Attorney responds to Justice Ketchum's medical monitoring dissent

John O'Brien Apr. 7, 2010, 5:36pm



CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court Justice Menis Ketchum's forceful dissent in a $381 million case wasn't a total shock to Charleston attorney Ed Hill.

Ketchum, a Democrat and former personal injury lawyer, took the attorneys representing a class of Harrison County residents to task in voting to overturn every dollar of the 2007 award March 26. The majority cut a $196 million punitive damages award against DuPont in half but affirmed the rest.

"I know of some of his conservative views in some respects," Hill said Wednesday. "I was disappointed, but not surprised."

Ketchum wrote that he wants to either abolish or tweak the state's medical monitoring laws. DuPont is paying $130 million for medical monitoring for citizens who live near a smelter that allegedly released cadmium, arsenic and lead into the environment.

Medical monitoring claims are increasingly debated on a state-by-state basis. They are allowed in West Virginia, even if a plaintiff has not yet suffered an injury.

Ketchum wrote that the claims should at least be restricted to plaintiffs who have suffered an injury.

"We must rely on government regulation to police the emission of toxic substances, not damage lawsuits of uninjured plaintiffs," Ketchum wrote. "Damage suits by non-diseased and uninjured persons will only drive our remaining factories out of the state."

Hill said he respects Ketchum but disagrees with his views on medical monitoring.

"By the time you know you're injured, you may be on the way to your grave," Hill said. "The whole idea of medical monitoring is when you have this type of exposure, periodic medical testing may catch it early and treat it.

"Many states have something similar. Not all states have it at all. I greatly appreciate the doctrine we have in place."

The Massachusetts Supreme Court recently recognized medical monitoring as a valid claim in a case involving smokers. Critics of it, however, say medical monitoring needs to be authorized by a state's legislature, not its courts.

Ketchum said the out-of-state plaintiffs attorneys in the DuPont case will "wreak enormous economic harm" if they are allowed to.

"They will collect millions in fees and return to their out-of-state residences leaving the West Virginia economy in shambles. It reminds me of the out-of-state coal barons who raped our coal resources in the early 1900s and used the untaxed money from our coal to live opulent lifestyles in far away states.

"The lawyer fees in the DuPont case, for our new out-of-state coal barons, may be over $100 million."

Ketchum is referring to the Florida firm Levin, Papantonio, Thomas, Mitchell, Eschner & Proctor, the firm that represented Florida in tobacco litigation in the 1990s. Other out-of-state firms also worked on the case.

Attorneys were seeking $127 million, one-third of the original verdict. That amount will go down now that the punitives have been reduced.

The DuPont verdict was one of three in West Virginia in 2007 that ranked in the top seven nationally.

"I realize that the U.S. Chamber of Commerce and industry groups appreciate hearing such comments, but you've gotta appreciate this: This litigation is very complex," Hill said.

"A great amount of time and a great amount of money went into this. Most law firms in West Virginia simply can't afford to fund cases like this."

The justices remanded the case to Harrison County for a trial to determine if the suit was filed before the statute of limitations expired. Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.

From Legal Newsline: Reach John O'Brien by e-mail at

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