West Virginia, for example, doesn't even require plaintiffs to show a ''probable likelihood'' that an illness will result from exposure. The defense bar says the vague ''increased risk'' standard could cause an onslaught of litigation, preventing the truly injured from recovering losses. The standard ''could lead to thousands and thousands of claims in West Virginia, because almost everyone in society has had some increased risk due to an exposure of some substance in some way,'' said Washington- based lawyer Victor Schwartz, who published a critical article with Behrens. The standard also makes life easier for plaintiffs, says California defense attorney Brian Anderson. If lawyers can refocus the suit away from actual harm toward risk of harm, they can avoid having to prove causation on an individual basis.
Lawyers can also make class action suits more easily.
Instead of having to prove that plaintiffs share common injuries, they merely have to prove plaintiffs share common risks, Anderson explains. ''Medical-monitoring class actions represent an attractive way for plaintiffs' lawyers to get all the benefits of a class action without having to meet the procedural requirements,'' he said. Trial lawyers counter that the suits aren't radical or new. Majestro adds that it's not unheard of for courts to weigh the ''increased risk'' of future injury. For example, if a plaintiff's leg injury puts him at risk of amputation, the jury can award damages for that risk. A cause of action for medical monitoring won't cause an avalanche of suits, Majestro says.