CHARLESTON – A federal judge has dismissed a proposed class action lawsuit alleging Union Carbide’s South Charleston plant released a cancer-causing emission.
In an opinion and order released May 13, U.S. District Judge Joseph Goodwin said the plaintiff lacks standing to bring the claim in federal court and fails to meet ripeness requirements.
Lee Ann Sommerville filed the potential class action in 2019, alleging Carbide released emissions of ethylene oxide and significantly increased the risk of developing cancer for potential class members who lived in neighborhoods near the plant.
Goodwin
| File photo
In 2020, Goodwin granted in part Carbide’s motion to dismiss, leaving only a medical monitoring claim and adding eight new defendants. All defendants other than Carbide and Covestro have since been dismissed from the case.
Ethylene Oxide, also known as EtO, is a colorless, odorless gas that can cause certain cancers of white blood cells, such as non-Hodgkin lymphoma, myeloma and lymphocytic leukemia. EtO primarily enters the environment by release into the air.
The plaintiffs claim Carbide is the world’s leading producer of EtO, and they say the South Charleston plant is one of the only facilities in the nation that manufactures it. Carbide began operating the plant in 1978, and Covestro took over in 2015.
In the 27-page opinion and order, Goodwin details the history of the case, the history of medical monitoring and medical monitoring in West Virginia before diving into the legal arguments of the case.
“I have previously expressed my skepticism about the viability of medical monitoring as a tort in light of (the U.S. Constitution’s) Article III’s justiciability doctrines,” Goodwin wrote. “However, this is the first instance in which a party in my court has raised a justiciability issue in a toxic exposure medical monitoring claim.”
Goodwin says the justiciability doctrines “assure that the functional requisites of adjudication are met,” “conserve judicial resources by excluding cases unsuitable for judicial decision-making” and “also allocate power between the branches of the government to maintain structural integrity outlined in the Constitution.”
He says that means a plaintiff seeking to bring a medical monitoring claim under West Virginia law in federal court must prove the elements required by state law as well as satisfy Article III’s requirements.
Goodwin also notes most appeals courts that have discussed the viability of medical monitoring have done so without an in-depth analysis or discussion of Article III standing.
To establish Article III standing, Goodwin says a plaintiff must show that he suffered an injury in fact that is both concrete and particularized as well as either actual or imminent and that the injury was likely caused by the defendant and is easily redressable by judicial relief. He says that is to ensure the judiciary doesn’t usurp the role of the legislative and executive branches.
“Regrettably, growing challenges to the executive and legislative branches of our government are resulting in the forced resolution of policy issues through litigation in the judicial arena,” Goodwin wrote.
Goodwin also says he disagrees with some courts treating injury-in-fact as “an elastic concept” that courts “may construe broadly.” He also notes that most states that acknowledge medical monitoring as an independent tort require the plaintiff demonstrate a present injury or illness, adding that a 2021 U.S. Supreme Court ruling in TransUnion v. Ramirez “makes clear to me that claims for medical monitoring seeking damages without a manifest injury do not satisfy the injury-in-fact requirement for Article III standing.”
West Virginia law says a plaintiff with a medical monitoring claim can seek damages if there is a significantly increased risk of injury with the lack of exposure.
“Here, plaintiff seeks monetary damages based on the premise that because defendants emit EtO into the air and she, in turn, breathes that air, defendants have put her and proposed class members at a higher risk of eventually getting cancer,” Goodwin wrote. “Plaintiff relies entirely upon expert opinions to prove her alleged increased risk of cancer development due to the alleged EtO emissions.
“But expert opinions are just that – opinions, not facts.”
Noting the court’s role as a gatekeeper, Goodwin also says he excluded the plaintiffs’ emissions expert because he used “patently unreliable data and methods in creating the air model used to determine the alleged estimated EtO emissions.”
“Plaintiff has failed to provide any evidence of present injury beyond the speculative increase of risk,” Goodwin wrote. “She cannot even accurately demonstrate the level of exposure for each proposed class member.
“And despite the prolonged period of potential alleged exposure at issue in this case – 41 years – plaintiff never claims that she or any proposed class member have experienced symptoms of a disease let alone that any individual has actually developed cancer.
“She cannot prove that she or any class member will get cancer or that it’s even more likely than not. Rather, her claim is based entirely on the unsubstantiated possibility of future cancer diagnoses.”
Goodwin also disputes the concreteness of the claim, saying it is undermined by a “vague risk quantification standard” based on the 1999 West Virginia Supreme Court ruling Bower v. Westinghouse.
“Under West Virginia law, the injury in a medical monitoring cause of action is the significant increased risk of future disease,” Goodwin wrote. “But what constitutes significance in this context? The Bower court offers little guidance on that standard, merely stating that ‘no particular level of quantification is necessary to satisfy this requirement.’
“However, by requiring the increase in risk be significant, the Bower court is, indeed, requiring that plaintiffs meet a certain threshold – which does, in fact, require quantification of risk – without concretely establishing what that threshold is in quantifiable terms.”
Goodwin says the plaintiff tried to use a federal appeals court adoption of an Environmental Protection Agency one-in-a-million standard in a 1995 ruling, even though he says the Third Circuit itself was skeptical of that basis of standard in that ruling.
“I, too, am dubious of this standard and I am unwilling to assume it has a rational basis,” Goodwin wrote. “In nearly every other context, a one-in-a-million risk is seen as a statistical anomaly, not ‘significant.’
“For instance, if a doctor tells a patient that he has a one-in-a-million risk of severe complications from a surgery, that risk is not cast as significant but rather the opposite. How, then is a one-in-a-million increase in risk in contracting certain cancers considered significant?
“Unlike the Third Circuit, I choose not to treat deference principles as ‘synonymous with a rubber stamp.’ … However, I also recognize that courts should not ‘put themselves in the business of assessing what constitutes an acceptable amount of increased risk for actual or concrete injury.’”
He says when forcing parties to quantify such increased risk, courts are forced to decide the acceptable amount of increased risk.
“The result is often an arbitrary – or, in this case, ambiguous – threshold that undermines the concreteness of a plaintiff’s alleged injury,” Goodwin wrote.
Finally, Goodwin addresses the ripeness of the case, saying it stands at odds with the state’s medical monitoring laws.
“The core of the ripeness doctrine is ensuring that the issues before the court are definite and concrete, not contingent or hypothetical,” Goodwin wrote. “For a case to be ripe, the event must be likely to occur with its effects felt in a concrete way. The more speculative or unlikely the event, the less likely the case is ripe for adjudication. …
“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, I do not find that case fit for adjudication. That is precisely what plaintiff claims here. …
“Rather, this entire suit rests on the notion that a theoretical level of exposure could place one at a higher risk to maybe develop certain cancers at some uncertain point in the future.”
In his conclusion, Goodwin says “medical monitoring involves complex decisions requiring scientific and medical judgments” that “should not be left to the courts.”
He cited former West Virginia Supreme Court Justice Spike Maynard’s dissent in the Bower case when he said the majority had “exceeded its legitimate (judicial) powers and usurped the function of the Legislature” because lawmakers have “the right to create new causes of action for the recovery of money.”
Goodwin also cited former state Supreme Court Justice Menis Ketchum in his 2010 partial dissent in Perrine v. E.I du Pont de Nemours & Co. when he said that before Bower, West Virginia law did not provide a cause of action “for the mere possibility of future harm, not yet realized.”
“He (Ketchum) then warned that ‘medical monitoring class action lawsuits will continue to mount if plaintiffs who are not sick or injured are allowed to pursue benefits for the mere possibility of future harm’ and called on the West Virginia Supreme Court of Appeals to modify its law,” Goodwin wrote. “Specifically, he states that plaintiffs should be required to ‘prove a present physical injury (or present disease) caused by the manufacturer or business’ so as to ‘provide a clear standard as to when a plaintiff has a meritorious cause of action,’ thereby ‘eliminating damages for a mere possible future harm.’ …
“I note that the concerns of Justice Maynard and Justice Ketchum reflect state separation of powers and deal primarily with issues of policy in state government. These same concerns, when applied to federal courts, affect justifiability.”
Goodwin also says he is concerned by the “malignant” belief that courts are the solution to all problems recognized by 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,” Goodwin wrote.
In his final footnote, Goodwin says he would have granted summary judgment for the defendants if he had to proceed on the merits of the action, adding the plaintiff failed to meet the first element of the medical monitoring tort as outlined in Bower.
U.S. District Court for the Southern District of West Virginia case number 2:19-cv-00878