The Good, The Bad & The Ugly: Medical Monitoring in WV



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On Friday, March 26, 2010, the West Virginia Supreme Court of Appeals decided the appeal of a nearly $400 million jury verdict rendered in Harrison County, West Virginia against the former owner of a zinc smelting operation. The verdict was for medical monitoring ($130,000,000), real property remediation ($55,537,522) and punitive damages ($196,000,000). The opinion from this class action appeal, with dissents and concurrences, is more than 250 pages long. This alert will serve to point out some of the highlights. Unfortunately, there is more bad and ugly to be found in the decision than good. The decision may well foretell an increase of these kinds of actions.


  • By a 3-2 vote, the Court held that punitive damage claims were no longer (if they ever were) available for a medical monitoring cause of action. This resulted in a 40% reduction in the award of punitive damages.
  • Following an extensive discussion of the factors involved in the analysis of punitive damages the Court also reduced the punitive award by the $20,000,000 the former owner spent on site remediation, subject to plaintiff?s accepting the reduction. If plaintiffs decide to reject the reduction, they will be awarded a new trial on punitive damages.
  • The Court reversed the trial court?s uninvited granting of summary judgment to the plaintiffs on the statute of limitations issue raised by the former owner finding that there are issues of fact which are jury questions. The Court reversed the judgment on that issue alone and remanded the case for a trial solely on the issue of the statute of limitations. On remand, if plaintiffs prevail on the statute of limitation issue, the verdict amount remains intact, less the punitive damage reduction.


  • Even without demonstrable illness or disease, the former owner will pay approximately $130,000,000 to medically monitor the non-diseased plaintiffs. Thus, the threshold for a medical monitoring claim remains very low. As a result, we reasonably anticipate a significant increase in the filing of these claims. The economic incentive for more such cases is apparent if plaintiffs win the statute of limitations issue on remand.


  • The lead plaintiff was tested for blood levels of one or more of the alleged toxins. The tests showed no elevated levels. No plaintiff was ill and there was no testimony that any of the plaintiffs were exposed to any allegedly harmful substances at any level exceeding that experienced by the general population.
  • The Court affirmed the trial court?s decision to allow the plaintiffs' expert opinion (from a soils scientist testifying about cancer causation) into evidence and the issue of medical monitoring to go to the jury. While neither decision is particularly surprising in light of West Virginia existing jurisprudence, those holdings highlight the level of ?gate-keeping" exercised by our trial Courts and appellate Court.

There are a wide variety of other issues addressed in the opinion, ranging from the specificity required of a Rule 404(a) objection, to class certification, to the validity of 1930 era releases contained in deeds. Those discussions will have to wait another day. In the meantime, the case heads back to Harrison County on the statute of limitations issue. Stay tuned.


Of Counsel
(304) 933-8123
Bridgeport, WV