I wish to take this opportunity to commend Judge Moats on his very thorough and well-reasoned opinion in this case. Although the assignments of error presented were numerous and, at times, quite complex, the resulting opinion will prove to be an invaluable resource to members of the bench and the bar faced with similar issues and, most especially, as to the precise procedure to be followed in determining the correctness of a punitive damages award. Nevertheless, I am compelled to write separately to respond to two, distinct issues: (1) Justice Ketchum's objection to Dr. Brown's expert testimony and (2) the majority's refusal to permit the recovery of punitive damages for medical monitoring.
First, I concur generally with the majority's opinion in this case except with respect to its refusal to permit the Plaintiffs to recover punitive damages in connection with their claim for medical monitoring. In addition to this general concurrence, I also concur specially with respect to the majority's decision finding the testimony of the Plaintiffs' expert, Dr. Kirk Brown, to be admissible. Justice Ketchum, in his separate opinion dissenting, in part, relies heavily upon an unpublished decision from the United States District Court for the Northern District of Oklahoma, which court also considered the admissibility of Dr. Brown's expert testimony in a case strikingly similar to the case sub judice. See Palmer v. Asarco Inc., Nos. 03-CV-0498-CVE-PJC, 03-CV-0565-CVE- PJC, 03-CV-0566-CVE-PJC, 03-CV-0567-CVE-PJC, 03-CV-0569-CVE-PJC, 2007 WL 2302584 (N.D. Okla. Aug. 7, 2007). In summary, Justice Ketchum interprets Palmer as precluding Dr. Brown's expert testimony in that case. Extending the application of Palmer to the instant proceeding, Justice Ketchum then suggests that Dr. Brown should have been prevented from testifying in the case sub judice. With Justice Ketchum's interpretation and proposed application of Palmer, I disagree.
In Palmer, the court considered Dr. Brown's expert qualifications in relation to matters about which he was proffered to testify. The Palmer Court then permitted Dr. Brown to testify as to all but two issues about which the plaintiffs sought his testimony. The two issues upon which Dr. Brown's testimony was excluded-(1) whether lead from each defendant's chat pile reached each plaintiff's residence (See footnote 1) and (2) whether any child has had such [lead] exposure or has had an elevated blood lead level (See footnote 2) -are matters that were not put in issue in the case sub judice and about which the Plaintiffs did not seek Dr. Brown's testimony. However, the district court permitted Dr. Brown to testify as to all other matters about which the Palmer plaintiffs sought to introduce his expert testimony, including that wind-blown dust has caused lead contamination in [the affected communities] (See footnote 3) and that there exists an increased risk of lead exposure for children living in [those communities] (See footnote 4) -issues about which Dr. Brown also testified in the case sub judice. Insofar as the court's ruling in Palmer was rendered approximately one month before the commencement of the underlying jury trial in this case, I find the Palmer court's decision particularly persuasive and concur in the majority's decision finding Dr. Brown's expert testimony to be admissible in the case presently before the Court.
Second, and more importantly, I write separately to respond to the majority's decision prohibiting the Plaintiffs from receiving punitive damages in connection with the successful litigation of their medical monitoring claim. The position taken by the majority on this issue is inconsistent with and confuses existing law, and, therefore, from this ruling, I strongly dissent.
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 claim 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.
State ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 455-56, 607 S.E.2d 772, 784-85 (2004). Accord Bandy v. Trigen-Biopower, Inc., No. 3:02-CV-459, 2006 WL 5321815, at * 5 (E.D. Tenn. May 5, 2006) (The de minimus 'physical injury' of ingesting a harmful substance can sufficiently satisfy the physical injury or manifestation rule so as to justify the award of . . . medical monitoring. (citation omitted)); Barnes v. The American Tobacco Co., Inc., 989 F. Supp. 661, 665 (E.D. Pa. 1997) ([T]he injury that a person claims under a medical monitoring cause of action is the cost of the medical care that will, one hopes, detect that injury. . . . This injury is similar to a claim for damages to a person that could be asserted in a traditional negligence or strict liability action. (internal quotations and citations omitted)); Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 225-26, 914 N.E.2d 891, 901 (2009) (When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.).
A medical monitoring plaintiff is compensated for such injury, or made whole, by requiring the defendant responsible for the plaintiff's exposure to toxic substances to compensate the plaintiff for the expenses of the medical monitoring incurred by the plaintiff:
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.
Bower, 206 W. Va. at 139, 522 S.E.2d at 430 (quoting Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 826 (D.C. Cir. 1984) (emphasis added) (footnote omitted)). See also Bower, 206 W. Va. at 142, 522 S.E.2d at 433 (Liability for medical monitoring is predicated upon the defendant being legally responsible for exposing the plaintiff to a particular hazardous substance.).
Accordingly, 'the cost of medical surveillance is a compensable item of damages' when the elements of a claim for medical monitoring have been satisfied. Bower, 206 W. Va. at 141, 522 S.E.2d at 432 (quoting Ayers v. Township of Jackson, 106 N.J. 557, 606, 525 A.2d 287, 312 (1987)). Accord Bower, 206 W. Va. at 142, 522 S.E.2d at 433 ('[F]uture medical monitoring . . . is . . . a compensable item of damage when liability is established[.]' (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1007, 25 Cal. Rptr. 2d 550, 578, 863 P.2d 795, 823 (1993) (en banc))). Cf. Bower, 206 W. Va. at 142, 522 S.E.2d at 433 (Medical monitoring must be available in order to be a necessary, compensable item of damages.).
[W]e . . . decline, at this early pre-trial stage, to address the petitioners' claim that punitive damages are not available in cases in which only medical monitoring damages are sought. . . . [W]e are convinced that appellate review of this issue is better left to the review of a verdict after complete development of all the facts and testimony and after a trial of all the issues. (See footnote 6)
221 W. Va. at 421 & n.5, 655 S.E.2d at 167 & n.5 (footnote retained from original text). However, in his separate opinion to Chemtall III, Justice Benjamin suggested that [p]unitive damages are not appropriate in an equitable medical monitoring class action because the medical monitoring plaintiffs have not asserted personal injury claims, as they have not suffered any actual, present physical injuries from their alleged exposure to [the defendants'] products. 221 W. Va. at 425, 655 S.E.2d at 171 (Benjamin, J., concurring, in part, and dissenting, in part). In reaching this conclusion, Justice Benjamin rejected the definition of a medical monitoring injury discussed in Chemtall I, wherein we referenced the 'significantly increased risk of contracting a particular disease.' 221 W. Va. at 171, 655 S.E.2d at 425 (Benjamin, J., concurring, in part, and dissenting, in part) (quoting Chemtall I, 216 W. Va. at 455, 607 S.E.2d at 784) (emphasis added by Justice Benjamin)).
[l]imiting the remedy [in medical monitoring cases] to compensatory damages and expressly excluding noneconomic and punitive damages serves as a disincentive to the hordes of plaintiffs' attorneys who the Supreme Court feared might be tempted to bring an onslaught of medical monitoring litigation. See Paoli I, [In re Paoli R.R. Yard PCB Litig., 916 F.2d 829,] 850 [(3d. Cir. 1990)] ([A]n action for medical monitoring seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm . . . .) (emphasis added); Friends for All Children, [Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816,] 826 [(D.C. Cir. 1984)] (noting that [i]n the absence of physical symptoms, emotional distress caused by potential risk may . . . be thought too speculative to support recovery).
597 F. Supp. 2d at 540 n. 10 (referencing Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117 S. Ct. 2113, 138 L. Ed. 2d 560 (1997)).
Subsequently, in Hess v. A.I. DuPont Hospital for Children, No. 08-0229, 2009 WL 595602 (E.D. Pa. Mar. 5, 2009), the district court again quoted this language from Paoli to the effect that the remedy for a medical monitoring claim is 'only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm.' 2009 WL 595602, at *13 (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d at 850) (footnote and additional citations omitted). The court then commented that, [i]n Guinan I, [Guinan v. A.I. duPont Hospital for Children, 597 F. Supp. 2d 517 (E.D. Pa. 2009),] we interpreted this language to mean that punitive damages are not available with medical monitoring claims. [597 F. Supp. 2d] at  n.10. 2009 WL 595602, at *13 n.9. (See footnote 7)
Other jurisdictions, though not definitely allowing or disallowing punitive damages in medical monitoring, have nevertheless implicitly allowed punitive damages to be recovered in medical monitoring cases. In each of these cases, the plaintiffs asserted claims seeking both medical monitoring costs and punitive damages. The majority of courts presented with such claims have permitted the punitive damages claims to proceed because the courts have not expressly found that punitive damages are improper in conjunction with a medical monitoring claim. However, these courts have not directly ruled upon the punitive damages issue, finding instead that punitive damages are more properly tried on an individual case-by-case basis rather than in a class action, either because the facts supporting a punitive damages award are too individualized or because the plaintiffs are residents of different states, each of which has different standards for the imposition of punitive damages. See In re Baycol Prods. Litig., 218 F.R.D. 197 (D. Minn. 2003) (medical monitoring claims failed to satisfy requirements for class certification, and punitive damages not proper for class certification because different facts supported individual plaintiffs' claims for punitive damages and different states' laws governed punitive damages awards); Lewallen v. Medtronic USA, Inc., No. C 01-20395 RMW, 2002 WL 31300899 (N.D. Cal. Aug. 28, 2002) (punitive damages not proper for class certification because different facts supported individual plaintiffs' claims for punitive damages and different states' laws governed punitive damages awards); In re Telectronics Pacing Sys., Inc., 172 F.R.D. 271 (S.D. Ohio 1997) (punitive damages not proper for class certification because different states' laws governed punitive damages awards); Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. 242, 251, 992 S.W.2d 797, 802 (1999) (medical monitoring claims failed to satisfy requirements for class certification, but acknowledging, regarding superiority inquiry, that the asymptomatic plaintiffs also asked for punitive damages, which could justify the cost of individual litigation). See also Hansen v. The American Tobacco Co., Inc., No. LR-C-96-881, 1999 WL 33659388 (E.D. Ark. July 21, 1999) (medical monitoring claims failed to satisfy requirements for class certification, thus not reaching issue of whether punitive damages are available for medical monitoring); Marin v. Brush Wellman, Inc., No. B208202, 2009 WL 2596259 (Cal. Ct. App. Aug. 24, 2009) (same); Wilson v. Brush Wellman, Inc., 103 Ohio St. 3d 538, 817 N.E.2d 59 (2004) (same). Cf. Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 543 (S.D.N.Y. 2007) (upholding plaintiffs' claims, including claim for medical monitoring, and concluding that plaintiffs' allegations of [defendants'] willful and wanton misconduct can be asserted as part of an 'underlying cause of action upon which a demand for punitive damages can be grounded' (quoting Rocanova v. Equitable Life Assurance Soc'y of the U.S., 83 N.Y.2d 603, 616, 612 N.Y.S.2d 339, 344, 634 N.E.2d 940, 945 (1994))). But see Gallien v. Procter & Gamble Pharms., Inc., No. 09 Civ. 6903 (JFK), 2010 WL 768937, at *5 (S.D.N.Y. Mar. 5, 2010) (denying punitive damages for medical monitoring because, under Louisiana law, statute must specifically authorize punitive damages and governing statute did not specifically authorize punitive damages in connection with medical monitoring claim); Trimble v. Asarco, Inc., 232 F.3d 946 (8th Cir. 2000) (denying punitive damages for medical monitoring because neither medical monitoring nor punitive damages are cognizable claims under Nebraska law), abrogated on other grounds by Exxon Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005).
Still other courts have permitted plaintiffs to amend their complaints to add punitive damages claims. See, e.g., In re Harvey Term Litig., 872 So. 2d 584 (La. Ct. App. 2004) (permitting plaintiffs asserting claims for medical monitoring and property remediation to amend complaint to assert facts in support of claim for punitive damages); Foust v. Southeastern Pennsylvania Transp. Auth., 756 A.2d 112 (Pa. Commw. Ct. 2000) (upholding plaintiffs' amended complaint which added class claims for medical monitoring, emotional distress, property damage, and punitive damages).
In cases where the jury is presented with an intentional infliction of emotional distress claim, without physical trauma or without concomitant medical or psychiatric proof of emotional or mental trauma, i.e. the plaintiff fails to exhibit either a serious physical or mental condition requiring medical treatment, psychiatric treatment, counseling or the like, any damages awarded by the jury for intentional infliction of emotional distress under these circumstances necessarily encompass punitive damages and, therefore, an additional award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiff's serious physical, emotional or psychiatric injury arising out of the intentional infliction of emotional distress, i.e. treatment for physical problems, depression, anxiety, or other emotional or mental problems, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery.
Syl. pt. 14, in part, Tudor, 203 W. Va. 111, 506 S.E.2d 554 (emphasis added).
In a claim for medical monitoring, ongoing treatment, by way of testing, is required as it is in cases in which an emotional distress plaintiff requires ongoing medical care. Thus, an award for medical monitoring is compensatory in nature insofar as it reimburses the injured plaintiff for the cost of medical testing occasioned by the defendant's wrongful conduct such that an additional award of punitive damages would not be duplicative of the plaintiff's medical monitoring recovery. This reasoning is consistent with our recognition in Bower that no recovery may be had for medical monitoring where no testing is available for the plaintiff's potential injury. See Bower, 206 W. Va. at 142, 522 S.E.2d at 433 (Medical monitoring must be available in order to be a necessary, compensable item of damages. 'If no such test exists, then periodic monitoring is of no assistance and the cost of such monitoring is not available.' (quoting Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355, 361 (La. 1998), superseded by statute on other grounds as stated in Edwards v. State ex rel. Dep't of Health & Hosps. for Southeast Louisiana State Hosp. at Mandeville, La., 804 So. 2d 886 (La. Ct. App. 2001))).
Despite this jurisprudential foundation to support an award of punitive damages for medical monitoring, the majority, instead, has held, in Syllabus point 5, that [p]unitive damages may not be awarded on a cause of action for medical monitoring. With this holding, the majority has essentially eviscerated any potential recovery of punitive damages not only for medical monitoring claims but also for claims of intentional infliction of emotional distress, effectively overruling Syllabus point 14 of Tudor. The holding announced by the majority today fails to distinguish between these two types of claims or to explain why a plaintiff who requires ongoing future medical treatment for emotional distress is entitled to an award of punitive damages but a plaintiff who requires ongoing future medical monitoring for a fatal illness is not entitled to such an award. Both plaintiffs were innocent bystanders of a defendant's tortious conduct, and, in both cases, the defendant's conduct was so egregious as to require the plaintiffs to require ongoing future medical care. Yet, the plaintiff receiving medical care to detect whether the defendant's conduct has caused him/her to develop a fatal illness is not entitled to punitive damages. This plaintiff could die as a result of the defendant's conduct, but this Court will not permit either this plaintiff, or his/her estate, to recover damages to punish a defendant who has acted 'maliciously, wantonly, mischievously or with criminal indifference to civil obligations.' Peters v. Rivers Edge Mining, Inc., 224 W. Va. at ---, 680 S.E.2d at 821 (quoting Syl. pt. 3, in part, Jopling v. Bluefield Water Works, 70 W. Va. 670, 74 S.E. 943). Such a result is inconsistent, unfair, inequitable, unjust, and, in a nutshell, just plain wrong.
The net effect of the majority's holding on the principles recognized in Tudor will be twofold. First, every plaintiff seeking medical monitoring will necessarily add a claim for intentional infliction of emotional distress to ensure that he/she will be permitted to seek and recover an award of punitive damages. Second, every defendant who is currently embroiled in a lawsuit in which the plaintiff has advanced a claim for intentional infliction of emotional distress and has been awarded punitive damages has been put on alert to appeal the punitive damages award. These defendants will then knock on this Court's door to ask that they be excused from paying punitive damages because the analogous case of Perrine v. DuPont holds that punitive damages cannot be awarded for future medical care. Although I do not believe that this upheaval of our punitive damages precedent was intended by the majority of the Court when it rendered its decision in this case, such is the practical effect of this Court's holding. Therefore, until this Court is presented with the opportunity to revisit either its holding disallowing punitive damages for medical monitoring or its holding allowing punitive damages for intentional infliction of emotional distress, the availability of punitive damages remains uncertain and creates much confusion for members of the bench and the bar alike.
Where a jury verdict encompasses damages for intentional infliction of emotional distress, absent physical trauma, as well as for punitive damages, it is incumbent upon the circuit court to review such jury verdicts closely and to determine whether all or a portion of the damages awarded by the jury for intentional infliction of emotional distress are duplicative of punitive damages such that some or all of an award for punitive damages would constitute an impermissible double recovery. If the circuit court determines that an impermissible double recovery has been awarded, it shall be the court's responsibility to correct the verdict.
Syl. pt. 15, Tudor, 203 W. Va. 111, 506 S.E.2d 554. A similar standard should be implemented in medical monitoring cases insofar as an award of medical monitoring damages has been observed to inherently contain a deterrence component: '[T]here is a deterrence value in recognizing medical surveillance claims-allowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals by defendants.' Bower, 206 W. Va. at 140, 522 S.E.2d at 431 (quoting Potter, 6 Cal. 4th at 1008, 25 Cal. Rptr. 2d at 579, 863 P.2d at 824) (additional internal quotations and citations omitted). Such reviews for mitigating factors and duplicity would ensure that a plaintiff will not receive an improper double recover of punitive damages for medical monitoring.
I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times[.][ (See footnote 9)]
(Footnote added). Recognition of the right to recover punitive damages for medical monitoring appreciates advances in law, medicine, environmental science, and other fields that enable a plaintiff who has been wrongfully exposed to toxic substances to receive appropriate medical care and to hold the offending defendant accountable for his/her injuries.
While I also am not an advocate for frequent changes in laws, (See footnote 10) I am an advocate for changes in the law that are legally correct and that are supported by the facts and law of a case. In this case, it is inequitable to deny Ms. Perrine and the other Plaintiffs an award of punitive damages for DuPont's egregious conduct that necessitates medical monitoring where both the facts and the applicable law support such an award. Because the majority of the Court has determined otherwise, I respectfully dissent.