The California Environmental Contaminant Biomonitoring Program and Medical Monitoring

     CalBizLit seems to be citing Beck and Hermann's Drug and Device Law Blawg an awful lot lately.  Not that they need it -- I think they have approximately 100 bazillion page views to date, compared with CalBizLit's 57. 

    But here goes again, because there's an interesting guest post there today by J.C. McElveen, who writes about the California Environmental Contaminant Biomonitoring Program, Cal. Health Safety Code § 105440-105459 (2008).  As McElveen accurately summarizes:

That program “shall utilize biological specimens, as appropriate, to identify designated chemicals that are present in the bodies of Californians.” Participation in the program is completely voluntary, but, once a person agrees to be in the program, he or she will be evaluated for the presence of “designated chemicals” (defined as “chemicals known to, or strongly suspected of, adversely impacting human health or development. . . .”). The individuals will be given the results of their tests (presumably blood, urine or saliva), if they ask, and “when either physiological or chemical data obtained from a participant indicate a significant known health risk (undefined by the statute), program staff experienced in communicating biomonitoring results shall consult with the individual and recommend follow-up steps, as appropriate.”

    Yes, our state is still looking at a $24 billion budget gap over the next two years, our schools are ranked 46th in the nation in per student spending, but at least I can volunteer to have my saliva and blood tested for chemicals.

    McElveen suggests that the end game here is litigation over exposure to measured chemicals, and I can't rule that out.  Our Supreme Court, in Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, authorized recovery for medical monitoring, at least in some instances, even in the absence of physical injury.  And so, when a chemical exposure / toxic tort plaintiff seeks damages for the future cost of medical monitoring, the jury is instructed as follows:

To recover damages for [the cost of future medical monitoring, the 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 [the plaintiff]'s exposure to the chemical(s);

                        (b)  The toxicity of the chemical(s);

                        (c)  The relative increase in [the plaintiff]'s chance of getting the disease as a result of the exposure, when compared to:

                                    (i)   [his/her] chances of developing the disease had [he/ she] 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).]

[Defendant]  is not required to pay for medical monitoring that is required for reasons other than [plaintiff]'s exposure to toxic chemicals.

[Defendant]  is only required to pay for additional or different monitoring that is required because of the toxic exposure.]

CACI 3903B.