West Virginia Federal Court Refuses to Dismiss Medical Monitoring Claim
The judicial branch is one of three branches of government, and although it has considerable powers, it has inherent limitations, too. The doctrine of standing -- requiring an injury and causation as a prerequisite to judicial intervention -- is grounded on the practicalities of institutional competence and a recognition that courts do not have the tools to be effective legislators and regulators.
In Rhodes v. E.I. DuPont de Nemours & Co., 2009 WL 3080188 (S.D. W. Va. Sept. 28, 2009), the court was faced with summary judgment motions that raised those fundamental questions of institutional competence. In Rhodes, the Defendant was alleged to have periodically released perfluroctanoic acid ("PFOA") from its plant in Wood County, West Virginia. Plaintiffs claimed that the PFOA contaminated the water supply in the Parkersburg Water District, and they brought a class action asserting negligence, gross negligence, private nuisance, public nuisance, trespass, battery, and medical monitoring. Plaintiffs alleged that they had no present physical injury; rather, they claimed to have an increased risk of disease.
Before conducting its analysis, the court observed that "[i]ssues of institutional competence . . . caution against judicial involvement in regulatory affairs" because "[c]ourts are designed to remediate, not regulate." Id. at *1.
The court first analyzed whether the plaintiffs had Article III standing to bring their claims where the only injuries alleged were increased risk of disease. After summarizing the case law, the court noted that "[e]ven courts that express doubt as to whether injuries premised on increased risk constitute an injury-in-fact acknowledge that such claims are cognizable in the context of environmental harms and toxic exposures." Id. at *4. The court thus concluded that plaintiffs had standing to bring their claims.
With respect to the merits of the summary judgment motions, the court first looked at negligence. The court determined that plaintiffs had provided sufficient evidence to create a material fact question on causation in their expert reports. (The court refused to rule on the motion to strike the reports because of the timing of their filing.) But it held that the plaintiffs had not alleged injury sufficient to support their negligence claims. Unlike for standing, negligence requires proof of either a present injury or "'reasonably certain' future injury." Id. at *11. Because plaintiffs could not prove that their potential future injuries were "reasonably certain" to occur, their negligence claim for damages failed.
Next, the court analyzed nuisance law. It held that plaintiffs' private nuisance claim failed because the complaint did not allege an interference with the private use and enjoyment of land, but rather alleged interference with the public water supply. (The contamination did not reach the groundwater beneath the plaintiffs' property.) Id. at *11-*12.
And it held that the public nuisance claim failed because the plaintiffs did not meet the special standing requirement applicable to such claims. Ordinarily, the government is the one to file and prosecute a public nuisance claim. West Virginia -- and most other states -- requires that private plaintiffs who seek to assert a public nuisance claim must establish that they have suffered a "special injury" different in type and degree from the segment of the public impacted by the public nuisance. The court observed that the plaintiffs here only suffered an increased risk of disease, which is the same type of injury allegedly suffered by the other consumers of the municipal water supply. Thus, they failed to meet the "special injury" standing requirement for public nuisance. Id. at *13.
The court granted summary judgment on the trespass claim because there was no "invasion" of plaintiffs' property that interfered plaintiffs' use and enjoyment. The PFOA was not alleged to have actually reached plaintiffs' property.
The court also granted summary judgment on the battery claim because plaintiffs have not alleged a present physical injury, and thus have failed to meet the element of "harmful contact." The court opined that "[a]bsent any such demonstration that their contact with PFOA caused them harm, or that the PFOA present in their blood has altered the structure or function of some body part, the plaintiffs cannot sustain their battery claim based on the mere presence of PFOA in their blood." Id. at *16.
But the court refused to grant summary judgment on the medical monitoring claim. Under the decision in Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999), a medical monitoring 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 exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.
522 S.E.2d at 432-33.
The court discussed the trend after Bower generally rejecting medical monitoring claims, but then applied Bower to conclude that the negligence allegations and the evidence of increased risk of disease created a disputed issue of fact regarding the medical monitoring claim. Rhodes, 2009 WL 3080188 at *19-*21. Thus, although plaintiffs lacked an injury sufficient to assert a negligence claim, they could proceed to trial on the medical monitoring claim.
