Medical monitoring: guilty until proven innocent

By The West Virginia Record | Aug 26, 2011

Tort law, despite a variety of abuses associated with it, makes perfect sense in principle. If somebody damages your person or property, that someone should be required to make restitution for the harm done.

Granted, the extent of the damage and the identity of the responsible party may be disputed, but sorting that out is what courts are expected to do.

Granted, further, that some plaintiffs exaggerate legitimate claims or fabricate entirely false ones, and that plaintiff-friendly judges and juries in certain local jurisdictions sometimes validate those inflated or fraudulent claims.

Nevertheless, the system is reasonably sound, reasonably fair, reasonably predictable.

But adding medical monitoring to the courthouse mix is like using the jokers in a deck of playing cards. It's a game-changer.

Ordinarily, the settlement of tort cases results in damage awards to people who have been demonstrably injured. Medical monitoring, in effect, awards damages to people who have not been injured.

The rationale for medical monitoring is that it protects people who have been exposed to some perceived threat and while unharmed presently, may at some point in the future suffer injury from it.

This is not fair. If a defendant company foots the bill for medical monitoring for decades and no injury is suffered, does the defendant then get its money back? Afraid not.

Why should a defendant agree to pay damages for alleged present and future injuries and then be forced to pay for medical monitoring on top of that? If further injury develops over time, isn't that covered by the damages already paid?

This is the predicament in which DuPont has been placed, thanks to a recent decision by Harrison Circuit Judge Thomas Bedell who has ordered medical monitoring in a case involving residents of Spelter who want restitution for both current and future possible injuries allegedly caused by pollution from a defunct smelting operation.

Whatever happened to "innocent until proven guilty" and the prohibitions against self-incrimination and double jeopardy? Does medical monitoring override our Constitutionally-guaranteed rights? Will more government workers and taxpayer dollars be needed to monitor the courthouse monitoring?

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