South-Western Legal Studies in Business

No Fear of Future Illness Tort Action in Mississippi
Description

Mississippi high court held it would not recognize a requirement for an employer to pay for medical monitoring for employees who claim their health may deteriorate in the future due to exposure to a hazardous substance. Some states do recognize this right of action.

Topic Torts
Key Words

Fear of Future Illness; Emotional Distress; Negligence

C A S E   S U M M A R Y
Facts

A class action of plaintiffs sued several companies for medical monitoring costs for detection of disease development due to beryllium exposure allegedly caused by the negligence of defendants. The federal district court dismissed the suit; plaintiffs appealed to the federal appeals court which asked the Mississippi high court “whether the laws of Mississippi allow for a medical monitoring cause of action, whereby a plaintiff can recover medical monitoring costs for exposure to a harmful substance without proving current physical injuries from that exposure?”

Decision

Question answered. The state does not recognize a medical monitoring caused of action without a showing of physical injury. Seven states do recognize such an action (Ariz., Cal., Fla., N.J., Pa., Utah, and W. Va.), and others may adopt it, but most states have not. It is possible to recover for emotional distress without a showing of physical injury, but that is an intentional tort that requires a showing that defendant’s conduct was willful, wanton, malicious, outrageous, or intentional. Here we have a tort, if there was one, based on negligence. There is no tort claim for feat of future illness or the possibility of future illness. There is no obligation by defendant to bear the costs of medical monitoring; that would be a remedy without a wrong.

Citation

Paz v. Brush Engineered Materials, 949 So.2d 1 (Sup. Ct., Miss., 2007)

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