Medical Monitoring in Personal Injury, Products Liability, and Medical Device Litigation: Developments and Strategies

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Personal Injury and Med Mal
- event Date
Wednesday, June 7, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss current developments and trends associated with medical monitoring after exposure to a toxic substance, including the status of medical monitoring claims for ingestion of contaminated drugs and exposure to "forever chemicals" (per- and polyfluoroalkyl substances, otherwise known as PFAS).
The panel will address the legal landscape of medical monitoring, with some jurisdictions treating it as a remedy and some as an independent claim, but all requiring underlying misconduct. The panel will address the ALI Restatement (Third) of Torts, how medical monitoring is administered and supervised, and insurance coverage.
Faculty

Mr. Behrens co-chairs Shook's Washington, D.C.-based Public Policy Practice Group. He has been involved in civil justice issues, liability law and defense litigation for more than 25 years. A substantial part of Mr. Behrens' practice is working to improve the civil litigation environment through state and federal legislation; in the courts through amicus curiae briefs on behalf of business, civil justice and defense lawyer organizations; through legal scholarship and judicial education; and in the court of public opinion.

Ms. Brogdon has significant experience representing energy clients in suits related to hydraulic fracturing and other oil and gas operations, mass tort litigation arising from catastrophic industrial accidents, and toxic tort suits involving chemical exposure and environmental contamination. She has handled high-profile cases related to fires, chemical spills, pipeline explosions, and other disasters. Ms. Brogdon also frequently advises boards, C-suites, and business unit heads on a range of litigation avoidance, product liability, and marketing strategies.

Ms. Geman, a partner in the New York office, combats frauds that harm her clients in their lives and misconduct that threatens the fairness and safety of their workplaces and communities. She leads the firm’s whistleblower practice group; serves as the employee-side chair of the ABA’s Workplace and Occupational Safety and Health Law Committee; and is a CDRC-trained community mediator.

Ms. Webb litigates a variety of claims in the areas of environmental and toxic tort law and commercial matters. Her environmental practice focuses on the defense of energy and oil companies, manufacturers, distributors, and industrial users of a variety of consumer and industrial products against claims involving per- and polyfluoroalkyl substances (PFAS), benzene, organic solvents, silica, aluminum, lead, formaldehyde, and various other substances. Ms. Webb regularly advises clients in pre-litigation risk assessment and areas involving regulatory compliance and obligations. She also has experience managing all aspects of litigation involving a wide array of claims including those involving wage and hour disputes and wrongful termination, breach of contract and catastrophic injuries.
Ms. Webb has successfully defended clients from small businesses to Fortune 100 companies in both Federal and State Courts around the United States. She works closely with her clients to implement a tailored strategy that takes into account client objectives, potential exposures, and significance of the matter at issue in order to achieve the best result possible.
Description
Recent attention on issues such as the drug manufacturing process and the existence of "forever chemicals" have renewed interest in and brought medical monitoring to the forefront in personal injury, pharmaceutical, and medical device litigation, whether individually or in class or mass actions. Issues arise around exposure, risk, testing, and costs.
In a successful action, a fund may (as one outcome) be established from which the plaintiff may take payments as medical expenses are incurred. The amount available, how long it is available, who can access it, how it is funded, and how it is supervised and administered are just some of the hotly disputed and complicated issues.
Jurisdictions vary on whether medical monitoring is a remedy or an independent cause of action and whether actual physical damage is required. Defendants tout differences in the laws; plaintiffs may emphasize in practice these issues dovetail. Against this backdrop is the ALI Restatement (Third) of Torts.
Listen as our authoritative panel discusses the elements of medical monitoring claims, differing court views, and alternate views of payment structures. The panel will also discuss best practices for bringing or defending against medical monitoring claims.
Outline
- Elements of a medical monitoring claim
- Current views of the courts
- Establishing and arguing for a medical monitoring claim
- Defending against a medical monitoring claim
Benefits
The panel will review these and other key questions:
- Is the ALI Restatement on this issue important?
- How are the costs of medical monitoring best handled?
- What are the elements of a medical monitoring claim?
- What are the standards of proof?
- How should reports recommending testing for exposure to various substances be evaluated?
- What is the role of toxicology or other experts in medical monitoring claims?
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