Medical Monitoring Damages In Montana
Montana Supreme Court has not recognized "medical monitoring" damages absent proof of actual present injury, either has an independent cause of action or as an element of damages in a tort action.
See, Schelski v. Creative Nail Design, 280 Mont. 476, 993 P.2d 799 (1997); Brandenburger v. Toyota Motor Sales U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973);
Also see, MCA 27-1-719 (2) ("A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his property ..." .
A United States Supreme Court opinion rejected a claim for medical monitoring relief by uninjured, asymptomatic asbestos-exposed railroad workers, and adopted a "physical injury" requirement. Metro-North Commuter Railroad Co. v. Buckley, 512 U.S. 424, 117 S. Ct. 2113 (1997).
However,the Metro-North Court held that medical monitoring was not provided for by the Federal Employers' Liability Act (FELA), and as Congress failed to provide such remedy under the Act, it was not the role of the Court to judicially create such remedy.
In dicta, the Court laid out several policy reasons against creating a full blown cause of action for medical monitoring.
Specifically, the Court was concerned about the potential for a flood of litigation resulting in awards for lump sum damages that would deplete funds needed to compensate those who actually suffered physical injuries. the Metro-North Court also acknowledged, however, that the state and federal courts which have authorized the recovery of costs for medical monitoring have imposed limitations on the remedy that address these policy concerns. Id.