Medical monitoring is on my mind. Denise Howell recently posted an amicus brief her firm filed in a medical monitoring class action case decided by the California Supreme Court on March 3, 2003. I'd like to cover some West Virginia medical monitoring developments regarding tobacco and the drug Rezulin.

As some of you may remember, the first medical monitoring case against the major tobacco companies to be tried in the United States was tried here in West Virginia, in Ohio County (near Pittsburgh). Known locally as the Blankenship case, the six-week jury trial ended in a defense verdict; jurors determined that medical monitoring was an unreasonable remedy. For more history on the case, Tobacco.org has a collection of 34 news reports at this link. Plaintiffs filed a petition for appeal, which was granted on February 25, 2003 (4-0, Justice Davis disqualified). Briefing in the case is currently underway. Oral argument will be held sometime this fall. I believe a similar class action against big tobacco is currently ongoing in Louisiana. I'll defer to Ernie, who may be willing to supply an update on the status of that action pending in his neck of the woods.

Also last week, the WV Supreme Court heard oral argument in two cases arising from a purported class action on behalf of individuals who have taken the drug Rezulin. Plaintiffs sought medicial monitoring relief, in addition to other damages. The cases had been referred to the Mass Litigation Panel (MLP) under WV Trial Court Rule 26, pursuant in part to a determination that common issues of law and fact exist. (Exxon Mobil previously filed a petition for writ of certiorari challenging the WV Supreme Court's application of this trial court rule to a mass asbestos trial. The US Supreme Court denied certiorari, and all defendants eventually settled.) The MLP judge in the Rezulin case subsequently denied class certification, based in part upon a determination that common issues of law and fact do not exist. Plaintiffs challenge denial of class certification, and challenge the continued viability of the referral to the MLP.

Part of the discussion at oral argument touched upon an article appearing in the February 19, 2003 edition of the Journal of the Americal Medical Association entitled Medical Monitoring for Pharmaceutical Injuries --Tort Law for the Public's Health?, which commends the public health benefits of the medical monitoring remedy.

A decision in the Rezulin cases is expected by July.