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House Judiciary hears testimony on Westinghouse case

by Shawn Gainer

STAFF WRITER

CHARLESTON -- In a public hearing conducted by the House Judiciary Committee Tuesday, members heard testimony about a state Supreme Court decision which could cause Westinghouse to pay for medical monitoring for people who were exposed to hazardous materials at the Phillips Lighting plant in Fairmont.

The public hearing may have been a first step in a Legislative effort to change or overturn the ruling, though Judiciary Chairman Rick Staton, D-Wyoming, said the committee is not currently working on a bill related to the case.

The Bower v. Westinghouse decision was handed down in July 1999. In the ruling, the Supreme Court determined that plaintiffs who believe they are at risk of illness from waste at the plant site may go to court to have Westinghouse pay for medical tests if they can meet a list of six criteria: Significant exposure, that the exposure was to a proven hazardous substance, the exposure was the fault of the defendant, that the plaintiff has developed an increased risk of latent disease relative to the general population, that the risk of disease makes it reasonably necessary for the plaintiff to undergo periodic medical examinations not necessary for those who were not exposed, and that methods of detecting a disease which could result from the exposure exist.

Attorneys, citizen activists, labor groups and lobbyists for business groups presented starkly different views of what the decision means for the state. Supporters of the decision said the six criteria will prevent frivolous suits and testing those who were exposed to hazardous waste ultimately benefits all parties. Industry lobbyists said the decision could open a Pandora's Box of lawsuits and sound the death knell for economic development in West Virginia.

Kenny Perdue, secretary-treasurer of the W.Va. AFL-CIO, spoke in favor of the decision, saying that those who were exposed to a two-acre pile of waste containing hazardous materials such as lead, arsenic and PCBs should be able to "have their day in court."

"We don't want a whole world of lawsuits but the six criteria for burden of proof are extremely strong," Perdue said. "We adamantly support this ruling."

Consumer Attorney Vincent Trevelli said that industry lobbyists were exaggerating the potential effects of the ruling.

"Tort reform attorneys have characterized this as a `name your injury' lawsuit," Trevelli said. "Nobody has won anything. They have to return to lower courts and prove their cases."

Trevelli also said Westinghouse did not contest in court that the two-acre pile contained 30 known hazardous substances.

Several industry group representatives, lobbyists and attorneys attacked the decision as a lawmaking by the courts and a serious blow to the state's economy.

"There is no assurance in the decision that award money will be spent on medical monitoring," said Steve Roberts of the West Virginia Chamber of Commerce. "The term `hazardous substance' is so broad it makes everyone vulnerable. It could even apply to smoke from a Bar-B-Q grill. All they need to file a claim is `increased risk' of future illness, not an existing illness."

Karen Price, president of the West Virginia Manufacturer's Association, told committee members businesses are already beleaguered by strict environmental standards and high workers compensation premiums and will be severely hurt if the decision is left to stand.

"The Supreme Court decision has already hurt our ability to bring investment to the state. This gives a blank check to people who want to start lawsuits," Price said. "I'll cut right to the chase. Ask your constituents what their number one concern is. They'll tell you it's jobs. Good jobs."

Attorneys also gave vastly different interpretations of the ruling. Al Ramey of the Charleston firm Jackson and Kelley said the decision was a "dramatic departure" from standard injury law and a violation of legislative prerogatives. Ramey also said the six criteria are "not stringent at all" because terms such as "significant exposure" could be defined in many ways. Trevelli defended the decision, saying it is traditional for U.S. and English courts to "develop common law over time."

The legal terms will be an issue for Legislators if they draft a bill related to the case. Del. Arley Johnson, D-Cabell, questioned supporters and detractors of the decision in an effort to define "significant exposure."

Del. Larry Linch, D-Harrison, said he agrees with the argument that any awards resulting from cases allowed by Bower v. Westinghouse should be spent on medical testing and, if a plaintiff becomes ill from exposure to the waste, medical treatment. However, Linch added he believes claims the decision will lead to a mountain of litigation are overstated.

"Some of these people are playing the card of exaggeration," Linch said. "The criteria to receive medical monitoring are pretty stiff, a lot stiffer than what we have in the Workers' Compensation program. They're crying wolf and I'm not sure a wolf is there."

Del. A. James Manchin, D-Marion, said Tuesday he wants to study the decision before forming an opinion. Sen. Roman Prezioso, D-Marion, was unavailable for comment.

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