'MEDICAL MONITORING' QUALIFIES AS TORT

August 1, 2003

By Steven P. Garmisa
Hoey Farina & Downes 
sgarmisa@felahfd.com

Under the Lead Poisoning Prevention Act, all children in Illinois between the ages of 6 months and 6 years have to be screened for lead poisoning.

This is an expensive proposition. So, by itself, is the cost of medical monitoring sufficient "injury" for a tort case in Illinois?

Yes, according to the Illinois Appellate Court in Lewis v. Lead Industries Association, 2003 Ill.App. LEXIS 837 (1st Dist., June 30).
What doomed most of the claims in this class-action case was that the named plaintiffs did not specify which of the "Manufacturing Defendants" supplied the lead in the paint that allegedly affected their children.

Yet, despite this omission, the Circuit Court erred in dismissing a conspiracy claim, since it didn't matter which of the alleged conspirators supplied the lead mixed into paint.

The plaintiffs filed a six-count complaint against the Lead Industries Association Inc. and various corporations that "are alleged to have manufactured, marketed and distributed white lead pigment for use in paint."

The defendants moved to dismiss, arguing that "all six counts of the plaintiffs' second amended complaint failed to allege a compensable injury. They argued that the cost of screening a child for lead poisoning, absent any allegation that the child suffered a physical injury, is not a compensable present injury that will satisfy the damage element of a tort claim. The trial court agreed, characterizing the relief sought by the plaintiffs as damages for an increased risk of future harm."

The first two counts arguably attempted to plead claims for negligence, strict product liability and intentional wrongdoing. As Justice Thomas E. Hoffman explained (with some omissions):

"The defendants are correct in their assertion that, for a plaintiff to recover damages for an increased risk of future harm in a tort action, he or she must establish, among other things, that the defendant's breach of duty caused a present injury which resulted in that increased risk. See Dillon v. Evanston Hospital, 199 Ill.2d 483, 496-507 (2002) (citing with approval Connecticut Civil Jury Instruction No. 2-40(c)). An increased risk of future harm standing alone is insufficient to support an award of damages under the theories of strict product liability, negligence (Board of Education of City of Chicago v. A, C & S Inc., 131 Ill.2d 428, 442-43, 546 N.E.2d 580, 137 Ill.Dec. 635 (1989)), or willful and wanton misconduct. In this case, however, we are faced with the preliminary question of whether the cost of diagnostic testing to detect a possible injury, which testing was made necessary by a defendant's breach of duty, is in itself a present injury compensable in a tort action.

"Relying primarily upon the holding in Friends For All Children, Inc. v. Lockheed Aircraft Corp., 241 U.S. App. D.C. 83, 746 F.2d 816 (D.C. Cir. 1984), the plaintiffs contend that an action seeking recovery for the cost of such examinations is distinct from a claim seeking recovery for an increased risk of harm of developing an injury or disease in the future. In Friends For All Children, the court reasoned that 'an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury.' We agree.

"There is a fundamental difference between a claim seeking damages for an increased risk of future harm and one which seeks compensation for the cost of medical examinations. The injury which is alleged, and for which compensation is sought, in a claim seeking damages for an increased risk of harm is the anticipated harm itself. The injury which is alleged, and for which compensation is sought, in a claim seeking damages for a medical examination to detect a possible physical injury is the cost of the examination. Unlike a claim seeking damages for an increased risk of future harm, a claim seeking damages for the cost of a medical examination is not speculative and the necessity for such an examination is capable of proof within a 'reasonable degree of medical certainty.'

"If a defendant's breach of duty makes it necessary for a plaintiff to incur expenses to determine if he or she has been physically injured, we find no reason why the expense of such an examination is any less a present injury compensable in a tort action than the medical expenses that might be incurred to treat an actual physical injury caused by such a breach of duty."

While counts 1 and 2 alleged sufficient injury, they didn't allege facts which would establish causation.

"An essential element of a plaintiff's cause of action for any tort is that there be a proximate causal relationship between the act or omission of the defendant and the damages which the plaintiff has suffered. In Smith v. Eli Lilly & Co., 137 Ill.2d 222, 232 (1990), our Supreme Court held that, 'A fundamental principle of tort law is that the plaintiff has the burden of proving by a preponderance of the evidence that the defendant caused the complained-of harm or injury; mere conjecture or speculation is insufficient proof.'

"The Smith court rejected the notion that liability may be imposed based merely on a breach of duty, without causation being established. This causation-in-fact requirement entails a reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered, and is applicable to claims premised upon allegations of negligence and willful and wanton misconduct.

"In this case, the plaintiffs have alleged that their children are at risk for lead poisoning and must undergo screening, yet they have not identified the manufacturer or supplier of the lead pigment used in the paint to which their children were exposed. Rather, the plaintiffs seem to rely upon a theory of enterprise liability to satisfy the causation element of the claims asserted in counts 1 and 2 of their second amended complaint.

"The unarticulated premise underlying this theory is the proposition that a member of an industry may be held jointly and severally liable with other industry members for expenses occasioned by the risks created by the manufacture, marketing and sale of an industry product known to be dangerous without proof that the particular member's specific product caused the injury for which recovery is sought.

"Acceptance of such a theory, however, would make the manufacturers insurers of their industry, a concept soundly rejected in Smith, and would result in an abandonment of the principle that, to be held liable, a causative link must be established between a specific defendant's tortious acts and the plaintiff's injuries.

"Each manufacturer owes a duty to those who will use its product or who might be injured by it. However, that duty is not so broad as to extend to anyone who uses or might be injured by a like kind product supplied by another. The causation-in-fact element of a cause of action requires a plaintiff to establish a causative link between the tortious acts of a specific defendant and the injuries for which recovery is sought.

"By failing to identify the defendant that supplied the lead pigment used in the paint to which their children were exposed, the plaintiffs failed to satisfy the causation element of a claim seeking damages for the cost of screening their children for lead poisoning. This is true regardless of whether the plaintiffs' claims sound in negligence, strict product liability or willful and wanton misconduct."

"Based on the plaintiffs' failure to identify which of the defendants manufactured or supplied the lead pigment used in the paint to which their children were exposed, counts 1 and 2 of their second amended complaint lack allegations supporting the causation element of the claims pleaded and therefore fail to state causes of action upon which relief might be granted. For this reason, we affirm the dismissal of counts 1 and 2."

The court also affirmed the dismissal of counts alleging fraud, fraudulent concealment and unjust enrichment. The final question was whether the Circuit Court erred in dismissing the claim for civil conspiracy.

According to count 6, the Manufacturing Defendants, acting in concert with the Lead Association, "conspired to market, produce and promote lead pigment for use in paint without regard to the dangerous properties and toxic effects of such paint; suppress research, regulation, and public dissemination of information concerning the dangerous properties and toxic effects of lead-based paint; and conceal from and/or mislead the public about the medical and scientific data which indicated that lead-based paint was potentially hazardous to the health and safety of children."
Count 6 alleged a valid claim -- even though it didn't identify which defendant provided the lead that the named plaintiffs' children were exposed to.

"Civil conspiracy is the combination or two or more persons or entities for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means.
"In Adcock v. Brakegate Ltd., 164 Ill.2d 54, 63 (1994), our Supreme Court held that: 'A cause of action for civil conspiracy exists only if one of the parties to the agreement commits some act in furtherance of the agreement, which is itself a tort. Thus, the gist of a conspiracy claim is not the agreement itself, but the tortious acts performed in furtherance of the agreement. It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable.' "

Count 6 alleged a valid claim for conspiracy by identifying the defendants and a defunct company, Eagle-Picher, "as the sole producers and promoters of lead pigment used in paint, and further alleging that each was a party to the conspiratorial agreement, the plaintiffs have alleged both an agreement and tortious conduct in furtherance of the agreement. For the purposes of this claim, the fact that the plaintiffs may not be able to identify which of the defendants was the active tortfeasor that supplied the lead pigment used in the paint to which their children were exposed is not fatal.

"The civil conspiracy theory has the effect of extending liability for a tortious act beyond the active tortfeasor to individuals who have not acted but have only planned, assisted or encouraged the act. If the plaintiffs can prove, as they allege, that the sale and distribution of lead pigment for use in paint was tortious in nature, that the defendants and Eagle-Picher were the sole suppliers and promoters of lead pigment, and that each was a party to the conspiratorial agreement, then it is of little consequence that the plaintiffs cannot establish which of the defendants, actually supplied the lead pigment used in the paint to which any given child might have been exposed as each defendant would be liable regardless of which one was the active tortfeasor.

"We conclude, therefore that the Circuit Court erred in dismissing count 6 of the plaintiffs' second amended complaint."

Specially concurring, Justice Warren D. Wolfson noted: "The majority concludes 'an increased risk of harm standing alone is insufficient to support an award of damages under the theories of strict liability, negligence or willful and wanton misconduct.' "

However, Wolfson explained: "Dillon v. Evanston Hospital, 199 Ill.2d 483 (2002), holds that increased risk of future harm is a present injury. The Supreme Court was not asked to decide and did not decide whether any other injury was required before a jury could be instructed on increased risk of harm. Nor are we required to decide the issue in this case since plaintiffs specifically disclaim any interest in it. I would leave it for another day, when the issue would be fully briefed."

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