No evidence found to document an un-injury

By The West Virginia Record | Dec 9, 2011

It's fair to expect a company to compensate a person injured by its products –- assuming, of course, that injury and liability can be proven.

It's unfair to expect a company to compensate a person not injured by its products -– or to finance that person's ongoing efforts to discover compensable injuries.

But that's what medical monitoring is mostly about: paying for a prospective plaintiff's quest to detect some future ailment that might be made remunerative. Only a handful of states permit this illogical extension of the law. Ours is one of them.

In West Virginia, businesses can be required by the court to fund the fishing expeditions of plaintiffs attorneys by paying for the medical monitoring of uninjured persons. The theory is that someday the uninjured might be harmed by some product aftermath.

Companies subjected to this burden are presumed guilty and held potentially liable for an injury yet to be identified. Denied the Fifth Amendment protection against self-incrimination, they're compelled to finance a bureaucratic process designed to produce evidence against them at some future date.

Constitutional quibbling aside, medical monitoring is an appealing show-me-the-money scheme for some personal injury lawyers. Or perhaps they should be called personal un-injury lawyers.

Perhaps hoping to become a trailblazer in the field of un-injury, attorney Kevin Thompson sued the Colane Company in 2004 on behalf of clients who had not been injured by something Colane had not done. Thompson sought medical monitoring of all students, teachers, etc. who had attended or worked at Omar Elementary School in Chauncey since 1964. He argued that Colane might have contaminated the grounds at some prior time and that Omar alumni might contract illnesses at some point in the future.

But Thompson's dream wasn't to be. This past November, our Supreme Court of Appeals affirmed a lower court ruling rejecting contamination claims against Colane, et al., concluding that Thompson's expert witnesses failed "to identify any chemical or contaminant ever discarded upon the subject property at any time in the past."

Fortunately, the bad idea of medical monitoring failed the common sense smell test.

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