalition for Litigation Justice.

A group of workers, mostly employed by Boeing at its Stennis Space Center in Mississippi, filed the proposed class action in the U.S. District Court for the Southern District of Mississippi, alleging they were injured due to airborne beryllium at the facility.

The plaintiffs sought the establishment of a medical monitoring fund to cover testing to detect any disease resulting from the beryllium exposure.

The complaint named Boeing; Brush Wellman Inc., which allegedly sold many of the beryllium-containing products to Boeing; Brush Engineered Materials Inc., the parent company of Brush Wellman; and Wess-Del Inc., which allegedly sold beryllium products to Boeing in California for use at the Stennis facility.

The defendants moved to dismiss, arguing that Mississippi does not recognize a medical monitoring cause of action. They said the adoption of medical monitoring for the "non-sick" would lead to a flood of claims and deplete resources that should go to the sick.

The District Court granted the motion, and the workers appealed to the 5th Circuit.

The appeals court said the initial symptoms of chronic beryllium disease may not appear until many years after exposure. Nevertheless, early detection during its long latency period can delay and abate the debilitation caused by the disease, the panel said.

The panel then asked the Mississippi Supreme Court to decide whether the state recognizes a medical monitoring cause of action.

The plaintiffs argued to the high court that they should be able to recover medical monitoring damages because they were exposed to high levels of beryllium and could be suffering from latent diseases.

Rejecting that argument, the Supreme Court said Mississippi law does not recognize a claim for medical monitoring based on increased risk of future disease.

The court emphasized that there is no tort cause of action without some identifiable injury, either physical or emotional.

Exposure to a dangerous substance such as beryllium is not an injury, the high court said.

The court also rejected the plaintiffs' argument that it should be persuaded by the U.S. Department of Energy's practice of requiring medical monitoring for its employees as a condition for all its contracts with beryllium fabricators.

In accordance with Mississippi common law, the Supreme Court refused to recognize a medical monitoring cause of action without a showing of a physical injury.