Bower v. Westinghouse Elec. Corp
In Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), the Court rejected the contention that a claim for medical monitoring costs must rest upon the existence of present and proven physical harm.
To the contrary, "the 'injury' that underlies a claim for medical monitoring - just as with any other cause of action sounding in tort - is 'the invasion of any legally protected interest.'" 206 W.Va. at 139, 522 S.E.2d at 430.
For a plaintiff to obtain relief under Bower, the plaintiff must only show "that the plaintiff has a significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure." 206 W.Va. at 142, 522 S.E.2d at 433.
Once that has been proven, the plaintiff must then show that "medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease . . . even if the disease it is intended to diagnose is not reasonably certain to occur." 206 W.Va. at 140, 522 S.E.2d at 431 .
The Court stated:
In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that:
(1) he or she has, relative to the general population, 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, plaintiff has suffered an increased risk of contracting a serious latent disease;
(5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations 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.
The West Virginia Supreme Court of Appeals stated that:
A plaintiff asserting a claim for medical monitoring costs is not required to prove present physical harm resulting from tortious exposure to toxic substances.