Delaware Is Definitive On No-Injury Medical Monitoring

• Published date: 12 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Personal Injury, Biotechnology & Nanotechnology
• Law Firm: Reed Smith
• Author: Ms Lisa Baird

As a defense lawyer, one grows accustomed to clear judicial days on which the state court can foresee forever. See Thing v. La Chusa, 48 Cal. 3d 644, 668 (1989). On those clear judicial days, when the court catches a glimpse of the possibility of harm shimmering off in the distance, one can be assured that an expansion of liability soon will follow.

Not all state courts are quick to expand tort liability, however. In Baker v. Croda Inc., __ A.3d __, 2023 Del. LEXIS 282, 2023 WL 5517797 (Aug. 24, 2023), the Supreme Court of Delaware was asked to gaze into the future, and it decided to leave liability tied to an actual injury in the here-and-now.

The Baker opinion did not involve a pharmaceutical or medical device (it involved a chemical, ethylene oxide), but it did involve an issue of particular concern to the blog: Claims for medical monitoring brought by a class of plaintiffs who have no present injury, but who allege they are at an increased risk of developing cancer in the future. As a remedy, the plaintiffs requested money in the present, for the "cost of reasonably medically necessary diagnostic...