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Nos. 34333, 34334, and 34335 -
Leonora Perrine; Carolyn Holbert; Waunona Messinger
Crouser; Rebeccah Morlock; Antyony Beezel; Mary Montogomery; Mary Luzader; Truman
R. Desist; Larry Beezel; and Joseph Bradshaw, individuals residing in West Virginia, on
behalf of themselves and all others similarly situated v. E. I. DuPont de Nemours and
Company, a Delaware corporation doing business in West Virginia; Meadowbrook
Corporation, a dissolved West Virginia corporation; Matthiessen & Hegeler Zinc Company,
Inc., a dissovled Illinois corporation formerly doing business in West Virginia; and T.L.
Diamond Company, Inc, a New York corporation doing business in West Virginia
Workman, Justice, concurring, in part, and dissenting, in part:
While I am in agreement with the thorough, well-researched, and well-reasoned
majority opinion regarding the bulk of the issues resolved, I disagree with the majority's
conclusion regarding the availability of punitive damages in a medical monitoring cause of
action. The majority holds that “[p]unitive damages may not be awarded on a cause of action
for medical monitoring.” I strongly disagree with this holding as punitive damages should
be available in a medical monitoring cause of action, but
only when the defendant's conduct
rises to the level of willful, wanton, and egregious conduct warranting such an award.
The majority reaches its decision by relying upon the reasoning of a separate
opinion of Justice Benjamin to the per curiam opinion by the Court in
State ex rel. Chemtall
Inc. v. Madden, 221 W. Va. 415, 655 S.E.2d 161 (2007). In the
Chemtall separate opinion,
in a single paragraph that falls short of a complete analysis of the issue, Justice Benjamin
concludes that in a medical monitoring class action, the plaintiffs “have not asserted personal
injury claims, as they have not suffered any actual, present physical injuries from their
alleged exposure to petitioners' products” and, therefore, because there are no compensatory
damages awarded, and there is no physical injury, there can be no punitive damages awarded.
Id. at 425, 655 S.E.2d at 171.
Contrary to the separate opinion in
Chemtall, which serves as the sole basis of
the majority's holding in the instant case, this Court in
Bower v. Westinghouse Electric
Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999), set forth the specific elements
(See footnote 1) which must
be proven in order to prevail in a medical monitoring cause of action:
In order to sustain a claim for medical monitoring expenses under West
Virginia law, the plaintiff must prove that (1) he or she has, relative to the
general population, been significantly exposed; (2) to a proven hazardous
substance; (3) through the tortious conduct of the defendant; (4) as a proximate
result of the exposure, plaintiff has suffered an increased risk of contracting a
serious latent disease; (5) the increased risk of disease makes it reasonably
necessary for the plaintiff to undergo periodic diagnostic medical examinations
different from what would be prescribed in the absence of the exposure; and
(6) monitoring procedures exist that make the early detection of a disease
possible
Id. at Syl. Pt. 3. (See footnote 2) As part of the Court's discussion regarding the “injury” sustained in a
medical monitoring cause of action, the Court opined as follows:
The “injury” that underlies a claim for medical monitoring-just as with any
other cause of action sounding in tort-is “the invasion of any legally protected
interest.” Restatement (Second) of Torts § 7(1) (1964). As one of the first
courts to grapple with this subject observed:
It is difficult to dispute that an individual has an interest in
avoiding expensive diagnostic examinations just as he or she has
an interest in avoiding physical injury. When a defendant
negligently invades this interest, the injury to which is neither
speculative nor resistant to proof, it is elementary that the
defendant should make the plaintiff whole by paying for the
examinations.
Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 826
(D.C.Cir.1984) (footnote omitted). “Although the physical manifestations of
an injury may not appear for years, the reality is that many of those exposed
have suffered some legal detriment; the exposure itself and the concomitant
need for medical testing constitute the injury.” Hansen v. Mountain Fuel
Supply, 858 P.2d 970, 977 (Utah 1993) (citations omitted). A number of courts
have employed similar logic to sustain claims for medical monitoring costs. See, e.g., Bourgeois v. A.P. Green Indus., Inc., 716 So.2d 355, 359 (La.1998); Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 1005, 25 Cal.Rptr.2d
550, 578, 863 P.2d 795, 822-23 (1993) (in bank); Cook v. Rockwell Int'l Corp.,
755 F.Supp. 1468, 1477 (D.Colo.1991); Ayers v. Township of Jackson, 106
N.J. 557, 601-2, 525 A.2d 287, 308 (1987).
The court in Friends for All Children gave the following often-quoted
hypothetical to illustrate the soundness of permitting recovery for necessary
diagnostic testing even in the absence of physical injury:
Jones is knocked down by a motorbike which Smith is riding
through a red light. Jones lands on his head with some force.
Understandably shaken, Jones enters a hospital where doctors
recommend that he undergo a battery of tests to determine
whether he has suffered any internal head injuries. The tests
prove negative, but Jones sues Smith solely for what turns out
to be the substantial cost of the diagnostic examinations. Id. Thus, it logically follows that a plaintiff asserting a claim for medical
monitoring costs is not required to prove present physical harm resulting from
tortious exposure to toxic substances.
Nor is the plaintiff required to demonstrate the probable likelihood that
a serious disease will result from the exposure. As the Third Circuit indicated
in Paoli I, “the appropriate inquiry is not whether it is reasonably probable that
plaintiffs will suffer [physical] harm in the future, but rather whether medical
monitoring is, to a reasonable degree of medical certainty, necessary in order
to diagnose properly the warning signs of disease.” 916 F.2d at 851. See also 2 Dan B. Dobbs, Law of Remedies § 8.1(3), at 380 n.30 (2d ed. 1993)
(“diagnosis expenses-medical monitoring-may be both reasonable and
reasonably certain to occur in the future, even if the disease it is intended to
diagnose is not reasonably certain to occur”).
Bower, 206 W. Va. 139-40, 522 S.E.2d 430-31. Subsequently, in State ex rel. Chemtall Inc.
v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004), the Court determined that the circuit
court erred in its conclusion that the statute of limitations had not begun to run in that case.
While the circuit court found that the plaintiffs had not suffered an injury, this Court
disagreed and stated that
[t]he circuit court apparently reasoned that no statute of limitation
applies to a medical monitoring claim because the cause of action has not yet
accrued, i.e., there is not yet an injury. This is incorrect. “The 'injury' that
underlies a claim for medical monitoring-just as with any other cause of action
sounding in tort-is 'the invasion of any legally protected interest.' ” Bower v.
Westinghouse Electric Corp., 206 W.Va. 133, 139, 522 S.E.2d 424, 430 (1999)
quoting Restatement (Second) of Torts § 7(1) (1964). The specific invasion of
a legally protected interest in a medical monitoring claims consists of “a
significantly increased risk of contracting a particular disease relative to what
would be the case in the absence of exposure.” 206 W.Va. at 142, 522 S.E.2d
at 433.
Chemtall, 216 W. Va. at 455-56, 607 S.E.2d at 784-85.
Consequently, there is support in West Virginia's jurisprudence to conclude
that a valid medical monitoring claim does constitute an injury, just like any other tort.
Further, when a plaintiff proves the necessary elements of a medical monitoring cause of
action, the damages that are awarded are compensatory damages. As the Court stated in Bowyer,
a claim for medical monitoring is essentially “a claim for future damages.” Ball v. Joy Tech., Inc., 958 F.2d 36, 39 (4th Cir.1991). Consequently, we resort
to elementary principles of tort law to determine whether medical monitoring
is a proper subject of compensatory damages.
Since before the turn of the century, this jurisdiction sanctioned the
recovery of future medical expenses where a plaintiff could prove with
reasonable certainty that such costs would be incurred as a proximate
consequence of a defendant's tortious conduct.
206 W. Va. 139, 522 S.E.2d 430.
When a plaintiff has sustained an injury and has been awarded compensatory
damages in conjunction with his medical monitoring cause of action, his pursuit of punitive
damages is warranted so long as the defendant's conduct is sufficiently willful and egregious
to support such an award. The Court has long recognized that compensatory damages must
be returned by a jury prior to an award of punitive damages and that “[p]unitive damages
must bear a reasonable relationship to the potential of harm caused by the defendant's
actions.” Syl. Pt. 1, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897
(1991). Further, the Court explained this procedure in syllabus point seven of Alkire v. First
National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996) :
Our punitive damage jurisprudence includes a two-step paradigm: first,
a determination of whether the conduct of an actor toward another person
entitles that person to a punitive damage award under Mayer v. Frobe, 40
W.Va. 246, 22 S.E. 58 (1895); second, if a punitive damage award is justified,
then a review is mandated to determine if the punitive damage award is
excessive under Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d
897 (1991).
197 W.Va. 122, 475 S.E.2d 122.
To that end, the first inquiry necessarily focuses upon a defendant's conduct.
In syllabus point four of Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), the Court held
that “[i]n actions of tort, where gross fraud, malice, oppression, or wanton, willful, or
reckless conduct or criminal indifference to civil obligations affecting the rights of others
appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive,
or vindictive damages; these terms being synonymous.” The Court has further instructed in Peters v. Rivers Edge Mining, Inc., 224 W. Va. 160, 680 S.E.2d 791 (2009), that
“[t]o sustain a claim for punitive damages, the wrongful act must have been
done maliciously, wantonly, mischievously, or with criminal indifference to
civil obligations. A wrongful act, done under a bona fide claim of right, and
without malice in any form, constitutes no basis for such damages.” Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E.
943 (1912).
224 W. Va. at ___, 680 S.E.2d at 821. It is also significant that the generally accepted law
of this country is that “[p]unitive damages are damages, other than compensatory or nominal
damages, awarded against a person to punish him [or her] for his outrageous conduct and to
deter him and others like him from similar conduct in the future.” Restatement (Second) of
Torts § 908(1) (1979).
Thus, medical monitoring cases, just like any other action in tort, should be
susceptible to an award of punitive damages if and only if the conduct of the defendant or
defendants is willful, wanton, reckless, and done knowingly in disregard of the right to
human health. Just as in other types of cases, the right to an award of punitive damages
should be available only when a defendant is guilty of extreme and egregious bad conduct.
It is the exception, not the rule, as the level of bad conduct on the part of a defendant must
be very high in order to meet the punitive standard.
*
* *
Turning to the issue of whether punitive damages were justified in the instant
case, it has long been held that “factual findings made by the trial court are given great
deference by this Court and will not be overturned unless they are clearly erroneous.” CMC
Enterprise, Inc. v. Ken Lowe Management Co., 206 W.Va. 414, 418, 525 S.E.2d 295, 299
(1999). In this case, the circuit court's February 25, 2008, thorough and lengthy order
provided a mountain of factual findings detailing DuPont's wanton, reckless, and willful
conduct justifying the underlying punitive damages award.
As long ago as 1919, Grasselli, which later merged with and became a
subsidiary of DuPont, commissioned a study of the surrounding communities to investigate
the effects of smelter emissions. The resulting study, Report of Investigation of Conditions
Affecting the Growth of Plants and Animals in the Vicinity of the Meadowbrook Zinc Works
of the Grasselli Chemical Company, concluded that livestock, plants, and soil in the area
were being adversely impacted by the smelter emissions. As the circuit court explained,
[s]pecifically, the report noted that emissions from the smelter were having
deleterious effects, such as blight to surrounding pasture grass, fruit trees and
other vegetation and sick and dying livestock, on properties withing three
miles of the plant in all directions and within five miles in a north northeast
and northeast direction. Clearly the plant's emissions were a threat to the
health and safety of the surrounding community. The investigators predicted
that the effects from the continued operation of the smelter would be felt at
increasingly greater distances and would 'become apparent as far north as
Shinnston and probably for a considerable distance beyond.'
The circuit court found that in spite of the dire warnings contained in the 1919
study, Grasselli and DuPont continued to operate the plant for another thirty years, full-time,
with the on-site waste pile “dramatically increasing” as emissions into the surrounding
communities were significant. The circuit court also pointed to the release of arsenic, which
was identified as a component of smoke from smelters, and its known effects on human
health. Likewise, it recognized the fact that both Grasselli and DuPont had technical
expertise in a variety of areas which would have allowed them to fully understand their own
processes and what the effects of the waste and emissions would be on the environment,
animals, humans, and the surrounding areas.
In spite of complaints by neighbors about the pollution and contamination as
early as 1914, and in spite of an expert witness who confirmed the existence of arsenic in the
zinc dust as well as on the neighboring properties,
(See footnote 3) Grasselli and DuPont ignored reasonable
solutions to deal with the dangerous emissions. For example, in 1927, Grasselli considered
installing a Cottrell electrostatic precipitator system to control emissions, a technology being
used at other smelters across the company; however, as the circuit court explains, “Grasselli
rejected it because it did not appear profitable nor would it pay for itself, [and, instead,]
Grasselli and DuPont simply continued depositing emissions on neighboring properties and
building its mountain of waste.” The circuit court pointed out that:
“Despite this knowledge
of emissions and a way to control them, Grasselli elected to simply continue production and
fight the lawsuits with a public relations campaign that included threatening the community
with a loss of jobs.”
While DuPont purchased the smelter and Grasselli became a division of
DuPont, the existing management did not change and the Grasselli-DuPont smelter continued
business as usual. Throughout the years, DuPont installed new furnaces allowing for greater
and more efficient production; yet it chose not to bother to install emission control or other
pollution devices. Rather, in spite of the ongoing lawsuits and the 1919 report,
supra, the
circuit court enunciates that DuPont “produced at maximum capacity, dumping the waste
behind and beside the plant [even though it] was well aware that it was polluting its
neighbor's property.”
The circuit court also declared that in late 1949 or early 1950, DuPont ordered
and performed a company-wide pollution survey and that “[t]he documents suggest that
DuPont was aware of its need to implement and update air and water pollution controls but
that certain divisions either could not or would not request the funds necessary to implement
the controls.” Moreover, as of 1950, DuPont was only spending $8,200.00 per year for air
pollution control at the smelter, while internal documents estimated the cost of future air
pollution control necessary to bring the smelter in conformance with governmental standards
to be $325,000.00. The circuit court notes, “[d]uring its ownership, despite its policy
encouraging the abatement of air pollution and despite the dangerous emissions being
deposited on its neighbors' lands, DuPont took no steps to control the pile or institute
emissions controls at the smelter.” The circuit court further found that:
Rather than making the necessary projected investment of $325,000, DuPont
elected to sell the plant, knowingly leaving behind a plant that had been
emitting toxic metals throughout the surrounding community for over 40 years
and leaving behind a burning mountain of waste that would continue to pollute
the surrounding communities with dangerous heavy metals. Without so much
as a warning to the residents or the dangers raining down on them, DuPont
sold the plant and did not return to Spelter until 1979 or 1980.
The circuit court also discussed DuPont's “inactive site-review” in response
to federal legislation wherein it was attempting to inventory sites that might be hazardous.
One area of interest was the safety of a playground adjacent to the smelter_a playground
separated from the plant and waste pile only by a chain link fence. The proximity of the
playground to the smelter raised questions among the DuPont management about the safety
of the site as evidenced by an internal memorandum wherein it asked:
Was any waste containing cadmium and/or arsenic deposited on the property
converted to the playground? We have no information from which to answer
this question. Therefore, I recommend that we contact The Meadowbrook
Corporation to determine any information they may have on past waste
disposal practices at the site. It would be appropriate to simultaneously inform
the Board of Education of our interest.
The circuit court states that there is no record of DuPont actually contacting The
Meadowbrook Corporation or taking any action to warn the residents of the dangers posed
by the contaminants from the smelter. The circuit court further explained that:
Although at least two DuPont scientists recognized that the playground
had been built over residue from the smelter, DuPont ultimately took no steps
to identify the contents of the residue or to even look beyond the chain-link
fence. Instead, DuPont's Real Estate Division was instructed to 'monitor the
school playground adjacent to our formerly owned plant in Spelter, West
Virginia (now owned by Meadowbrook Corporation) at least once a year to
confirm that it is in continued use as a play area by the local population.' Any
further steps to minimize the risk would have required DuPont perform a
comprehensive sampling program. Not only did DuPont fail to perform a
comprehensive sampling program of the site, DuPont did not bother to follow
up on its scientists' recommendation that the site be examined on an annual
basis or even to contact The Meadowbrook Corporation to alert it of risks
involved with the waste.
As recognized by the circuit court's findings, DuPont did not take any further
action at the site, including the playground, until 1996 when regulators from the EPA put
DuPont on notice of its potential environmental liability. DuPont received an EPA
“Imminent Hazard” letter notifying it of its potential environmental liability for the Spelter
site. As the circuit court explained, DuPont began to be concerned that the Spelter site would
be listed on the National Priority List of the EPA and be declared a Superfund site, and in
spite of its acknowledgment that “offsite soils data indicates elevated levels of Zn, As and
Pb in residential backyards,” DuPont responded with a policy of containment, “trying to limit
any remediation to on-site remediation, and 'managing the regulatory process' to stay off the
National Priority List and 'managing public relations . . . to prevent potential legal, tort
and/or public issues.”
DuPont's internal emails reflect its knowledge of the waste pile, observing that
it was “irresistible to children” and a common recreation area, and that the waste from the
pile was discharging heaving metals into the West Fork river. In spite of such knowledge,
the circuit court found that DuPont's plan for avoiding costly remediation, according to the
director of the DuPont division responsible for environmental liability and remediation, was
“to do as little as possible . . . and the site may just go away.”
The circuit court also included citation to numerous DuPont internal emails that
reflected its knowledge that heavy metals had leaked from the site to the surrounding areas.
It further pointed out that governmental regulatory agencies also told DuPont that there was
off-site contamination. For example, in 1996, the EPA told DuPont that “a threat to public
health or welfare or the environment exists at the Spelter Smelter Site.” The EPA
recommended that the site be considered “an imminent and substantial endangerment to the
public health or welfare or the environment because of an actual or threatened release of a
hazardous substance at/or from the Site.” The EPA stated that “initial data indicates
significant offsite exposure either by runoff or wind borne emissions” and specifically
instructed DuPont to “establish adequate site security to eliminate the potential for
trespassing.” Despite this instruction, DuPont failed to secure the site for several more years.
The circuit court order also determined that the EPA was not the only agency
that informed DuPont of the offsite health risks. In fact, the DEP informed DuPont that
“[e]ach day, large quantities of heavy metal particulates and metal fumes are exhausted into
the Spelter community atmosphere.” The DEP further informed DuPont that residential
wells had significantly elevated levels of arsenic, cadmium and lead. As the circuit court
explains, “instead of taking action to remediate the class area, DuPont used the well-water
tests as an opportunity to continue to tell the residents of the class area that there was nothing
about which to be concerned.”
The circuit court also detailed DuPont's special concern and attempt to avoid
having the site listed by the EPA on the National Priorities List, which would cause greater
costs and the loss of control of the site. As the circuit court explained, “DuPont was
confident in its ability to influence and control the actions of the West Virginia DEP,
primarily because of its connections with the DEP. . . .” Throughout this process, DuPont
continued to stress the need to “manage the regulatory process” to “stay off NPL” as DuPont
affirmatively reached out to the DEP feeling it could “reach relatively quick agreement with
DEP” and “give them the environmental victory that they need.” As DuPont concluded,
having the site in the hands of the DEP would “get us working towards the clearly lowest
cost and protective [to DuPont] option.” DuPont stated that “state control, using voluntary,
risk-based remediation would potentially save tens of millions of $.”
In its continued quest to ignore off-site contamination and to stay off the EPA's
National Priorities List, DuPont worked a plan to enroll the Spelter smelter in the West
Virginia “Voluntary” Remediation Program, wherein DuPont's obligation was simply to
investigate and remediate “the site.” By definition, the “site” included only the actual
smelter property and did not include any property outside the boundary of the smelter.
DuPont then hired licensed remediation specialists who, according to the circuit court,
“would ignore their obligation to the community and protect DuPont's desire to keep the off-
site property from being remediated or even tested.” DuPont sought licensed remediation
specialists who understood DuPont's point of view, were loyal, and would “stay on the
reservation.” The circuit court concluded that one such specialist's “company was selected,
at least in part, because he had previously 'affirmed his loyalty to DuPont.'” DuPont
questioned whether [the specialist] was “willing to stretch his neck out for DuPont?”, while
DuPont's in-house counsel opined that he had “every reason to preserve his relationship with
DuPont, I see no risk of him going off our view of the reservation.”
The circuit court then outlined DuPont's selection of contractors who were
willing to manipulate the data in an effort to stay on-site with any remediation efforts. For
example, the circuit court said,
[i]n fact, so determined was DuPont to guard against the possibility of off-site
testing (and any resulting remediation) that when one of DuPont's contractors
collected a soil sample from off-site, he was told by DuPont manager, Sathya
Yalvigi, in no uncertain terms that the soil sample should not be analyzed. The
soil sample remains in DuPont's possession to this day.
The circuit court also described DuPont's strategy to limit remediation to on-site as
dovetailing nicely “with a corporate strategy that called for limiting and controlling
information.” The circuit court found that DuPont accomplished its corporate strategy of
limiting public interest, in part, with misleading newsletters, and manipulation and control
of regulatory agencies. It said that DuPont's strategy was called “Connecting the Dots” and
was a corporate policy of containment to shield DuPont from the “Plaintiffs' bar, local
environmental & environmental justice activists, community advocates, media . . .
Government Agencies . . . [and] national/international environmental.” DuPont constructed
a team whose primary objective was to “minimize the potential for issues/dots to be
connected” meaning to minimize the dissemination of information and, ultimately, to thwart
toxic tort claims. The circuit court explained that “Connecting the Dots” is, literally, a power
point slide show used during a DuPont meeting to discuss management of environmental
trouble-spots at various plant sites. DuPont adopted such a policy to avoid tort liability,
avoid cleaning up its environmental mess, and to maximize its profits.
The circuit court specifically found that DuPont prevented class members from
connecting the dots by “limiting the information it gave to the class, providing with half-
truths and omitting important information [and that] in its quest to contain its liability for
remediation, DuPont misled the community concerning the potential dangers of
contamination.” The circuit court explained:
For example, in 2001, DuPont began disseminating public information,
in the form of a newsletter, stating that smelter emissions did not pose any off-
site risk. DuPont's newsletter stated that “[t]he current sampling data and risk
assessment indicate that there is no current risk to the Spelter community from
off-site releases.” DuPont's newsletter goes on to state that “properties in the
Town of Spelter have not been impacted by the site and that the site should not
diminish property values.” As support for its position, DuPont relied upon a
letter from DEP that had been conceived by DuPont's internal team in charge
of managing the Spelter smelter site.”
The circuit court further detailed DuPont's 2001 response to a notice from the DEP that the
groundwater near the smelter had been contaminated with high levels of arsenic, cadmium
and lead and the smelter was the cause of the contamination. DuPont, through its
consultants, told the Spelter community residents that their wells needed to be capped
because they had “not [been] properly abandoned in accordance with current guidelines and
rules put in place by the West Virginia Bureau for Public Health, Office of Environmental
Health Services and the Harrison County Health Department.” As the circuit court points
out, “[u]sing this catastrophe as a public relations event, DuPont touted the well-capping 'as
a service to the Spelter community and at no cost to you. . . .' DuPont, however, neglected
to mention the real reason for the capping was that it had contaminated the groundwater with
unacceptable levels of arsenic, cadmium and lead.”
The circuit court further explained that DuPont devised talking points for its
employees answering questions about capping the wells and that its answers were evasive
and misleading, designed to keep people from learning about the real risks associated with
the potential exposure to arsenic, cadmium and lead.” The circuit court outlined numerous
talking points devised by DuPont for employees to use when speaking with anyone regarding
the plant. The circuit court also provided examples of DuPont “affirmatively [lying] to the
media and the residents of the class area.” For example, DuPont stated to the residents of the
class area, “[w]e have no evidence that health problems could be caused by the site.”
Moreover, in a community newsletter, DuPont told the residents that “[t]he current sampling
data and risk assessment indicate that there is no current risk to the Spelter community from
off-site releases.”
Based on this extensive record, the circuit court found that the evidence
supported the underlying verdict relating to punitive damages. It explained that the jury
found that DuPont intentionally acted with disregard to a known risk with the high
probability that harm would follow, and that DuPont knew or should have known of the risks
attendant to its conduct. The circuit court further concluded:
Despite this knowledge and the obvious needs to abate the air pollution,
DuPont made no effort to implement any air pollution controls. Instead,
DuPont simply continued smelting zinc at full-capacity. Finally, when it
appeared that DuPont could no longer avoid allocating money for air pollution
controls, DuPont sold the smelter and left town. At a minimum, DuPont's
conduct of knowingly disposing of huge piles of zinc tailing containing toxic
wastes on its property and consciously discharging those same toxins into the
air from its smoke stacks rises to the level of intentional, wanton, and reckless
conduct.
In its meticulously detailed order, the circuit court found that DuPont was
aware of the health hazards of arsenic, cadmium and lead, deliberately misinformed the
community residents, refused to inform the members of the class of the offsite contamination
and the threats to their health, and continuously refused to address the off-site contamination
issue. The circuit court outlined a pattern of behavior throughout a ninety-year period that
was unconscionable. In consideration of all of the above, there was certainly a multitude of
facts and circumstances justifying the underlying punitive damages award.
Upon review of the circuit court's order and the findings of fact therein, it is
abundantly clear that the court did not abuse its discretion in determining that the conduct
of the defendants in the instant case warranted the award of punitive damages that was made
by the jury.
* * *
Perhaps most importantly, as recognized in the Restatement of Torts,
supra,
and extensive case law across the country, one of the primary purposes of punitive damages
is to send a message to those who willfully, flagrantly, and knowledgeably harm others that,
as a matter of public policy, such conduct will not be condoned in an organized, civilized
society. However, in a case where there is not yet evidence of actual physical injury, there
is concern that a punitive damages award could be characterized as a “windfall” for such
plaintiffs who have not yet exhibited physical injury.
Recognizing that medical monitoring claims are unique from typical tort cases,
in that actual physical injury may not yet be present, it may be time to consider whether in
a medical monitoring case, punitive damages, or a part thereof, should be directed into a fund
to remediate and correct similar damages and/or to hold in trust for plaintiffs who actually
do ultimately suffer significant physical injury as a result of the defendant's conduct. As the
Court reasoned in
Dardinger v. Anthem Blue Cross and Blue Shield, 781 N.E.2d 121 (Ohio
2002):
There is a philosophical void between the reasons we award punitive damages
and how the damages are distributed. The community makes the statement,
while the plaintiff reaps the monetary award. Numerous states have formalized
through legislation a mechanical means to divide a punitive damages award
between the plaintiff and the state. In some states, the state's portion goes to
a special fund, in others, to the general fund. Annotation (1993), 16 A.L.R. 5th
129. In Ohio, punitive damages are an outgrowth of the common law. Roberts
v. Mason (1859), 10 Ohio St. 277, 1859 WL 78; Saberton v. Greenwald (1946), 146 Ohio St. 414, 32 O.O. 454, 66 N.E.2d 224; Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174. Therefore, Ohio's courts have
a central role to play in the distribution of punitive damages. Punitive damages
awards should not be subject to bright-line division but instead should be
considered on a case-by-case basis, with those awards making the most
significant societal statements being the most likely candidates for alternative
distribution.
781 N.E.2d at 145-46 (directing that a portion of punitive damages go to a state institution
and specifically a cancer research fund at Ohio State University).
In holding that punitive damages are never available in a medical monitoring
claim, the majority has removed a very strong deterrent to the type of unconscionable
conduct that would treat the most basic human right to health and life as if it were
meaningless. The people of West Virginia should have a fundamental right to be free from
having toxic substances, which the depositor thereof has knowledge are likely to cause
serious illness and death, rained upon them in a manner that can be characterized as callous,
ruthless, wanton, willful, or reckless. As this Court recognized as early as 1895, this type of
gross indifference to civil obligations affecting the rights of others should be subject to an
assessment of punitive damages. Mayer v. Frobe, 40 W.Va. at 247, 22 S.E. at 58, Syl. Pt.
4. Now that the majority has removed the potential for punitive damages from a medical
monitoring claim, there is no deterrent to the type of willful, wanton, and egregious conduct
demonstrated by the defendants in this case. Thus, any concern about sanctions for
knowingly engaging in conduct that threatens human life has become a much smaller factor
in the equation used for determining the profit margin for that activity.
Footnote: 1 Contrary to frequently-made public assertions, there are substantial criteria set forth
in
Bower that must be met before a medical monitoring claim can succeed.
Footnote: 2 A majority of states now recognize medical monitoring claims. However, there is
a split in those that recognize the claim in the absence of a present physical injury and those
that recognize the claim when accompanied by a physical injury. Joseph K. Hetrick and
Allison M. Brown,
Cause of Action for Medical Monitoring Relating to the Use of Medical
Devices and Prescription Drugs, 34 COA2d 249, §§ 7 and 8 (2007).
Footnote: 3
This expert testified as a part of a 1919 lawsuit initiated by the surrounding residents
of the Spelter smelter site.