UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
October 20, 1992
GLORIA PRICE, et al., Plaintiffs,
UNITED STATES NAVY, et al., Defendants. AND RELATED COUNTER-ACTIONS
The opinion of the court was delivered by: IRMA E. GONZALEZ
Plaintiffs in this case have brought a claim for medical monitoring costs against the defendants apparently under Title 42 U.S.C. § 9607(a)(4)(B),
which provides that certain responsible parties may be sued for "any other necessary costs of response incurred by any other person consistent with the national contingency plan . . .". Whether response costs include medical monitoring under this section is an issue that, until recently, had been only addressed by district courts. However, the Tenth Circuit recently decided the issue of medical monitoring in Daigle v. Shell Oil Co., Nos. 91-1093, 91-1099, 91-1143, 91-1144, 91-1145 (10th Cir., August 18, 1992). In Daigle, plaintiffs sought the establishment of a fund to finance long-term "medical monitoring" or "medical surveillance" designed to detect the onset of any latent disease that had been caused by exposure to toxic fumes. Plaintiffs relied on the language contained in 42 U.S.C. § 9607 (a)(4)(B).
In the present case, plaintiffs, in argument to the court and in their memoranda of law in opposition to defendants' motion to dismiss, rely on this same section.
Plaintiffs also rely on the case of Brewer v. Ravan, 680 F. Supp. 1176, 1179 (M.D. Tenn., 1988) in support of their claim that they are entitled to medical monitoring costs. In that case, the district court held that "removal" and "remedial" costs encompass medical monitoring.
In Daigle, the court expressly rejected the analysis in Brewer as overly broad, stating that the "Brewer court [went] awry in affording a broad sweep to the 'public health and welfare' language in the definitions." Slip op. at 13. I agree.
In reaching its conclusion, the Daigle court went through a very detailed analysis of the language contained in the response costs definitions and the history and structure of CERCLA in arriving at its conclusion that costs are not recoverable under CERCLA § 107(a). Although this decision is not binding on this court, I believe its reasoning is sound and therefore persuasive.
The plaintiffs' claim for the medical costs set forth in paragraph 48 of the first claim of the first amended complaint is hereby dismissed.
IT IS SO ORDERED.
IRMA E. GONZALEZ
United States District Judge