RICHMOND, Virginia – A federal appeals court has reversed and remanded a case, holding that the plaintiffs in a class action seeking medical monitoring for exposure to a potentially cancer-causing chemical have standing to bring the case.
In an August 18 opinion, the Fourth Circuit Court of Appeals also agreed with lead plaintiff Lee Ann Sommerville, who wanted to use Dr. Ranajit Sahu as an expert in a class action against Union Carbide and Covestro for alleged exposure to ethylene oxide, or EtO.
Sommerville claimed the South Charleston plant operated between 1978 and 2019 emitted EtO into the atmosphere, increasing her risk for developing specific diseases. The class wants the plant owners to pay for medical monitoring and diagnostic testing to manage their increased risk of illness.
She appealed two orders from U.S. District Judge Joseph Goodwin. The first excluded the opinions of Sahu, and the second granted the plant owners summary judgment.
In the Fourth Circuit opinion, Circuit Judge DeAndrea Gist Benjamin addressed the second order first, noting the first one is moot if Goodwin was correct on the second.
While West Virginia does recognize medical monitoring claims, Goodwin said Sommerville didn’t have Article III standing to bring such claims because she lacked a “manifest” physical injury.
“The fact that exposure to a contaminant happens invisibly — so to speak — does not sever the tort from its common law roots,” Benjamin wrote in the majority opinion, joined by Judge James Andrew Wynn. “The exposure ‘is still an accident that can have consequences every bit as real as those sustained in a head-on collision. In fact, it is precisely because asbestos’ — or EtO — ‘can have such deadly consequences that plaintiffs, regardless of whether or not they are currently suffering from a disease, are often encouraged to submit to regular diagnostic testing.’
“Put simply, “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.’”
In short, Benjamin says that although the physical manifestations of an injury may not appear for years, the reality is that many of those exposed have suffered a legal detriment: the exposure itself and the need for medical testing constitute the injury.
Benjamin goes on to say Goodwin correctly recognized Sommerville sought monetary relief to pay for the future cost of medical monitoring. And because Sommerville sought damages instead of injunctive relief, she says Goodwin also correctly concluded that Sommerville must show a “present injury.”
But that is where she says Goodwin “went off course.”
“It framed Sommerville’s injury as an increased risk of ‘eventually getting cancer,’” Benjamin wrote. “(Sommerville) seeks monetary damages based on the premise that because (the plant owners) emit EtO into the air and she, in turn, breathes that air, (the plant owners) have put her and proposed class members at higher risk of eventually getting cancer. … Her claim is based entirely on the unsubstantiated possibility of a future cancer diagnosis.
“Then … the district court concluded that because the ‘possibility of (a) future cancer diagnosis’ was not ‘concrete,’ and because Sommerville did not have a present physical injury, Sommerville lacked Article III standing.”
But, Benjamin writes, Sommerville does have standing.
“To begin, the district court misstated the harm for which medical monitoring plaintiffs like Sommerville seek recovery,” she wrote. “Sommerville’s alleged injury is not an ‘increased risk of cancer development due to the alleged EtO emissions.’ Sommerville’s injury is her ‘exposure itself’ to ‘environmental toxins’ tortiously emitted by the plant owners, ‘(which) affect the body in ways that often do not become manifest for several years’ and ‘the concomitant need (to pay) for medical testing’ today to mitigate an increased risk of illness which Sommerville would not bear but for the plant owners’ actions. …
“Framed properly, Sommerville’s injury is concrete and ripe. Sommerville alleges that the plant owners wrongfully exposed her to EtO in such great quantities that her chance of contracting a serious latent disease increased to the point that she must, in a qualified physician’s opinion, pay for and undergo periodic diagnostic medical examinations now. … Sommerville might not have a visible injury like a broken arm, but this does not make her injury any less actual, concrete, or serious.”
Regarding the use of Sommerville’s expert witness, Sahu was meant to provide “technical expertise, analysis, methodology, and opinions regarding various environmental and pollutant fate and transport issues relating to emissions of [EtO] from (the plant) ... to ultimately determine the potential exposure levels of (Sommerville) and the proposed class members.”
Goodwin found Sahu’s testimony unreliable, taking issue with his choice of source and meteorological data.
“Excluding Dr. Sahu for these choices was an abuse of discretion,” Benjamin wrote. “Dr. Sahu presented detailed reasons for his challenged assumptions. … The district court, however, simply ignored or discounted Dr. Sahu’s proffered explanations in favor of those that the plant owners’ expert, Dr. Ranjit Machado, offered.”
In his dissent, Chief Judge Albert Diaz says Article III standing principles prevents his court from opening its doors to medical monitoring claims like West Virginia courts have done.
“West Virginia allows plaintiffs to bring medical monitoring claims ‘to recover the anticipated costs of long-term diagnostic testing necessary to detect latent diseases that may develop as a result of tortious exposure to toxic substances,’” Diaz wrote. “Plaintiffs must show — as relevant here — that an exposure to a hazardous substance put them at a ‘significantly increased risk of contracting a particular disease’ that makes diagnostic testing ‘reasonably necessary.’
“They don’t need to show that they’ve experienced any physical harm, nor any certainty (or even likelihood) that a disease will occur. Id. But to get into federal court, a state law injury isn’t enough. As my colleagues agree, Sommerville … must show that she’s suffered an injury in fact sufficient for Article III. Sommerville doesn’t claim that she’s been physically harmed. Nor does she claim that her injury in fact is an increased risk of developing cancer. And for good reason, because a ‘risk of future harm ... cannot, by itself, establish concrete injury to have standing to seek damages. … Instead, Sommerville’s asserted injury is the ‘necessary medical monitoring costs resulting from toxic exposure.’”
While the majority says that’s enough for standing, Diaz disagrees. He says he instead would have held that medical monitoring costs (incurred or anticipated), without more, can’t confer standing to seek damages in federal court.
“The asserted injury in fact here appears to be the costs of medical monitoring, not the exposure that creates the need for those costs,” Diaz wrote. “Sommerville claims that she’s at an increased risk of developing cancer and that the risk creates a present need for medical monitoring — the costs of which are her injury in fact.
“But to confer Article III standing, these costs must be based on a future harm that is ‘certainly impending.’ Though the future harm here — cancer — is serious, it’s not certainly impending.
Diaz also says Goodwin correctly excluded Sahu’s expert testimony.
“And without Sahu’s testimony, Sommerville can’t meet her burden at summary judgment to demonstrate an injury in fact,” Diaz wrote. “The question isn’t whether we would have admitted Dr. Sahu’s testimony in the first instance, but whether the district court abused its discretion in excluding it. …
“Here, the district court concluded that Sahu’s expert testimony wasn’t well-grounded in the facts and data available and was thus unreliable. The district court didn’t abuse its discretion. In fact, the court was right. …
“The district court recognized its duty here and honored it. We should commend the court, not reverse its ruling.
“I have no quarrel with the West Virginia Supreme Court of Appeals’ reasons for recognizing a medical monitoring cause of action … but the need for and costs of medical monitoring — without more — isn’t an injury in fact sufficient for Article III standing. Even if it were, Sommerville can’t demonstrate such an injury without Dr. Sahu’s expert testimony, which the district court properly excluded.”
U.S. Court of Appeals for the Fourth Circuit case number 24-1491 (U.S. District Court for the Southern District of West Virginia case number 2:19-cv-00878)
