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No. 31776 - William
K. Stern, et al., Franklin Stump, Danny Gunnoe and Teddy Joe Hoosier v. Chemtall
Incorporated, a Georgia Corporation, et al.
Albright, Chief Justice, concurring:
I concur in the result reached by the majority
opinion. I write separately only to state that while I did not have the opportunity
to participate in this Court's original determination regarding the medical monitoring
issue in Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d
424 (1999), I do not believe that medical monitoring should be regarded as a
separate, independent cause of action. Rather, it should be utilized as
a potential remedy available to an injured individual.
The Supreme Court of Nevada recently struggled
with the question of whether common law recognizes medical monitoring as a separate
cause of action or simply a remedy and concluded that Nevada common law recognizes
medical monitoring as a remedy. Badillo v. American Brands, Inc., 16 P.3d
435 (Nev. 2001). The court reasoned that [w]hen recognized as a remedy,
medical monitoring is usually tied to a cause of action in trespass, nuisance,
strict liability, or negligence. 16 P.3d at 440 (citaions omitted).
the tobacco litigation context, we note that claims for medical monitoring relief
have been tied to causes of action in torts and contracts, including fraud, failure
to warn, misrepresentation, strict liability, deceptive trade practices, breach
of express warranty, breach of implied warranty of
merchantability, breach of implied warranty of fitness for a particular purpose,
negligence, conspiracy, intentional infliction of emotional distress, intentional
exposure to a hazardous substance, and violation of consumer protection statutes.
Id. (citations omitted).
As Justice Starcher clearly expressed in
his concurrence to Carter v. Monsanto Co., 212 W.Va. 732, 575 S.E.2d 342
(2002), property monitoring (like medical monitoring, under my understanding)
is not _ repeat, IS NOT _ a separate cause of action. In my view, monitoring
and the cost thereof are simply a remedy or an element of damages that are available
to a court to award or order against a culpable party. 212 W.Va. at 738,
575 S.E.2d at 348 (Starcher, concurring). I believe that the standards articulated
by this Court in Bower provide sound guidelines informing the courts of
the parameters of the remedy of medical monitoring, but characterizing the medical
monitoring remedy as a separate, independent cause of action is a misnomer.