Sadler v. PacifiCare of Nev. ( 2014 )

130 Nev., Advance Opinion 18
IN THE SUPREME COURT OF THE STATE OF NEVADA
SUSAN SADLER; AND JACK SADLER, No. 62111
SR., INDIVIDUALLY AND ON BEHALF
OF ALL PERSONS SIMILARLY
SITUATED, FILED
Appellants,
vs. DEC 3 1 2014
PACIFICARE OF NEVADA, INC., A
Ye/ C
TRAM LINDEMAN
NEVADA CORPORATION,
t FCLERK
Respondent.
Appeal from a district court order granting judgment on the
pleadings in a negligence action. Eighth Judicial District Court, Clark
County; Susan Scann, Judge
Reversed and remanded.
Marquiz Law Office and Craig A. Marquiz, Henderson; George 0. West,
III, Las Vegas,
for Appellants.
Lewis Roca Rothgerber LLP and Daniel F. Polsenberg and Joel D.
Henriod, Las Vegas; Holland & Hart LLP and Constance L. Akridge and
Matthew T. Milone, Las Vegas,
for Respondent.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, HARDESTY, J.:
Following an outbreak of hepatitis C that was linked to unsafe
injection practices used in procedures performed at certain health-care
facilities in southern Nevada, patients of those facilities who had
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undergone such procedures were advised to submit to testing for blood-
borne diseases, including hepatitis B, hepatitis C, and HIV. This appeal
concerns whether, in the absence of a present physical injury, those
patients who have so far tested negative for such diseases, or who have not
yet been tested, may state a claim for negligence based on the need to
undergo ongoing medical monitoring as a result of the unsafe injection
practices at these health-care facilities. Because we conclude that such
individuals may state a claim for negligence, we reverse the district court's
dismissal of the complaint and remand this matter to the district court for
further proceedings
FACTUAL AND PROCEDURAL BACKGROUND
Appellants Jack and Susan Sadler, on behalf of themselves
and a proposed class of similarly situated individuals,' filed a complaint in
the district court against respondent PacifiCare of Nevada, Inc., a health
maintenance organization, asserting claims of negligence and negligence
per se on the ground that PacifiCare failed to perform its duty to establish
and implement a quality assurance program to oversee the medical
providers within its network. In the complaint, the Sadlers alleged that
PacifiCare's failure to monitor the medical providers allowed those
providers to use unsafe injection practices, including reusing syringes and
consequently injecting patients with medications from contaminated vials,
which resulted in the Sadlers and the putative class members being
"exposed to and/or placed at risk of contracting HIV, hepatitis B, hepatitis
C and other blood-borne diseases, requiring subsequent medical
'No class was certified in the district court before the entry of
judgment on the pleadings.
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monitoring ... for infections of the same." As relief for their negligence
claims, the Sadlers sought to have the court establish a court-supervised
medical monitoring program at PacifiCare's expense.
PacifiCare moved for judgment on the pleadings, arguing that
the Sadlers' complaint failed to state a negligence claim on the ground
that they had not alleged an "actual injury," such as testing positive for a
blood-borne illness. Instead, PacifiCare characterized the Sadlers' claim
as one for a risk of exposure. And PacifiCare contended that the Sadlers'
fear of injury or illness could not support their negligence claims. The
Sadlers opposed the motion for judgment on the pleadings, arguing that
the injury that must be alleged to state a tort claim does not need to be a
physical injury, as suggested by PacifiCare. The crux of the Sadlers'
opposition was that, by asserting that PacifiCare's negligence had caused
them to need ongoing medical monitoring, they had alleged a legal injury
sufficient to support their negligence claims.
Following a hearing on the matter, the district court granted
PacifiCare's motion for judgment on the pleadings. In addressing the
question of injury, the district court found it significant that the Sadlers
had alleged exposure to blood generally, but had not specifically alleged
exposure to infected blood. The court therefore concluded that the Sadlers'
claims were based on a risk of exposure to infected blood, which the court
found was insufficient to allege an injury. On this basis, the court granted
judgment in favor of PacifiCare. This appeal followed.
DISCUSSION
Standard of review
Under NRCP 12(c), the district court may grant a motion for
judgment on the pleadings when the material facts of the case "are not in
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dispute and the movant is entitled to judgment as a matter of law."
Bonicamp v. Vazquez, 120 Nev. 377, 379, 91 P.3d 584, 585 (2004). Because
an order granting a motion for judgment on the pleadings presents a
question of law, our review of such an order is de novo. Lawrence v. Clark
Cnty., 127 Nev. „ 254 P.3d 606, 608 (2011). As with a dismissal for
failure to state a claim, in reviewing a judgment on the pleadings, we will
accept the factual allegations in the complaint as true and draw all
inferences in favor of the nonmoving party. Cf. Buzz Stew, LLC v. City of
N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (setting forth
the standard of review for an order dismissing a complaint under NRCP
12(b)(5)); see also Bernard v. Rockhill Dev. Co., 103 Nev. 132, 135, 734
P.2d 1238, 1241 (1987) (explaining that a "motion for a judgment on the
pleadings has utility only when all material allegations of fact are
admitted in the pleadings and only questions of law remain").
Medical monitoring
The goal of a medical monitoring claim is to require the
defendant to pay for the costs of long-term diagnostic testing to aid in
early detection of latent diseases that may have been caused by the
defendant's tortious conduct. Bower v. Westinghouse Elec. Corp., 522
S.E.2d 424, 429 (W. Va. 1999). This court has previously considered
medical monitoring in only one opinion, Badillo v. American Brands, Inc.,
117 Nev. 34, 16 P.3d 435 (2001), in which the plaintiffs sought a judgment
requiring the defendant tobacco companies to pay for the plaintiffs'
ongoing medical monitoring for tobacco-related diseases. Id. at 38, 16 P.3d
at 438. There, the federal district court certified a question to this court,
asking whether Nevada common law recognizes medical monitoring as
either an independent tort action or a remedy. Id. at 37-38, 16 P.3d at
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437. Considering the specific circumstances presented and the way such
claims had been treated by other courts, the Badillo court concluded that
there is no common law cause of action for medical monitoring in Nevada.
Id. at 44, 16 P.3d at 441. Further, because Badillo had not identified an
underlying cause of action, the court did not reach the question of whether
medical monitoring is a viable remedy to a tort claim generally. Id. at 41,
16 P.3d at 440.
In this case, the Sadlers have specifically sought medical
monitoring as a remedy for negligence, and thus, they do not ask this
court to consider whether to recognize medical monitoring as an
independent cause of action under the circumstances• presented here.
PacifiCare does not dispute that medical monitoring may be a viable
remedy for a properly stated cause of action, but it contends that the
Sadlers have not alleged a present physical injury and, therefore, have not
sufficiently stated a claim for negligence. As the Badillo court did not
answer whether medical monitoring is a remedy for negligence, this
appeal presents a question of first impression for this court. To address it,
we look first to our general negligence law before turning to how other
courts have analyzed the injury requirement in the context of medical
monitoring as a remedy.
Negligence
In order to state a claim for negligence, a plaintiff must allege
that "(1) the defendant owed the plaintiff a duty of care, (2) the defendant
breached that duty, (3) the breach was the legal cause of the plaintiffs
injuries, and (4) the plaintiff suffered damages." 2 DeBoer v. Senior
As noted above, the Sadlers' complaint alleged both negligence and
negligence per se. Because the issue on appeal concerns only whether the
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Bridges of Sparks Family Hasp., Inc., 128 Nev. „ 282 P.3d 727, 732
(2012). Thus, the third element of a negligence claim contemplates that
the plaintiff has suffered an injury. See id. As the district court's order
and the parties' arguments have all been limited to whether the injury
requirement is satisfied in this case, we similarly limit our inquiry to that
issue, leaving the remaining elements of the negligence claims to be
considered by the district court on remand.
Injury generally
The Sadlers argue that they have alleged an injury based on
actual exposure to infected blood by asserting that they were exposed to
the blood of other patients and that they were "exposed to and/or placed at
risk of contracting HIV, hepatitis B, hepatitis C and other blood-borne
diseases." Alternatively, the Sadlers argue that, even if they did not
allege actual exposure to contaminated blood, they nonetheless have
stated a claim for negligence by alleging that Pacifieare injured them by
causing them to need ongoing medical monitoring. Conversely, PacifiCare
argues that a plaintiff attempting to state a claim for negligence must
allege a present physical injury, such that, here, the plaintiffs would be
required to allege that they had actually contracted an illness. In
granting judgment in favor of PacifiCare, the district court appears to
have recognized that an injury may be found on less than a showing of
actual illness, but the court declined to find a cognizable injury because
the Sadlers had not alleged actual exposure to contaminated blood.
...continued
Sadlers sufficiently alleged an injury, which would apply to both claims
equally, we do not distinguish between the negligence and negligence per
se claims within this opinion.
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We begin our inquiry with the broad question, which asks
whether the injury needed to state a tort claim must be a physical injury,
or instead, whether some other type of legal injury may satisfy that
requirement. Although PacifiCare has not argued that the Sadlers' claims
were barred by the economic loss doctrine, our review of the parties'
respective positions leads us to conclude that this doctrine is implicated by
the issue presented, as it is closely related to the injury requirement. In
addressing negligence claims, this court has noted that the "economic loss
doctrine marks the fundamental boundary between contract law, which is
designed to enforce the expectancy interests of the parties, and tort law,
which imposes a duty of reasonable care and thereby [generally]
encourages citizens to avoid causing physical harm to others." Terracon
Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 72-73, 206
P.3d 81, 86 (2009) (alteration in original) (internal quotation marks
omitted). Thus, under the economic loss doctrine, a plaintiff generally
cannot recover on an unintentional tort claim for "purely economic losses."
Id. at 73, 206 P.3d at 86.
Here, we cannot say that the Sadlers have alleged purely
economic losses. While their claims for medical monitoring are based in
part on the expense of undergoing such testing, the complaint also alleged
that PacifiCare's actions exposed the Sadlers and the other putative class
members to unsafe injection practices, putting them at risk for contracting
serious blood-borne diseases. 3 This exposure and increased risk are
3 It
is important to distinguish here between considering the
increased risk of disease as a circumstance demonstrating that the Sadlers
may have suffered a noneconomic loss, and viewing increased risk as an
independent claim for damages, which some other courts have rejected as
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noneconomic detrimental changes in circumstances that the Sadlers
alleged they would not have experienced but for the negligence of
PacifiCare. As a result, we conclude that the Sadlers' claims are not
barred by the economic loss doctrine. Nevertheless, while these changes
may constitute something other than economic losses, it still may be said
that they do not amount to physical injuries. Thus, we still must
determine whether tort law requires that the underlying injury be a
physical one.
In Terracon Consultants, this court referred to a goal of tort
law being to "encourage H citizens to avoid causing physical harm to
others," id. at 72-73, 206 P.3d at 86 (internal quotation marks omitted),
but this court has not previously addressed whether physical harm or
physical injury is a necessary element of all tort claims. This court has,
however, discussed physical injury in the context of negligent and
intentional infliction of emotional distress claims. See Chowdhry v. NLVH,
Inc., 109 Nev. 478, 482-83, 851 P.2d 459, 462 (1993); Nelson v. City of Las
Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983). In that context, this
court has required a plaintiff alleging negligent infliction of emotional
distress to demonstrate some "physical impact" beyond conditions such as
insomnia or general discomfort, see Chowdhry, 109 Nev. at 482-83, 851
P.2d at 462, but a physical impact or injury, as opposed to an emotional
...continued
not satisfying the present legal injury requirement, see, e.g., Burns v.
Jaquays Mining Corp., 752 P.2d 28, 30-31 (Ariz. Ct. App. 1987), or as too
speculative or difficult to quantify. See, e.g., Ayers v. Twp. of Jackson, 525
A.2d 287, 308 (N.J. 1987). Here, the Sadlers have not alleged a cause of
action based on increased risk, and thus, whether this court would
recognize such a cause of action is outside the scope of our inquiry.
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one, has not necessarily been required to state a claim for intentional
infliction of emotional distress. See Nelson, 99 Nev. at 555, 665 P.2d at
1145 (setting forth the elements for an intentional infliction of emotional
distress claim).
As an intentional infliction of emotional distress claim does
not require a physical injury, we cannot conclude that such an injury is
necessarily a prerequisite to a tort claim generally. See id. Conversely,
based on the requirements for a negligent infliction of emotional distress
claim, we recognize that a physical injury may be required in order to
establish certain torts. See Chowdhry, 109 Nev. at 482-83, 851 P.2d at
462. We therefore now consider whether a physical injury must be alleged
in order to state a claim for negligence with medical monitoring as a
remedy. As the parties have not identified, and our research has not
revealed, any Nevada authority specifically requiring a party to allege a
physical injury in order to state a negligence claim, particularly one that
seeks medical monitoring as a remedy, we look to the decisions of other
courts for guidance on this issue.
Physical injury in the context of medical monitoring
Several courts that have considered this issue have rejected
medical monitoring claims primarily on the ground that a physical injury
must be shown in order to state such a claim. 4 See, e.g., Hinton ex rel.
4 The courts addressing medical monitoring claims have not always
clearly distinguished between medical monitoring as an independent
cause of action and medical monitoring as a remedy for some other cause
of action. Regardless, as our focus herein is on the injury requirement,
which is relevant to all of these medical monitoring claims, we do not find
it necessary to differentiate between the cases discussing medical
monitoring as a cause of action and those applying it as a remedy for a
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Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala. 2001) (concluding that a
plaintiff failed to state a claim in the medical monitoring context when he
did not allege a present, physical injury); Wood v. Wyeth-Ayerst Labs., Div.
of Am. Home Prods., 82 S.W.3d 849, 856-58 (Ky. 2002) (rejecting a claim
for medical monitoring on the ground that traditional tort theory requires
a plaintiff to demonstrate a present, physical injury). These cases tend to
characterize medical monitoring claims as seeking compensation for the
threat of future harm or for increased risk of harm. See Lowe v. Philip
Morris USA, Inc., 183 P.3d 181, 184 (Or. 2008). And they therefore
conclude that the increased risk of harm and consequent need for medical
monitoring are insufficient to constitute a present injury necessary to
state a negligence claim. See id. at 184-85; see also Paz v. Brush
Engineered Materials, Inc., 949 So. 2d 1, 5 (Miss. 2007) ("The possibility of
a future injury is insufficient to maintain a tort claim. Recognizing a
medical monitoring cause of action would be akin to recognizing a cause of
action for fear of future illness.").
We are not convinced that such a restricted view of an injury
is appropriate in the present context. As an initial matter, the
Restatement (Second) of Torts § 7(1) (1965), broadly defines an injury for
the purpose of tort law as "the invasion of any legally protected interest of
another." Not only is this definition not limited to physical injury, the
same section separately defines "harm" as "the existence of loss or
detriment in fact of any kind to a person resulting from any cause," and
"physical harm" as "the physical impairment of the human body, or of land
...continued
different cause of action. Within this opinion, we therefore use the phrase
"medical monitoring claims" to refer to both types of cases.
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or chattels." Id. Thus, while these concepts are related, the differing
definitions indicate that they are not interchangeable, and more, that
injury is generally not limited to physical injury.
Applying the Restatement's definition of injury, a significant
number of jurisdictions have concluded that the costs of medical
monitoring may be recovered, either as an independent claim or as a
remedy for an established tort, even in the absence of a present physical
injury. See, e.g., Friends For All Children, Inc. v. Lockheed Aircraft Corp.,
746 F.2d 816 (D.C. Cir. 1984); Potter v. Firestone Tire & Rubber Co., 863
P.2d 795 (Cal. 1993); Ayers v. Twp. of Jackson, 525 A.2d 287 (N.J. 1987);
Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). One of
the earliest cases to consider a medical monitoring claim was Friends For
All Children, 746 F.2d 816. In that case, a group of orphans was being
transported out of South Vietnam when a locking system on their aircraft
failed, resulting in "an explosive decompression and loss of oxygen" on the
plane. Id. at 819. Friends For All Children, an organization acting on
behalf of the children, filed a complaint against Lockheed Aircraft
Corporation, the manufacturer of the airplane, seeking the establishment
of a fund to pay the costs for monitoring the children for a neurological
developmental disorder that may have been caused by the sudden
decompression or the crash itself. Id. In opposing the relief sought by
Friends For All Children, Lockheed argued that the District of Columbia
would not recognize a claim for damages in the absence of a present
physical injury. Id. at 824.
In addressing this claim, the Friends For All Children court
first considered a hypothetical question in which an individual, Jones, was
knocked down by the negligence of a second party, Smith. Id. at 825. The
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court reasoned that if Jones went to the hospital and, on the
recommendation of his doctors, underwent testing to determine whether
he had suffered injuries, Smith would be responsible for the costs of such
testing, even if the testing demonstrated that Jones had not actually
suffered any physical injuries. Id. Following from this hypothetical, and
based on the Restatement's definition of injury, the Friends For All
Children court held that "an individual has an interest in avoiding
expensive diagnostic examinations just as he or she has an interest in
avoiding physical injury." Id. at 825-26. Thus, the court concluded that,
when that interest is invaded, the defendant should be required to
compensate the plaintiff for that invasion. Id.
The California supreme court later applied similar reasoning
to a claim for medical monitoring in Potter v. Firestone Tire & Rubber Co.,
863 P.2d 795. There, the plaintiffs alleged that the defendant had
improperly disposed of toxic waste, exposing the plaintiffs to carcinogens
that increased their risk of developing cancer. Id. at 801. In opposing the
plaintiffs' request for medical monitoring costs, the defendant argued that,
even if a present physical injury was not required, the plaintiffs were
required to demonstrate that, as a result of the exposure, it was more
likely than not that they would develop cancer. Id. at 822.
With regard to the need for a present physical injury, the
Potter court referred back to Friends For All Children and the
Restatement definition of injury, concluding that these authorities
persuasively demonstrated that no physical injury should be required for a
medical monitoring claim. Id. at 823-24. Moreover, the Potter court
rejected the argument that the plaintiffs should be required to show a high
likelihood that they would develop cancer, concluding instead that a court
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considering the availability of a medical monitoring recovery should focus
on the reasonableness of the need for medical monitoring. Id. at 822-23.
Additionally, the Potter court outlined several important public policy
considerations in support of recognizing a medical monitoring recovery,
including deterrence against irresponsible handling of toxic chemicals,
preventing or mitigating future illness and therefore reducing overall
costs, and serving justice by requiring the responsible party to pay the
expenses of reasonable and necessary medical monitoring. Id. at 824.
Relying on the Restatement, the decision in Friends For All Children,
these policy considerations, and other similar reasoning, a number of
other courts have likewise concluded that a physical injury is not required
in order to recover the costs of medical monitoring that is reasonably
required as a result of the defendant's tortious acts. See Ayers, 525 A.2d
287; Redland Soccer Club, Inc. v. Dep't of the Army & Dep't of Del of the
United States, 696 A.2d 137 (Pa. 1997); Hansen, 858 P.2d 970; Bower v.
Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999).
Our consideration of these authorities persuades us to
recognize that a plaintiff may state a cause of action for negligence with
medical monitoring as the remedy without asserting that he or she has
suffered a present physical injury. As discussed above, we have not found
anything in this court's precedent or in the Restatement's definition of
injury that limits an injury only to a physical one. On the contrary, the
Restatement definition specifically contemplates "the invasion of any
legally protected interest of another" as an injury. Restatement (Second) of
Torts § 7(1) (1965) (emphasis added). And the Restatement separately
defines "physical harm," indicating that physical harm is not necessarily
implicated by the term "injury." See id. § 7(3).
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Further, we agree with the reasoning of the Friends For All
Children court, which held that an individual has a legally protected
interest in avoiding expensive diagnostic examinations. 746 F.2d at 826.
And although the expense may be an economic loss, that economic loss is
accompanied by noneconomic losses, including unwillingly enduring an
unsafe injection practice and the resulting increase in risk of contracting a
latent disease and need to undergo medical testing that would not
otherwise be required. Moreover, as noted in Potter, there are significant
policy reasons for allowing a recovery for medical monitoring costs, not the
least of which is that early detection can permit a plaintiff to mitigate the
effects of a disease, such that the ultimate costs for treating the disease
may be reduced. 863 P.2d at 823-24. If medical monitoring claims are
denied, plaintiffs who cannot afford testing may, through no fault of their
own, be left to wait until their symptoms become manifest, losing valuable
treatment time. See id. Rather than allowing this result, it is more just to
require the responsible party to pay for the costs of monitoring
necessitated by that party's actions. See Friends For All Children, 746
F.2d at 826 ("When a defendant negligently invades [an individual's legal]
interest [in avoiding the need for medical testing], the injury to which is
neither speculative nor resistant to proof, it is elementary that the
defendant should make the plaintiff whole by paying for the
examinations.").
PacifiCare argues that a "need to be tested" is far too broad to
constitute a legal injury, and indeed, some of the courts that have declined
to recognize medical monitoring claims have expressed concern that
allowing such claims will open the floodgates to litigation because "tens of
millions of individuals may have suffered exposure to substances that
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might justify some form of substance-exposure-related medical
monitoring." Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424,
442 (1997). We do not consider this concern to be persuasive, however, as
any given plaintiff will still be required to plead and prove the essential
elements of their underlying claim, including, for the purpose of a
negligence claim, that the defendant actually caused the need for medical
testing through a breach of a duty owed to the specific plaintiff. See
DeBoer, 128 Nev. at , 282 P.3d at 732.
Further, in order to establish damages• for such a medical
monitoring claim, a plaintiff will have to show that he or she incurred
costs as a result of the defendant's actions. See id.; see also Restatement
(Second) of Torts § 902 (1979) (defining damages as "a sum of money
awarded to a person injured by the tort of another"). To satisfy this
element, it will be necessary for the plaintiff to demonstrate that the
medical monitoring at issue is something greater than would be
recommended as a matter of general health care for the public at large.
See Redland Soccer Club, 696 A.2d at 146 (requiring a medical monitoring
plaintiff to demonstrate that the "prescribed monitoring regime is
different from that normally recommended in the absence of the
exposure"). Otherwise, it could not be said that the need for testing was
caused by the defendant's breach, and thus, the element of a negligence
claim requiring that the defendant's breach be the legal cause of the
plaintiffs injuries would not be satisfied. See DeBoer, 128 Nev. at , 282
P.3d at 732. Thus, we cannot agree that permitting recovery based on a
need to be tested will open up the courts to extensive new litigation from
individuals exposed to everyday toxic substances.
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Before we move on to address the specific allegations in the
Sadlers' complaint, we note that, in recognizing medical monitoring
remedies, several courts have identified elements or factors that a plaintiff
must satisfy in order to recover the costs of monitoring. See, e.g., Potter,
863 P.2d at 823; Redland Soccer Club, 696 A.2d at 145-46. At this early
stage of the district court action, and in light of our treatment of medical
monitoring as a remedy, rather than a cause of action, we decline to
identify specific factors that a plaintiff must demonstrate to establish
entitlement to medical monitoring as a remedy. Instead, we conclude
that, in a negligence action for which medical monitoring is sought as a
remedy, a plaintiff may satisfy the injury requirement for the purpose of
stating a claim by alleging that he or she is reasonably required to
undergo medical monitoring beyond what would have been recommended
had the plaintiff not been exposed to the negligent act of the defendant.
The Sadlers' complaint
Having concluded that a physical injury is not required to
state a negligence claim with medical monitoring as the remedy, we now
turn to whether, in light of our decision herein, the Sadlers' complaint
sufficiently alleged an injury to state a negligence claim. As noted above,
the Sadlers asserted that, as a result of PacifiCare's actions, they were
"exposed to and/or placed at risk of contracting HIV, hepatitis B, hepatitis
C and other blood-borne diseases." Based on this assertion, the Sadlers
argue that they alleged actual exposure to blood-borne diseases, but
alternatively, they contend that the allegations regarding their exposure
to unsafe injection practices and a need for testing sufficiently alleged an
injury. PacifiCare, on the other hand, argues that this statement in the
Sadlers' complaint does not amount to an allegation of actual exposure.
And PacifiCare asserts that actual exposure to contaminated blood was, at
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a minimum, what the Sadlers must have alleged to state their negligence
claim.
By using "and/or," the Sadlers failed to connect any particular
plaintiff to the allegation that they were "exposed to" a blood-borne
disease, as opposed to simply being "placed at risk of contracting" a blood-
borne disease without necessarily having been actually exposed to such a
disease. See Gregory v. Dillard's Inc., 565 F.3d 464, 473 n.9 (8th Cir.
2009) (explaining that where an allegation referred generally to all
plaintiffs and used the• "and/or" formulation, it did not "connect any
particular plaintiff to any particular allegation"). Thus, we cannot
conclude that the Sadlers have alleged actual exposure to a blood-borne
disease. Nevertheless, we disagree with PacifiCare that actual exposure
to contaminated blood was required.
Because medical monitoring claims largely arise out of the
toxic tort area of litigation, most of the cases addressing these claims have
involved some form of actual exposure to toxic substances, such as
asbestos or potentially harmful chemicals. See, e.g., Potter, 863 P.2d 795;
Ayers, 525 A.2d 287. And several jurisdictions have concluded that a
plaintiff must be required to show actual exposure to a known hazardous
substance in order to recover on a medical monitoring claim. See Cook v.
Rockwell Inel Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991) (concluding
that the Colorado courts would find a complaint for medical monitoring to
be deficient insofar as it failed to alleged that the plaintiffs had actually
been exposed to a toxic substance); Hansen, 858 P.2d at 979 (providing
that to recover medical monitoring damages, a plaintiff must demonstrate
exposure to a toxic substance); Redland Soccer Club, 696 A.2d at 145
(holding that a plaintiff must prove "exposure greater than normal
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background levels. . . to a proven hazardous substance" in order to recover
on a medical monitoring claim). Indeed, in the context of a toxic tort
action, requiring exposure to a toxic substance is logical, as a plaintiff
could not set forth an argument that he or she needed medical monitoring
for something to which he or she had not been exposed.
But it cannot be said that exposure to a toxic substance will
always be necessary to demonstrate a reasonable need for medical
monitoring. In Friends For All Children, 746 F.2d at 819, for example, no
exposure to toxic substances was involved at all. There, the need for
medical monitoring was caused by "an explosive decompression and loss of
oxygen" that occurred during an airplane crash and by the airplane crash
itself. Id. In considering these cases and the concerns •at issue, we
conclude that the relevant inquiry is not on actual exposure to a toxic
substance, but on whether the negligent act of the defendant caused the
plaintiff to have a medical need to undergo medical monitoring.
Here, while the Sadlers may not have alleged that they were
actually exposed to contaminated blood, they have alleged, and at this
stage in the proceedings their allegations must be accepted as true, that
they were exposed to unsafe injection practices and that these unsafe
injection practices caused them to need to undergo medical monitoring.
The injury that they have alleged is the exposure to the unsafe conditions
that caused them to need to undergo medical testing that they would not
have needed in the absence of the PacifiCare's purported negligence. As
demonstrated by this case and Friends For All Children, to require a
specific exposure to a contaminant would unnecessarily limit the ability of
a plaintiff whose need for medical monitoring arises out of something
other than direct exposure to a toxic material. Thus, we conclude that the
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Sadlers' complaint adequately alleged an injury in the form of exposure to
unsafe injection practices that caused a need for ongoing medical
monitoring to detect any latent diseases that may result from those unsafe
practices.
We therefore further conclude that the district court erred by
granting PacifiCare judgment on the pleadings in this case based on the
failure of the Sadlers to allege a cognizable injury. As a result, we reverse
the judgment on the pleadings and remand this matter to the district
court for further proceedings consistent with this opinion. 5
Hardesty
We concur:
Do LA../ k -S J.
Douglas
, J.
5 Given our conclusion herein, we need not address the Sadlers'
alternative argument that the district court improperly dismissed the
medical monitoring claim before they had the opportunity to conduct
discovery.
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