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Supreme Court of Appeals of West Virginia
March 23, 1999, Submitted ; July 19, 1999, Filed
[*135] [**426] McGraw, Justice:
This case comes to the Court on certified question from the United States District Court for the Northern District of West Virginia, and asks us to resolve the question of whether this jurisdiction recognizes a common-law cause of action for recovery of anticipated medical monitoring costs in circumstances where the plaintiffs have been tortiously exposed to toxic substances, but do not presently exhibit symptoms of any resulting disease. We conclude that West Virginia law supports such a claim for relief.
Plaintiffs originally brought this action in the Circuit Court of Marion County, West Virginia, on September 15, 1997. In their complaint, they allege that they were exposed to toxic substances as a result of defendants maintaining a cullet pile containing debris from the manufacture of light bulbs. [**427] [*136] The pile covers approximately two acres and is 42 feet deep at certain points. It is uncontested that tests performed in 1994 identified the presence of 30 potentially deleterious substances. 1 None of the plaintiffs presently exhibit [***4] symptoms of any disease related to the alleged exposure.
Plaintiffs have asserted the following causes of action against defendants: (1) negligent maintenance and operation of the refuse pile; (2) nuisance; (3) trespass; (4) negligent infliction of emotional distress; and (5) intentional disregard for the health and safety of plaintiffs. As relief, the complaint seeks, inter alia, consequential damages in the form of medical monitoring costs.
Defendant North American Philips Corporation ("Philips") removed the case to the District Court pursuant to 28 U.S.C § 1332 (1994 & Supp. 1996) [***5] (diversity of citizenship). Philips and its codefendant, CBS Corporation (formerly Westinghouse Electric Corporation) ("CBS"), subsequently moved to dismiss plaintiffs' claim for medical monitoring under Fed. R. Civ. P. 12(b)(6) or, in the alternative, Fed. R. Civ. P. 56. In support of their motion, defendants cited Ball v. Joy Mfg. Co., 755 F. Supp. 1344, 1370-72 (S.D. W. Va. 1990), aff'd sub nom. Ball v. Joy Tech., Inc., 958 F.2d 36, 39 (4th Cir. 1991), cert. denied, 502 U.S. 1033, 112 S. Ct. 876, 116 L. Ed. 2d 780 (1992), 2 and asserted that "West Virginia law does not recognize an independent cause of action for medical monitoring." Plaintiffs responded by arguing that Ball no longer accurately reflects West Virginia law, an assertion they supported by citing to this Court's recent holding in Marlin v. Bill Rich Constr., Inc., 198 W. Va. 635, 482 S.E.2d 620 (1996), where we concluded that a plaintiff is not required to prove a present physical injury in the context of asserting a claim for negligent infliction of emotional distress. Alternatively, plaintiffs sought to certify to this Court the question of [***6] whether medical monitoring damages are a proper form of relief under [**428] [*137] West Virginia law. The District Court granted the latter motion, and we subsequently agreed to accept the certified question.
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206 W. Va. 133 *; 522 S.E.2d 424 **; 1999 W. Va. LEXIS 118 ***; 49 ERC (BNA) 1587
WANDA SUE BOWER, PATRICIA E. HAWKINS, BOBBIE JO HARDESTY, TOM JAY HARDESTY, KENT NORMAN HUFFMAN, and BRENDA KAY SPENCER, Plaintiffs v. WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation, and NORTH AMERICAN PHILIPS CORPORATION, a Delaware corporation, Defendants
Prior History: [***1] Certified Questions from the United States District Court for the Northern District of West Virginia Honorable Irene M. Keeley, Judge. Civil Action No. 1:97-CV-179.
Disposition: CERTIFIED QUESTION ANSWERED
monitoring, disease, exposure, diagnostic, exposed, reformulate, chemicals, emotional, distress, tortious, infliction, prescribed, hazardous, proximate, latent, proven
Civil Procedure, Appeals, Appellate Jurisdiction, Certified Questions, Constitutional Law, The Judiciary, Case or Controversy, Advisory Opinions, Pleadings, Amendment of Pleadings, General Overview, Standards of Review, De Novo Review, Torts, Compensatory Damages, Types of Losses, Medical Expenses, Types of Damages, Environmental Law, Administrative Proceedings & Litigation, Remedies, Damages, Pain & Suffering, Emotional Distress, Evidence, Admissibility, Scientific Evidence, Hazardous Wastes & Toxic Substances, Toxic Torts