Day on Torts
This is not a new opinion, but I came across it recently and thought it was worthy of mentioning here. It sets forth the elements that must be proved in a medical monitoring case under West Virginia law. The plaintiff must prove that:
“(1) he or she has 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 relative to the general population; (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; and (6) monitoring procedures exist that make the early detection of a disease possible.”
Remember that the Sixth Circuit Court of Appeals recently held that Tennessee would recognize a cause of action of medical monitoring. Read my post about the case here.