Wanda Sue Bower, Patricia E. Hawkins, Bobbie Jo Hardesty, Tom Jay Hardesty, Kent Norman Huffman, and Brenda Kay…

Summary

On certification from the United States District Court for the Northern District of West Virginia, the Supreme Court of Appeals of West Virginia, after reformulating the question, held that West Virginia law recognizes a cause of action for recovery of future medical monitoring costs where such expenses are necessary and reasonably certain to be incurred as the proximate result of a defendant's tortious conduct, even though the plaintiff exhibits no present physical injury or symptoms of disease. Substantially adopting the Third Circuit's medical-monitoring test but eliminating the requirement that monitoring be tied to a proven treatment protocol, the court announced six elements for the claim and declined to confine remedies to court-administered funds. The certified question was answered in the affirmative and the case dismissed from the Court's docket. Justice Maynard dissented, contending that the majority usurped the Legislature's exclusive power to create causes of action and replaced the present-injury requirement with a speculative 'increased risk' standard.