A couple of weeks ago, we walked around the Drug and Device Law Suburban Abode with a critical eye. The Abode was built the same year we were built, and we were struck by its similar cries for invasive cosmetic help. As a stopgap, we arranged to have the exterior painted, a finger in the “replace all of the siding” dike. The painter arrived, worked all day, and called us to view the results. Sure enough, a fresh coat of paint created the illusion that someone was on top of the necessary upkeep. Except when we looked up. In the middle of all that was bright and new were two small dormers that had not been touched. Upon questioning, the painter responded that we had told him what we wanted him to paint and had not included the two dormers in the current project. Those who know us will not be surprised that our reaction was less than ladylike. The upshot was that the painter offered (screamed) that he would throw them in “as a freebie.” To which we responded, at a similar volume, that we had hired him, at substantial expense, to paint the outside of the house, and there was nothing “free” about finishing the job he had agreed to do. We learned several lessons, but the one that allows us to draw a (very) tenuous connection to today’s case is that “maybe later” often is not enough.

In that vein, we are pleased to report that Illinois has joined the vast majority of states that do not permit plaintiffs to base negligence claims on “increased risk” of “maybe later” developing an injury. This is the “medical monitoring” arena, and you can read some of our previous posts here and here and here. And here is our “no injury” cheat sheet. Berry v. the City of Chicago, — N.E.3d —-, 2020 IL 124999 (2020), is not a product liability case, but its holding should delight all who defend drug and medical device manufacturers. In Berry, the named plaintiffs were representatives of a class (these are invariably class actions) of Chicago residents whose water mains were replaced in a manner known to be associated with leaching of lead into the water. Tests on the water in both homes revealed lead levels high enough for concern, though neither named plaintiff had any symptoms related to lead exposure. Instead, in their negligence claim, they alleged that the City caused them and the class members “an increased risk of harm.” Berry, 2020 Il 124999 at ¶ 28. They sought to recover the costs of medical monitoring – of blood tests to detect the presence of lead

The City moved to dismiss the negligence claim, arguing that “increased risk of harm” was not an “injury” under Illinois law. The City relied on Williams v. Manchester, 228 Ill. 2d 404, 888 N.E.2d 1 (2008). In Williams, the plaintiff terminated her pregnancy after learning that her fetus was at risk for complications from an auto accident the plaintiff had suffered and from x-rays performed after the accident. She filed a wrongful death action on behalf of the fetus. In Illinois, a wrongful death action is barred “if the decedent, at the time of death, would not have been able to pursue an action for personal injuries.” The Williams court held that the “increased risk of future harm” to the fetus was not a “present injury,” and dismissed the case. Fast forward to Berry. The court explained that “the rule set forth in Williams” and other Illinois cases “is consistent with the traditional understanding of tort law,” the purpose of which is “not to punish or deter the creation of risk but rather to compensate victims when the creation of risk tortuously manifests into harm.” 2020 IL 124999 at ¶ 33 (citation omitted). The court concluded, “A person may pursue a cause of action in tort once harm occurs. Given this fact, there is little justification for imposing civil liability on one who only creates a risk of harm to others.” Id.

The plaintiffs conceded that, under existing precedent, an increased risk of harm could not, by itself, form the basis of a negligence claim. But they tried to draw a distinction, arguing that they had pled a need for medical monitoring, which was a cognizable injury. The court wasn’t buying it, holding that “plaintiffs’ allegation that they require[d] “diagnostic medical testing” [was] simply another way of saying they [had] been subjected to an increased risk of harm. And, in a negligence action, an increased risk of harm is not an injury.” Id., ¶ 37, citing Restatement (Third) of Torts, Liability for Physical and Emotional Harm § 4, cmt. c (2010). Negligence claim dismissed.

We love this decision. In the mass torts that compose the bulk of our practice, we struggle to implement Lone Pine orders and similar measures that give us the ability to cull plaintiffs who are not “injured” from the queue of outstretched hands. Bright lines, like those the Berry court drew, aid immeasurably in these efforts. We will keep you posted on states that have yet to fall in line. In the meantime, stay safe out there.