Photo of Michelle Yeary

The 2024 Annual Meeting of the American Law Institute (“ALI”) got under way yesterday.  Therefore, based on what happened last year (described in detail here), we assume we are on the brink of the ALI taking the monumentally non-restating step of recognizing no-injury medical monitoring.  In a case of twisted timing, as we await this travesty to befall us, a contrary opinion was entered last week in Sommerville v. Union Carbide Corporation, 2024 WL 2139394 (S.D.W.Va. May 13, 2024).

Plaintiff, on behalf of herself and a purported class of neighbors, alleges that a manufacturing plant near her home has been emitting ethylene oxide, a carcinogen, for over forty years.  Therefore, plaintiff claims she has “suffered significant exposure” to the gas and is at an increased risk of developing cancer requiring her to undergo routine medical monitoring.  Id. at *1.  Defendant moved for summary judgment on the grounds that plaintiff does not have standing to bring her claims.

Before addressing the standing argument, the court runs through the history of medical monitoring claims.  First in federal courts which reject medical monitoring in the absence of present physical injury. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 439-40 (1997).  Then in West Virginia where the state Supreme Court of Appeals “created a state cause of action for medical monitoring allowing for unrestricted relief absent present physical injury.”  Sommerville, 2024 WL 2139394, at *3, citing Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999).  For a complete rundown of which states require a present injury and which do not, see our 50-state survey

Seemingly not enthusiastic about applying West Virginia’s out-of-whole-cloth medical monitoring law, the court hopped onboard defendant’s standing argument and rode it all the way to a dismissal.  For a plaintiff to have Article III standing, she must show she suffered an injury-in-fact that is concrete, particularized, and actual or imminent (among other things).  Id. at *5.  This is “to ensure that the judiciary, and not another branch of the government, is the appropriate forum in which to address a plaintiff’s complaint.”  Id. (citations omitted).  Plaintiff here only passed the particularization requirement.  To be particularized, the claim was “affect the plaintiff in a personal and individual way.”  Id. at *6.  Personal or not, the court could not find an alleged injury that was actual or imminent.

Which standard applies—actual or imminent—depends on the relief requested.  A request for damages requires a present injury, whereas injunctive relief can be based on an imminent threat.  Id. Here, plaintiff was seeking monetary damages and therefore Article III requires a present injury.  Plaintiff’s claim of increased risk is based entirely on expert opinions, which the court properly notes are not facts and, more importantly, which the court already excluded as based on “patently unreliable data and methods.”  Id. at *7.  Standing cannot be premised on an “unreliable model” that was “used to assume that a speculative disease might someday materialize in some unknown person.”  Id.  Further undermining plaintiff’s speculative increased risk theory is the fact that plaintiff alleges that the period of exposure is forty-one years, yet in that entire time neither plaintiff nor any member of the class is alleged to have experienced even symptoms of a disease, let alone been diagnosed with cancer.  Id. at *8.  So plaintiff cannot even establish that it is more likely than not that she will develop cancer.  An injury must be more than conjectural to confer federal standing. 

Plaintiff also fails to meet the requirement that her injury be concrete—“real and not abstract.”  Id.  The court starts its analysis by pointing out that medical monitoring is not supported by any legislative enactment.  While Congress cannot grant standing to a plaintiff who does not have it, Congressional recognition of a cause of action would be “instructive.”  No medical monitoring instruction has been given. 

Next the court looked at the “vague” risk quantification standard under West Virgnia law.  To bring a no-injury medical monitoring claim in West Virginia, plaintiff must demonstrate a “significant increased risk of future disease.”  But the court in creating this state law claim did not offer any guidance on what constitutes a “significant” increased risk.  Plaintiff tried to use the Environmental Protection Agency’s one-in-a-million standard, but as the court points out in any other context a one-in-a-million chance is the exact opposite of significant.  So whether it is Article III’s requirement that the injury be more than a mere possibility or West Virginia’s requirement that the risk be significant, plaintiff fails under either standard.  Id. at *9. 

As if that was not enough, the court also found that plaintiff’s claims were not ripe.  While a claim can be based on an anticipated future injury, that future injury “cannot be wholly speculative” or rest on events that may not occur at all.  Id. at *10.   “Where a plaintiff has alleged that a hypothetical number of people may become injured at some time in the future to a hypothetical degree and thus will incur hypothetical damages,” that claim is not ripe for adjudication.  Id.  Since that is all plaintiff and her experts can say, plaintiff’s claim is not ripe. 

What does all this mean?  If followed, the decision means that West Virginia medical monitoring, and by extension, other states’ no-injury medical monitoring claims based on mere increased risk, cannot be adjudicated in federal court, even though substantive state law allows them.  So, can plaintiffs simply refile in state court and be immune from any basis for removal to federal court?  Or would the West Virginia high court–with completely different personnel and partisan makeup than in 1999, when it adopted no-injury medical monitoring, decide to retreat from that position?   Big questions that deserve big answers that we will have to watch and wait for. 

But we want to leave you with this.  The opinion finishes with one of the best rejections of what we have called “judicial triumphalism” that we have ever read in a judicial opinion:

A grave and persistent concern of this court is the metastasis of the malignant belief that courts are the solution to all problems recognized but unaddressed by the other two branches of government. It is not the province of federal courts to usurp the power of the other branches of government to solve social problems with legislatively phrased directives disguised in judicial language. “[N]o matter how admirable the result may seem[,] unless change occurs through legitimate means, it disparages the image of the judiciary and the principles of our system of government.”

Id. at *12 (citations omitted).