dissenting.
The plaintiffs in this class action contend that they ingested a substantial amount of Vioxx, a toxic product; that as a result, their risk of undetected myocardial infarction (UMI) is statistically significant; that according to their experts, some members of the class have already suffered a UMI; and that there are medical procedures to detect the existence of the condition. Accordingly, they seek medical surveillance damages from the drug manufacturers, distributors, and advertisers who placed Vioxx in the stream of commerce and urged them to consume it.
The trial judge dismissed plaintiffs’ complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). The majority has concluded that the dismissal was proper because plaintiffs do not allege a “manifest injury” and therefore fall outside the definition of harm in the Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11.
*67I cannot accept that conclusion for two distinct reasons. If the majority is correct that plaintiffs did not suffer “harm” under the PLA, then they are excluded from the Act and are entitled to pursue their remedies at common law. If the majority is incorrect in its analysis of what constitutes harm under the PLA, as I believe it is, the action can proceed. Either way the dismissal cannot stand.
I
The PLA was enacted in 1987 to create a unified statutorily defined theory of recovery for harm caused by a product. See Senate Judiciary Committee, Statement to Senate Committee Substitute for Senate Bill No. 2805 (Mar. 23, 1987). In general, the PLA adopted the strict liability standards established in Suter v. San Angelo Foundry and Machine Co., 81 N.J. 150, 406 140 (1979), but left unchanged the theories under which a manufacturer or seller may be held strictly liable. William A. Dreier et al., New Jersey Products Liability & Toxic Torts Law, § 1:2-2 (2008). The Act accomplished only a few very specific reforms related to the availability of punitive damages and to the defenses accessible to a manufacturer or seller in a products liability action. See, e.g., N.J.S.A. 2A:58C-5c (limiting recovery of punitive damages in cases involving defective drugs, devices, or foods); N.J.S.A. 2A:58C-3a(l) (adopting “state of the art” as complete defense in design defect claims). See also William A. Dreier, Analysis: 1987 Products Liability Act, 41 Rutgers L.Rev. 1279, 1293, 1296 (1989) (noting, among other things, major consequences of PLA involve punitive damages and manufacturers’ defenses).
By its very terms, the PLA was “not intended to codify all issues relating to product liability, but only to deal with matters that require clarification.” N.J.S.A. 2A:58C-1a. “Both [N.J.S.A 2A:58C-la] and the legislative committee statements accompanying the statute make clear that it is not intended to supersede any prior statutory or common law not inconsistent with the Act’s provisions, nor is it intended to codify all issues relating to product *68liability.” Dreier, supra, § 1:2-2. Only “conflicting common law principles” are superseded by the Act. Hinojo v. N.J. Mfrs. Ins. Co., 358 N.J.Super. 261, 270 n. 2, 802 A.2d 551 (App.Div.), certif. denied, 175 N.J. 76, 812 A.2d 1109 (2002).
The aspects of the [PLA] that are inconsistent with the common law, and therefore supersede that law, concern defenses as well as standards and procedures for the award of punitive damages. [T]he substance of product liability law as developed prior to the enactment of the statute is largely unchanged. See Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94, 577 A.2d 1239 (1990); Jurado v. Western Gear Works, 131 N.J. 375, 384, 619 A.2d 1312 (1993); Fabian v. Minster Mach. Co., Inc. 258 N.J.Super. 261, 271, 609 A.2d 487 (App.Div.1992), certif. denfied,] 130 N.J. 598, 617 A.2d 1220 (1992). Therefore prior law may be consulted far guidance on most issues.
[Dreier, supra, § 1:2-2 (emphasis added).]
Importantly, the scope of the Act is limited by exclusions from coverage. See In re Lead Paint Litig., 191 N.J. 405, 437, 924 A.2d 484 (2007) (noting PLA “excludes claims seeking coverage for harm where the cause of the harm is exposure to toxic chemicals or substances” (citation and quotation marks omitted)).1 As a general matter, where a case falls within an exclusion, the result is not that a plaintiff is without a remedy “but rather that the action is governed by the common law rather than the statute.” Dreier, supra, at § 1:2-2. See also Macrie v. SDS Biotech Corp., 267 N.J.Super. 34, 39 n. 1, 630 A.2d 805 (App.Div.1993) (environmental tort claim excluded from Act but plaintiffs not foreclosed from common law failure-to-warn claim).
Some exclusions are “accomplished by the combined definitions of ‘product liability action’ and ‘harm.’ ” Dreier, supra, at § 1:2-2. The point is that if the majority is correct in declaring that plaintiffs are excluded from recovery because they have not suffered “harm” under the PLA, they fall outside the PLA, which defines a “product liability action” as “any claim or action brought by a claimant for harm caused by a product.” N.J.S.A. 2A:58C-lb(3). Thus, plaintiffs are entitled to continue with this action *69under the common law theories that were also pleaded in the complaint. Accordingly, dismissal was unwarranted.
II
The dismissal was wrong on other grounds as well, in particular because the Court erred in concluding that plaintiffs failed to vault the harm threshold in the PLA.
A.
The term “harm” is defined in the PLA as follows:
(a) physical damage to property, other than to the product itself; (b) personal physical illness, injury or death; (c) pain and suffering, mental anguish or emotional harm; and (d) any loss of consortium or services or other loss deriving from any type of harm described in subparagraphs (a) through (c) of this paragraph.
[N.J.S.A. 2A:58C-1b(2).]
As its language underscores, the statutory definition is an expansive one, including every conceivable variation on the theme of harm. It encompasses property damage, illness, injury, death, pain, suffering, mental anguish, and emotional harm. N.J.S.A. 2A:58C-1b(2)(a) to -1b(2)(c). In addition, it includes loss of consortium or any other loss derived from the prior categories. N.J.S.A. 2A:58C-1b(2)(d).
It seems clear that, in codifying the term “harm” in the PLA, the Legislature incorporated all of the various conceptions of harm already recognized in the common law. Certainly, prior to the enactment of the PLA, our tort jurisprudence had established recovery for harms spanning from property damage to severe emotional distress. See, e.g., Ayers v. Twp. of Jackson, 106 N.J. 557, 606-07, 525 A.2d 287 (1987) (accepting enhanced risk of disease due to toxic exposure requiring medical monitoring as cognizable harm); Portee v. Jaffee, 84 N.J. 88, 97-98, 417 A.2d 521 (1980) (permitting derivative action for severe emotional distress for individual who observed injury to family member); Heavner v. Uniroyal, Inc., 63 N.J. 130, 133, 305 A.2d 412 (1973) (finding personal injury resulting from defective truck tire compensable *70damages); Rosenau v. City of New Brunswick, 51 N.J. 130, 134, 238 A.2d 169 (1968) (recognizing property damage as compensable harm); Falzone v. Busch, 45 N.J. 559, 569, 214 A.2d 12 (1965) (holding psychological or mental injuries significant enough to cause sickness compensable harm).
Despite the statute’s wingspan, the majority interprets it in a way that carves out these plaintiffs from recovering otherwise viable medical monitoring damages because they have not suffered a “manifest injury.” That is what divides me from my colleagues.
Under the common law, there was no such manifestation'requirement for medical monitoring. Indeed, in Ayers, supra, 106 N.J. at 557, 525 A.2d 287, Mauro v. Raymark Industries, Inc., 116 N.J. 126, 561 A.2d 257 (1989), and Theer v. Philip Carey, Co., 133 N.J. 610, 628 A.2d 724 (1993), we declared that where a plaintiff’s risk of injury is increased due to exposure to a toxic substance, medical surveillance damages could be awarded in the absence of a claim for present physical harm. In particular, in Ayers, we recognized that the need for pre-symptom medical surveillance, as a result of the increased risk of injury due to toxic exposure, is a compensable element of damages where a plaintiff establishes
Although the harm suffered by a plaintiff exposed to a toxic product and seeking monitoring is not capable of a straightforward categorization as either purely physical or purely economic, that did not prevent this Court from declaring it generally cognizable in Ayers.2 Dreier, supra, § 7:1-2 (“While damages awarded to cover these costs are not exactly compensation for a *71physical injury they are closer conceptually to that than to compensation for economic loss.”).
Ayers, Mauro, and Theer were toxic tort cases, but that factor, in itself is not a distinguishing metric. As Judge Payne underscored below,
[t]he legal differences between the environmental tort actions asserted in that case are insufficiently distinguishable from the products liability claims asserted in Mauro to provide a foundation for the argument that the existence of an illness or condition, alone, should dictate the viability of a medical monitoring cause of action when presented in a products liability context.
[Sinclair v. Merck & Co., Inc., 389 N.J.Super. 493, 507, 913 A.2d 832 (App.Div.2007).]
In my view, the PLA contains no language that directly or inferentially signals a retreat from the common law notion that increased risk of injury that creates a need for medical surveillance is a cognizable harm.3 Indeed, directly in the face of Ayers, of which it was presumptively aware, Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 350, 94 A.2d 482 (1953), the Legislature enacted an all-encompassing definition of harm that mirrored common law principles. That definition is devoid of any suggestion that it was intended to clip Ayers’s wings.
Had the Legislature actually determined to limit what had been declared in Ayers, it could easily have done so. For instance, the insertion of the word “present” or “manifest” or some similar term in describing physical harm would have unequivocally signaled the Legislature’s desire to reject Ayers, in favor of a requirement of present or manifest physical symptoms. Without such limiting words, and without any evidence of the Legislature’s contrary intent, its silence regarding the holding in Ayers speaks volumes.
*72In short, I continue to read the word “harm” in subsection (b) of the Act as wholly consistent with the common law, in which we recognized that a plaintiff who is exposed to a toxic substance and needs medical surveillance qualifies for that remedy even in the absence of present symptoms. Ayers, supra, 106 N.J. at 606-07, 525 A.2d 287.
111
Because it is clear to me that dismissal under Rule 4:6-2 was unwarranted, I would affirm the judgment of the Appellate Division and reinstate plaintiffs’ complaint for medical surveillance damages.
For reversal, remandment, and Justice RABNER and Justices LaVECCHIA, WALLACE, RIVERA-SOTO and ForThis case is entirely distinct from Lead Paint, supra, 191 N.J. at 437, 924 A.2d 484, because there the Court denied the plaintiffs the right to sue under a public nuisance theory because the harm they alleged was cognizable under the PLA.
In Ayers, plaintiffs also had to satisfy the stringent standard of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, because a public entity defendant was involved.
The present definition of harm in the PLA is exactly the same as the definition in the original bill introduced in 1986. In 1987, while the bill was pending, Ayers was decided with a splash of publicity. See Kathleen Bird, Limit Lump Sum Payments In Toxic Tort Awards, Court Says, 119 N.J.L.J. 837, 837 (May 14, 1987) (noting in front-page article nature and importance of Court's holding in Ayers that made medical monitoring damages available to "families who made no claims seeking recovery for specific 'illnesses' ”).