In another effort at tort reform, Senate Bill 236 seeks to limit medical monitoring damages that can be awarded, how monies will be paid and when monies will be returned to defendants who have paid medical monitoring damages.
The West Virginia Supreme Court of Appeals first recognized medical monitoring as a cause of action in Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999). The Court held at Syllabus 3 in Bower that
In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.
Id., 206 W.Va. at 135, 522 S.E.2d at 426.
Since that time, medical monitoring claims have been filed with nearly every toxic exposure case. The verdicts and settlements have been astounding, with perhaps the most shocking occurring in 2008 when E.I. du Pont de Nemours and Company was found liable in a Harrison County, West Virginia class action for off-site arsenic, cadmium and lead contamination. The jury verdict was in the total amount $381,737,522, which included $130,000,000 for medical monitoring damages. [The jury award included property damages (for soil and structural remediation) totaling $55,537,522, and a punitive damages award in excess of $196,000,000. ] On appeal, the West Virginia Supreme Court held that "[p]unitive damages may not be awarded on a cause of action for medical monitoring," but the medical monitoring award itself was left intact as the action was remanded back to the Circuit Court for further review consistent with the Supreme Court's lengthy ruling. See Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 493, 694 S.E.2d 815, 826 (2010). Ultimately, du Pont settled the medical monitoring claims for $70,000,000. Even with the Supreme Court's decision that punitive damages are not available in a medical monitoring claim, the jury verdict itself served to reinforce the much publicized characterization of West Virginia as a "judicial hell hole."
SB 236 tackles medical monitoring claims at their heart, by first eliminating claims that are predicated only on fear and which are unrelated to "presently existing and diagnosable physical disease...caused by defendants conduct." In other words, injury and causation must be shown. Further, if a defendant is ordered to pay for future medical screening, then the defendant will "make periodic payments into a fund" and monies from the fund will only be paid out when medical screening procedures "have been completed." Finally, medical screening will not continue indefinitely. "The court shall ...determine the date after which such future medical surveillance...are no longer required, and...any moneys remaining in the fund...shall be repaid to the liable defendant who paid such amounts into the fund," or, in the event of multiple defendants, "repayments shall be made in proportion to the total contributions of each defendant into the fund."