Another Defeat for Medical Monitoring Claims

September 8, 2009
by LYNN ROSNER RAUCH
Client Alert Newsletter September 2009

In Harris v. Advance Process Supply, Co., the Superior Court of New Jersey (Appellate Division) affirmed the dismissal of plaintiffs' medical monitoring complaint as untimely on June 25, 2009. The plaintiffs, which included both current and former residents of Camden, New Jersey, filed a class action complaint seeking medical monitoring to address their alleged increased risk of developing health problems due to polluted water, and for a subclass seeking refunds of water bills due to pollution in their drinking water from the mid-1970's through the 1990's, stemming from a well field that served as a water supply source for Camden. The well field was first reported to be contaminated in the 1970's when TCE, diclorethane, PCE, mercury and hexavalent chromium were detected in one well, from which the contamination later spread to other wells. The wells were all eventually closed as a consequence of groundwater contamination. The New Jersey Department of Environmental Protection ("NJDEP") began investigating the extent of groundwater contamination in 1997, and the site was placed on the National Priorities List in 1998. The New Jersey Department of Health and Senior Services found the site "to have represented a public health hazard because of past exposures" and the exposure to a potentially large population, and issued a report to that effect in 2001.

The lower court dismissed the medical monitoring claims as untimely, having rejected plaintiffs' argument that "under the discovery rule, the statute of limitations should run from a date later than the last possible exposure to the polluted water in 1998," on the basis that plaintiffs had notice of the pollution and its potential health effects years before the 2001 report on the pollution was issued, through personal observations of their water, media articles and inserts enclosed with their bills from their water utility providers. At the latest, the lower court found that plaintiffs knew or should have known that they had a claim concerning the pollution by May 2000, more than two years before initiating suit."

The appellate court likewise rejected plaintiffs' contention that only the equitable principle of laches, as opposed to a set statute of limitations, should be applied to their medical monitoring claims. As the Court stated, "[t]his is not a case in which the exposure to alleged toxins is continuing into the present. At the latest, the exposure ended in 1998. Therefore, absent proof supporting equitable tolling under the discovery rule, the statute of limitations would, at the latest, begin to run from 1998…. The discovery rule is an equitable principle by which the accrual of a cause of action is delayed until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an actionable claim." Since plaintiffs were not claiming to have suffered an actual injury as a result of drinking polluted water, but were seeking monitoring in the event they might develop future health issues, the Court found that "[m]ost of the plaintiffs knew, or were on notice, of the problems with the city's water quality in ample time to file a medical monitoring lawsuit within two years after the statute began to run in 1998."