A reference to West Virginia in connection with today’s recall of Mattel toys got my attention. By way of background, the U.S. Consumer Product Safety Commission today ordered the recall of more than 20 million toys manufactured by Mattel, Inc. because of concerns about the amount of lead and other toxins in the toys.  Earlier this month, the CPSC ordered the recall of 1.5 million toys manufactured by Mattel’s Fisher-Price division.  Mattel has already taken out full-page ads in several newspapers in which its CEO reiterates its concern for and commitment to children’s safety.

        The reference to West Virginia came in The Wall Street Journal‘s Law Blog‘s interview of Victor Schwartz regarding the prospect for litigation created by the recall.  Schwartz, is a partner at Shook, Hardy & Bacon, but is perhaps better known as the spokesperson for the American Tort Reform Association (the organization that listed West Virginia as its number one “Judicial Hellhole” in 2006).

        Schwartz opined that medical monitoring for the children who played with the toys probably would not be effective. He pointed out that “medical monitoring has been rejected by most courts,” but that in those states where it existed, namely West Virginia and Missouri, he suggested offering to set up a fund to help the child’s family with medical expenses, but not to offer cash, since "most people just take cash and run out and buy a pick-up truck.”

    The Supreme Court of Appeals of West Virginia recognized the tort of medical monitoring in Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W.Va. 1999), in which the Court found that “a cause of action exists under West Virginia law for the recovery of medical monitoring costs, where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant’s tortious conduct.”

    I disagree with Schwartz’s assessment that most courts have rejected medical monitoring.  Some courts have held that a physical or emotional injury must be present before an individual can recover for medical monitoring or medical surveillance costs, but in the research that I conducted, I found the tort exists in one form or another in many state and federal jurisdictions.   

    If the injuries suffered by one child are any indication, though, Schwartz may be correct that the nature of the injuries do not lend themselves to claims for medical monitoring.  According to CNN, in July, 2005, a seven year old Indianapolis girl accidentally swallowed two magnets off a Mattel toy, and developed a serious infection. She was hospitalized for two weeks and required follow-up visits with a physician on a regular basis.  Her medical expenses totaled about $40,000.  Her family retained Gordon Tabor, a lawyer who specializes in products liability cases, and filed suit, which Mattel settled for an undisclosed amount.