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An article in yesterday’s Wall Street Journal Online discusses the merritts of medical monitoring, a legal theory that is gaining momentum and support, especially in light of the recent and widespread toy recalls.

The question is whether families who believe their children have been exposed to dangerous levels of lead in the toys being recalled have the right to sue toy manufacturers even before their children show evidence of injury or illness.

The article details the debate:

The suits rely on a legal theory that has gained credence in some states in recent years. About 15 states, including California and Illinois, would likely allow such suits in light of a patchwork of state and federal court decisions, say legal observers. A roughly equal number likely wouldn’t, they say. But the Supreme Court has cast doubt on the practice, and toy-related suits could further test the ability of plaintiffs to bring such cases.

Medical monitoring is “among the greatest divisions in all of tort law among judges,” says Victor Schwartz, a Washington, D.C., attorney who believes medical-monitoring suits violate a fundamental principle of the legal system — that a person must prove injury before recovering money.

For more information on this subject matter, please refer to the section on Defective and Dangerous Products.

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