Dougan v. Sikorsky Aircraft Corp. ( 2021 )

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DANNY DOUGAN v. SIKORSKY AIRCRAFT
CORPORATION ET AL.
(SC 20271)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiffs sought to recover damages from the defendants, S Co. and
its general contractor, C Co., alleging, inter alia, that they had been
negligently exposed to asbestos while working for subcontractors on a
construction project at S Co.’s facility. Specifically, the plaintiffs sought
compensatory and punitive damages, the costs of medical monitoring
for asbestos related diseases, and the establishment of a court monitored
fund to pay those costs. The defendants moved for summary judgment
on the ground that the plaintiffs had not suffered any actual injuries
and, instead, were seeking medical monitoring for the risk of future
injuries, which the defendants claimed is not cognizable under Connecti-
cut law. The trial court determined that, because the plaintiffs conceded
that they had not been diagnosed with an asbestos related disease, they
had failed to establish a genuine issue of material fact as to the existence
of a physical injury. Addressing an issue of first impression under Con-
necticut law, the court then concluded that a claim for medical monitor-
ing for an increased risk of future injury, in the absence of any present,
physical harm, was not cognizable under Connecticut law. Thereafter,
the court granted the defendants’ motion for summary judgment and
rendered judgment for the defendants. On the plaintiffs’ appeal, held
that the trial court’s judgment was affirmed on the alternative ground
that, even if this court were to recognize a cause of action for medical
monitoring in the absence of the present manifestation of physical injury,
the plaintiffs nevertheless failed to establish a genuine issue of material
fact as to other elements of a medical monitoring claim, namely, whether
medical monitoring was reasonably necessary for each individual plain-
tiff.
Argued December 18, 2019—officially released September 14, 2020**
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence in exposing the named plain-
tiff to asbestos, and for other relief, brought to the
Superior Court in the judicial district of Tolland and
transferred to the judicial district of Hartford, Complex
Litigation Docket, where Philip Badorek et al. were
added as plaintiffs; thereafter, the court, Miller, J.,
granted in part the motion of the named defendant et
al. to strike and granted in part the plaintiffs’ motion
for class certification; subsequently, the court, Moll, J.,
granted the motions of the named defendant et al. for
summary judgment, vacated the order granting class
certification, and rendered judgment for the named
defendant et al., from which the plaintiffs appealed.
Affirmed.
Keith Yagaloff, for the appellants (plaintiffs).
John W. Cerreta, with whom was James H. Rotondo,
for the appellees (named defendant et al.).
Opinion
ROBINSON, C. J. This appeal requires us to consider
the proof necessary to establish a claim for medical
monitoring, the availability of which is a question of
first impression under Connecticut law. The plaintiffs
Philip Badorek, Michael Daley, William Grem IV, and
Fred Ferrara1 appeal from the judgment of the trial court
rendered in favor of the defendants Sikorsky Aircraft
Corporation (Sikorsky) and Carrier Corporation (Carrier)2
on their medical monitoring claims, which stemmed
from a workplace asbestos exposure at Sikorsky’s cogen-
eration project in Stratford. On appeal,3 the plaintiffs
claim that the trial court improperly granted the defen-
dants’ motion for summary judgment because (1) a
genuine issue of material fact exists with respect to
the issue of physical injury because the plaintiffs each
currently suffer from a subclinical injury as a result of
asbestos exposure, and (2) Connecticut law permits a
cause of action4 for medical monitoring. We conclude
that the trial court properly granted the defendants’
motion for summary judgment, albeit on alternative
grounds, because, even if we were to recognize a medi-
cal monitoring claim in the absence of any physical
manifestation of injury under Connecticut law, the
plaintiffs nevertheless failed to establish a genuine issue
of material fact as to certain elements of the claim, in
particular, whether the provision of medical monitoring
is reasonably necessary for them. Accordingly, we
affirm the judgment of the trial court.
The record reveals the following undisputed relevant
facts and procedural history. In September, 2009, Sikor-
sky began work on a cogeneration project at its manu-
facturing facilities in Stratford. Sikorsky hired Carrier
as the general contractor responsible for the project,
which involved building a new cogeneration plant and
renovating Sikorsky’s existing boiler house. Three of the
plaintiffs, Badorek, Daley, and Grem, were employed
by B-G Mechanical Contractors, Inc. (B-G Mechanical),
one of Carrier’s subcontractors on the cogeneration
project. B-G Mechanical employees were responsible
for removing pipe from Sikorsky’s boiler house. As a
result, these plaintiffs were present at various times at
the site from March, 2010, to July, 2010. The fourth
plaintiff, Ferrara, was employed by Tucker Mechanical,
Inc., another subcontractor, and was present on site
for a period of time in March, 2010.5
At some point during the project, some workers
began to complain of sore throats. Then, on July 7 or
8, 2010, a B-G Mechanical employee discovered what
he believed to be asbestos present in the boiler house.
Sikorsky then performed testing that confirmed the
presence of asbestos in the boiler house and in an
exterior dumpster. As a result, Sikorsky halted the proj-
ect on or about July 23, 2010, in order to remediate the
asbestos. The plaintiffs asserted in their complaint that
Sikorsky was aware of the presence of asbestos in the
boiler house before work on the project began. In
response, Sikorsky admitted that, after performing sur-
veys in 2001 and 2008, asbestos had been discovered
in a small amount of pipe insulation in the boiler house
basement but averred that the Sikorsky employees in
charge of the cogeneration project were unaware of
this fact.
The named plaintiff, Danny Dougan; see footnote 1
of this opinion; brought a class action complaint in May,
2012, against Sikorsky, Carrier, and URS Corporation
AES (URS).6 The operative complaint, filed on April 1,
2013, includes claims of negligence, battery, reckless-
ness, and strict liability for violations of the federal
Clean Air Act, 42 U.S.C. § 7401 et seq., on behalf of
Dougan, Grem, Daley, Badorek, and Ferrara individu-
ally, as well as ‘‘all others similarly situated who were
exposed to asbestos while working at the [Sikorsky
cogeneration project in Stratford] from the period of
approximately March, 2010, to mid-July, 2010, and who
are now seeking to pursue remedies for said exposure.’’
The plaintiffs sought compensatory damages, punitive
damages, the costs of medical monitoring, and the
establishment of a ‘‘court monitored fund’’ for the pay-
ment of medical monitoring of asbestos related dis-
eases.7
In March, 2016, Carrier and Sikorsky moved for sum-
mary judgment on all counts of the plaintiffs’ com-
plaint.8 The defendants contended that the plaintiffs
had not suffered actual injuries and, instead, sought
medical monitoring for a risk of future injury, which
they claimed is not a cognizable claim under Connecti-
cut law. Specifically, they argued that (1) the court
should not recognize a remedy for medical monitoring
based on exposure alone, (2) even under the plaintiffs’
theory of recovery, summary judgment is appropriate
because Dougan could not prove that his need for medi-
cal monitoring resulted from asbestos exposure, and
because the other four plaintiffs failed to produce any
expert testimony demonstrating their need for medical
monitoring, and (3) certain claims failed as a matter of
law, specifically, the plaintiffs’ claims for battery, strict
liability, and punitive damages. The defendants filed
numerous exhibits in support of their motion, including
excerpts of deposition transcripts of the plaintiffs’ two
medical experts, M. Saud Anwar and Oyebode Taiwo,
and the defendants’ medical expert, Barry W. Levine.
Levine’s deposition testimony discussed his examina-
tion of Dougan and the general effects of asbestos expo-
sure, including the long latency period before asbestos
related diseases manifest. In their depositions, both
Anwar and Taiwo stated that they had not formed any
opinions regarding the claims of Grem, Badorek, Daly,
or Ferrara. Additionally, Anwar acknowledged that ‘‘a
significant percentage of people who are exposed to
and inhale asbestos . . . never develop clinical symp-
toms . . . .’’
The plaintiffs filed an objection to the summary judg-
ment motion, contesting the defendants’ characteriza-
tion of their knowledge of the presence of asbestos,
the current status of the law of medical monitoring,
and the public policy reasons against extending liability.
Along with their objection, the plaintiffs included an
affidavit from Anwar. Anwar’s three page affidavit spe-
cifically addressed his treatment of Dougan and con-
cluded that Dougan suffered from a ‘‘significantly
increased risk of contracting a serious disease,’’ and
also discussed generally the risks of asbestos, such as
the injuries asbestos fibers cause to a person’s lungs
when inhaled. Additionally, the affidavit stated that
‘‘[o]ther individuals who were exposed to asbestos dur-
ing the demolition work at Sikorsky should be moni-
tored for the early detection and intervention of an
asbestos related disease . . . .’’ The plaintiffs also sub-
mitted other exhibits concerning the presence of asbes-
tos at Sikorsky and the defendants’ actions surrounding
the incident, but they provided no further expert testi-
mony.
On March 28, 2017, the trial court granted the defen-
dants’ motion for summary judgment. See footnote 8
of this opinion. In its memorandum of decision, the
trial court reviewed the evidence in the record and
determined that no expert had examined or reviewed
the medical records of any of the plaintiffs other than
Dougan and that all of the plaintiffs admitted that they
had not been diagnosed with an asbestos related dis-
ease, specifically, ‘‘mesothelioma, lung cancer, asbesto-
sis, or pleural effusions.’’ As a result, the trial court
determined that the plaintiffs had not presented evi-
dence demonstrating a genuine issue of material fact
as to physical injury. The trial court then applied the
public policy test outlined in Lawrence v. O & G Indus-
tries, Inc., 319 Conn. 641, 650–51, 126 A.3d 569 (2015),
and declined to recognize a cause of action for medical
monitoring under Connecticut law that would allow
recovery for an increased risk of future injury rather
than a present injury. Accordingly, the court granted
the defendants’ motion for summary judgment, vacated
the class certification order, and rendered judgment for
the defendants on the remaining counts. See footnotes
7 and 8 of this opinion. The trial court later denied the
plaintiffs’ motion for reargument or reconsideration.
This appeal followed. See footnotes 1 and 3 of this
opinion.
On appeal, the plaintiffs argue that the trial court
incorrectly concluded that medical monitoring claims
in the absence of clinical symptoms should not be per-
mitted under Connecticut tort law. The plaintiffs further
argue that the trial court incorrectly determined that
there was no genuine dispute of material fact as to their
injuries because they suffer from subclinical injuries as
a result of their asbestos exposure. In response, the
defendants counter that the trial court properly declined
to create a medical monitoring remedy for asymptomatic
plaintiffs exposed to toxic substances in the absence
of physical harm. As an alternative ground for affirming
the judgment of the trial court, the defendants argue
that, even if this court were to recognize medical moni-
toring as a cause of action, the plaintiffs’ claims would
still fail because they are not supported by ‘‘reliable,
scientific evidence . . . .’’9 We agree with the defen-
dants that, even if we were to recognize a remedy in
Connecticut for medical monitoring in the absence of
the present manifestation of physical harm, the plain-
tiffs’ claims would still fail as a matter of law because
the plaintiffs failed to prove that monitoring was medi-
cally necessary.
We first set forth the applicable standard of review.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court’s decision to grant the plaintiff’s motion for sum-
mary judgment is plenary.’’ (Internal quotation marks
omitted.) Stuart v. Freiberg, 316 Conn. 809, 820–21, 116
A.3d 1195 (2015).
‘‘When documents submitted in support of a motion
for summary judgment fail to establish that there is no
genuine issue of material fact, the nonmoving party
has no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue. . . . It is not enough, how-
ever, for the opposing party merely to assert the exis-
tence of such a disputed issue. Mere assertions of fact
. . . are insufficient to establish the existence of a
material fact and, therefore, cannot refute evidence
properly presented to the court under Practice Book
[§ 17-45] . . . .’’ (Internal quotation marks omitted.)
State Farm Fire & Casualty Co. v. Tully, 322 Conn.
566, 573, 142 A.3d 1079 (2016).
I
We begin our analysis with a review of the medical
monitoring claim. Medical monitoring, either in the
form of damages or as a stand-alone cause of action;
see footnote 4 of this opinion; allows a plaintiff to
recover the cost of diagnostic testing for an injury that
may occur in the future as a result of a defendant’s
tortious conduct.10 See, e.g., Metro-North Commuter
Railroad Co. v. Buckley, 521 U.S. 424, 438, 117 S. Ct.
2113, 138 L. Ed. 2d 560 (1997) (defining medical moni-
toring as ‘‘the economic cost of the extra medical check-
ups that [the plaintiff] expects to incur as a result of
his exposure to [toxins]’’). Given the nature of the relief
provided by medical monitoring and the prevalence of
these claims in the world of toxic torts,11 the central
issue in such cases is whether to permit medical moni-
toring in the absence of some present manifestation of
a physical injury. Although medical monitoring is no
longer a novel theory of recovery in many states,
whether such recovery is permitted in Connecticut is
still an open question of law. See Doe v. Stamford, 241
Conn. 692, 699–700 n.8, 699 A.2d 52 (1997) (discussing
medical monitoring test outlined in In re Paoli Railroad
Yard PCB Litigation, 916 F.2d 829, 852 (3d Cir. 1990),
cert. denied sub nom. General Electric Co. v. Knight,
499 U.S. 961, 111 S. Ct. 1584, 113 L. Ed. 2d 649 (1991),
but noting that neither party requested its adoption in
workers’ compensation law); see also McCullough v.
World Wrestling Entertainment, Inc., 172 F. Supp. 3d
528, 567 (D. Conn. 2016) (discussing how ‘‘[f]ew Con-
necticut courts’’ have considered viability of stand-
alone medical monitoring claims), aff’d in part and
appeal dismissed in part sub nom. Haynes v. World
Wrestling Entertainment, Inc., 827 Fed. Appx. 3 (2d
Cir. 2020). Given that medical monitoring claims pres-
ent an issue of first impression in Connecticut, we begin
with a detailed review of the federal and sister state
precedents considering these claims.
In the 1980s and 1990s, state and federal courts began
permitting medical monitoring recovery in toxic expo-
sure cases in the absence of a manifestation of present
physical injury, as in the seminal case of Ayers v. Jack-
son, 106 N.J. 557, 604–606, 525 A.2d 287 (1987). See,
e.g., In re Paoli Railroad Yard PCB Litigation, supra,916 F.2d 850–52; Burns v. Jaquays Mining Corp., 156
Ariz. 375, 380, 752 P.2d 28 (App. 1987), review dismissed,
162 Ariz. 186, 781 P.2d 1373 (1989); Potter v. Firestone
Tire & Rubber Co., 6 Cal. 4th 965, 1007–1009, 863 P.2d
795, 25 Cal. Rptr. 2d 550 (1993); Hansen v. Mountain
Fuel Supply Co., 858 P.2d 970, 977–78 (Utah 1993).
These cases were often supported by the reasoning
of an earlier medical monitoring case, Friends for All
Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816,
819, 822, 838 (D.C. Cir. 1984), in which the United States
Court of Appeals for the District of Columbia Circuit
upheld the creation of a medical monitoring fund for
children who suffered from a ‘‘neurological develop-
ment disorder’’ after a plane crash.12
Subsequently, in 1997, the United States Supreme
Court rejected a medical monitoring cause of action
under federal law in Metro-North Commuter Railroad
Co. v. Buckley, supra, 521 U.S. 444. In that case, an
asymptomatic plaintiff requested lump sum damages
under the Federal Employers’ Liability Act, 45 U.S.C.
§ 51 et seq., after he was exposed to asbestos during
his duties as a railroad employee. Id., 426–27. The court
considered earlier cases that permitted asymptomatic
medical monitoring recovery under state law and noted
that those cases imposed certain ‘‘integral’’ restrictions
on a plaintiff’s case, such as limiting recovery through
the establishment of a court administered fund. Id.,440–41, 444. The court then outlined several policy con-
siderations that weighed against the recognition of this
claim, namely, the substantial number of potential plain-
tiffs who have been exposed to toxic substances, along
with the high costs of monitoring. Id., 442. But, in light
of these conflicting policy concerns and the inadequate
support in the common law, the court declined to create
‘‘a new, full-blown, tort law cause of action’’ under the
federal statute being considered. Id., 443.
State appellate courts have been divided in the wake
of Buckley with respect to whether to permit recovery
for medical monitoring in the absence of the manifesta-
tion of a physical injury under their states’ respective
laws.13 See V. Schwartz & C. Silverman, ‘‘The Rise of
‘Empty Suit’ Litigation: Where Should Tort Law Draw
the Line?,’’ 80 Brook. L. Rev. 599, 620 (2015) (discussing
how, after Buckley, courts rejected claims for medical
monitoring, but, recently, ‘‘the pendulum briefly swung
back toward permitting medical monitoring claims’’);
H. Zarov et al., ‘‘A Medical Monitoring Claim for Asymp-
tomatic Plaintiffs: Should Illinois Take the Plunge?,’’ 12
DePaul J. Health Care L. 1, 2 (2009) (‘‘[M]ost courts
addressing the issue since Buckley have rejected claims
for medical monitoring absent physical injury. Never-
theless, a few courts have issued post-Buckley decisions
adopting claims for medical monitoring, while other
courts have continued to implement pre-Buckley deci-
sions. Thus, although there is a clear trend against the
recognition of medical monitoring claims, the debate
is far from over.’’).
A challenging issue presented by the plaintiffs’ claims
in this case is determining the nature of the harm, if
any, caused by their exposure to asbestos. Past plain-
tiffs have sought medical monitoring for a variety of
injuries, ranging from toxins present in their blood14 to
traumatic brain injuries.15 The plaintiffs in the present
case claim that their asbestos exposure caused them
to suffer a subclinical injury, which is one that is ‘‘not
detectable or [that is] producing effects that are not
detectable by the usual clinical tests . . . .’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2011) p. 1242;
accord Webster’s New Complete Medical Dictionary
(1995) p. 667. Relying on Donovan v. Philip Morris
USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009), the
plaintiffs contend specifically that the trial court incor-
rectly determined that their subclinical injuries were
not actual injuries because, once they were exposed to
asbestos at the Sikorsky project, the asbestos fibers
entered their lungs and damaged their cells, creating a
‘‘preclinical stage of disease.’’ They ask us to adopt
the legal framework from Donovan to govern medical
monitoring claims arising from subclinical injuries.
In Donovan, the Supreme Judicial Court of Massa-
chusetts considered a certified question from a federal
district court asking whether ‘‘the plaintiffs’ suit for
medical monitoring, based on subclinical effects of
exposure to cigarette smoke and increased risk of lung
cancer, state[d] a cognizable claim and/or permit[ted] a
remedy under Massachusetts state law . . . .’’ (Internal
quotation marks omitted.) Id., 215–16. The plaintiffs, a
proposed class of Marlboro cigarette smokers, argued
that the defendant had ‘‘wrongfully designed, marketed,
and sold’’ its cigarettes and requested a ‘‘court-super-
vised program’’ for medical monitoring, specifically, of
‘‘low-dose computed tomography . . . scans of the
chest’’ to screen for lung cancer. Id., 216–17. The plain-
tiffs alleged that, because they had used the defendant’s
defective products, they suffered ‘‘objectively observ-
able and identifiable damage to the tissues and struc-
tures of their lungs’’ and, as a result, are at a ‘‘substan-
tially increased risk of cancer . . . .’’ Id., 221.
The Massachusetts high court accepted the plaintiffs’
theory of harm and recognized a stand-alone medical
monitoring cause of action for the plaintiffs’ subclinical
injuries under Massachusetts law. Id., 226–27. The court
reasoned that, just as a shaken baby would be able to
recover expenses for diagnostic testing to determine if
she had suffered a brain injury, so, too, should the
plaintiffs, as they ‘‘have produced sufficient proof of
‘impact’ . . . to safeguard against false claims: they
have proffered evidence of physiological changes
caused by smoking, and they have proffered expert
medical testimony that, because of these physiological
changes, they are at a substantially greater risk of can-
cer due to the negligence of Philip Morris.’’ (Citation
omitted.) Id., 224–25. The court discussed the impor-
tance of subcellular changes, stating that such ‘‘changes
may occur which, in themselves, are not symptoms of
any illness or disease, but are warning signs to a trained
physician that the patient has developed a condition
that indicates a substantial increase in risk of con-
tracting a serious illness or disease and thus the patient
will require periodic monitoring.’’ Id., 225. The court in
Donovan distinguished the facts of that case from those
in ‘‘cases that involve exposure to levels of chemicals or
radiation known to cause cancer, for which immediate
medical monitoring may be medically necessary although
no symptoms or subclinical changes have occurred.’’
(Emphasis omitted.) Id. Because the record in Donovan
presented evidence of subcellular change indicating an
increased risk of cancer, the plaintiffs had adequately
demonstrated injury.
The Massachusetts court outlined the following stan-
dard for its medical monitoring cause of action, requir-
ing that ‘‘each plaintiff’’ prove that ‘‘(1) [t]he defendant’s
negligence (2) caused (3) the plaintiff to become exposed
to a hazardous substance that produced, at least, subcel-
lular changes that substantially increased the risk of
serious disease, illness, or injury (4) for which an effec-
tive medical test for reliable early detection exists, (5)
and early detection, combined with prompt and effec-
tive treatment, will significantly decrease the risk of death
or the severity of the disease, illness or injury, and (6)
such diagnostic medical examinations are reasonably
(and periodically) necessary, conformably with the
standard of care, and (7) the present value of the reason-
able cost of such tests and care, as of the date of the
filing of the complaint.’’ Id., 226. In addition, the court
stated that proof of these elements ‘‘usually will require
competent expert testimony.’’ Id., 227.
II
Having reviewed the background law governing medi-
cal monitoring claims, we now turn to the plaintiffs’
claims in the present appeal. We begin by setting forth
several assumptions that underlie our analysis. First,
we will assume, without deciding, that Connecticut law
recognizes a claim for subclinical cellular injury that
substantially increased the plaintiffs’ risk of cancer and
other asbestos related diseases.16 Second, we also
assume, without deciding, that the Donovan elements
govern proof of a medical monitoring claim. Finally,
we assume that the plaintiffs raised a genuine dispute
of material fact as to whether they were negligently
exposed to asbestos during the Sikorsky project. We
nevertheless conclude that the trial court properly
granted the defendants’ motion for summary judgment
because the plaintiffs have not established the existence
of a genuine issue of material fact as to certain Donovan
factors.17 See, e.g., Stuart v. Freiberg, supra, 316 Conn.
823 (‘‘a plaintiff may properly be called upon at the
summary judgment stage to demonstrate that he pos-
sesses sufficient counterevidence to raise a genuine
issue of material fact as to any, or even all, of the
essential elements of his [claim]’’).
Courts, including the one in Donovan, generally
require competent expert testimony to prove a medical
monitoring claim or remedy. See, e.g., Caronia v. Philip
Morris USA, Inc., 715 F.3d 417, 448 (2d Cir. 2013) (‘‘[a]ll
of the [previously discussed] states that recognized a
medical monitoring cause of action noted that such
a claim cannot be established without reliable expert
testimony’’); In re Paoli Railroad Yard PCB Litigation,
supra, 916 F.2d 852 (requiring competent expert testi-
mony to establish medical monitoring cause of action);
Donovan v. Philip Morris USA, Inc., supra, 455 Mass.
227 (‘‘[p]roof of [the Donovan] elements usually will
require competent expert testimony’’); Ayers v. Jack-
son, supra, 106 N.J. 606 (requiring ‘‘reliable expert testi-
mony’’ to recover medical surveillance damages); Han-
sen v. Mountain Fuel Supply Co., supra, 858 P.2d 979n.10 (‘‘[p]roof of [the Donovan] elements will usually
require expert testimony’’). As a result, if a plaintiff
lacks expert testimony to prove a medical monitoring
claim, summary judgment should be granted. See
Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d
1023 (2016) (‘‘[s]ummary judgment in favor of a defen-
dant is proper when expert testimony is necessary to
prove an essential element of the plaintiff’s case and
the plaintiff is unable to produce an expert witness to
provide such testimony’’).
The defendants argue that the plaintiffs ‘‘have totally
failed to provide expert evidence establishing their need
for medical monitoring as a result of asbestos exposure
at Sikorsky.’’ The plaintiffs do not dispute that Anwar,
their expert witness, has not provided any testimony
as to any of them specifically, but they argue that they
nevertheless have presented sufficient expert evidence
to survive summary judgment. According to the plain-
tiffs, ‘‘the court [in Donovan] did not state that the
plaintiffs needed to offer expert medical evidence that
spoke to the plaintiffs’ specific conditions; instead, the
court accepted general expert evidence that attested
to the undifferentiated effects that cigarette smoking
[has] on any smoker, including the plaintiffs.’’ Addition-
ally, the plaintiffs assert only that ‘‘expert evidence must
be used to generally inform lay jurors about the scien-
tific correlation between asbestos exposure and the
onset of asbestos related diseases.’’ Finally, ‘‘the plain-
tiffs aver that the experts should not form any opinions
about the plaintiffs’ exposure and their need for medical
monitoring or the likelihood of contracting diseases
because that function should be reserved [for] the trier
of fact.’’
We disagree with the plaintiffs that the Donovan
court’s acceptance of ‘‘general expert advice’’ assists
this inquiry, as that court was considering whether the
parties had stated a claim for medical monitoring on a
motion to dismiss, not whether the plaintiffs’ claims
could ultimately survive summary judgment. See Dono-
van v. Philip Morris USA, Inc., supra, 455 Mass. 217,
221. Accordingly, we will look to the requirements of
other courts reviewing this issue, including those cited
with approval in Donovan.
The third Donovan factor requires a plaintiff to dem-
onstrate that he or she suffers from a subcellular change
that substantially increases his or her risk of disease.
Id., 226. A Massachusetts federal district court recently
considered whether expert testimony sufficiently dem-
onstrated subcellular change on a motion for summary
judgment. See Genereux v. Hardric Laboratories, Inc.,
950 F. Supp. 2d 329 (D. Mass. 2013), aff’d, 754 F.3d 51(1st Cir. 2014). The defendant in Genereux argued that
the plaintiffs would be unable to succeed at trial under
Donovan because the plaintiffs’ expert had ‘‘testified
that he cannot state, with reasonable medical certainty,
that any plaintiff has suffered subcellular change.’’ Id.,
333. The plaintiffs’ expert concluded only that ‘‘some
number of persons will have cellular changes in the
blood or lung cells’’ and ‘‘did not state that any specific
plaintiff or plaintiffs have suffered beryllium-related
subcellular change.’’ (Internal quotation marks omit-
ted.) Id., 336. The court concluded that ‘‘each plaintiff
must submit sufficient admissible evidence to permit a
reasonable fact finder to find that he or she has suffered
subcellular change.’’ (Emphasis added.) Id., 340.
Because the plaintiffs had failed to do so, the court
rendered summary judgment for the defendant. Id., 341;
see also Exxon Mobil Corp. v. Albright, 433 Md. 303, 385,
71 A.3d 30 (‘‘[W]e conclude that quantifiable, reliable
indicia that a defendant’s actions have so increased
significantly the plaintiff’s risk of developing a disease
are necessary to recover damages for medical monitor-
ing costs. The indicia may be proven by a medical
expert’s testimony, particularized to a plaintiff, and
demonstrating a reasonable link to toxic exposure.’’
(Emphasis added.)), cert. denied, 571 U.S. 1045, 134 S.
Ct. 648, 187 L. Ed. 2d 449 (2013).18
The expert affidavit in the present case is ambiguous
at best about whether each plaintiff actually suffered
subcellular harm that substantially increased his risk
of injury.19 Anwar does aver that ‘‘[a]sbestos fibers are
readily inhaled into the lungs where the fibers cause
changes at [the] cellular level.’’ But the affidavit does
not state specifically that Grem, Ferrara, Daley, and
Badorek have themselves suffered subcellular change
that substantially increased their risk of serious disease,
illness, or injury. As a result, it is unclear whether Anwar
is concluding that all persons necessarily suffer harmful
subcellular change as soon as they are exposed to asbes-
tos, as the plaintiffs in Donovan established with
respect to cigarette smoke after the case returned to
the federal court or, instead, that one can inhale asbes-
tos and only possibly suffer subcellular change that
‘‘substantially increase[s] the risk of serious disease,
illness, or injury . . . .’’ Donovan v. Philip Morris USA,
Inc., supra, 455 Mass. 226; see also Donovan v. Philip
Morris USA, Inc., 268 F.R.D. 1, 16 (D. Mass. 2010)
(‘‘Indeed, subcellular harm, according to [the] plaintiffs,
begins as soon as someone takes a single puff. . . .
While the extent of the damage and risk may vary among
class members, allegedly twenty pack-years of smoking
necessarily causes subcellular harm. . . . I find their
expert affidavits and depositions . . . sufficient on this
point for class certification purposes.’’ (Citations omit-
ted; emphasis altered; footnote omitted.)). This ambigu-
ity alone does not defeat summary judgment, however,
because we construe the evidence in the light most
favorable to the nonmoving party, and, therefore, we
will read Anwar’s conclusions about subcellular harm
as applicable to all of the plaintiffs.
Nevertheless, we conclude that the plaintiffs have
failed to present sufficient evidence as to certain other
factors under Donovan, specifically, that ‘‘early detec-
tion, combined with prompt and effective treatment,
will significantly decrease the risk of death or the sever-
ity of the disease, illness or injury,’’ and that ‘‘such
diagnostic medical examinations are reasonably (and
periodically) necessary, conformably with the standard
of care . . . .’’ Donovan v. Philip Morris USA, Inc.,
supra, 455 Mass. 226; see In re Marine Asbestos Cases,
265 F.3d 861, 867–68 (9th Cir. 2001) (upholding sum-
mary judgment for defendants because plaintiffs did
not ‘‘present sufficient evidence to raise a genuine issue
of material fact as to the reasonableness and necessity’’
of medical monitoring, as plaintiffs ‘‘submitted no evi-
dence that a single examination would yield any clinical
benefit,’’ and their expert affidavit ‘‘did not explain how
patients would benefit from the single, baseline exami-
nation that [the] plaintiffs seek’’).
When discussing the expert testimony requirement
in Donovan, the Massachusetts Supreme Judicial Court
cited the Utah Supreme Court’s decision in Hansen v.
Mountain Fuel Supply Co., supra, 858 P.2d 970. See
Donovan v. Philip Morris USA, Inc., supra, 455 Mass.
227. In Hansen, the Utah Supreme Court reversed the
trial court’s grant of summary judgment on the plain-
tiffs’ medical monitoring claims and discussed the ele-
ments that a plaintiff must prove to establish such a
claim. Hansen v. Mountain Fuel Supply Co., supra, 972,
979. Although the Donovan elements are not identical
to those in Hansen, there is significant overlap, and,
as such, we look to the explanation in Hansen of how
to prove medical necessity.20
The court in Hansen stated: ‘‘It also must be shown
that administration of the [medical] test to a specific
plaintiff is medically advisable for that plaintiff. To
illustrate, a monitoring regime might be of theoretical
value in detecting and treating a particular illness, but
if a reasonable physician would not prescribe it for a
particular plaintiff because the benefits of the monitor-
ing would be outweighed by the costs, which may
include, among other things, the burdensome frequency
of the monitoring procedure, its excessive price, or its
risk of harm to the patient, then recovery would not be
allowed. . . . We emphasize that the advisable medical
testing for a specific plaintiff must be shown to be
‘consistent with contemporary scientific principles’ and
‘reasonably necessary.’ ’’ (Citation omitted; emphasis
added.) Id., 980; see also Ayers v. Jackson, supra, 106
N.J. 606 (‘‘we hold that the cost of medical surveillance
is a compensable item of damages [when] the proofs
demonstrate, through reliable expert testimony predi-
cated upon the significance and extent of exposure to
chemicals, the toxicity of the chemicals, the seriousness
of the diseases for which individuals are at risk, the
relative increase in the chance of onset of disease in
those exposed, and the value of early diagnosis, that
such surveillance to monitor the effect of exposure to
toxic chemicals is reasonable and necessary’’ (empha-
sis added)); P. Lin, Note, ‘‘Opening the Gates to Scien-
tific Evidence in Toxic Exposure Cases: Medical Moni-
toring and Daubert,’’ 17 Rev. Litig. 551, 582 (1998)
(‘‘[a]lthough claims for medical monitoring damages do
not require proof of specific causation, the plaintiff’s
burden includes proof of medical necessity, which is
similar to proof of specific causation in that it shows
that the individual plaintiff can benefit from a program
of medical monitoring’’).21 Requiring each plaintiff to
prove ‘‘reasonable necessity’’ is vital, as the clinical
suitability of medical monitoring must be established
because, if such monitoring is unnecessary, recovery
would be unwarranted.
The plaintiffs’ argument that experts ‘‘should not
form any opinions about the plaintiffs’ exposure and
their need for medical monitoring . . . because that
function should be reserved to the trier of fact’’ is
against the weight of persuasive authority.22 This is the
very purpose of expert testimony in medical monitoring
cases. ‘‘[I]t 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 chemi-
cals in a given situation justifies future periodic medical
monitoring.’’ (Emphasis added.) Potter v. Firestone
Tire & Rubber Co., supra, 6 Cal. 4th 1009. Expert testi-
mony limited to ‘‘generally inform[ing] lay jurors about
the scientific correlation between asbestos exposure
and the onset of asbestos related diseases,’’ as the plain-
tiffs argue, is inadequate proof as a matter of law. In
the absence of expert testimony demonstrating the
necessity of future testing, a fact finder would be unable
to accurately conclude whether a plaintiff should
recover for medical monitoring. As the court in Hansen
noted, exposure alone does not provide a basis for
recovery, and proof of these elements, through expert
testimony, provides an important check on medical
monitoring. See Hansen v. Mountain Fuel Supply Co.,
supra, 858 P.2d 978, 980; see also In re Paoli Railroad
Yard PCB Litigation, 35 F.3d 717, 788 (3d Cir. 1994)
(acknowledging necessary limits on medical monitoring
claims, such as demonstrating that ‘‘a reasonable physi-
cian would prescribe for her or him a monitoring regime
different [from] the one that would have been pre-
scribed in the absence of that particular exposure’’
(internal quotation marks omitted)), cert. denied sub
nom. General Electric Co. v. Ingram, 513 U.S. 1190,
115 S. Ct. 1253, 131 L. Ed. 2d 134 (1995).
Attached as an exhibit to their motion for summary
judgment, the defendants provided an excerpt of
Anwar’s deposition testimony, in which he stated that
he had not formed an opinion as to the plaintiffs. This
admission establishes that there is no genuine issue
of material fact as to whether medical monitoring is
reasonably necessary for the plaintiffs. The plaintiffs
attempted to counter the defendants’ evidentiary show-
ing with an affidavit from Anwar, but that affidavit does
not offer an opinion as to the plaintiffs, individually
or as a group. There is only one statement that may
reasonably be construed as relevant to the plaintiffs’
claims: ‘‘Other individuals who were exposed to asbes-
tos during the demolition work at Sikorsky should be
monitored for the early detection and intervention of
an asbestos related disease, as asbestos inhalation
causes a significantly increased risk of contracting a
serious disease . . . .’’ The only fact that this statement
establishes is that persons exposed to asbestos have
a significantly higher risk of contracting an asbestos
related disease and should be monitored. This state-
ment does not speak to the reasonable need for the
medical monitoring of the plaintiffs, and it is insufficient
to overcome summary judgment. But see In re Paoli
Railroad Yard PCB Litigation, supra, 35 F.3d 794–95
(concluding that plaintiffs had presented sufficient evi-
dence to overcome summary judgment after experts
testified that plaintiffs should receive medical monitor-
ing due to their increased risk); Rhodes v. E.I. du Pont
de Nemours & Co., 657 F. Supp. 2d 751, 776 (S.D. W.
Va. 2009) (expert opinion stating, inter alia, that ‘‘the
plaintiffs have a significantly increased risk of disease
as a result of their exposure . . . and that the increased
risk warrants medical monitoring’’ raised question of
material fact as to reasonable necessity), aff’d in part
and appeal dismissed in part, 636 F.3d 88 (4th Cir.),
cert. denied, 565 U.S. 977, 132 S. Ct. 499, 181 L. Ed. 2d
347 (2011). In addition, the affidavit lacks any statement
demonstrating that ‘‘early detection, combined with
prompt and effective treatment, will significantly
decrease the risk of death or the severity of the disease,
illness or injury,’’ the fifth element required under Dono-
van. Donovan v. Philip Morris USA, Inc., supra, 455
Mass. 226; see In re Marine Asbestos Cases, supra, 265
F.3d 867 (‘‘the plaintiffs have not shown that a treatment
exists for [asbestos related] diseases, or that there is
clinical value to administering any such treatment
before the onset of symptoms of these diseases’’).
Even if we were to conclude that Anwar’s affidavit
was applicable to plaintiffs other than his patient, Dou-
gan, the portions of the affidavit that could apply to
the plaintiffs provide only bare assertions of the legal
requirements of medical monitoring without providing
the factual foundation supporting those assertions. In
several places, the affidavit mirrors the language required
to prove a medical monitoring claim in Redland Soccer
Club, Inc. v. Dept. of the Army, 548 Pa. 178, 195–96,
696 A.2d 137 (1997). Specifically, the affidavit states
that ‘‘[o]ther individuals who were exposed to asbestos
. . . at Sikorsky should be monitored . . . as asbestos
inhalation causes a significantly increased risk of con-
tracting a serious disease . . . . The monitoring regi-
men would be different from what is normally recom-
mended in the absence of exposure . . . . [It] is
reasonably necessary according to contemporary scien-
tific principles, and the monitoring regimen makes early
detection and intervention of an asbestos related dis-
ease possible.’’ Although the affidavit does include
detailed factual statements, those statements apply only
to Dougan, who is no longer a plaintiff. Without addi-
tional details supporting the plaintiffs’ individual needs
for medical monitoring, the plaintiffs have not raised a
genuine dispute of material fact.
We have repeatedly held that such conclusory state-
ments included in affidavits are insufficient to defeat
a motion for summary judgment. See, e.g., Stuart v.
Freiberg, supra, 316 Conn. 828 (discussing how state-
ments in affidavits relied on by plaintiffs ‘‘closely repli-
cate portions of the pleadings’’ and how ‘‘these aver-
ments are conclusory, and therefore inadequate to
defeat a summary judgment motion’’); Coley v. Hart-
ford, 312 Conn. 150, 166 n.12, 95 A.3d 480 (2014) (con-
cluding that expert’s affidavit was conclusory and,
therefore, did not demonstrate genuine issue of material
fact to defeat summary judgment motion); Buell Indus-
tries, Inc. v. Greater New York Mutual Ins. Co., 259
Conn. 527, 557, 791 A.2d 489 (2002) (‘‘[a]lthough an
affidavit by an expert may be considered in opposition
to a motion for summary judgment, conclusory affida-
vits, even from expert witnesses, do not provide a basis
on which to deny such motions’’ (internal quotation
marks omitted)). Anwar’s affidavit does not provide
any specific explanation as to why the plaintiffs require
medical monitoring because of their asbestos exposure
at Sikorsky.
As the expert in this case provided no opinion as to
the plaintiffs, and in the absence of any other evidence
demonstrating the reasonable necessity of medical
monitoring, we conclude that the plaintiffs did not dem-
onstrate a genuine issue of material fact. Accordingly,
we conclude that the trial court properly granted sum-
mary judgment for the defendants.
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 14, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The named plaintiff, Danny Dougan, was the fifth plaintiff in the proceed-
ings before the trial court. Dougan died in December, 2017, while his appeal
was pending before the Appellate Court. Dougan was initially the only
plaintiff to appeal, and, after he died, the defendants moved to dismiss the
appeal. The defendants argued that Dougan’s claims for medical monitoring
were moot and that, because he was the only plaintiff on appeal, the case
should be dismissed. Carol Ann Slicer, the executor of Dougan’s estate,
then filed a motion for leave to substitute herself for Dougan. The Appellate
Court granted this motion. Dougan’s estate then filed an objection to the
motion to dismiss, contending that the claims were not moot and that,
because of technical difficulties, the other plaintiffs had not been named in
the appeal. The Appellate Court granted the defendants’ motion to dismiss
Dougan’s appeal but also permitted the remaining plaintiffs to file a late
appeal, which is presently before this court. See footnote 3 of this opinion.
As a result, we consider only the claims of the four remaining plaintiffs,
and all references herein to the plaintiffs collectively are to them.
2
The plaintiffs withdrew their claims against the third defendant, URS
Corporation AES, on July 30, 2019, during the pendency of this appeal. See
footnote 6 of this opinion.
3
After receiving permission to file a late appeal; see footnote 1 of this
opinion; the plaintiffs appealed from the judgment of the trial court to the
Appellate Court, and we subsequently transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
4
We note that the trial court considered the plaintiffs’ position as a request
for a medical monitoring remedy rather than an independent cause of action.
On appeal, the plaintiffs request either the recognition of a stand-alone cause
of action or a remedy. Although there are some differences between the
two approaches, the elements of proof for either approach to medical moni-
toring are the same. See 1 J. McLaughlin, Class Actions (16th Ed. 2019) § 5:18
(‘‘The distinction between recognizing medical monitoring as an independent
cause of action and allowing it solely as a remedial measure has practical
consequences. If medical monitoring is not an independent cause of action,
then the plaintiff must establish all elements of an independent basis of
recovery, and the defendants may assert all available affirmative defenses
as against individuals. However, the elements of proof for medical monitor-
ing as a cause of action and as a remedy remain the same and must be
established by the plaintiffs.’’ (Footnote omitted.)).
5
The defendants contend that Ferrara was not involved in pipe demolition
or removal and that he never entered the basement where the asbestos was
found. Viewing the evidence in the light most favorable to the plaintiffs, we
accept their argument that this is irrelevant, as asbestos was also found on
the main floor of the boiler house and in an exterior dumpster, areas where
Ferrara worked.
6
The initial complaint also named A/Z Corporation, Clean Harbors of
Connecticut, Inc., and Clean Harbors Environmental Services, Inc., as defen-
dants; the action was later withdrawn as to those parties.
7
The plaintiffs moved for class certification in July, 2013, and requested
that the trial court certify a class of approximately forty persons who were
allegedly exposed to asbestos during the Sikorsky cogeneration project. The
defendants objected and submitted affidavits from two experts, Charles L.
Blake, an industrial hygienist, and Mark Metersky, a pulmonologist. Specifi-
cally, the defendants argued, inter alia, that the plaintiffs failed to demon-
strate that common questions predominate, and, as such, class certification
would be inappropriate. The trial court granted in part and denied in part the
plaintiffs’ request to certify the class in February, 2016. In its memorandum
of decision, the trial court concluded that the plaintiffs had not demonstrated
sufficient commonality in their claims for medical monitoring due to certain
individual inquiries, such as each ‘‘class member’s current medical condition
. . . .’’ Nevertheless, the court proceeded to certify the class but excluded
certain issues from class treatment, such as a class member’s need for
medical monitoring. Simultaneously, the court also granted in part and
denied in part motions to strike filed by Sikorsky and Carrier, striking the
plaintiffs’ federal Clean Air Act claims but permitting their other strict
liability claims to proceed.
8
Shortly thereafter, URS filed its second motion for summary judgment,
asserting largely the same claims as Sikorsky and Carrier. URS had filed
its first motion for summary judgment in 2014, but the trial court did not
decide this motion before granting URS’ second motion for summary judg-
ment on March 28, 2017.
9
The defendants raised this issue as an alternative ground to affirm the
trial court’s judgment in their preliminary statement of the issues pursuant
to Practice Book § 63-4 (a) (1); they also raised this issue before the trial
court in their motion for summary judgment. See, e.g., Thomas v. West
Haven, 249 Conn. 385, 390–91 n.11, 734 A.2d 535 (1999) (discussing proce-
dural requirements for considering alternative grounds), cert. denied, 528
U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); Chamerda v. Opie, 185
Conn. App. 627, 645–46, 197 A.3d 982 (same), cert. denied, 330 Conn. 953,
197 A.3d 893 (2018).
10
Medical monitoring differs doctrinally from a claim for enhanced risk.
See A. Schwartz, Annot. ‘‘Recovery of Damages for Expense of Medical
Monitoring To Detect or Prevent Future Disease or Condition,’’ 17 A.L.R.5th
327, 336, § 2 (a) (1994) (‘‘[m]edical monitoring, as this cause of action has
come to be known, has been defined as an action seeking to recover the
quantifiable costs of periodic future medical examinations to detect the
onset of physical harm . . . as distinguished from an enhanced risk claim
which seeks compensation for the anticipated harm itself or for increased
apprehension of such harm’’ (internal quotation marks omitted)).
11
See A. Slagel, Note, ‘‘Medical Surveillance Damages: A Solution to the
Inadequate Compensation of Toxic Tort Victims,’’ 63 Ind. L.J. 849, 852 (1987–
1988) (‘‘In a toxic tort case the significant personal injuries often are not
detectable simultaneously upon exposure to the toxic substance, but rather
are latent. In fact, most toxic injuries do not manifest themselves as clinically
detectable ailments until years after exposure occurs.’’ (Footnote omitted.)).
12
See also Sadler v. PacifiCare of Nevada, Inc., 130 Nev. 990, 998–99, 340
P.3d 1264 (2014) (explaining that Friends for All Children, Inc., was ‘‘[o]ne
of the earliest cases to consider a medical monitoring claim’’ and that several
courts subsequently relied on its reasoning to ‘‘[conclude] that a physical
injury is not required in order to recover the costs of medical monitoring’’);
H. Zarov et al., ‘‘A Medical Monitoring Claim for Asymptomatic Plaintiffs:
Should Illinois Take the Plunge?,’’ 12 DePaul J. Health Care L. 1, 3 (2009)
(‘‘[c]ourts and commentators generally trace the origins of medical monitor-
ing claims to the . . . decision [of the District of Columbia Circuit] in
Friends [f]or All Children, Inc.’’).
13
For courts rejecting medical monitoring claims in the absence of physical
injury after Buckley, see Hinton ex rel. Hinton v. Monsanto Co., 813 So.
2d 827, 831–32 (Ala. 2001), Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d
849, 857 (Ky. 2002), Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1,
5–7 (Miss. 2007), Henry v. Dow Chemical Co., 473 Mich. 63, 81, 86, 701
N.W.2d 684 (2005), Curl v. American Multimedia, Inc., 187 N.C. App. 649,
657, 654 S.E.2d 76 (2007), Lowe v. Philip Morris USA, Inc., 344 Or. 403,
415, 183 P.3d 181 (2008), and Alsteen v. Wauleco, Inc., 335 Wis. 2d 473,
488–91, 802 N.W.2d 212, review denied, 338 Wis. 2d 323, 808 N.W.2d 715(2011). Cf. Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 452, 5 N.E.3d
11, 982 N.Y.S.2d 40 (2013) (requiring evidence of ‘‘present physical injury
or damage to property’’ (emphasis added)).
For courts allowing a claim for medical monitoring to proceed post Buck-
ley, see Petito v. A.H. Robins Co., 750 So. 2d 103, 104, 108 (Fla. App. 1999),
review denied, 780 So. 2d 912 (2001), and review denied sub nom. Zenith
Goldline Pharmaceuticals, Inc. v. Petito, 780 So. 2d 916 (2001), Berry v.
Chicago, 133 N.E.3d 1201, 1209 (Ill. App.), appeal allowed, 132 N.E.3d 284(Ill. 2019), Exxon Mobil Corp. v. Albright, 433 Md. 303, 378–80, 71 A.3d 30,
cert. denied, 571 U.S. 1045, 134 S. Ct. 648, 187 L. Ed. 2d 449 (2013), Donovan
v. Philip Morris USA, Inc., 455 Mass. 215, 225–26, 914 N.E.2d 891 (2009),
Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 717–18 (Mo. 2007),
Sadler v. PacifiCare of Nevada, 130 Nev. 990, 998–99, 340 P.3d 1264 (2014),
and Bower v. Westinghouse Electric Corp., 206 W. Va. 133, 140, 522 S.E.2d
424 (1999).
14
See Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 92 (4th Cir.),
cert. denied, 565 U.S. 977, 132 S. Ct. 499, 181 L. Ed. 2d 347 (2011).
15
See McCullough v. World Wrestling Entertainment, Inc., supra, 172 F.
Supp. 3d 535.
16
We note that other courts have rejected similar arguments with respect
to whether subclinical injuries are in fact physical injuries as a matter of
law. See Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 95 (4th
Cir.) (disagreeing with plaintiffs’ argument that exposure to toxin that cre-
ated ‘‘[an] alteration in the structure of [the plaintiffs’] blood is an injury’’
in negligence cause of action (internal quotation marks omitted)), cert.
denied, 565 U.S. 977, 132 S. Ct. 499, 181 L. Ed. 2d 347 (2011); June v. Union
Carbide Corp., 577 F.3d 1234, 1249 (10th Cir. 2009) (‘‘It is true that a number
of courts have recognized [medical monitoring] claims . . . premised on
subclinical effects of toxic exposure. But, tellingly, these courts have not
reasoned that subclinical injuries from a toxic agent are bodily or physical
injuries.’’ (Emphasis altered.)); Parker v. Wellman, 230 Fed. Appx. 878,
881–83 (11th Cir. 2007) (rejecting plaintiffs’ theory of subcellular harm as
physical injury under Georgia law); Bell v. 3M Co., 344 F. Supp. 3d 1207,
1216 (D. Colo. 2018) (disagreeing with plaintiffs’ theory that ‘‘the bioaccumu-
lation of toxins or subclinical damage constitute[s] a present physical
injury’’); see also J. Grodsky, ‘‘Genomics and Toxic Torts: Dismantling the
Risk-Injury Divide,’’ 59 Stan. L. Rev. 1671, 1674 (2007) (‘‘Although the case
law addressing subcellular damage is limited . . . most courts have treated
such damage as benign, de minimis, or otherwise legally inconsequential.
Courts greatly prefer to draw bright lines between risk and injury, and
continue to place the boundary at proof of classic medical symptoms or
overt impairment.’’ (Footnote omitted.)). But see Sullivan v. Saint-Gobain
Performance Plastics Corp., 431 F. Supp. 3d 448, 454–55 (D. Vt. 2019) (‘‘It
is more likely that the Vermont Supreme Court will follow the definition of
bodily harm developed in [§ 15 of] the Restatement [(Second) of Torts] and
apply it to latent injuries caused by chemical exposure. By defining bodily
harm to include any alteration to a person’s body, the Restatement [(Second)
of Torts] includes changes such as abnormal blood serum results showing
the presence of an unusual and potentially harmful chemical.’’).
One Connecticut trial court has held that a very similar theory of liability
in an asbestos exposure case raised a question of fact for the jury to decide.
See Bowerman v. United Illuminating, Superior Court, judicial district of
New London at Norwich, Docket No. CV-XX-XXXXXXX-S (December 15, 1998)
(23 Conn. L. Rptr. 589, 592) (‘‘whether . . . the scarring of lung tissue and
implantation of asbestos fibers in the lungs constitute a compensable legal
harm is an issue of fact if there is evidence showing such conditions to be
detrimental and if there is evidence showing the existence of such conditions
in the plaintiffs’’).
17
We note that other federal and state courts have employed a similar
analysis, deeming it unnecessary to determine whether to recognize a claim
for medical monitoring because the plaintiffs’ proof was inadequate to defeat
a motion for summary judgment in any event. See M.G. ex rel. K.G. v. A.I.
duPont Hospital for Children, 393 Fed. Appx. 884, 892–93 (3d Cir. 2010)
(declining to consider whether Delaware Supreme Court would permit medi-
cal monitoring claim because plaintiff could not state such claim); In re
Marine Asbestos Cases, 265 F.3d 861, 867 (9th Cir. 2001) (upholding grant
of summary judgment because, ‘‘even if medical monitoring were available
under the Jones Act to a seaman who satisfied the Paoli factors, the plaintiffs
have failed to present sufficient evidence to raise a genuine issue of material
fact as to the reasonableness and necessity of the type of medical monitoring
that they seek’’); DeStories v. Phoenix, 154 Ariz. 604, 610, 744 P.2d 705 (App.
1987) (upholding grant of summary judgment after concluding that, even if
plaintiffs’ medical monitoring theory was legally cognizable, plaintiffs’ claim
would still fail due to lack of evidence); cf. Philip Morris, Inc. v. Angeletti,
358 Md. 689, 782, 787, 752 A.2d 200 (2000) (declining to consider whether
‘‘medical monitoring is a cognizable claim’’ under Maryland law because
medical monitoring class was improperly certified).
18
One federal district court recently rejected a defendant’s argument that
there must be more individualized expert testimony as to causation. See
Sullivan v. Saint-Gobain Performance Plastics Corp., 431 F. Supp. 3d 448,
467–70 (D. Vt. 2019). After first predicting that the Vermont Supreme Court
would recognize a medical monitoring remedy, the court denied the defen-
dant’s motion for summary judgment on the medical monitoring claims of
a class of plaintiffs who allegedly had been exposed to perfluorooctanoic
acid (PFOA) in their groundwater. Id., 452, 469–70. The defendant argued
that the plaintiffs lacked expert evidence demonstrating specific causation,
specifically, that ‘‘that exposure to PFOA from the [defendant’s] facility
caused [the plaintiffs to be exposed to] an increased risk of adverse health
conditions, as opposed to whether it can do so in general.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 467. The court concluded
that, although the plaintiffs’ experts had not reviewed the ‘‘individual plain-
tiffs’ medical records,’’ summary judgment was inappropriate because ‘‘proof
of causation must . . . be at the population level’’; id., 467–68; and declined
to grant summary judgment against any specific plaintiff because any individ-
ual issues could be resolved at the damages phase. Id., 469–70.
We conclude that Sullivan is distinguishable. First, the class in that case
was limited to individuals ‘‘who actually demonstrate[d] increased levels of
PFOA in their bloodstream,’’ whereas the present case provides no such
benchmark. Id., 462. Second, although the case before us was a class action
when the trial court decided the summary judgment motion, the trial court
expressly declined to certify the class on the issue of ‘‘the nature and extent
of [each class member’s] present or future need for medical monitoring
. . . .’’ For these reasons, Sullivan is a case more appropriately decided
by common proof, and we are not persuaded that it is applicable or persua-
sive here.
19
Anwar did examine and treat Dougan as his pulmonary specialist, and,
as a result, the affidavit does detail more specifically Dougan’s exposure to
asbestos and the accompanying harm. Dougan therefore would likely satisfy
the subcellular injury requirement under the Donovan standard. But, as
Dougan is no longer a party to the case; see footnote 1 of this opinion; we
do not consider the affidavit’s statements as to Dougan.
20
Medical necessity is demonstrated through the eighth element of Han-
sen, that the ‘‘[medical] test has been prescribed by a qualified physician
according to contemporary scientific principles.’’ Hansen v. Mountain Fuel
Supply Co., supra, 858 P.2d 979.
21
We need not address how the reasonable necessity requirement would
operate in the context of a class action involving a claim for future medical
monitoring. The plaintiffs were not certified as a class with respect to this
issue, and the appropriate treatment of class based claims for medical
monitoring is not presented in this appeal. See footnote 7 of this opinion.
As a result, we conclude that each plaintiff in the present case must establish
that medical monitoring is necessary under the Donovan test and leave for
another day under what circumstances reasonable necessity may be proven
for a class of plaintiffs.
22
The plaintiffs also argue that experts should not opine as to ‘‘the [plain-
tiffs’] likelihood of contracting diseases . . . .’’ Certain courts that permit
medical monitoring have expressly stated that they do not require a specific
assessment or showing of the likelihood of contracting a particular disease
in the future. See Merry v. Westinghouse Electric Corp., 684 F. Supp. 847,
851 (M.D. Pa. 1988) (concluding that ‘‘the plaintiffs . . . proffered sufficient
evidence to defeat [the defendant’s] summary judgment motion,’’ even
though ‘‘[t]he [plaintiffs’] experts have not provided, and in fact state they
cannot provide, a scientifically sound conclusion as to the precise degree
of risk faced by the plaintiffs’’); Potter v. Firestone Tire & Rubber Co., supra,
6 Cal. 4th 1008 (concluding that ‘‘recovery of medical monitoring damages
should not be dependent upon a showing that a particular cancer or disease
is reasonably certain to occur in the future’’); Hansen v. Mountain Fuel
Supply Co., supra, 858 P.2d 979 (‘‘[b]ecause the injury in question is the
increase in risk that requires one to incur the cost of monitoring, the plaintiff
need not prove that he or she has a probability of actually experiencing the
toxic consequence of the exposure’’). We agree with the plaintiffs that expert
testimony on that particular issue is not necessary in this particular context.