McGraw, Justice, dissenting:
The majority notes that “this case is governed by Carter v. Monsanto Co., 212 W. Va. 732, 575 S.E.2d 342 (2002),” another case in which I disagreed with the majority. I depart from the majority for similar reasons today. The Carter dissent states in part:
I believe that this case stands for a simple proposition, and one
that we should not lose sight of. On the one hand we have a
large corporation that operated a toxic waste dump and allegedly
allowed odorless, tasteless, colorless, unsafe substances to
escape and potentially contaminate the property of its neighbors.
On the other hand we have local property owners who want to
know if it is alright for their kids to play in the yard or safe to
grow a few tomatoes in the summer. It seems obvious to me
that once a plaintiff has established that a defendant has exposed
its neighbors to a substantial risk of contamination, the company
should have to pay to determine if the neighbors' land is safe.
Id. 212 W. Va. at 739-40, 575 S.E.2d at 349-50 (McGraw, J., concurring in part and
dissenting in part). In this case, plaintiffs aver that the pollution is not on their land, but is
actually in their bloodstream, a much more frightening prospect. They also claim, as the
majority notes, that the defendant possesses one of the few, if not the only, labs in the country
capable of determining whether or not C8 is coursing through the veins of the citizens of
Wood County.
The majority discusses the “balancing test” a judge must use when issuing an injunction:
The granting or refusal of an injunction, whether mandatory or
preventive, calls for the exercise of sound judicial discretion in
view of all the circumstances of the particular case; regard being
had to the nature of the controversy, the object for which the
injunction is being sought, and the comparative hardship or
convenience to the respective parties involved in the award or
denial of the writ. Syl. pt. 4, State ex rel. Donley v. Baker, 112
W. Va. 263, 164 S.E. 154 (1932).
Syl. pt. 2, Camden-Clark Memorial Hosp. Corp. v. Turner, 212 W. Va. 752, 575 S.E.2d 362
(2002). I believe that Judge Hill exercised “sound judicial discretion” when he granted the
injunction. As Justice Starcher noted in his concurrence to Carter:
[I]n the context of a preliminary injunction request, under the
“balancing of the harms” test, one can imagine a scenario where
a court might be justified in preliminarily requiring some form
of monitoring by a nuisance defendant before final judgment on
liability--such as where a strong preliminary showing of a highly
unreasonable risk to others was made. Of course, if a plaintiff
in such a case did not ultimately prevail, they would have to
reimburse the defendant for the cost of the monitoring.
Carter v. Monsanto Co., 212 W. Va. 732, 739, 575 S.E.2d 342, 349 (2002) (Starcher, J.,
concurring). I believe this case presents just such a scenario, and that the lower court was
justified in requiring the defendant to provide the blood testing. Therefore, I must
respectfully dissent.