Bower v. Westinghouse Elec. Corp.

• Decision Date: 19 July 1999
• Docket Number: No. 25338.,25338.
• Citation: 522 S.E.2d 424,206 W.Va. 133
• Court: West Virginia Supreme Court
• Parties: 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.

522 S.E.2d 424

206 W.Va. 133

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.

No. 25338.

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1999.

Decided July 19, 1999.

Dissenting Opinion of Justice Maynard September 20, 1999.

Thomas R. Michael, Esq., Michael & Kupec, Clarksburg, West Virginia, Attorney for Plaintiffs.

David K. Hendrickson, Esq., Hendrickson & Long, P.L.L.C., Charleston, West Virginia, Attorney for CBS Corporation, successor to DefendantWestinghouse Elec. Corp.

Dennis C. Sauter, Esq., Mychal S. Schulz, Esq., Jackson & Kelly, Charleston, West Virginia, Attorneys for DefendantNorth American Philips Corp.

T. Randolph Cox, Jr., Esq., Robert A. Lockhart, Esq., Jamie S. Alley, Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Attorneys for American Insurance Association, Amicus Curiae.

Michael Florio, Esq., Ancil G. Ramey, Esq., Clarksburg, West Virginia, Attorneys for Chemical Manufacturers Association, Amicus Curiae.

R. Dean Hartley, Esq., James M. O'Brien, Esq., Wheeling, West Virginia, Attorney for West Virginia Trial Lawyers Association, Amicus Curiae.

Jeffrey M. Wakefield, Esq., Erica M. Baumgras, Esq., Michelle Marinacci, Esq., Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorney for Defense Trial Counsel of West Virginia, Amicus Curiae.

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.

I.BACKGROUND

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.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.¹None of the plaintiffs presently exhibit 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.

DefendantNorth American Philips Corporation("Philips") removed the case to the District Court pursuant to 28 U.S.C § 1332(1994& Supp.1996)(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 whether medical monitoring damages are a proper form of relief under West Virginia law.The District Court granted the latter motion, and we subsequently agreed to accept the certified question.

II.REFORMULATION OF CERTIFIED QUESTION

The District Court has requested that we define West Virginia law with respect to the following question:

In a case of negligent infliction of emotional distress absent physical injury, may a party assert a claim for expenses related to future medical monitoring necessitated solely by fear of contracting a disease from exposure to toxic chemicals?

Taken literally, this question asks whether a plaintiff who suffers emotional distress without physical injury can obtain consequential damages in the form of future costs associated with diagnosing maladies precipitated "solely by the fear of contracting a disease."We do not think that the District Court intended to pose such a narrow question.Rather, as stated elsewhere in the certification order, the court is clearly asking the broader question of "whether West Virginia law permits an independent cause of action to recover future medical monitoring costs absent physical injury."³

West Virginia's Uniform Certification of Questions of Law Act, W. Va.Code §§ 51-1A-1 to -13, expressly permits this Court to reformulate questions submitted by a certifying court.W. Va.Code § 51-1A-4(1996);see syl. pt. 3, in part, Kincaid v. Mangum,189 W.Va. 404, 432 S.E.2d 74(1993)("When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under ... the Uniform Certification of Law Act found in W. Va.Code, 51-1A-1, et seq. ...").The comment to the Uniform Act describes the parameters of this authority:

Requiring a question to be answered precisely as it is certified imposes a counterproductive rigidity that could decrease the utility of the answer received.Permitting the receiving court to amend the certified question freely may also adversely affect the utility of the answer and result in the issuance of an advisory opinion.The term "reformulate" is intended to connote a retention of the specific terms and concepts of the question while allowing some flexibility in restating the question in light of the justiciable controversy pending before the certifying court.

Unif. Certified Questions of Law Act § 4 cmt., 12 U.L.A. 74(1996).

The pleadings in this case indicate that plaintiffs are seeking, inter alia, compensation for the cost of future medical testing aimed at diagnosing potential ailments caused by the alleged toxic exposure.While plaintiffs have couched their argument in favor of recognizing such a claim in terms of recent refinements in our law governing causes of action for negligent infliction of emotional distress, it is clear that the question posed by the District Court is aimed at revisiting the issue that first arose in Ball v. Joy Manufacturing—namely, whether West Virginia law recognizes a cause of action for future medical monitoring absent a present physical injury.⁴Consequently, based upon our interpretation of the underlying legal controversy, and with due consideration of the language and concepts originally employed by the District Court, we reformulate the question as follows:

Whether, under West Virginia law, a plaintiff who does not allege a present physical injury can assert a claim for the recovery of future medical monitoring costs where such damages are the proximate result of defendant's tortious conduct?

III.STANDARD OF REVIEW

In the analogous context of answering certified questions posed by the circuit courts of this state, we have held that the "standard of review of questions of law answered and certified by a circuit court is de novo."Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172(1996).Similarly, this Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.Unlike federal courts interpreting state law, this Court is not necessarily bound by past decisions; instead, we"must of necessity determine the present law bearing on the issue certified."Morningstar v. Black and Decker Mfg. Co.,162 W.Va. 857, 862, 253 S.E.2d 666, 669(1979).

IV.DISCUSSION

Defendants argue that West Virginia law precludes the award of future medical monitoring expenses absent evidence of a present physical injury.In the alternative, they urge the Court to impose certain requirements on claims for medical monitoring so as to reasonably narrow the universe of potential plaintiffs.We reject the former argument, but take the considered suggestions of the parties into account in formulating a standard governing medical monitoring claims.

A.Recognizing a Claim for Medical Monitoring

A claim for medical monitoring seeks to recover the anticipated costs of longterm diagnostic testing necessary to detect latent diseases that may develop as a result of tortious exposure to toxic substances.Over the past decade, a growing number of courts have recognized this cause of action as a well-grounded extension of traditional common-law tort principles.Since the landmark decision in Askey v. Occidental Chemical Corp.,102 A.D.2d 130, 477 N.Y.S.2d 242(1984), appellate courts in at least six other states have permitted claims for medical monitoring.⁵Likewise, a growing number of federal courts sitting in diversity have interpreted state law to permit such claims.⁶What these decisions uniformly acknowledge is that significant...