MONTGOMERY
The question of whether polluters can be sued for medical monitoring expenses in Alabama will soon be decided by the Alabama Supreme Court.
Anniston PCB litigants asked the state Supreme Court Wednesday to allow them to sue Monsanto to obtain long-term medical monitoring. The monitoring is intended to provide early detection of diseases caused by the company's toxic chemicals.
Currently, there is no statute in Alabama allowing litigants to sue for medical injuries that have already not manifested in symptoms or disease. Exposure to toxic chemicals, however, has been linked to latent health effects.
On the recommendation of U.S. District Judge Robert Probst, who is the judge in the Travis Hinton vs. Monsanto case, attorneys in that federal case have asked the state Supreme Court to rule on the state question. A Supreme Court hearing was held Wednesday morning.
The Supreme Court does not have a formal deadline for answering the question. Its decision can be challenged in U.S. appellate court.
Attorney Bob Roden, of Birmingham, told the nine state Supreme Court justices that his clients have dire need of monitoring because of continuing PCB exposures in Anniston.
"One of them is being told by the Environmental Protection Agency not to let her child go out and play," he said.
Monsanto attorneys and the Alabama Medical Association attorney told the justices that medical monitoring is a "legal fiction" that violates medical principles and the traditional legal requirement is to prove injury first.
Several Anniston physicians have taken the opposite position. They filed a legal brief with the state Supreme Court several months ago, arguing that Monsanto should have to pay the medical screening costs of people in Anniston who carry abnormally high levels of PCBs in their blood and who may face an increased risk of cancer, liver diseases and other ailments.
"For 200 years, this (Alabama) court has required an injury," said Warren Lightfoot, Monsanto's attorney.
"All of us are exposed to hazardous chemicals every day," Lightfoot said.
The justices asked the attorneys if they believe a significant exposure to a hazardous chemical equates to an injury, even if the symptoms of physical injury occur years later.
Roden said his clients' current injury is an economic one, because of the expense of PCB tests. "The need for medical monitoring is now," he said.
The justices also asked the attorneys to comment on the general implications of allowing individuals to sue for medical monitoring. Justice Tom Woodall asked if, for example, a person who was exposed to germs in a hospital ward could then sue for damages.
Stan Starnes, attorney for the Alabama Medical Association said a favorable ruling would "ultimately victimize physicians" who commonly prescribe medicines with "long lists" of side effects. Starnes said medical monitoring should only be allowable as a method of recovery for existing injury. "You can't have wrongful conduct in a vacuum," he said.
Lightfoot said medical monitoring could bankrupt manufacturers.
Donald Stewart, an Anniston lawyer representing another group of PCB plaintiffs, told the justices that Monsanto conducted medical monitoring on its own workers as early as the 1930s. "We are only asking for the same thing that Monsanto has given to its own employees," he said.
Nationally, 20 state courts have allowed medical monitoring as a remedy or a cause for legal action, but others have denied it, citing a potential flood of litigation.
The first U.S. court-approved case of medical monitoring was handed down in 1984 in a Washington D.C. circuit court. Vietnamese children who survived an airline crash received funding for medical tests, due to the increased risk they faced for brain damage.
In at least two cities, the U.S. government has conducted medical monitoring of populations exposed to radioactive material and heavy metals.
