SB7 HFA Lovejoy and Fast 3-10

Altizer - 3259

            Delegates Lovejoy and Fast move to amend Com Sub for SB7 on page 1, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-32. Limitations on medical monitoring damages.

(a) In any civil action where a plaintiff who does not allege a present physical injury or disease seeks to recover future medical monitoring costs as damages, a defendant cannot be required to pay as damages or provide any other type of legal, injunctive or equitable relief for a plaintiff’s future medical surveillance, screening tests or monitoring procedures unless the plaintiff proves to a reasonable degree of certainty all of the requirements for the underlying cause of action and that: 

(1) He or she has been significantly exposed; 

(2) To a proven hazardous substance; 

(3) Through the tortious conduct of the defendant;

(4) As a proximate result of the exposure, the plaintiff has suffered a significantly increased risk of contracting a serious latent disease relative to the general population of more than one hundred percent; 

(5) The increased risk of disease makes it objectively medically necessary for the plaintiff to undergo periodic diagnostic medical examinations and such periodic diagnostic medical examinations are different from what would be prescribed in the absence of the exposure;

(6) Monitoring procedures exist that make the early detection of a disease possible; and

(7) Early detection is beneficial, meaning that a treatment exists that can significantly decrease the risk of death or the severity of the disease, according to contemporary scientific principles.

(b) A claim under this section may be brought by a Plaintiff after birth based on a prenatal exposure, regardless of whether the prenatal exposure occurred prior to fetal viability, if the Plaintiff otherwise meets the requirements of this section.      

(c) In any civil action in which a court orders a defendant to pay for a plaintiff’s future medical surveillance, screening tests or monitoring procedures in the absence of a present physical injury or disease. With respect to payments for such damages in the future, the court shall order that the liable defendant make periodic payments into a fund established sufficient to timely pay the cost of future medical surveillance, screening tests or monitoring procedures that are required by the judgment of the court. The court shall determine how such fund will be administered. The court shall also determine the date after which such future medical surveillance, screening tests or monitoring procedures are no longer required, and, after that date, any moneys remaining in the fund that are not needed to pay for medical surveillance, screening tests or monitoring procedures completed prior to such termination date shall be repaid to the liable defendant who paid such amounts into the fund. If there are multiple such defendants, then repayments shall be made in proportion to the total contributions of each defendant into the fund.

(d) The damage award authorized by this section is not available in a civil action brought against an employer pursuant to paragraph (B), subdivision (2), subsection (d), section two, article four, chapter twenty-three of this code.

(e) No award of punitive damages shall be made with respect to damages awarded under this section.

(f) It is a defense to the award of damages authorized in this section that the benefits of medically monitoring the exposed population are outweighed by the costs of the monitoring. In making this determination, the finder of fact may consider:

(1) The number of people likely to benefit from the monitoring in relation to the population to be monitored;

(2) Whether early diagnosis of the latent disease is likely to lead to a better treatment outcome;

(3) Whether treatment currently exists for the disease that is the subject of medical monitoring or whether the condition diagnosed is an irreversible and untreatable disease; and 

(4) Whether the assets of the defendant are limited such that the available funds should be reserved to compensate those who have or subsequently develop injury.

(g) Notwithstanding any provision of this code to the contrary, the venue for any civil action brought pursuant to the provisions of this section shall lie in the county where the significant exposure allegedly occurred.

(h) In any action brought pursuant to this section the plaintiff shall serve with the complaint a verified statement from a person or persons who would qualify as an expert under Rule 703 of the West Virginia Rules of Evidence setting forth opinions that the plaintiff’s claims satisfy the elements set forth in subsection (a)(1) through (a)(7) of this section”.

Adopted

Rejected