Bocook v. Ashland Oil, Inc., Civ. A. No. 3:91-0839

• Decision Date: 11 January 1993
• Docket Number: Civ. A. No. 3:91-0839
• Citation: 819 F. Supp. 530
• Parties: Earl BOCOOK, as personal representative for and on behalf of Jessie M. Bocook, deceased; Lloyd E. Cochenour; Taylor Combs; Dora Gilkerson, as personal representative for and on behalf of Brady H. Gilkerson, Deceased; Betty Jean Stewart, as personal representative for and on behalf of Clara Legg, Deceased; James E. Leist, II; William R. Lincoln, individually; Brenda L. Lincoln, individually, and as personal representatives for their minor children; Brian Lincoln, Jeffrey Lincoln; Grayce M. Little; Yulie Lycans, as personal representative for and on behalf of Bennie V. Lycans, Deceased; Frances A. Malone; Jerry Lee Thompson; Richard V. Pennington, Sr.; Judy Salyers; Deris Scott; Carolyn Starett, as personal representative for and on behalf of Harland Starett, Deceased; Tennie Perry; James E. Curnutte; Phyllis J. Curnette; Ricky E. Endicott; Cinda L. Endicott; Adam E. Endicott; Amandia Evans; Hubert Porter, as personal representatives for their minor niece, Amandia Garvin; Terry E. Harrison, individually, and as personal representative for and on behalf of her minor child, Jared Mykal Holley Harrison; Gregory A. Maynard; Karen S. Maynard, individually and as personal representatives for and on behalf of their minor children, Gregory A. Maynard, II, Steven A. Maynard; Jesse Pinson; Ola Queen, individually and as personal representative for and on behalf of her minor child, Joshua Queen; Glenna M. Salmons, as personal representative for Josephine Layne, Deceased; Deborah Schafer, individually and as personal representative for and on behalf of her minor children; James T. Schafer; Danielle R. Schafer; Robert F. Schultz, Jr.; Mary E. Schultz, individually and as personal representatives for and on behalf of their minor child; Robert F. Schultz, Sr.; Lucy C. Schultz; Robert F. Schultz; John Viers; Lucy West; Gregory L. Wilson; Georgia Wilson, individually and as personal representative for and on behalf of their minor child; Valerie Wilson; Gregory L. Wilson, Jr.; Amandia Garvin; Hubert Porter; Plaintiffs, v. ASHLAND OIL, INC.; Bruce Churton; John P. Gay; Defendants.
• Court: U.S. District Court — Southern District of West Virginia

819 F. Supp. 530

Earl BOCOOK, as personal representative for and on behalf of Jessie M. Bocook, deceased; Lloyd E. Cochenour; Taylor Combs; Dora Gilkerson, as personal representative for and on behalf of Brady H. Gilkerson, Deceased; Betty Jean Stewart, as personal representative for and on behalf of Clara Legg, Deceased; James E. Leist, II; William R. Lincoln, individually; Brenda L. Lincoln, individually, and as personal representatives for their minor children; Brian Lincoln, Jeffrey Lincoln; Grayce M. Little; Yulie Lycans, as personal representative for and on behalf of Bennie V. Lycans, Deceased; Frances A. Malone; Jerry Lee Thompson; Richard V. Pennington, Sr.; Judy Salyers; Deris Scott; Carolyn Starett, as personal representative for and on behalf of Harland Starett, Deceased; Tennie Perry; James E. Curnutte; Phyllis J. Curnette; Ricky E. Endicott; Cinda L. Endicott; Adam E. Endicott; Amandia Evans; Hubert Porter, as personal representatives for their minor niece, Amandia Garvin; Terry E. Harrison, individually, and as personal representative for and on behalf of her minor child, Jared Mykal Holley Harrison; Gregory A. Maynard; Karen S. Maynard, individually and as personal representatives for and on behalf of their minor children, Gregory A. Maynard, II, Steven A. Maynard; Jesse Pinson; Ola Queen, individually and as personal representative for and on behalf of her minor child, Joshua Queen; Glenna M. Salmons, as personal representative for Josephine Layne, Deceased; Deborah Schafer, individually and as personal representative for and on behalf of her minor children; James T. Schafer; Danielle R. Schafer; Robert F. Schultz, Jr.; Mary E. Schultz, individually and as personal representatives for and on behalf of their minor child; Robert F. Schultz, Sr.; Lucy C. Schultz; Robert F. Schultz; John Viers; Lucy West; Gregory L. Wilson; Georgia Wilson, individually and as personal representative for and on behalf of their minor child; Valerie Wilson; Gregory L. Wilson, Jr.; Amandia Garvin; Hubert Porter; Plaintiffs, v. ASHLAND OIL, INC.; Bruce Churton; John P. Gay; Defendants.

Civ. A. No. 3:91-0839

United States District Court, S.D. West Virginia, at Huntington.

January 11, 1993.

Monty L. Preiser, Charleston, WV, Arnold Levin, Laurence S. Berman, Bradford J. Lam, Philadelphia, PA, Jerry S. Cohen, Anthony Z. Roisman, Richard Lewis, Washington, DC, Robert E. Reeves, Lexington, KY, James Colburn, Jane Hustead, Cabell County Pros. Atty.'s Office, Huntington, WV, for plaintiffs.

Mark Williams, Huntington, WV, Michael B. Victorson, Charleston, WV, Albert H. Parnell, Stephen M. Lore, Joseph R. Cullens, Atlanta, GA, for defendants.

MEMORANDUM OPINION AND ORDER

STAKER, District Judge.

Plaintiffs in this action are suing the defendant (hereinafter "Ashland") for injuries allegedly caused by toxic substances contained in pollution released by Ashland into the air, water and ground in the vicinity of its Catlettsburg, Kentucky refinery. They allege that exposure to those toxic substances causes damage to the human body, both immediate and latent. Such latent effects can include cancer and other life-threatening diseases. In their complaint, the plaintiffs assert that they require, now and in the future, special medical monitoring "in order to detect the early onset" of such latent diseases which they purportedly have an increased risk of incurring because of Ashland's polluting activities. Plaintiffs seek from Ashland, among other things, a monetary award as compensation for their present personal injuries and the establishment of a fund to pay for the future medical monitoring to diagnose potential latent injuries. Plaintiffs define a claim for medical monitoring as "a claim for the costs for reasonable diagnostic medical examination to provide early diagnosis of cancer and other diseases which are a proximate result of defendant's tortious polluting activities." Plaintiffs' Surresponse, Court Document 117, at 2-3.

Ashland has moved to dismiss all claims for future medical monitoring for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). It asserts that the claim for future medical monitoring is simply a claim for damages for future medical expenses. Defendant argues that under Kentucky law, which governs this action,¹ a plaintiff must show a present, demonstrable physical injury and a reasonable likelihood of future complications of such injury in order to recover future medical expenses. Ashland contends that the plaintiffs can be divided into two groups; one group consisting of persons alleging a present physical injury and a second comprising those of persons who allege only exposure to purported toxic substances without any demonstrable physical injury. It is Ashland's position that under Kentucky law the second group of plaintiffs do not have a claim for future medical expenses, i.e., future medical monitoring, until such time as a physical injury manifests itself. In other words, the second group of plaintiffs do not have a claim against Ashland to pay for medical monitoring to detect the onset of a latent disease caused by exposure to toxic substances until such time as the latent disease manifests itself or unless the exposure causes some presently discernable physical injury. Defendant insists that to allow future medical monitoring costs in any other circumstances would amount to allowing speculative damages for a possible increased risk that plaintiffs might suffer future harm.²

Plaintiffs have put forward alternative arguments against dismissal of their medical monitoring claims. First, they argue that Kentucky would allow such a claim upon proof of exposure to toxic substances, even without a physical injury. They contend that a claim for medical monitoring is analogous to or a corollary of a claim for enhanced risk of future injury, which the Kentucky Supreme Court recognized in Davis v. Graviss, 672 S.W.2d 928 (Ky.1984). The plaintiffs assert that Kentucky does not require proof of a present injury in order to have a valid claim for enhanced risk; instead all that is required is proof to a reasonable certainty that a future complication is likely to occur. They conclude that because future medical testing is to be employed to permit early detection of a disease which they have an enhanced risk of suffering and because a claim for enhanced risk does not require a present injury, it logically follows that a claim for medical monitoring only requires proof of exposure to a toxic substance, rather than proof of a present physical injury. An award of the costs for such monitoring would not be speculative because plaintiffs would have to prove that they have a significantly enhanced risk of suffering future harm because of their exposure and that medical testing is reasonably necessary for early detection of such harm.

The plaintiffs' second, fallback argument is that if this court holds that Kentucky requires proof of a present physical injury in order to recover for future medical monitoring then they have alleged such injury. They posit that under Kentucky law all that is needed to establish physical injury is some physical impact and that they have sufficiently pleaded such physical impact.³

Ashland's motion to dismiss for failure to state a claim⁴ is based upon its contention that Kentucky law does not recognize claims for medical monitoring.

A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.

Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1990); see Neitzke v. Williams, 490 U.S. 319, 326-28, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338, 348-49 (1989).

The parties agree that Kentucky does not have any statutory or decisional law concerning the question presented to this court or regarding the issue of medical monitoring in general. Therefore, the matter is one of first impression.

In cases where the state's highest court has not considered the precise question to be answered, the federal court is called upon to predict how the state court would resolve the issue should it be called upon to do so.

In making such predictions we recognize that "the state's highest authority is the best authority on its own law" and that "if there be no decision by that Court then federal authorities must apply what they find to be the state law after giving `proper regard' to the relevant rulings of other courts of that state." ... Our role is not to form or create state law but to decide the case as we believe it would have been decided by the state's highest court had the case arisen in the state court system.

Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3rd Cir.1990) (citations omitted). But see Ball v. Joy Manufacturing Co., 755 F.Supp. 1344, 1372 (S.D.W.Va.1990), aff'd, 958 F.2d 36 (4th Cir.1991). Because there is no Kentucky case law on point, the plaintiffs have asked this court to certify the issue herein to the Kentucky Supreme Court. This court declines to take that route however.

When faced with an unsettled issue of state law, a federal court should not decline to exercise its jurisdiction to decide a case.... A federal court "may not give up—lost in darkness" in such a situation. ... If a state's supreme court has not yet decided an issue, a federal court should look to available data and adopt the rule that it believes a state's supreme court would adopt.

Heinhold v. Bishop Motor Express, Inc., 660 F.Supp. 382, 384 (N.D.Ind.1987) (citations omitted); accord Meadow Limited Partnership v. Heritage Savings & Loan Ass'n, 639 F.Supp. 643, 653 (E.D.Va.1986). This court believes that it...