Fear of Cancer in the Workplace: OSHA Preemption of Medical Monitoring Claims

Thomas P. Redick
Christina G. Bernstein
Virginia L. Shefa

Introduction

An increasing number of state and federal courts recognize claims for medical monitoring following exposures to hazardous chemicals in the workplace or environment. In some jurisdictions, medical monitoring for future injuries may be permitted even without bodily injury. This steady expansion in the legal right to medical monitoring for hidden disease-causing problems has been paralleled by a rise in the medical community's ability to predict future disease.

For companies hoping to manage the risk of paying for potentially frivolous "fear of cancer" claims arising from workplace exposures to hazardous substances, there is good news and bad news. The good news is that compliance with existing regulations enforced by the Occupational Safety & Health Administration (OSHA) could provide a complete defense to workplace "fear of cancer" claims, if the case law were to evolve in the manner discussed in this article. The bad news is for companies that fail to comply with OSHA regulations requiring communication of hazards and employee training. Medical monitoring claims are the wave of the future. As employees exposed to tiny amounts of a hazardous substance react to suggestions that they are at a higher risk of cancer or other diseases, certain industries may see an increase in occupational "fear of cancer" claims - even if those claims have little basis in scientific fact.

This article will map out the high ground that courts have created for companies that dread a future flood of "fear of cancer" claims. First, we will show how existing case law may punish deliberate disregard of regulations that lead to increased liability exposure to "fear of cancer" claims by lowering the threshold of proof expected of plaintiffs. Second, we will suggest that regulatory compliance with OSHA regulations may provide a future federal preemption defense against "fear of cancer" claims seeking medical monitoring for workplace exposure. As the case law evolves in the medical monitoring arena, an increasing role may be played by federal standards. This may be both preemptive in some cases, precluding the claim altogether, or in other cases, a mere presumption that the standard of care was met through regulatory compliance (or the converse - that the standard of care was not met, due to a federal regulatory violation).

Hazard communication in the workplace is subject to extensive state and federal regulation. When read together, various statutory provisions can be interpreted as preempting any "fear of cancer" claims seeking medical monitoring, while a "savings clause" leaves emotional distress and other reactive tort claims untouched. If federal law is not found to preempt "fear of cancer" claims, a regulatory presumption should nevertheless apply. A court can at least presume that compliance with OSHA regulations satisfies the standard of care (while allowing evidence at trial to rebut this presumption).

Fear of Cancer in the Workplace

With the utilization of hazardous substances in many workplaces, exposures to hazardous substances sometimes occur. Exposures that do not result in physical injury are not generally covered by workers compensation. However, these exposures can trigger claims for "fear of cancer", seeking a medical monitoring remedy in states that recognize claims for negligent infliction of emotional distress from exposure to a hazardous substance. Such a claim may allege an increased risk of cancer but not a physical injury. We will call such claims "fear of cancer" claims. As a result, employers may have exposure under case law in states that allow recovery for medical monitoring damages pursuant to a "fear of cancer" claim. We will outline below how an employer that complies with or exceeds the OSHA hazard communication standards should have a better defense in any litigation arising from "fear of cancer" claims that were triggered by workplace exposure.

OSHA's Protective Web of Medical Monitoring

From its inception in 1970, OSHA has set standards for permissible exposure levels (PELs) in the workplace. For example, agents suspected of causing lung cancer (asbestos, benzene, hexavalent chromium, etc.) were addressed in "criteria documents" prior to 1987. Since 1987, OSHA has provided extensive hazard communication (hazcom) standards for workplace exposures to hazardous substances including employee training, use of personal protective equipment, work practices, personal hygiene, decontamination, handling of waste and medical monitoring.

OSHA also has an extensive medical monitoring program for workers exposed to asbestos. OSHA regulations at 29 CFR §1910.1001, 29 CFR §1929.1101, and 29 CFR §1915.1101 set forth standards for monitoring the health of workers exposed to asbestos and other compounds, under the statutory authority of 29 U.S.C. §655(b)(7). This program provides a model for regulators to follow for any other recognized carcinogen.

OSHA has sufficient statutory authority to include new emerging hazards that might lead to cancer or other diseases, expanding OSHA's existing hazcom and medical monitoring programs. As will be discussed below, this regulatory remedy provides employers with more controlled and cost-effective process than the cumbersome mechanism of court-imposed medical monitoring. It may also help defendants justify their arguments for imposing preemption of state law claims for "fear of cancer" based on the complete remedy provided by federal statutes.

State Tort Law Allowing Medical Monitoring Without Physical Injury

As the 21st Century moves forward into an age of heightened awareness of cancer risks, an increasing number of states may allow medical monitoring for future disease based upon the exposure to a hazardous substance that creates a risk of physical injury. See, Ayers v. Jackson Township, 525 A. 2d 287 (N.J. 1987) (recognizing medical monitoring claim involving environmental contamination, cited in most subsequent cases recognizing the claim); Cf., Metro-North Commuter Railroad Company v. Buckley, 521 U.S. 424, 432-433, 117 S. Ct. 2113, 2118 (1997) (listing more than ten cases denying recovery for negligent exposures where no physical injury is alleged, at 2118, and four cases allowing recovery, at 2122). As states begin to recognize these claims, courts are also searching for reasonable limitations to avoid letting loose the floodgates of litigation and swamping the court system with claims based on fears without actual physical injuries.

The seminal case opening the door to medical monitoring for "fear of cancer" based upon subclinical or genetic damage from hazardous chemicals was Ayers v. Jackson Township. In this case, medical monitoring costs were awarded to more than 300 plaintiffs alleging exposure to toxic substances in drinking water that lead to a "genetic switch" ready to turn cancerous in the future. Expert opinion must establish a "reasonable likelihood" of future illness. See, In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991); Victor Schwartz, Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R. 5th 327 (1994).

Medical monitoring claims have been recognized for workplace exposures to hazardous substances. In Barth v. Firestone Tire & Rubber Co., 661 F. Supp. 193 (N.D. Ca. 1987), the District Court applied California law to hold that a plaintiff had alleged a physical injury from "immune impacts" from exposure to toxic substances and could take a negligence claim against his employer to a jury. The court held, however, that plaintiff's physical injuries did not fit within the definition of compensable injury in the workers compensation system. Id. at 200. The court reasoned that medical monitoring is preventive, not compensatory. As a result, only a reactive remedy would be covered under workers compensation, not proactive medical monitoring of subclinical injury. As a result, the Barth employee's "subclinical" injury created a right to medical monitoring, but not a physical injury compensable under workers compensation.

The lack of medical monitoring under workers compensation law may leave workers with no choice but to file medical monitoring claims against chemical suppliers supplying hazardous substances to workplaces. For employers faced with potentially sensitive subgroups (e.g., persons who can be determined to be genetically susceptible to chemically-induced disease), the law on genetic discrimination may preclude an employer from forcing employees to take steps to prevent subclinical injury. See, e.g., Echazabal v. Chevron USA, Inc., 226 F.3d 1063 (9th Cir. 2000) (worker at risk of chemically induced liver damage could sue under Americans with Disabilities Act for Chevron's refusal to hire him after pre-employment physical). If an employer cannot use medical tests to screen potential employees and workers compensation does not provide for medical monitoring, the employer's options for preventing "fear of cancer" cases are limited to the regulatory approaches outlined in this article.

The permissible scope of recovery for "fear of cancer" claims has been defined in cases involving environmental exposures and "outrageous" conduct where deliberate
regulatory violations have made it easier for plaintiffs to prove their "fear of cancer" claims. As a result, tort claims for "fear of cancer" will draw upon regulatory violations wherever possible. As a result, OSHA compliance will usually help limit tort recovery for fear of cancer.

The Supreme Court of California in Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993) recognized a claim for medical monitoring based upon "fear of cancer" where the defendant was negligent and plaintiffs lacked a physical injury. The manager of Firestone's tire manufacturing plant near Salinas, California committed a willful regulatory violation in May 1977, when Firestone began illegally sending large quantities of liquid toxic waste to a landfill to save on disposal costs. In 1984, the owners of property near the landfill sued Firestone, alleging toxic chemicals had traveled into their home water wells. Plaintiffs sought medical monitoring and emotional distress damages for the "fear of cancer" that was plaguing their lives and for various immune system injuries.

The California Supreme Court, in recognizing a claim for medical monitoring without physical injury, also set limits on such claims. The Potter court divided "fear of cancer" claims into three categories: (1) claims featuring a physical injury, where long-standing precedents support recovery; (2) negligence claims alleging a "conscious disregard" of plaintiffs' rights in the absence of a physical injury; and (3) simple negligence claims without conscious disregard or a physical injury. To alleviate its concern about opening the floodgates of litigation to claims involving negligent exposure with no physical injury, the Potter court allowed recovery of damages for "fear of cancer" without a present physical injury only if the plaintiff pleads and proves two elements. First, plaintiff must show that defendant's negligent breach of a duty owed to the plaintiff caused plaintiff to be exposed to a toxic substance that threatens cancer. Second, the plaintiff's fear must be corroborated by reliable medical or scientific opinion that it is more likely than not (i.e., 51% probability) that the plaintiff will develop cancer in the future due to toxic exposure. Perhaps proving the adage that "bad facts make bad law" (from the perspective of regulated industry, at least), the court held that Firestone's deliberate regulatory violation could constitute "malice" that would justify a lower standard of proof. The amorphous standard of proof would be a "significant" increased risk that the plaintiff will develop cancer.

For employers with regulatory violations involving hazard communication (i.e., "malice" under Potter's facts), the Potter decision creates a precedent lowering the burden of proof from "more likely than not" to get cancer (a very high standard, in practice) to the poorly defined "significant risk" standard. As a result, regulatory compliance is the first step toward ensuring that the vague "malice" exception with its "significant risk" standard for medical causation is not applied at some point in the future.

A few subsequent cases mapped out the boundary of the "significant risk" that would support a "reasonable fear" under the malice exception. See, Herbert v. Regents of the University of California, 26 Cal. App. 4th 782 (1994) (a mere 0.5% increase in risk was not significant). The quality of scientific evidence that a jury is allowed to consider can greatly influence where the boundary is drawn for proof of a "reasonable fear" of future disease. The adversarial process can lead juries to stray far afield from established scientific consensus, particularly in those state courts or federal circuits that have excluded medical opinions from the "gatekeeper" principles prevailing in federal courts since Daubert v. Merrell Dow, 505 U.S. 579, 595 (1993).

While courts cautiously extend the boundaries of recoverable damages to allow recovery for medical monitoring, progress in science is expanding the scope of medical causation to allow medical experts to provide opinions that are, at best, informed speculation about the probability of future injuries. This speculation is allowed under the "medical judgment" exception to the scientific gatekeeping function of courts. See, Wilson v. Phillips, 73 Cal. App. 4th 250, 254 (1999) (Kelly Frye doctrine, California's analog to federal Daubert, is not applicable to medical expert). See, People v. Ward, 71 Cal. App. 4th 368 (1999) ("California distinguishes between expert medical opinion and scientific evidence; the former is not subject to the special admissibility rule of Kelly Frye."). In states that recognize both medical monitoring claims and the "medical judgment" exception to Daubert's "gatekeeper" doctrine, a physician expert may be allowed to propose the functional equivalent of a broad health insurance program in the form of a medical monitoring award that is payable in large part to his own medical group. If the floodgates are manned by physicians with an incentive to divert financial resources to their own practices, this conflict of interest could lead to runaway awards. For example, a physician testifying that a substance causes disease may choose to disregard OSHA findings on relative risks, discount alternative causes and provide testing. In states allowing medical monitoring claims and expansive physician testimony, federal preemption may be required where federal standards set forth the risks known to be reasonable and provide a medical monitoring remedy for workers. The risk of opening the floodgates to medical monitoring in the workplace may need to be better managed as a matter of nationwide public policy.

In summary, an employer that violates OSHA's Hazard Communication standard could face a group of employees who claim "concealment" of risk. This would allow application of the lower "significant risk" standard under the "malice" exception in Potter v. Firestone with the assistance of a sympathetic physician. Failure to comply with regulations mandating communication about risks of hazardous substance can lead to increased liability for fear of cancer claims.

Federal Preemption of State Tort Law

For companies that comply fully with OSHA regulations, there should be potential defenses against "fear of cancer" claims arising from workplace exposure. In its first foray into the question of medical monitoring in the workplace, the U.S. Supreme Court denied medical monitoring and laid the groundwork for federal preemption of state medical monitoring claims. In Metro North Commuter Railroad Company v. Buckley, 521 U.S. 424, 117 S. Ct. 2113 (1997), the Supreme Court refused to allow recovery for negligent infliction of emotional distress related to future cancer under the Federal Employee Liability Act (FELA) where physical injury had not yet manifested. The court expressed concern that funding medical monitoring in workers today for potential injuries could deprive tomorrow's injued workers full compensation. Id. at 2120. Justice Breyer's majority opinion echoed the concerns of the court in Potter about releasing the floodgates of litigation. In contrast to Potter, however, the Buckley Court chose to answer the question of whether subclinical physical manifestations, e.g., the pleural plaques that form in lungs following asbestos exposure, would qualify as a "physical injury" or "physical impact" under FELA (45 U.S.C. §51). The majority found no cognizable physical impact in the plaintiff's contact with asbestos fibers. (Justice Ruth Bader Ginsburg filed a vigorous dissent, joined by Justice Stevens.) In erecting this high floodgate, the court also suggested that other medical monitoring awards such as a court-supervised fund might still be permissible under FELA. Buckley, 117 S. Ct. at 2124.

The majority also laid a firm foundation for future preemption of state law medical monitoring claims under the OSHA Act. Justice Breyer noted that "[a] traditional, full-blown ordinary tort liability rule would ignore the presence of existing alternative sources of payment" and that "where state and federal regulations already provide the relief a plaintiff seeks, creating a full-blown tort remedy could entail systematic costs without corresponding benefits." Id. at 2123. Moreover, both the majority and the dissent found OSHA medical monitoring for asbestos to be adequately protective of workers. OSHA establishes permissible levels of exposure, creating a safety net for workers concerned about chemical exposures. OSHA regulations require training, personal protective equipment, specific work practices and medical monitoring.

While existing case law leaves many questions unanswered, a careful reading of the medical monitoring decisions cited above reveals a path to preemption under the Occupational Safety & Health Act (OSHA Act) for medical monitoring arising out of workplace exposure. Congress passed the OSHA Act to "assure the safe and healthful working conditions for working men and women." Public Law 91-596, 84 Stat. 1590. That statute detailed information for employers on hazard communication, as well as medical monitoring. 29 U.S.C. 655(b)(7). In implementing this requirement, some states have undertaken extensive monitoring requirements. (See, e.g., California, Division of Occupational Safety and Health (DOSH) at http//www.dir.ca.gov/title8/1529.html.) In California, a contractor must be registered by DOSH to perform asbestos-related work. This is in addition to his contractors license, which he must first obtain because a copy of it must be submitted with the DOSH registration along with $500 in a trust fund for each employee doing asbestos-related work. A copy of the trust fund bank statement must be submitted with the application. These funds are intended to be used for future medical monitoring needs. This results in $500 per year per employee reserved to fund medical monitoring.)

The existence of an OSHA requirement for medical monitoring could provide grounds for preemption of a state law remedy ordering medical monitoring. The OSHA Act expressly preempted both "any State agency or court" from asserting jurisdiction over "any occupational safety or health issue" unless there was no existing standard that was promulgated under Section 6 of the Act. (emphasis added.) Section 18 of the Act allows states that want to provide for occupational safety and health issues in lieu of federal management to submit "a State plan for the development of such standards and their enforcement."

The courts have found that the OSHA Act preempts state regulation of workplace warnings. Gade v. Nation Solid Waste, 505 U.S. 88, 103 (1992). In the Gade decision, the U.S. Supreme Court held that the OSHA Act expressly preempted "any State agency or court" from asserting jurisdiction over "any occupational safety or health issue." This decision has been applied to preempt more conservative state-mandated warnings to workers concerning diesel fuel exhaust from forklifts. Industrial Truck v. Henry, 125 F.3d 1305 (9th Cir. 1997) (OSHA Hazcom standard preempts state-mandated warnings in California's Proposition 65 warning statute; but the Federal Hazardous Substances Act did not preempt because not all possible consumer product warnings that would satisfy the state statute would conflict with FHSA.) This preemption of state action served the goal of Congress to promote occupational safety and health while at the same time avoiding duplicative and possibly counterproductive regulations.

Given the Gade and Buckley decisions, there is reason to believe that courts may find that medical monitoring claims arising from workplace exposures could be preempted by the OSHA Act. After all, creating a "full-blown tort remedy" for cancer fears would entail enormous systematic costs without corresponding benefits. Any claim for medical monitoring that does not allege failure to comply with OSHA regulations could directly conflict with both OSHA guidelines stating when such monitoring is necessary and with OSHA hazard communication setting forth the recommended warnings to workers.

Plaintiffs seeking to avoid preemption will turn the "savings clause" preserving certain worker remedies. Section 4(4) of the OSHA Act provides that "nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment."

Courts addressing OSHA Act preemption of tort claims have applied the savings clause, with one notable exception. See, e.g., Thornock v. State of Montana, 229 Mont. 67, 745 P.2d 324 (1987) (tort claim preempted under OSHA Act). While this case stands alone in allowing tort claims to get around the savings clause, there is ample room in the statute and case law for preempting medical monitoring claims.

The reasoning in the cases applying the savings clause should help to establish preemption of medical monitoring. In Pedraza v. Shell Oil Company, 942 F.2d 48 (1st Cir. 1991), the court reasoned that tort claims are "reactive" and compensatory in nature, while regulation is preventive.

The Barth decision (cited supra) established that medical monitoring was a preventive remedy, not a reactive or compensatory award. As a result, claims for medical monitoring should fall outside of the scope of the savings clause. Where the permissible exposure levels set by OSHA regulations were not exceeded, and the "state of the art" health warnings recommended by OSHA were provided, there is a strong case to be made for preemption.

Regulatory Presumption of Due Care Using OSHA

Even without federal preemption, compliance with regulatory standards can provide future defendants some protection. Some trial courts are willing to defer to the complex empirical fact-finding that goes into setting regulatory standards and adopt the "regulatory standard of care" set forth in regulations dictating the content of a warning. While the OSHA statute contains a prohibition on its use to "enlarge or diminish or affect" an employee's or employer's common law liability (29 U.S.C. §653(b)(4)), the Colorado Supreme Court recently held that this language did not express a clear intent on the part of Congress to have evidence of OSHA violations "absolutely barred from civil cases". See, e.g., Scott v. Matlack Inc., Colo. No. 99SC415, Jan. 14, 2002 (cited in 70 US Law Week 1443, Jan. 29, 2002) (OSHA standards can be "borrowed" to establish standard of care under state law); Ramirez v. Plough, 6 Cal.4th 539 (1993), ("[w]here the evidence shows no unusual circumstances, but only the ordinary situation contemplated by the statute or administrative rule, the 'minimum standard prescribed by the legislation or regulation may be accepted by the triers of fact, or by the court as a matter of law, as sufficient for the occasion'." Id. at 548 (citing Rest. 2d Torts, 258 C, com. A., p. 40).

The Ramirez decision was followed by the First Circuit in the context of a claim for failure to warn of the risks of flammable chemicals in the workplace. In Torres-Rios v. LPS Laboratories, 152 F.3d 11 (1st Cir. 1998), the court found a workplace chemical hazard (fire) warning adequate as a matter of law. The use of federal regulations to establish adequate workplace warnings should be directly applicable in the context of OSHA regulations, even if the preemptive effect proposed in this article is not adopted in future federal case law.

Conclusion

While OSHA regulations have not entered into many reported "fear of cancer" cases, this may reflect widespread compliance with OSHA regulations protecting workers. In an era when workers are suing, claiming that permissible exposure levels under OSHA did not provide adequate protection and that OSHA criteria documents failed to reflect cancer risks, viable claims for medical monitoring may arise from workplace exposure. With OSHA providing a medical monitoring remedy, state tort law creating a lump sum medical monitoring remedy would be duplicative. Should medical monitoring claims for workplace exposure arise en masse, defenses will be available for the defendants who can demonstrate federal regulatory compliance.

Mr. Redick is member of Gallop, Johnson and Neuman, L.C. in St. Louis (tpredick@gjn.com). He is vice chair of the Section's Committee on Toxic Torts and Environmental Litigation and the Special Committee on Agricultural Management. Ms. Bernstein is an attorney with Maas, Miyamoto and Bernstein in San Diego (cbernstein@maaslitigation.com). Ms. Shefa is vice president of Design for Health Environmental Services, a consulting firm that provides environmental services and certification courses (dfhes@aol.com).