Would Vermont's toxic exposure testing bill make it an outlier?

A multi-year debate over Vermonters’ right to medical monitoring, supported by environmental advocates and loathed by industry, bubbled to the surface during a recent House debate.

Under tort law, people who sue traditionally need to show proof of an injury to be awarded damages. Starting in the 1980s, some courts in the U.S. began awarding plaintiffs exposed to hazardous substances payment for diagnostic tests and other procedures for early detection of diseases they face an increased risk of developing due to exposure. Those cases are referred to as "medical monitoring" claims. 

Bennington’s two senators, Democrats Dick Sears and Brian Campion, had sponsored a bill, S.37, in response to the contamination of private wells around Bennington with PFOA from the ChemFab plant in town. 

Under S.37, Vermonters without a disease would have a "cause of action" to sue a company that exposed them to toxic substances through wrongful conduct for medical monitoring costs. Before awarding medical monitoring, a court would have to find that the exposure increases the risk of developing a disease. A medical expert would also have to deem that diagnostic testing beyond normal medical checkups to be reasonably necessary.

Only businesses of 10 or more employees — or of 500 or more employees at multiple facilities — in the mining, manufacturing, transportation and utility sectors could be sued for medical monitoring costs under S.37. 

The state discovered the Bennington area contamination in 2016. The Department of Health offered Bennington area residents testing for PFOA levels in their blood. 

PFOA is one of the most toxic chemicals of the man-made PFAS chemicals. PFAS, which stands for per- and polyfluoroalkyl substances, do not break down in the environment and are used in a wide array of manufactured products, from rain jackets to cookware to firefighting foam. Scientists now know that exposure to certain PFAS chemicals can lead to cancer, thyroid disease, immune system damages, developmental problems in children and low birth weight.Proponents of the medical monitoring bill argue that companies that release toxic pollutants -- not the state or exposed individuals -- should have to pay for that medical testing. 

A similar proposal was vetoed last year by Gov. Phil Scott, who said it created an "unprecedented" level of liability for Vermont businesses.

During a House floor debate on the bill last week, Rep. Scott Beck, R-St. Johnsbury, introduced an amendment to S.37 favored by industry representatives that sets more stringent criteria for people in an exposed area to receive medical monitoring. 

Multiple lawmakers rose to speak in favor of the amendment. Rep. Heidi Scheuermann, R-Stowe, said representatives from the manufacturing industry "came to Montpelier this year" with the intent of supporting medical monitoring legislation. 

"They understand the importance (of medical monitoring)," she said on the House floor last Thursday, referring to industry. "It’s clear, though, that they want to do it in a way that is consistent with other states and S.37 just isn’t."

Sen. Brian Collamore, R-Rutland, and Sen. Bobby Starr, D-Essex-Orleans, echoed similar concerns during Senate floor debate on the bill this week. 

The bill passed both the House and the Senate, but is unlikely to get the governor's signature.

So we were wondering, if S.37 becomes law, would Vermont be an outlier compared to the rest of the country?

In an interview Wednesday, Scheuermann said that her statement came from concerns expressed by industry representatives and lobbyists. In particular, they felt the so-called "test" for medical monitoring in S.37 was too lenient and would impact their ability to obtain insurance, she said. 

"GlobalFoundries testified, the Vermont Chamber of Commerce testified, (Associated Industries of Vermont) testified, all pointing out the specifics of how it is out of line with other states and what that impact could be to manufacturers in our state and their ability to obtain liability insurance," she said. 

Scheuermann also directed VTDigger to a state-by-state comparison of medical monitoring from Jill Rickard, director of policy at the state Department of Financial Regulation. 

In Rickard’s comparison, five of the six states and territories referenced — Guam, West Virginia, Maryland, Pennsylvania and Florida — require plaintiffs demonstrate either significant exposure to a toxic substance or exposure greater than background levels. Courts in Guam, Florida and Pennsylvania all say that the plaintiff must have a "significantly" increased risk of contracting a "serious" latent disease.

Beck’s amendment would have required exposure to a toxic substance be "significant." It also would have changed "greater risk of contracting a latent disease" to a "significantly increased risk of contracting a serious latent disease."

The argument between industry representative and environmental advocates on the latest version centers on whether or not to include those adjectives in the medical monitoring test in S.37. 

There is little disagreement that if S.37 is signed by Gov. Phil Scott, Vermont would be the first state in the country to put the right to sue for medical monitoring into state law, and not leave the decision only to a court. So far, courts in 16 states have recognized medical monitoring claims, while 13 states have denied those claims, arguing a medical condition must arise first, according to a white paper by Ken Rumelt, a professor at Vermont Law School. 

This week, 38 industry associations around the state sent a letter to senators, urging them to vote against the bill. 

"The major flaw with this legislation is that it is not consistent with what courts in other states have held regarding medical monitoring claims," the groups wrote in the letter. "This will increase operational risks and costs for a wide range of Vermont employers, and make Vermont an outlier even compared to other states that have recognized this as a remedy for plaintiffs."

State and federal courts in nine jurisdictions include the requirement that the plaintiff show they are at a "significantly increased risk" of developing a "serious" disease, according to a handout from an industry lobbyist. And courts in seven jurisdictions require the plaintiff to show that exposure was either "significant" or "above background levels." 

But proponents of the bill argue that the test for medical monitoring in S.37 is not that different than in other jurisdictions.

"Despite what you have heard, the test for medical monitoring in S.37 is not materially different than the test that exists in other states," wrote Jon Groveman, policy and water program director for Vermont Natural Resources Council, and Ken Rumelt, senior attorney at Vermont Law School, in testimony at the end of April. 

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They go on to write that, in some ways, the bill would set "more stringent" conditions for medical monitoring claims than other states. For example, no other states have limited medical monitoring claims to large facilities or specific industries like in S.37.

Groveman and Rumelt also reference a case pending in federal court brought by Bennington residents exposed to PFOA seeking medical monitoring costs, among other damages. Judge Geoffrey Crawford issued a preliminary ruling in the ongoing Bennington case that lays out a less strict test than in S.37, they say. 

In a white paper he prepared for Vermont Natural Resources Council and VPIRG, Rumelt describes the "high bar" plaintiffs must prove to qualify for medical monitoring from West Virginia’s Bower case. Under that eight-part test, plaintiffs must show they’ve been "significantly exposed" to a proven hazardous substance, putting them at an increased risk for developing a "serious latent disease." 

"I think it’s, to a large degree, equivalent to the Bower’s test," Rumelt said of S.37.  

In the Bower case, "significant exposure" is defined as the plaintiff being exposed to a hazardous substance. 

Rumelt and other proponents of the bill say that the requirement in S.37 that a physician has to testify that a plaintiff’s exposure would make additional testing beyond what is generally prescribed "reasonably necessary" speaks to the significance of exposure and seriousness of disease. 

In an email, Groveman listed tests for medical monitoring in some of the states where courts have allowed it. California does require a plaintiff to show the "significance and extent of exposure" and the "seriousness of diseases for which the plaintiff is at an increased risk," but  does not require the plaintiff to show that he or she is at a seriously increased risk. 

In Utah, the plaintiff must show that exposure puts them at risk of developing a "serious disease, illness or injury" but not that there was significant exposure or a significantly increased risk. In Missouri, there is not a list of elements, but the court allowed a claim when a plaintiff has a "significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure." 

And in New York, courts are all over the map in whether or not they recognize medical monitoring claims.

In a class action case ruling involving the National Hockey League Players’ Concussion Injury Litigation, the U.S. District Court of Minnesota reviewed medical monitoring common law throughout the country. The plaintiffs had sought to group together 28 jurisdictions that they claim allow medical monitoring.

"Plaintiffs’ grouping theory cannot be used to sidestep the widespread divergence among the states in the requirements for medical monitoring," Judge Susan Richard Nelson writes. 

In her conclusion, Nelson cites "widespread differences in the applicable state laws governing medical monitoring" as a reason not to grant class certification to the plaintiffs. 

Rep. Heidi Scheuermann said: "They understand the importance (of medical monitoring). It’s clear, though, that they want to do it in a way that is consistent with other states and S.37 just isn’t."

It's true that Vermont would be the first state in the country to actually put a right to medical monitoring in state statute.

Vermont would not be alone in allowing for medical monitoring ahead of a disease. Sixteen states have allowed for medical monitoring claims, while 13 state have rejected those claims. Some courts lay out more stringent criteria for medical monitoring tests, based on significance of exposure, extent of increased risk and seriousness of latent disease. 

However, not all courts include those qualifiers in their tests for medical monitoring. S.37 also sets limits on what types of businesses could be sued for medical monitoring in a way that other courts have not done. And a judge in a Vermont federal court has issued a preliminary ruling that could set an arguably less strict threshold for medical monitoring claims than S.37. 

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