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Hastings Law Journal

Abstract

For many Americans, exposure to toxic substances has become a sad reality of life. While the medical and scientific communities have recognized the need for timely presymptom, postexposure medical diagnosis to detect and treat exposure-related diseases, the legal community has responded more slowly to the problems faced by toxic exposure victims. Nonetheless, the individual and public health interests in early detection and treatment of exposure-related diseases have motivated an increasing number of courts to recognize claims for presymptom, postexposure medical surveillance. In most such cases litigants have pursued or courts have awarded a traditional common-law lump sum of monetary damages. In a few toxic exposure cases, however, litigants have pursued or courts have expressed their preference for periodic payment of future medical surveillance expenses out of a court-supervised trust fund or similar mechanism.

After tracing the development of the medical surveillance claim and periodic payments as an alternative damages award, this Note examines the nexus between the two principles. It traces the outcome of previous efforts to establish medical monitoring funds, foundations, or similar mechanisms, with special emphasis on the Fernald litigation. Finally, the Note sets out legal, scientific, practical, and human considerations to guide practitioners in seeking and administering successful periodic payment plans for medical monitoring.

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