Susan Sadler v. Pacificare of Nevada, Inc.

Following an outbreak of hepatitis C that was linked to unsafe

injection practices used in procedures performed at certain health-care

facilities in southern Nevada, patients of those facilities who had

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undergone such procedures were advised to submit to testing for bloodborne

diseases, including hepatitis B, hepatitis C, and HIV. This appeal

concerns whether, in the absence of a present physical injury, those

patients who have so far tested negative for such diseases, or who have not

yet been tested, may state a claim for negligence based on the need to

undergo ongoing medical monitoring as a result of the unsafe injection

practices at these health-care facilities. Because we conclude that such

individuals may state a claim for negligence, we reverse the district court's

dismissal of the complaint and remand this matter to the district court for

further proceedings

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Jack and Susan Sadler, on behalf of themselves

and a proposed class of similarly situated individuals,' filed a complaint in

the district court against respondent PacifiCare of Nevada, Inc., a health

maintenance organization, asserting claims of negligence and negligence

per se on the ground that PacifiCare failed to perform its duty to establish

and implement a quality assurance program to oversee the medical

providers within its network. In the complaint, the Sadlers alleged that

PacifiCare's failure to monitor the medical providers allowed those

providers to use unsafe injection practices, including reusing syringes and

consequently injecting patients with medications from contaminated vials,

which resulted in the Sadlers and the putative class members being

"exposed to and/or placed at risk of contracting HIV, hepatitis B, hepatitis

C and other blood-borne diseases, requiring subsequent medical

'No class was certified in the district court before the entry of

judgment on the pleadings.

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monitoring ... for infections of the same." As relief for their negligence

claims, the Sadlers sought to have the court establish a court-supervised

medical monitoring program at PacifiCare's expense.

PacifiCare moved for judgment on the pleadings, arguing that

the Sadlers' complaint failed to state a negligence claim on the ground

that they had not alleged an "actual injury," such as testing positive for a

blood-borne illness. Instead, PacifiCare characterized the Sadlers' claim

as one for a risk of exposure. And PacifiCare contended that the Sadlers'

fear of injury or illness could not support their negligence claims. The

Sadlers opposed the motion for judgment on the pleadings, arguing that

the injury that must be alleged to state a tort claim does not need to be a

physical injury, as suggested by PacifiCare. The crux of the Sadlers'

opposition was that, by asserting that PacifiCare's negligence had caused

them to need ongoing medical monitoring, they had alleged a legal injury

sufficient to support their negligence claims.

Following a hearing on the matter, the district court granted

PacifiCare's motion for judgment on the pleadings. In addressing the

question of injury, the district court found it significant that the Sadlers

had alleged exposure to blood generally, but had not specifically alleged

exposure to infected blood. The court therefore concluded that the Sadlers'

claims were based on a risk of exposure to infected blood, which the court

found was insufficient to allege an injury. On this basis, the court granted

judgment in favor of PacifiCare. This appeal followed.

DISCUSSION

Standard of review

Under NRCP 12(c), the district court may grant a motion for

judgment on the pleadings when the material facts of the case "are not in

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dispute and the movant is entitled to judgment as a matter of law."

Bonicamp v. Vazquez, 120 Nev. 377, 379, 91 P.3d 584, 585 (2004). Because

an order granting a motion for judgment on the pleadings presents a

question of law, our review of such an order is de novo. Lawrence v. Clark

Cnty., 127 Nev. „ 254 P.3d 606, 608 (2011). As with a dismissal for

failure to state a claim, in reviewing a judgment on the pleadings, we will

accept the factual allegations in the complaint as true and draw all

inferences in favor of the nonmoving party. Cf. Buzz Stew, LLC v. City of

N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (setting forth

the standard of review for an order dismissing a complaint under NRCP

12(b)(5)); see also Bernard v. Rockhill Dev. Co., 103 Nev. 132, 135, 734

P.2d 1238, 1241 (1987) (explaining that a "motion for a judgment on the

pleadings has utility only when all material allegations of fact are

admitted in the pleadings and only questions of law remain").

Medical monitoring

The goal of a medical monitoring claim is to require the

defendant to pay for the costs of long-term diagnostic testing to aid in

early detection of latent diseases that may have been caused by the

defendant's tortious conduct. Bower v. Westinghouse Elec. Corp., 522

S.E.2d 424, 429 (W. Va. 1999). This court has previously considered

medical monitoring in only one opinion, Badillo v. American Brands, Inc.,

117 Nev. 34, 16 P.3d 435 (2001), in which the plaintiffs sought a judgment

requiring the defendant tobacco companies to pay for the plaintiffs'

ongoing medical monitoring for tobacco-related diseases. Id. at 38, 16 P.3d

at 438. There, the federal district court certified a question to this court,

asking whether Nevada common law recognizes medical monitoring as

either an independent tort action or a remedy. Id. at 37-38, 16 P.3d at

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437. Considering the specific circumstances presented and the way such

claims had been treated by other courts, the Badillo court concluded that

there is no common law cause of action for medical monitoring in Nevada.

Id. at 44, 16 P.3d at 441. Further, because Badillo had not identified an

underlying cause of action, the court did not reach the question of whether

medical monitoring is a viable remedy to a tort claim generally. Id. at 41,

16 P.3d at 440.

In this case, the Sadlers have specifically sought medical

monitoring as a remedy for negligence, and thus, they do not ask this

court to consider whether to recognize medical monitoring as an

independent cause of action under the circumstances• presented here.

PacifiCare does not dispute that medical monitoring may be a viable

remedy for a properly stated cause of action, but it contends that the

Sadlers have not alleged a present physical injury and, therefore, have not

sufficiently stated a claim for negligence. As the Badillo court did not

answer whether medical monitoring is a remedy for negligence, this

appeal presents a question of first impression for this court. To address it,

we look first to our general negligence law before turning to how other

courts have analyzed the injury requirement in the context of medical

monitoring as a remedy.

Negligence

In order to state a claim for negligence, a plaintiff must allege

that "(1) the defendant owed the plaintiff a duty of care, (2) the defendant

breached that duty, (3) the breach was the legal cause of the plaintiffs

injuries, and (4) the plaintiff suffered damages." 2 DeBoer v. Senior

As noted above, the Sadlers' complaint alleged both negligence and

negligence per se. Because the issue on appeal concerns only whether the

continued on next page...

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Bridges of Sparks Family Hasp., Inc., 128 Nev. „ 282 P.3d 727, 732

(2012). Thus, the third element of a negligence claim contemplates that

the plaintiff has suffered an injury. See id. As the district court's order

and the parties' arguments have all been limited to whether the injury

requirement is satisfied in this case, we similarly limit our inquiry to that

issue, leaving the remaining elements of the negligence claims to be

considered by the district court on remand.

Injury generally

The Sadlers argue that they have alleged an injury based on

actual exposure to infected blood by asserting that they were exposed to

the blood of other patients and that they were "exposed to and/or placed at

risk of contracting HIV, hepatitis B, hepatitis C and other blood-borne

diseases." Alternatively, the Sadlers argue that, even if they did not

allege actual exposure to contaminated blood, they nonetheless have

stated a claim for negligence by alleging that Pacifieare injured them by

causing them to need ongoing medical monitoring. Conversely, PacifiCare

argues that a plaintiff attempting to state a claim for negligence must

allege a present physical injury, such that, here, the plaintiffs would be

required to allege that they had actually contracted an illness. In

granting judgment in favor of PacifiCare, the district court appears to

have recognized that an injury may be found on less than a showing of

actual illness, but the court declined to find a cognizable injury because

the Sadlers had not alleged actual exposure to contaminated blood.

...continued

Sadlers sufficiently alleged an injury, which would apply to both claims

equally, we do not distinguish between the negligence and negligence per

se claims within this opinion.

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We begin our inquiry with the broad question, which asks

whether the injury needed to state a tort claim must be a physical injury,

or instead, whether some other type of legal injury may satisfy that

requirement. Although PacifiCare has not argued that the Sadlers' claims

were barred by the economic loss doctrine, our review of the parties'

respective positions leads us to conclude that this doctrine is implicated by

the issue presented, as it is closely related to the injury requirement. In

addressing negligence claims, this court has noted that the "economic loss

doctrine marks the fundamental boundary between contract law, which is

designed to enforce the expectancy interests of the parties, and tort law,

which imposes a duty of reasonable care and thereby [generally]

encourages citizens to avoid causing physical harm to others." Terracon

Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 72-73, 206

P.3d 81, 86 (2009) (alteration in original) (internal quotation marks

omitted). Thus, under the economic loss doctrine, a plaintiff generally

cannot recover on an unintentional tort claim for "purely economic losses."

Id. at 73, 206 P.3d at 86.

Here, we cannot say that the Sadlers have alleged purely

economic losses. While their claims for medical monitoring are based in

part on the expense of undergoing such testing, the complaint also alleged

that PacifiCare's actions exposed the Sadlers and the other putative class

members to unsafe injection practices, putting them at risk for contracting

serious blood-borne diseases. 3 This exposure and increased risk are

3It is important to distinguish here between considering the

increased risk of disease as a circumstance demonstrating that the Sadlers

may have suffered a noneconomic loss, and viewing increased risk as an

independent claim for damages, which some other courts have rejected as

continued on next page...

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noneconomic detrimental changes in circumstances that the Sadlers

alleged they would not have experienced but for the negligence of

PacifiCare. As a result, we conclude that the Sadlers' claims are not

barred by the economic loss doctrine. Nevertheless, while these changes

may constitute something other than economic losses, it still may be said

that they do not amount to physical injuries. Thus, we still must

determine whether tort law requires that the underlying injury be a

physical one.

In Terracon Consultants, this court referred to a goal of tort

law being to "encourage H citizens to avoid causing physical harm to

others," id. at 72-73, 206 P.3d at 86 (internal quotation marks omitted),

but this court has not previously addressed whether physical harm or

physical injury is a necessary element of all tort claims. This court has,

however, discussed physical injury in the context of negligent and

intentional infliction of emotional distress claims. See Chowdhry v. NLVH,

Inc., 109 Nev. 478, 482-83, 851 P.2d 459, 462 (1993); Nelson v. City of Las

Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983). In that context, this

court has required a plaintiff alleging negligent infliction of emotional

distress to demonstrate some "physical impact" beyond conditions such as

insomnia or general discomfort, see Chowdhry, 109 Nev. at 482-83, 851

P.2d at 462, but a physical impact or injury, as opposed to an emotional

...continued

not satisfying the present legal injury requirement, see, e.g., Burns v.

Jaquays Mining Corp., 752 P.2d 28, 30-31 (Ariz. Ct. App. 1987), or as too

speculative or difficult to quantify. See, e.g., Ayers v. Twp. of Jackson, 525

A.2d 287, 308 (N.J. 1987). Here, the Sadlers have not alleged a cause of

action based on increased risk, and thus, whether this court would

recognize such a cause of action is outside the scope of our inquiry.

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one, has not necessarily been required to state a claim for intentional

infliction of emotional distress. See Nelson, 99 Nev. at 555, 665 P.2d at

1145 (setting forth the elements for an intentional infliction of emotional

distress claim).

As an intentional infliction of emotional distress claim does

not require a physical injury, we cannot conclude that such an injury is

necessarily a prerequisite to a tort claim generally. See id. Conversely,

based on the requirements for a negligent infliction of emotional distress

claim, we recognize that a physical injury may be required in order to

establish certain torts. See Chowdhry, 109 Nev. at 482-83, 851 P.2d at

462. We therefore now consider whether a physical injury must be alleged

in order to state a claim for negligence with medical monitoring as a

remedy. As the parties have not identified, and our research has not

revealed, any Nevada authority specifically requiring a party to allege a

physical injury in order to state a negligence claim, particularly one that

seeks medical monitoring as a remedy, we look to the decisions of other

courts for guidance on this issue.

Physical injury in the context of medical monitoring

Several courts that have considered this issue have rejected

medical monitoring claims primarily on the ground that a physical injury

must be shown in order to state such a claim. 4 See, e.g., Hinton ex rel.

4The courts addressing medical monitoring claims have not always

clearly distinguished between medical monitoring as an independent

cause of action and medical monitoring as a remedy for some other cause

of action. Regardless, as our focus herein is on the injury requirement,

which is relevant to all of these medical monitoring claims, we do not find

it necessary to differentiate between the cases discussing medical

monitoring as a cause of action and those applying it as a remedy for a

continued on next page...

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Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala. 2001) (concluding that a

plaintiff failed to state a claim in the medical monitoring context when he

did not allege a present, physical injury); Wood v. Wyeth-Ayerst Labs., Div.

of Am. Home Prods., 82 S.W.3d 849, 856-58 (Ky. 2002) (rejecting a claim

for medical monitoring on the ground that traditional tort theory requires

a plaintiff to demonstrate a present, physical injury). These cases tend to

characterize medical monitoring claims as seeking compensation for the

threat of future harm or for increased risk of harm. See Lowe v. Philip

Morris USA, Inc., 183 P.3d 181, 184 (Or. 2008). And they therefore

conclude that the increased risk of harm and consequent need for medical

monitoring are insufficient to constitute a present injury necessary to

state a negligence claim. See id. at 184-85; see also Paz v. Brush

Engineered Materials, Inc., 949 So. 2d 1, 5 (Miss. 2007) ("The possibility of

a future injury is insufficient to maintain a tort claim. Recognizing a

medical monitoring cause of action would be akin to recognizing a cause of

action for fear of future illness.").

We are not convinced that such a restricted view of an injury

is appropriate in the present context. As an initial matter, the

Restatement (Second) of Torts § 7(1) (1965), broadly defines an injury for

the purpose of tort law as "the invasion of any legally protected interest of

another." Not only is this definition not limited to physical injury, the

same section separately defines "harm" as "the existence of loss or

detriment in fact of any kind to a person resulting from any cause," and

"physical harm" as "the physical impairment of the human body, or of land

...continued

different cause of action. Within this opinion, we therefore use the phrase

"medical monitoring claims" to refer to both types of cases.

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or chattels." Id. Thus, while these concepts are related, the differing

definitions indicate that they are not interchangeable, and more, that

injury is generally not limited to physical injury.

Applying the Restatement's definition of injury, a significant

number of jurisdictions have concluded that the costs of medical

monitoring may be recovered, either as an independent claim or as a

remedy for an established tort, even in the absence of a present physical

injury. See, e.g., Friends For All Children, Inc. v. Lockheed Aircraft Corp.,

746 F.2d 816 (D.C. Cir. 1984); Potter v. Firestone Tire & Rubber Co., 863

P.2d 795 (Cal. 1993); Ayers v. Twp. of Jackson, 525 A.2d 287 (N.J. 1987);

Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). One of

the earliest cases to consider a medical monitoring claim was Friends For

All Children, 746 F.2d 816. In that case, a group of orphans was being

transported out of South Vietnam when a locking system on their aircraft

failed, resulting in "an explosive decompression and loss of oxygen" on the

plane. Id. at 819. Friends For All Children, an organization acting on

behalf of the children, filed a complaint against Lockheed Aircraft

Corporation, the manufacturer of the airplane, seeking the establishment

of a fund to pay the costs for monitoring the children for a neurological

developmental disorder that may have been caused by the sudden

decompression or the crash itself. Id. In opposing the relief sought by

Friends For All Children, Lockheed argued that the District of Columbia

would not recognize a claim for damages in the absence of a present

physical injury. Id. at 824.

In addressing this claim, the Friends For All Children court

first considered a hypothetical question in which an individual, Jones, was

knocked down by the negligence of a second party, Smith. Id. at 825. The

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court reasoned that if Jones went to the hospital and, on the

recommendation of his doctors, underwent testing to determine whether

he had suffered injuries, Smith would be responsible for the costs of such

testing, even if the testing demonstrated that Jones had not actually

suffered any physical injuries. Id. Following from this hypothetical, and

based on the Restatement's definition of injury, the Friends For All

Children court held that "an individual has an interest in avoiding

expensive diagnostic examinations just as he or she has an interest in

avoiding physical injury." Id. at 825-26. Thus, the court concluded that,

when that interest is invaded, the defendant should be required to

compensate the plaintiff for that invasion. Id.

The California supreme court later applied similar reasoning

to a claim for medical monitoring in Potter v. Firestone Tire & Rubber Co.,

863 P.2d 795. There, the plaintiffs alleged that the defendant had

improperly disposed of toxic waste, exposing the plaintiffs to carcinogens

that increased their risk of developing cancer. Id. at 801. In opposing the

plaintiffs' request for medical monitoring costs, the defendant argued that,

even if a present physical injury was not required, the plaintiffs were

required to demonstrate that, as a result of the exposure, it was more

likely than not that they would develop cancer. Id. at 822.

With regard to the need for a present physical injury, the

Potter court referred back to Friends For All Children and the

Restatement definition of injury, concluding that these authorities

persuasively demonstrated that no physical injury should be required for a

medical monitoring claim. Id. at 823-24. Moreover, the Potter court

rejected the argument that the plaintiffs should be required to show a high

likelihood that they would develop cancer, concluding instead that a court

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considering the availability of a medical monitoring recovery should focus

on the reasonableness of the need for medical monitoring. Id. at 822-23.

Additionally, the Potter court outlined several important public policy

considerations in support of recognizing a medical monitoring recovery,

including deterrence against irresponsible handling of toxic chemicals,

preventing or mitigating future illness and therefore reducing overall

costs, and serving justice by requiring the responsible party to pay the

expenses of reasonable and necessary medical monitoring. Id. at 824.

Relying on the Restatement, the decision in Friends For All Children,

these policy considerations, and other similar reasoning, a number of

other courts have likewise concluded that a physical injury is not required

in order to recover the costs of medical monitoring that is reasonably

required as a result of the defendant's tortious acts. See Ayers, 525 A.2d

287; Redland Soccer Club, Inc. v. Dep't of the Army & Dep't of Del of the

United States, 696 A.2d 137 (Pa. 1997); Hansen, 858 P.2d 970; Bower v.

Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999).

Our consideration of these authorities persuades us to

recognize that a plaintiff may state a cause of action for negligence with

medical monitoring as the remedy without asserting that he or she has

suffered a present physical injury. As discussed above, we have not found

anything in this court's precedent or in the Restatement's definition of

injury that limits an injury only to a physical one. On the contrary, the

Restatement definition specifically contemplates "the invasion of any

legally protected interest of another" as an injury. Restatement (Second) of

Torts § 7(1) (1965) (emphasis added). And the Restatement separately

defines "physical harm," indicating that physical harm is not necessarily

implicated by the term "injury." See id. § 7(3).

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Further, we agree with the reasoning of the Friends For All

Children court, which held that an individual has a legally protected

interest in avoiding expensive diagnostic examinations. 746 F.2d at 826.

And although the expense may be an economic loss, that economic loss is

accompanied by noneconomic losses, including unwillingly enduring an

unsafe injection practice and the resulting increase in risk of contracting a

latent disease and need to undergo medical testing that would not

otherwise be required. Moreover, as noted in Potter, there are significant

policy reasons for allowing a recovery for medical monitoring costs, not the

least of which is that early detection can permit a plaintiff to mitigate the

effects of a disease, such that the ultimate costs for treating the disease

may be reduced. 863 P.2d at 823-24. If medical monitoring claims are

denied, plaintiffs who cannot afford testing may, through no fault of their

own, be left to wait until their symptoms become manifest, losing valuable

treatment time. See id. Rather than allowing this result, it is more just to

require the responsible party to pay for the costs of monitoring

necessitated by that party's actions. See Friends For All Children, 746

F.2d at 826 ("When a defendant negligently invades [an individual's legal]

interest [in avoiding the need for medical testing], the injury to which is

neither speculative nor resistant to proof, it is elementary that the

defendant should make the plaintiff whole by paying for the

examinations.").

PacifiCare argues that a "need to be tested" is far too broad to

constitute a legal injury, and indeed, some of the courts that have declined

to recognize medical monitoring claims have expressed concern that

allowing such claims will open the floodgates to litigation because "tens of

millions of individuals may have suffered exposure to substances that

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might justify some form of substance-exposure-related medical

monitoring." Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424,

442 (1997). We do not consider this concern to be persuasive, however, as

any given plaintiff will still be required to plead and prove the essential

elements of their underlying claim, including, for the purpose of a

negligence claim, that the defendant actually caused the need for medical

testing through a breach of a duty owed to the specific plaintiff. See

DeBoer, 128 Nev. at , 282 P.3d at 732.

Further, in order to establish damages• for such a medical

monitoring claim, a plaintiff will have to show that he or she incurred

costs as a result of the defendant's actions. See id.; see also Restatement

(Second) of Torts § 902 (1979) (defining damages as "a sum of money

awarded to a person injured by the tort of another"). To satisfy this

element, it will be necessary for the plaintiff to demonstrate that the

medical monitoring at issue is something greater than would be

recommended as a matter of general health care for the public at large.

See Redland Soccer Club, 696 A.2d at 146 (requiring a medical monitoring

plaintiff to demonstrate that the "prescribed monitoring regime is

different from that normally recommended in the absence of the

exposure"). Otherwise, it could not be said that the need for testing was

caused by the defendant's breach, and thus, the element of a negligence

claim requiring that the defendant's breach be the legal cause of the

plaintiffs injuries would not be satisfied. See DeBoer, 128 Nev. at , 282

P.3d at 732. Thus, we cannot agree that permitting recovery based on a

need to be tested will open up the courts to extensive new litigation from

individuals exposed to everyday toxic substances.

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Before we move on to address the specific allegations in the

Sadlers' complaint, we note that, in recognizing medical monitoring

remedies, several courts have identified elements or factors that a plaintiff

must satisfy in order to recover the costs of monitoring. See, e.g., Potter,

863 P.2d at 823; Redland Soccer Club, 696 A.2d at 145-46. At this early

stage of the district court action, and in light of our treatment of medical

monitoring as a remedy, rather than a cause of action, we decline to

identify specific factors that a plaintiff must demonstrate to establish

entitlement to medical monitoring as a remedy. Instead, we conclude

that, in a negligence action for which medical monitoring is sought as a

remedy, a plaintiff may satisfy the injury requirement for the purpose of

stating a claim by alleging that he or she is reasonably required to

undergo medical monitoring beyond what would have been recommended

had the plaintiff not been exposed to the negligent act of the defendant.

The Sadlers' complaint

Having concluded that a physical injury is not required to

state a negligence claim with medical monitoring as the remedy, we now

turn to whether, in light of our decision herein, the Sadlers' complaint

sufficiently alleged an injury to state a negligence claim. As noted above,

the Sadlers asserted that, as a result of PacifiCare's actions, they were

"exposed to and/or placed at risk of contracting HIV, hepatitis B, hepatitis

C and other blood-borne diseases." Based on this assertion, the Sadlers

argue that they alleged actual exposure to blood-borne diseases, but

alternatively, they contend that the allegations regarding their exposure

to unsafe injection practices and a need for testing sufficiently alleged an

injury. PacifiCare, on the other hand, argues that this statement in the

Sadlers' complaint does not amount to an allegation of actual exposure.

And PacifiCare asserts that actual exposure to contaminated blood was, at

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a minimum, what the Sadlers must have alleged to state their negligence

claim.

By using "and/or," the Sadlers failed to connect any particular

plaintiff to the allegation that they were "exposed to" a blood-borne

disease, as opposed to simply being "placed at risk of contracting" a bloodborne

disease without necessarily having been actually exposed to such a

disease. See Gregory v. Dillard's Inc., 565 F.3d 464, 473 n.9 (8th Cir.

2009) (explaining that where an allegation referred generally to all

plaintiffs and used the• "and/or" formulation, it did not "connect any

particular plaintiff to any particular allegation"). Thus, we cannot

conclude that the Sadlers have alleged actual exposure to a blood-borne

disease. Nevertheless, we disagree with PacifiCare that actual exposure

to contaminated blood was required.

Because medical monitoring claims largely arise out of the

toxic tort area of litigation, most of the cases addressing these claims have

involved some form of actual exposure to toxic substances, such as

asbestos or potentially harmful chemicals. See, e.g., Potter, 863 P.2d 795;

Ayers, 525 A.2d 287. And several jurisdictions have concluded that a

plaintiff must be required to show actual exposure to a known hazardous

substance in order to recover on a medical monitoring claim. See Cook v.

Rockwell Inel Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991) (concluding

that the Colorado courts would find a complaint for medical monitoring to

be deficient insofar as it failed to alleged that the plaintiffs had actually

been exposed to a toxic substance); Hansen, 858 P.2d at 979 (providing

that to recover medical monitoring damages, a plaintiff must demonstrate

exposure to a toxic substance); Redland Soccer Club, 696 A.2d at 145

(holding that a plaintiff must prove "exposure greater than normal

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background levels. . . to a proven hazardous substance" in order to recover

on a medical monitoring claim). Indeed, in the context of a toxic tort

action, requiring exposure to a toxic substance is logical, as a plaintiff

could not set forth an argument that he or she needed medical monitoring

for something to which he or she had not been exposed.

But it cannot be said that exposure to a toxic substance will

always be necessary to demonstrate a reasonable need for medical

monitoring. In Friends For All Children, 746 F.2d at 819, for example, no

exposure to toxic substances was involved at all. There, the need for

medical monitoring was caused by "an explosive decompression and loss of

oxygen" that occurred during an airplane crash and by the airplane crash

itself. Id. In considering these cases and the concerns •at issue, we

conclude that the relevant inquiry is not on actual exposure to a toxic

substance, but on whether the negligent act of the defendant caused the

plaintiff to have a medical need to undergo medical monitoring.

Here, while the Sadlers may not have alleged that they were

actually exposed to contaminated blood, they have alleged, and at this

stage in the proceedings their allegations must be accepted as true, that

they were exposed to unsafe injection practices and that these unsafe

injection practices caused them to need to undergo medical monitoring.

The injury that they have alleged is the exposure to the unsafe conditions

that caused them to need to undergo medical testing that they would not

have needed in the absence of the PacifiCare's purported negligence. As

demonstrated by this case and Friends For All Children, to require a

specific exposure to a contaminant would unnecessarily limit the ability of

a plaintiff whose need for medical monitoring arises out of something

other than direct exposure to a toxic material. Thus, we conclude that the

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Sadlers' complaint adequately alleged an injury in the form of exposure to

unsafe injection practices that caused a need for ongoing medical

monitoring to detect any latent diseases that may result from those unsafe

practices.



* * *



5Given our conclusion herein, we need not address the Sadlers'

alternative argument that the district court improperly dismissed the

medical monitoring claim before they had the opportunity to conduct

discovery.

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We therefore further conclude that the district court erred by

granting PacifiCare judgment on the pleadings in this case based on the

failure of the Sadlers to allege a cognizable injury. As a result, we reverse

the judgment on the pleadings and remand this matter to the district

court for further proceedings consistent with this opinion. 5