Medical Monitoring

Pending in the West Virginia Supreme Court is duPont's appeal from a large jury verdict and medical monitoring award in a case tried in Clarksburg, Perrine v. duPont, argued on April 7, 2009. Perrine is a class action for plaintiffs exposed to emissions from a zinc smelter. Multiple issues are before the Court, including duPont's challenge to the verdict based upon error at trial, the medical monitoring plan and the punitive damage award. The briefs are available on the Court's excellent web site at http://www.state.wv.us/wvsca/calendar/april7_09ad.htm.

An interesting snd important issue in the case is the inclusion of regular CT scanning for detection of lung cancer which is part of the medical monitoring plan submitted by the plaintiffs and adopted by the trial court. This presents a really important and interesting discussion which brings into focus the role of courts in getting into the nitty gritty of future medical monitoring.

The West Virginia State Medical Association filed an amicus brief asking the Court to eliminate the CT scans as part of the medical monitoring program, arguing there is no basis to perform CT scans on asymptomatic patients and the danger of radiation to individual patients outweighs any minimal benefit of early detection. http://www.state.wv.us/wvsca/briefs/march09/34334WVMedical.pdf

Plaintiffs challenge this argument and respond that the WVSMA is relying on outdated and innacurate literature, that CT scans are a valuable tool for early detection, and available under the plan only if ordered by a physician. http://www.state.wv.us/wvsca/briefs/march09/34334ResponseWVMedical.pdf

These briefs - both really well done, by the way - spar on the efficacy and desirability of regular CT scanning, what the literature says, what the experts said, and whether the trial court's decision should be upheld.

To me, this case raises the important public policy issue of whether, when and how a court, bound by the record made in an adversary proceeding, can appropriately consider, order and implement a medical monitoring program based on a consensus in the medical and scientific community. Are dueling experts really the best way to determine how to protect plaintiffs' health, and are courts the best place to do this? At a cost of $130M (according to duPont's brief) will this program really protect the plaintiffs? This is food for thought.