MEDICAL MONITORING IS NOT UNIQUE, NOR DO THE CASES OVERRUN THE COURTS

Publication: CHARLESTON DAILY MAIL
Published: 01/24/2004
Page: 4A
Headline: MEDICAL MONITORING IS NOT UNIQUE, NOR DO THE CASES OVERRUN THE COURTS
Byline: E. WILLIAM HARVIT

MANY corporations and insurance companies want the Legislature to eliminate the right of West Virginians to bring "medical monitoring" lawsuits.

They incorrectly assert that West Virginia is only one of a handful of states to allow medical monitoring.

Presently, the following states allow for medical monitoring: Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida, Illinois, Kansas, Kentucky, Louisiana, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, Utah, Vermont and West Virginia.

Only one court - the North Carolina Supreme Court - declined to address medical monitoring, choosing instead to leave the issue for its legislature to decide.

Medical monitoring allows for the early detection and one must hope treatment of "serious diseases" caused from exposure to "a proven hazardous substance."

It allows the court to establish a fund from which medical costs are paid for persons wrongly exposed to toxins that may not cause disease for many years.

Shouldn't everyone who is wrongly exposed to "a proven hazardous substance" be given every chance for the early detection of disease? Obviously, many chemical companies and their insurance companies do not think so.

The West Virginia Supreme Court allowed medical monitoring in 1999.

The court requires six stringent elements to bring a medical monitoring case. A person must prove (1) to have been significantly exposed (2) to a proven hazardous substance (3) through the wrongful conduct of the defendant chemical or other company (4) to have an increased risk of contracting a serious latent disease relative to the general population (5) that it is reasonably necessary for the person to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure, and (6) that medical monitoring procedures exist that makes the early detection of a disease possible.

Not an easy case, is it?

In fact, many of the other 19 states do not require the proof of this many elements.

These cases are not overrunning our courthouses. There are presently two significant medical monitoring cases pending in West Virginia.

One in Marshall County concerns exposing coal preparation plant workers to a hazardous chemical called acrylamide.

If you worked with acrylamide, wouldn't you want medical tests for the early detection and treatment of cancer, nerve damage and reproductive diseases? If you had children who may be affected, wouldn't you want them to be tested for the early detection and treatment of diseases linked to this chemical?

Could you afford to pay for such testing yourself? Even if you could, should you have to bear these costs?

In the other case, residents in Wood County allege that DuPont contaminated their drinking water with ammonium perfluorooctanoate, also commonly referred to as C-8.

C-8 is a chemical DuPont used at its Washington Works facility in Wood County since about 1951 in the manufacture of Teflon. The suit alleges that DuPont released C-8 into the air, the Ohio River, various landfills and into the soil and groundwater.

If your family grew up drinking the water in Wood County, wouldn't you want medical tests for the early detection of any serious latent diseases?

Could you afford to pay for them? Even if you could, should you have to pay for them?

Corporations and insurance companies hope they can convince the Legislature to bail them out by eliminating medical monitoring. I hope our elected officials will see the truth and not let companies shift the cost of such testing to the victims, or ultimately to all West Virginia taxpayers.

These companies profited at the expense of our most vital asset - the people of West Virginia - and they should bear such costs.

Harvit is a lawyer with Harvit & Schwartz in Charleston.