Summary Judgment Overturned on Triable Issue as to Medical Monitoring of Plaintiff’s Asbestos-Related Pleural Plaques

In this federal court case, the plaintiff, Robert Hanson, filed a complaint in 2010 against various defendants, including “Doe” defendants, alleging asbestos exposure caused his asbestosis. In 2012, the plaintiff substituted Collins Electrical Company for one of the Doe defendants. In 2013, Collins moved for summary judgment, arguing that the plaintiff did not have any evidence of asbestosis or any asbestos-related injury. While the motion was pending, the plaintiff was allowed to file a first amended complaint, which removed any reference to asbestosis and claimed plaintiff suffered from “asbestos-related pleural disease.” The plaintiff then opposed the summary judgment motion, arguing that the evidence submitted by Collins in its motion papers showed he was suffering from asbestos-related pleural disease. Collins responded by arguing that since there was no physical impairment resulting from the asbestos exposure, the plaintiff has not suffered an injury under California law and, as such, has no claim. The trial court subsequently granted Collins’ motion for summary judgment.

On appeal, the court discussed the plaintiff amending his complaint while Collins’ motion for summary judgment was pending and stated: “Hanson’s first amended complaint both changed the nature of his claims (from asbestosis to ‘asbestos-related pleural disease’) and elaborated on his alleged damages, including for future risk of ‘cancer’ and ‘emotional distress attendant thereto,’ and future costs for ‘X-rays, and other medical treatment.’ Thus, the amended pleading changed the scope of the issues for purposes of summary judgment, and, in fact, Collins complained to the trial court that Hanson’s pleural plaque claims were ‘new.’ Accordingly, Collins’ motion for summary judgment should have been denied as moot, and the trial court should have granted Collin’s request to ‘file a new motion for summary judgment and/or summary adjudication based on the newly alleged facts.’”

However, the court went on to hold that there was no need to remand the case for further proceedings on summary judgment and reversed the lower court’s granting of summary judgment. As the court held: “Thus, it could not be more clear that a plaintiff exposed to a toxic substance need not wait until he or she suffers actual ‘impairment’ before seeking damages for medical monitoring, provided he or she can ‘demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of’ the exposure ‘and that the recommended monitoring is reasonable.’ In short, the pivotal ‘damage’ sustained by such a plaintiff is the ‘reasonably certain need for medical monitoring.’” (internal citations omitted).

Read the full decision here.