Bower v. Westinghouse Electric Corp.

triаl); finding competency to stand court’s (2) guilty appellant’s plead desire advice counsel. Ac-

against the strident court, judg- I in its cordingly, the Hatfield order, aside, and annulled

ment set reversed (in opinion its pleas and remanded further,”

Syllabus “explore Point wheth- objections appellant, hearing after

er the acknowledging that he

of his counsel and them, persist in his

understood still wished to plead guilty.

earlier desire to appel- I determined that the thus Hatfield prejudice”

lant because could suffer “severe

statutory and constitutional standards

plea taking violated the trial court’s were hearing regarding

failure to conduct a attempt,” and the trial

“second suicide place appel-

court’s “failure to on record acknowledgment

lant’s statement and pleas against advice.”

his counsel reasons, foregoing respectfully

For the I I am authorized to state that Jus-

dissent. joins in

tice McGraw this dissent. BOWER, Hawkins, Patricia E.

Wanda Sue Hardesty, Jay Hardesty,

Bobbie Jo Tom Huffman, Kay

Kent Norman and Brenda Plaintiffs,

Spencer, CORPO

WESTINGHOUSE ELECTRIC

RATION, Pennsylvania corporation, Philips Corpora North American

tion, corporation, a Delaware Defen

dants.

No. 25338.

Supreme Appeals Court of Virginia.

Submitted March 1999. July 1999.

Decided

Dissenting Opinion of Justice

Maynard Sept. Hendrickson, Esq., K. Hendrickson

David Charleston, P.L.L.C., Virginia, Long, & Attorney Corporation, successor to for CBS Westinghouse Corp. Elec. Defendant Sauter, Schulz, Esq., Mychal S. Dennis C. Charleston, Kelly, Vir- Esq., Jackson & West Attorneys Ameri- ginia, for Defendant North Corp. Philips can Cox, Jr., Esq., Randolph T. Robert A. Lockhart, Alley, Esq., Esq., Spil- Jamie S. Charleston, Battle, PLLC, man Thomas & Attorneys In- Virginia, for American West Association, Amicus Curiae. surance Florio, Esq., Ramey, Michael Ancil G. Virginia, ‍‌​​​‌​‌​‌​‌​​​‌​‌‌​​​​​‌‌​​​​​​‌​​‌‌​‌​​​​‌​​​‌‌‍Attorneys Esq., Clarksburg, West Association, Manufacturers for Chemical Amicus Curiae. O’Brien, Hartley, Esq., M.

R. Dean James Attorney for Wheeling, Virginia, Esq., West Association, Lawyers Virginia Trial West Amicus Curiae. Wakefield,

Jeffrey Esq., Erica M. M. Marinacci, Esq., Baumgras, Esq., Michelle Bonasso,. Flaherty, Sensabaugh & Charles- ton, Attorney Defense Tri- Virginia, West Virginia, of West Amicus Curiae. al Counsel McGRAW, Justice: to the Court on certified This case comes District question from the United States District of West for the Northern Court us to resolve the Virginia, and asks jurisdiction recognizes a of whether recovery cause of action common-law in cir- costs anticipated medical have been cumstances where substances, but tortiously exposed to toxic any symptoms of presently exhibit do not conclude West resulting disease. We a claim for relief. supports such I.

BACKGROUND brought this action originally Plaintiffs County, of Marion West Circuit In their September 1997. Virginia, on they were ex- they allege that complaint, of de- as a result Michael, posed to toxic substances Esq., Ru- R. Michael & Thomas containing maintaining pile a cullet Attorney for Clarksburg, Virginia, fendants pee, light bulbs. manufacture of from the debris Plaintiffs. pile approximately plaintiffs’ covers two acres and claim for medical under deep 12(b)(6) It points. feet at certain is uncon- or, alternative, Fed.R.Civ.P. in the performed tested that tests identified motion, support Fed.R.Civ.P. of their presence potentially of 30 deleterious Co., cited Joy Mfg. defendants Ball v. plaintiffs presently None of substances.1 (S.D.W.Va.1990), F.Supp. 1370-72 aff'd symptoms any related to exhibit disease Tech., Inc., Joy Ball v. sub nom. 958 F.2d alleged exposure. (4th Cir.1991), denied, cert. 502 U.S. (1992),2 following Plaintiffs have asserted S.Ct. L.Ed.2d 780 (1) against neg- causes of action defendants: asserted “West law does operation ligent maintenance and of the re- recognize independent cause of action (2) (3) (4) nuisance; pile; trespass; neg- fuse monitoring.” responded Plaintiffs (5) distress; ligent' infliction of emotional by arguing accurately that longer Ball no disregard intentional for the health and safe- Virginia they reflects West an аssertion relief, ty plaintiffs. complaint of the As by supported citing to this recent Court’s seeks, alia, consequential damages inter Constr., Inc., holding in Marlin v. Bill Rich monitoring the form of medical costs. (1996), 482 S.E.2d 620 where plaintiff required we concluded that a is not Philips Corpo- Defendant North American physical to injury the (“Philips”) ration removed the case to the asserting negligent context pursuant § District a claim for Court to 28 U.S.C 1332 (1994 Supp.1996) (diversity & infliction of emotional citizenship). distress. Alternative Philips codefendant, ly, plaintiffs sought Corporation certify and its to CBS to (formerly Westinghouse Corpora- question the Electric whether medical tion) (“CBS”), subsequently moved to proper dismiss are a form of under relief 4-DDD; alleged exposure 1. These substances include: alumi- to toxic Id. chemicals. at num; arsenic; barium; antimony; benzo(a)py- 1364-69. rene; benzo(b)fluoranthene; beryllium; cadmi- Ball, affirming the Fourth Circuit Court um; disulfide; chromium; cobalt; carbon and, Appeals effect, went further construed dibenzo(9,h)anthracene; ethbenzene; copper; holding require proof our in Jordan lead; to iron; ideno(l,2,3-cd)pyrene; lenes; p-xy- m & injuiy precedent recovery aas condition to magnesium; manganese; mercury; me- nickel; (MTBE); expenses: thyl-t-butyl future o-xylene; ether touene; compounds; PCB A claim for medical trichlorofluorameth- surveillance costs is ane; vanadium; simply and zinc. damages. claim for future Plaintiff correctly points Virgi out that the law of West interpreting Virginia 2. Fedеral courts West nia allows of the value reasonable previously have held that there is no basis for a expenses by of future medical necessitated accompa claim of medical an absent See, Bero, wrong. e.g., defendant's Jordan v. Ball, nying physical injury. In the United States 28, [56-58,] 158 W.Va. 210 S.E.2d District Court for the District Southern of West However, only such relief is available Virginia plaintiffs ruled that in that case physical inju where a has sustained a pursue could not a medical claim ry proximately was caused the defen they proven because had not otherwise an "ac Jordan, 637; City dant. Long S.E.2d at injuiy” tionable under state The law. court Weirton, 741, [786,] 158 W.Va. S.E.2d analysis by stating framed its that "the law of (1975);_ Plaintiffs have not dem Virginia West allows a to recover the they pres suffering onstrated that are from a cost of reasonable and ent, physical injuiy that would to entitle them hospital services where the evidence estab recover medical surveillance costs West under expenses lishes that reasonably such future are Virginia ... law. certain to injury be incurred as an a result of Tech., Inc., Joy Ball v. 958 F.2d at Federal proximately which was caused apply reject courts continue Ball to F.Supp. the defendant’s actions.” arising Virginia claims alia, Bero, under West (citing, inter Jordan v. Rhone-Poulenc, Inc., E.g., law. McClenathan v. (1974)). While the Ball court (S.D.W.Va.1996) F.Supp. (ruling engaged policy in substantial discussion of the Virginia is no "there basis in recognizing ramifications of Wеst law for a a claim for medical separate monitoring, cause of action for did not as to the medical monitor- elaborate basis Tech., Inc., ing”) (citing regarding Joy for its conclusion Ball v. the absence of a F.2d 39). cognizable injury. presumably It relied its finding anon, explained earlier failed to had sustain As will the Ball decisions injury resulting their claim of accurately emotional from do not reflect West law. fully Virginia law. The District Court Court is able áddress the law which motion, question, and we subse- is involved then this Court granted the latter power questions retains the to reformulate agreed accept ques- the certified quently . ’.. n certified to it under the Uniform Certifi- tion. Va.Code, cation of Act found -in Law W. 51- ...”). 1A-1, seq. et comment to the II. parameters Uniform Act describes the of this authority: REFORMULATION OF CERTIFIED

QUESTION Requiring pre- to be answered cisely imposes as it is certified a counter- requested The District Court has that we productive rigidity that could decrease the respect law with to the define West utility Permitting of the answer received. following question: receiving court to amend the certified negligent In a infliction of emo- case of question freely may adversely also affect physical injury, may absent tional distress utility of the answer and result party assert claim for related advisory opinion. issuance of The term to future medical necessitated “reformulate” is intended to connote a re- solely by contracting a fear of disease from specific сoncepts tention of terms and exposure to toxic chemicals? question allowing of the while some flexi- literally, question Taken asks whether a bility restating question in light the plaintiff who emotional with- suffers distress justiciable controversy pending the before injury consequential out can obtain certifying court. damages in the form of future costs associat- Questions § 4 Unif. of Law Act Certified diagnosing precipitated ed with maladies cmt., 12 U.L.A. “solely by contracting the fear of a disease.” do not think that the District We pleadings in this case indicate that pose question. intended to such a narrow alia, plaintiffs seeking, compensa- are inter Rather, as stated elsewhere in the certifica- testing tion for the cost of future medical order, clearly asking the court is tion diagnosing potential at aimed ailments question Virginia broader ‍‌​​​‌​‌​‌​‌​​​‌​‌‌​​​​​‌‌​​​​​​‌​​‌‌​‌​​​​‌​​​‌‌‍of “whether West by alleged exposure. caused toxic While permits independent an action law cause of argument have couched their monitoring recover future medical costs recognizing a favor of such claim terms physical injury.”3 absent governing law recent refinements our negligent Virginia’s causes of action for infliction of Uniform Certification Act, distress, Questions ques- §§ it is clear that the of Law W. Va.Code 51- emotional -13, expressly permits by 1A-1 posed this Court to the District Court is aimed tion questions by certify revisiting in Ball v. reformulate submitted the issue first arose (1996); § ing Joy Manufacturing namely, court. 51-1A-4 whether West W. Va.Code — syl. part, Mangum, Virginia recognizes a cause of action for pt. see Kincaid v. law (1993) (“When present 432 S.E.2d 74 absent a question physical injury.4 Consequently, a certified is not framed so that this based 12(b)(6); obviously, are 3. The Court states in its certification Fed.R.Civ.P. defendants District separate order that treating rather this as a claim for relief question whether West judgment, only [of] than as a demand for since independent permits re- cause of action to challenged properly Rule under former cover future medical costs absent 12(b)(6). Wright See 5 Charles A. & Arthur R. physical injury is unsettled. Inasmuch as the Miller, § and Federal Practice Procedure question dispose to that will of an answer important (2d ed.1990). 367-68 case, possibly issue in the lead litigation, early to an resolution of the that the 4. We note that defendant CBS concedes ques- Court concludes that certification of the question posed by the District Court should Virginia Supreme Court of tion to West Appeals along reformulated these lines. appropriate. challenged We also note that defendants have plaintiffs’ monitoring under claim for medical interpretation underlying legal our of the impose the Court to requirements certain on controversy, and with due consideration of claims for so as to rea- language concepts originally sonably em- narrow the potential universe of Court, ployed by plaintiffs. reject the District we reformulate We argument, the former as follows: but- takе suggestions the considered of the parties into in formulating account a stan- Whether, under West governing dard medical monitoring claims. allege who does not physical injury can assert a claim for the of future medical A. proxi- costs where such are the Recognizing a Claim

mate result of defendant’s tortious con- Monitoring Medical duct? A claim for . III. anticipated seeks recover the long- costs of diagnostic term testing necessary to detect STANDARD OF REVIEW latent develop diseases aas result analogous In the context of an of tortious to toxic substances. swering questions posed by certified the cir past decade, Over the growing number of state, cuit courts of this we have held that recognized courts have this cause of action as questions the “standard of review of of law well-grounded extension of traditional com answered and certified a circuit court is mon-law tort principles. Since the landmark Syl. pt. de Gallapoo novo.” v. Wal-Mart in Askey decision v. Occidental Chemical Stores, Inc., Corp., 102 A.D.2d N.Y.S.2d (1996). Similarly, this Court undertakes (1984), appellate courts in at least six other plenary legal presented review of issues permitted states have claims for medical certified from a federal district or Likewise, monitoring.5 growing number of appellate court. Unlike federal courts inter federal sitting diversity courts have inter preting state this Court is not necessar preted permit state law to such claims.6 ily by pаst decisions; instead, bound we What uniformly these decisions acknowledge necessity “must present determine the significant is that economic harm bearing law on the issue certified.” Morn inflicted on exposed those to toxic sub Co., ingstar v. Black Mfg. and Decker 162 stances, notwithstanding the fact that 857, 862, (1979). 666, W.Va. 253 S.E.2d 669 physical resulting harm exposure from such is often latent. In re See Paoli R.R. Yard IV. (3d Litig., 829, Cir.1990) PCB 916 F.2d 852 I”], [hereinafter “Paoli cert. denied sub DISCUSSION nom. General Knight, Elec. Co. v. 499 U.S. argue Defendants that West 961, 1584, (1991). 111 S.Ct. 113 L.Ed.2d 649 precludes the award of future medical moni- toring expenses absent evidence of a surmised, As the Fourth correctly Circuit physical alternative, injury. In they urge a claim for medical essentially Indus., Inc., Bourgeois law); Co., 5. See v. A.P. Green Reynolds 716 Burton v. R.J. Tobacсo 884 (La.1998); Club, So.2d 355 Redland Soccer Inc. 137, (D.Kan.1995) (Kansas F.Supp. law); Day 1515 v. 178, Dep’t Army, v. Pa. 548 696 A.2d NLO, (S.D.Ohio (Ohio F.Supp. 851 869 (1997); 145 Potter v. Firestone Tire and Rubber law); Oil, Inc., Bocook v. F.Supp. Ashland 819 Co., 965, 550, Cal.Rptr.2d 6 Cal.4th 25 863 P.2d (S.D.W.Va.1993) law); (Kentucky 530 Cook v. 795, (1993) (in bank); 822-23 Hansen v. Moun (D.Colo. Corp., F.Supp. Rockwell Int’l 755 1468 970, (Utah Supply, tain Fuel 858 P.2d 979-80 1991) (Colorado law); In re Paoli R.R. Yard PCB 1993); Jaquays Mining Corp., Burns v. 156 Ariz. (3d Cir.1990) Litig., 916 F.2d (Pennsylvania 829 375, (Ariz.Ct.App.1987); Ayers 752 P.2d 28 v. law); Purjet Virgin but see v. Hess Oil Islands Jackson, 557, Township 106 N.J. 525 A.2d 287 No.1985/284, Corp., (D.Virgin Civ. 1986 WL 1200 (1987); Alcolac, Inc., see also Elam v. 765 8, 1986) (refusing recognize Islands Jan. 42, medi 1988) (dictum). (Mo.Ct.App. S.W.2d 209 (Sec cal claim under Restatement See, e.g., Carey Corp., v. Kerr-McGee Chem. 999 ond) Islands). Virgin and law of (N.D.Ill.1998) F.Supp. (applying 1109 Illinois

139 interest, Joy damages.” injury claim for future Ball v. to which “a is neither Inc., (4th Cir.1991). Tech., 36, speculative proof, nor resistant 958 F.2d 39 elementary Consequently, elementary prin- resort defendant should we ciples by paying medi- make the of tort law to determine whether whole for the subject proper compen- cal is a examinations. satory damages. Children, Friends All Inc. v. Lockheed for (D.C.Cir. Corp., 816, 746 F.2d 826 century, before the turn of the Since Aircraft 1984) (footnote omitted). “Although the

jurisdiction recovery sanctioned the of future injury may manifestations of an where could appear years, reality for many is that certainty with reasonable that such exposed those legal have suffered detri some proximate as a costs would be incurred con ment; itself and the concomi sequence of a defendant’s tortious conduct. tant for testing need constitute the See, Faris, 819, 826, e.g., 144 Shreve v. injury.” Supply, Hansen v. Mountain Fuel (1959); 169, 111 174 Flem S.E.2d Wilson v. 1993) (citations 970, (Utah 858 P.2d omit 810, 553, 559, ing, 89 W.Va. 109 S.E. ted). A number of employed courts have (1921); v. P. Carrico West Cent. & logic similar to sustain claims for medical Co., 86, 102-3, 571, Ry. 39 W.Va. S.E. See, e.g.,Bourgeois costs. v. A.P. (1894). syllabus point 15 of Jordan v. Indus., Inc., 355, (La. Green 716 So.2d Bero, 28, 618, (1974), 158 W.Va. 210 S.E.2d 1998); Potter v. Firestone Tire and Rubber we stated that warrant “[t]o Co., 965, 1005, 6 Cal.4th Cal.Rptr.2d expenses, proper measure (1993) (in bank); 822-23 is ... the reasonable value of P.2d. Corp., Cook v. F.Supp. Rockwell Int’l probably medical services as will be neces (D.Colo.1991); Ayers Toumship v. sarily permanent incurred reason the- ‍‌​​​‌​‌​‌​‌​​​‌​‌‌​​​​​‌‌​​​​​​‌​​‌‌​‌​​​​‌​​​‌‌‍Jackson, 557, 601-2, 106 N.J. 525 A.2d injuries.” party’s effects of a also Reed See Wimmer, 199, 209-10, (1995). Although S.E.2d 209-10 Jordan gave The court Friends All Children dealing subject and eases with similar matter following hypothetical often-quoted to il- speak compensating sometimes terms of permitting lustrate the soundness of recov- anticipated treating for the cost of ery necessary diagnostic testing even in “permanent injury,” we have never held that physical injury: the absence of lasting physical prereq harm an is. absolute by a Jones is knocked down motorbike recovery uisite for of future ex medical riding through light. which a Smith is red Indeed, penses. we never before dealt have lands his "with Jones on head some force. with a case such as this where the shaken, Understandably . Jones enters sought expenses respect with hospital where doctors recommend that he ato latent disease. undergo battery of tests to determine any whether he has suffered internal head reject now We contention that claim injuries. prove negative, The tests but expenses future for medical must rest solely Jones sues Smith for what turns out present physical the existence of harm. The diagnostic to be the cost of the substantial “injury” that underlies a claim for medical examinations. monitoring -just any with other as cause of — sounding action in tort —is “the invasion of 746 F.2d at 825. such circumstances any legally protected interest.” Restatement it is clear that even in the absence of (Second) 7(1) (1964). § of Torts As one of physical injury ought Jones to be able to subject grapple the first courts to with this variety diagnos- recover the cost for the observed: proximately tic examinations caused action_ dispute negligent It is difficult to that an individual The motor- Smith’s rider, avoiding expensive diag- though negligence, an in

has interest bike his caused just plaintiff, opinion nostic examinations as he or she has in of medical ex- avoiding injury. in perts, specific an interest to need services —a medical negligently inconsequential When defendant invades this cost that is neither nor of a community generally accepts consequences plaintiffs’ exposure as a kind the daily wear and tear of life. part of the are manifest also have the beneficial principles of tort preventing mitigating Under these effect of or serious pay. motorbiker should future illnesses and thus reduce the ovеrall responsible parties.” (Ayers, costs to the Thus, logically follows that a Id. it 604,] 312; supra, at at [106 N.J. 525 A.2d asserting monitoring a claim for medical Miranda, supra, Cal.App. 4th at required prove present physi- costs is 569.) Cal.Rptr.2d regard, In this resulting exposure cal harm from tortious early may improve detection of cancer toxic substances. cure, treatment, prospects prolongation for plaintiff required Nor to demon- is the pain of life and minimization of and disabil probable strate the likelihood that a serious ity. Finally, societal notions of fairness exposure. disease will result from the As the justice and elemental are better served I, ap- in Paoli “the Third Circuit indicated allowing recovery of medical prоpriate inquiry it is not whether is reason- is, inequitable That costs. would be ably probable [phys- will suffer wrongfully exposed an individual dan future, harm the but rather whether ical] toxins, gerous but unable to is, degree to a reasonable likely, pay cancer or disease is to have to certainty, necessary in of medical order to expense of medical when diagnose properly warning signs of dis- clearly such intervention is reasonable and ease.” 916 F.2d at 851. See also Dan B. necessary. (Ayers, supra, [106 N.J. at Dobbs, 8.1(3), § Law Remedies at 380 n.30 604,] 312; Miranda, supra, 525 A.2d at (2d expenses (“diagnosis ed. —medical 569.) Cal.App. Cal.Rptr.2d 4th at monitoring may be both reasonable and — Potter, Cal.Rptr.2d 6 Cal.4th at future, reasonably certain to occur in the agree- 863 P.2d at 824. This Court is diagnose even if the disease it is intended to ment with these statements. occur”). reasonably is not certain to align jurisdiction We therefore with Supreme California Potter issue, those that have considered the policy detailed a number of considerations conclude that a cause of action exists under recognizing right that favor to recover law the of medical costs: costs, proven it can where First, important public there is health reasonably such are fostering interest in access to medical test proximate certain to be incurred as a result ing for individuals whose to toxic of a defendant’s tortious conduct. The certi- creates an risk chemicals enhanced of dis reformulated, question, fied is therefore ease, particularly light of the value of answered the affirmative. early many diagnosis and treatment patients. (Ayers, supra, cancer [106 N.J. B. 604,] 311; A.2d at Miranda Shell [v. Co.,] [1651,] 1660, Cal.App. Oil 17 4th 15 Elements a Claim Medical of for [republished Cal.Rptr.2d 569 at 26 Cal. Monitoring (1993)].) Second, Rptr.2d 655] [ there is a Having determined that a claim for recognizing deterrence value in of future medical costs “[a]llowing plaintiffs surveillance claims— law, cognizable under West we are to recover the cost of this care deters compelled necessary to define the elements

irresponsible discharge of toxic chemicals to such a claim. .sustain (In by supra, defendants....” re Paoli 852; Miranda, supra, 916 F.2d at 17 consistently Cal. We have held that the 1660, App. 569; Cal.Rptr.2d Ay injury 4th at 15 proven “future effect of an must be ers, 604,] supra, certainty [106 N.J. at 525 A.2d at permit with reasonable in order to 311-312; Children, jury injured cf. Friends All su party to award an future 825.) Third, pra, 9, damages.” Syl. pt. 746 F.2d at part, “[t]he avail in v. Jordan Bero, ability remedy supra. of a substantial gen- before the This flows from the more

141 “ “ ‘proof damages rule of ... eral that cannot must be ‘different the one that than would conjec- by speculation mere or prescribed be sustained have been in the absence of the ” Hawkins, 5, Syl. pt. part, in Sisler ture.’ particular exposure.’” re In Paoli R.R. (1975) 1034, (quot- 217 60 S.E.2d 717, (3rd Litig., Yard PCB 35 F.3d 789 Cir. 1, Steinbrecher, syl. pt. Spencer v. 152 ing (quoting [hereinafter ”] “Paoli II Han (1968)). 490, Thus, as S.E.2d sen, 980), P.2d at cert. denied sub nom. point syllabus Court stated in of Jor- the Ingram, General Elec. Co. v. 513 U.S. dan, “[pjroof of ‍‌​​​‌​‌​‌​‌​​​‌​‌‌​​​​​‌‌​​​​​​‌​​‌‌​‌​​​​‌​​​‌‌‍future medical (1995); S.Ct. L.Ed.2d see as a of law in the insufficient matter absence Club, also Redland Dep’t Soccer Inc. v. the of any necessity of evidence the cost as to and (3d Army, Cir.1995), 55 F.3d 846 n. of future such medical expenses.” denied, 1071, 116 772, 133 cert. 516 U.S. S.Ct. The state and federal ad- various courts L.Ed.2d 725 Subsequent by decisions dressing this issue have moved rela- toward state mirror courts the standards set forth necessary consensus on tive the elements to (as II), Paoli I modified Paoli and Han monitoring. a claim establish See, e.g., Bourgeois, sen. 716 So.2d at 360- Jersey Supreme New the Court was 61; Club, Redland Soccer v. Dep’t Inc. the attempt forge to first to standard. 195-96, Army, Pa. 696 A.2d Ayers, the court that stated (Pa.1997). 145-46 the cost of medical com- surveillance is a significant divergence With the of eliminat- pensable proofs item of where the ing diagnostic requirement the monitor- demonstrate, through expert reliable testi- ing proven tied to the of a must.be existence mony predicated upon significance the and protocol, substantially treatment adopt we chemicals, exposure extent of the to the Thus, the test. Paoli order to sustain a chemicals, toxicity of the the seriousness claim medical monitoring expenses under

the diseases for which individuals are risk, -Virginia prove must the relative increase in the chance (1) has, or she to exposed, general he relative onset disease in those (2) early population, exposed; been diagnosis, significantly value that such surveil- substance; (3) lance to effect exposure proven monitor the hazardous through defendant; (4) toxic chemicals is reasonable and neces- the tortious conduct of the sary. exposure, a proximate result of the has of contracting suffered increased risk N.J. at at 312. A.2d The Third disease; (5) a serious latent the increased shortly Court of Appeals Circuit followed reasonably risk of disease makes it adoption with thereafter of a four-ele undergo periodic diagnos- for the standard in I.7 ment Paoli This later was tic light medical examinations different from what Supreme modified Utah Hansen,8 holding prescribed the would adding Court’s the absence of the (6) requirement еxposure; procedures regime ex- monitoring damages 7. The four-factor test in Paoli I is stated as fol- To recover medical under law, plaintiff following: lows: Utah must (1) exposure significantly exposed Plaintiff to a was (2) to a toxic substance through negli- proven hazardous substance (3) caused.by which was defen- gent action of the defendant. negligence dant's proximate exposure, plaintiff 2. As a result of (4) resulting in an increased risk significantly suffers increased risk of con- (5) disease, injury a serious or illness tracting a serious latent disease. (6)' early which a medical test for detection periodic diag- 3. makes' That increased risk exists reasonably nostic medical examinations sary. neces- (7) beneficial, early for which and detection is meaning that a treatment exists that can alter Monitoring testing procedures 4. exist and illness, the course of the early make which detection and treatment (8) prescribed by and which test has been a possible the disease of beneficial. qualified physician I, according contemporary Paoli 916 F.2d at 852. principles. scientific Hansen, (footnote omitted). following: 8. The Hansen court stated the P.2d at 858 979 Importantly, particular level early exposure. “[n]o of a detection disease that make the ist briefly satisfy these ele- quantification will discuss is possible. We of Hansen, 979; in turn. ments requirement.” 858 P.2d at see Bourgeois, at also 716 So.2d 360. li Exposure. Before Significant 1. respect cost of with to the ability can attach Necessity Diagnostic Test of plaintiff first be monitoring, the must Diagnostic testing must be “reason ing. John hazardous substance. exposed to a Cf. necessary” ably in the that it must be sense Inc., Hasp., Univ. son v. West qualified physician something that a would (1991) 648, 652, 413 S.E.2d prescribe upon the demonstrated ex based (“before recovery for emotional distress a particular agent. posure to' a toxic This may due to fear of con be made entirely in accord with the Court is ... there must first be tracting a disease statement in Hansen to the effect disease”) (emphasis origi exposure physician pre if a would not reasonable nal). monitoring] par ... for a [medical scribe Hazardous Substance. 2. Proven plaintiff tiсular because the benefits of evidence plaintiff must scientific outweighed by the would be expo demonstrating probable a link between costs, include, among which other human particular compound and sure to a frequency things, the burdensome of the disease. price, monitoring procedure, its excessive Liability 8. Tortious Conduct. patient, or its risk of harm to then predicated upon for medical is recovery would not be allowed. being legally responsible for defendant ll, 980; 858 P.2d at see also Paoli 35 F.3d at particular to a hazard exposing plaintiff obviously 788. While there must be some responsibility Legal is estab ous substance. undergoing reasonable medical basis for di- through application existing of thеo lished agnostic monitoring, financial factors such as liability. “Recognition that a tort ries of frequency testing cost and the need not has created the need for defendant’s conduct necessarily given significant weight. not create a does Moreover, requirement diagnostic compensable simply new It is a item tort. medically testing must be advisable does not liability damage is established under when necessarily preclude the situation where such Potter, recovery.” traditional theories based, part, a at least in determination Cal.Rptr.2d at at Cal.4th subjective upon plaintiff desires of a Hansen, 823; P.2d at P.2d at see also concerning information the state of his or her (“the expo plaintiff must that the health. to the toxic substance was caused sure i.e., by negligence, defendant’s the breach Monitoring 6. Existence Pro duty plaintiff”). This is not to owed to the cedures. Medical must be avail not, say plaintiff may as a matter of that a necessary, compensable able order to be pleading, separate cause of action assert exists, damages. item of “If no such test rather, monitoring; based periodic monitoring then of no assistance liability underlying must be es means and the cost of such is not avail upon recognized e.g., tablished based tort — Bourgeois, able.” 716 So.2d at 361. In the liability, negligence, trespass, intention strict testing diagnostic event later becomes avail conduct, al etc. able, plaintiff right then a will have thе Again, Increased Risk. I. such later time to demonstrate the effective partic to show that a required is not test, compensated ness of the and be likely ular disease is certain or even to occur it, long utilizing so as all the other elements Potter, exposure. as a 6 Cal.4th at result Hansen, of the cause of action are satisfied. 1008, Cal.Rptr.2d P.2d at 824. at 979 n. 12. P.2d All demonstrated is that the that must be agree Pennsylvania We with the Su significantly has a increased risk preme that a should not be contracting particular relative to disease currently required what in the to show that a treatment would be the ease absence subject exists for the disease that is the Y. Redland, monitoring. Pa. at medical CONCLUSION age n. 696 A.2d at 146 n. 8. In this science, advancing rapidly medical we are question We answer posed by the Dis- impose requirement hesitant to such a static Court, reformulated, trict in the affirma- Bourgeois, Calogero gave In Chief Justice a tive, and conclude that West law justification poignant permitting recover- recognizes a cause of action for future medi- ing prov- even instances where there is no monitoring cal' costs where such en treatment: expenses are proximate incurred as a result thing plaintiff might gain ... a One of a Having defendant’s tortious acts. an- in the [even absence of available treat- question, swered the certified this case is fate, certainty ment] is as to his whatever from dismissed the docket of this Court. might If a placed be. has been answered; Certified question case dis- at an increased risk latent disease missed. through exposure to a hazardous sub- stance, monitoring, absent medical he must MAYNARD, Justice, dissenting: day uncertainty live each with the (Filed whether body. the disease is his Sept. If, however, advantage he is able to take I dissent in this case because I believe that monitoring and the de- permit not an inde- dqes disease, then, no tects evidence of at least pendent cause of action to recover future being, for the time can receive costs absent in- Moreover, peace the comfort of of mind. jury, and authority this Court has no if even medical did detect evi- create such a cause of action. dence of an irreversible and untreatable things Several about this decision

disease, trouble plaintiff might still achieve way me. The majori- first is the in which the peace some through of mind this knowl- ty beyond goes question narrow present- edge by getting his financial affairs or- ed the District Court in der, order to decide and, making lifestyle changes, even dispute I case. do not the Court’s au- perhaps, making peace estranged with thority under our Uniform Certification of religion. Certainly, loved ones or with his Questions ques- of Law Act to reformulate a options those should be available to the certifying tion submitted I court. do innocent who himself at an finds however, dispute, necessity doing so in increased risk for a serious latent disease the instant case. The District Court set through no fault of his own. clear, forth a question: concise and limited C.J., (Calogero, concurring). So.2d negligent a case of infliction of emo- matter, As a final defendant CBS sev- distress, physical injury, tional absent a argue eral amici curiae should may party assert a claim for only compensated for medical related to future medical neces- through costs establishment of court- solely by contracting sitated fear of a dis- fund, lump- administered to the exclusion of exposure ease from to toxic chemicals. damage sum awards. While there are situa- tions where utilization of applicable such funds be This to the facts of the beneficial, Ayers, see 106 N.J. at 525 casе before the District It is Court. also (“the court-supervised pertinent A.2d at 314 use of a light of this Court’s recent hold Const., Inc., pay- ing fund to administer medical-surveillance in Marlin v. Bill Rich (1996), highly ments in mass cases ... concerning appropriate equitable availability exercise of the negligent Court’s in added), powers”) (emphasis pres- solely we do fliction of emotional distress based ently see a need to contracting constrain the discretion of the fear of a disease. This issue, appropriate however, the trial to fashion courts reme- modest was not suitable for majority’s dies cases such grand designs. Consequently, as these. majority complete the issue into abolishment of

the transformed causes of action is permits legislative power. law an inde- “whether West See Robinson v. Charles- Center, Inc., future pendent cause of action to recover ton Area Medical 186 W.Va. (1991). 720, in- costs absent Up approxi- S.E.2d 877 until majority’s jury.” determination ‍‌​​​‌​‌​‌​‌​​​‌​‌‌​​​​​‌‌​​​​​​‌​​‌‌​‌​​​​‌​​​‌‌‍to make mately twenty-five years, The the last the Court despite specific the before it new law issue is respected just that fact. This decision shows by, summary rejection its further illustrated far how this Court has moved from its consti- previous tort law and the decisions

of settled underpinnings proper tutional and its role. of this Court. Finally, even if this Court did have the obviously troubling The second and most action, power to create causes of I would not majority’s aspect of is the viola this decision agree by with the one created this decision. separation pow of tion of the constitutional majority rejects The the fundamental 200 by usurping Legislature’s doctrine the ers year principle old tort that a V, authority Article to enact laws. Section not recover unless he or she Virginia provides of the Constitution West present injury, replaces has and it with the judicial legislative, executive and “[t]he speculative showing and “in- amorphous distinct, separate departments shall be majority creased risk.” The admits that “the powers so that neither shall exercise the required partic- is not to show that a properly belonging to either of the others[.]” likely ular disease is certain or even to occur VI, According to Article Section 1 of the (citation omitted). exposure” as a result of Constitution, legislative power is vested decision, plaintiffs Because of this will now Delegates. in the Senate and House of This compensated injury, when there is no thus legislative power Court has described as providing plaintiffs. a windfall for As one power law-making “the bodies to recently suggested, lawyers commentator has Huber, enact v. frame and laws.” State advertise, you’re can now “Don’t wait until (1946). 198, 11, 18 207, 40 This W.Va. S.E.2d hurt, fact, practical call now.”1 In "the effect is, judicial power is in contrast to the which every this decision is to make almost power regularly which constituted Virginian potential plaintiff in a medical court exercises in matters which are monitoring cause of action. Those work who it, brоught pre- before in the manner coal, oil, heavy gas, industries such as statute, scribed or established rules of timber, steel, and chemicals as well as those courts, practice of and which do matters buildings, who work in older office or handle powers granted within not come to the offices, newspaper ink in or launder the lin- executive, legislative or vested in the de- doubt, have, ens in hotels no come into con- partment of the Government. tact with hazardous substances. Now all of Id., 208, W.Va. S.E.2d 18. This people may money these be able to collect jurisdiction prescribed Court’s is and limited any showing victorious without provisions the constitutional which create injury at all. it, Ott, Colliery see Deitz Co. v. stated, area, reсently (1925), one “[t]he We above 129 S.E. 708 and nowhere in the all, where a court should exercise caution granted power Constitution is this Court it VIII, deciding power.” when its ex own State create causes action. See Art. 3,§ rel. recognized This Construction Trades Council W.Va. Const. Affiliated long ago legislature Vieweg, right has the W.Va. 520 S.E.2d “[t]he majority to create new of action no causes recov exercised ery money.” Ry. & Co. v. caution whatsoever W. this case. Conse- Norfolk Co., 574, 577, quently, Pinnacle legitimate powers Coal exceeded its S.E. 196, 197(1898). recently usurped Legislature. We reiterated more the function creation, result, augmentation, repeal or holding only As its here is not Schwartz, ask, lawyers why 1. Victor Some wait at 17A. now!, TODAY, injury? July Sue USA judge-made it is bad law. For these

reasons, respectfully I dissent.

Patricia A. MALLET and Ernest R.

Mallet, Husband, Her Plaintiffs

Below, Appellants, Pickens,

Selbert PICKENS Anita His

Wife, Below, Appellees. Defendants

No. 25807.

Supreme Appeals Court of Virginia. May

Submitted 1999. July 21,

Decided

Case Details

Case Name: Bower v. Westinghouse Electric Corp.

Court Name: West Virginia Supreme Court

Date Published: Sep 20, 1999

Citation: 522 S.E.2d 424

Docket Number: 25338

Court Abbreviation: W. Va.