In one of the first lawsuits seeking personal injuries and medical monitoring in connection with natural gas drilling in the Marcellus Shale – one of the largest and most recent natural gas plays in North America – the first blow has been dealt to the plaintiffs, who have been ordered by a Special Master tasked with overseeing discovery to produce all of their medical records to the defendants.

In Fiorentino v. Cabot Oil & Gas Corp., some 60+ residents in Dimock Township, Pennsylvania filed a complaint against Cabot Oil & Gas seeking damages allegedly arising from Cabot’s drilling and operation of natural gas wells.   Specifically, the plaintiffs allege that Cabot’s hydraulic fracturing and other related activities caused the release of methane, natural gas and other hazardous substances into the environment, contaminating their land and well water.

All of the Fiorentino plaintiffs seek medical monitoring in the case, and during the initial stages of discovery, Cabot sought the medical records of each, which the plaintiffs refused to produce.  But on the plaintiffs’ motion for a protective order to shield the medical records from discovery, Special Master Jennifer Walsh Clark sided with the defense, holding that all plaintiffs – not just those alleging personal injuries – must promptly provide defendants with HIPAA  authorizations/releases, and all responsive documents and information with regard to the plaintiffs’ individual medical conditions, histories and providers.

Though the relevance of a plaintiff’s medical history could in theory go to a number of the elements of a medical monitoring cause of action in Pennsylvania, the crux of the dispute here concerned the sixth element of the claim:  whether the type of medical monitoring sought is different from that normally recommended in the absence of exposure.  According to the Fiorentino plaintiffs, the point of comparison should be the monitoring regime, if any, that is normally prescribed for the general public.  Cabot, on the other hand, argued that the point of comparison is the monitoring regime normally recommended for each plaintiff, taking into account his or her own medical history, genetic risk factors, occupational exposure to hazardous substances, and the like. 

Noting no direct precedent on point, Judge Clark first described the injury at issue in a medical monitoring case not as the increased risk of personal injury as a result of exposure, but the increased cost of the additional monitoring that would be required, over and above the cost the plaintiff would otherwise incur as part of his or her routine medical screening.  With the injury defined in this way, Judge Clark then predicted that the Pennsylvania Supreme Court “would require each plaintiff to demonstrate that the monitoring regime recommended for her is different from the monitoring regime recommended for her absent the alleged exposure.”  Under this framework, a medical monitoring plaintiff’s medical monitoring records are not only discoverable, but directly relevant to the claims and defenses in the case.

Though issued in the context of a discovery dispute, Judge Clark’s ruling and the underlying rationale she relied upon in getting there, if adopted as a matter of law by the Fiorentino court or other district courts, have the potential to have profound effects on medical monitoring claims, particularly with regard to those that are pursued as class actions.  Indeed, though Fiorentino is not itself a class action lawsuit, most medical monitoring claims are filed as such, and Judge Clark’s analysis raises some real issues for class action plaintiffs and their counsel when prosecuting these claims. For example, how can a plaintiff prove a prima facie case for medical monitoring on a class-wide basis, when one of the elements requires an inquiry into what type of medical monitoring each putative class member is already receiving?  Many federal courts have been skeptical that the necessity for individuals’ medical monitoring regimes can be proven on a class-wide basis, and this decision continues in that trend.  In fact, if the death knell hasn’t already sounded for such claims in federal court (which, in light of the Supreme Court’s decision in Dukes v. Wal-Mart Stores, Inc. and the Third Circuit’s recent decision in Gates v. Rohm and Haas Co., I myself doubt), Judge Clark’s analysis will almost certainly do so if adopted as a firm rule of law.

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