In a precedent-setting decision, a federal judge has ruled for the first time in Vermont that medical monitoring for industrial pollutants is allowed as a legal remedy.
One Democratic lawmaker says the decision will provide more heft to efforts to overturn the governor’s veto last session of a bill that would expand legal remedies for those exposed to potentially harmful toxins.
A group of Bennington residents filed a lawsuit in 2016 alleging that emissions from the ChemFab plants in town had polluted their drinking water wells with perfluorooctanoic acid, or “PFOA.” Last summer, U.S. District Court Judge Geoffrey Crawford Crawford granted the group’s request to expand the lawsuit into a class action involving other residents impacted by the contamination.
Crawford ruled Friday that Bennington residents will be allowed to seek diagnostic testing for diseases linked to PFOA exposure at trial. If that effort is successful, Saint-Gobain Performance Plastics, the owner of the former Teflon coating plant, would have to pay for the monitoring.
Emily Joselson, an attorney for Langrock Sperry and Wool representing the plaintiffs, said Crawford’s decision was “great” for residents in Bennington and North Bennington who consumed contaminated water.
“But it’s also an important decision for the people in Vermont, in general, going forward if anyone else finds themselves in a similar situation,” she said.
People who sue typically need to show proof of harm 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 related diseases. Those cases are referred to as “medical monitoring” claims.
To date, no court in Vermont had ruled on whether medical monitoring is allowed as a remedy. Crawford wrote that the choice between allowing or excluding medical monitoring comes down to the “competing values” of possible economic impacts on companies versus the “potential saving of lives which may be achieved through early detection and treatment.”
Crawford said he will permit the Bennington plaintiffs to seek medical monitoring at trial because the PFOA contamination is similar to cases in other states in which a clearly defined class of exposed people have been awarded medical monitoring remedies.
Dina Pokedoff, senior communications manager for Saint-Gobain, said that the company was aware of the decision and is evaluating next steps.
Sen. Dick Sears, D-Bennington, referred to the decision in an interview Monday as a “victory for the people who were impacted by PFOA down in Bennington.”
The Senate judiciary chair added that he hopes Crawford’s decision will make Gov. Phil Scott rethink his opposition to the medical monitoring bill Democrats have been seeking to pass for the last two years.
Sears said passing medical monitoring into law would provide more clarity for Vermonters and businesses than the court’s decision alone because it contains exemptions for smaller businesses and farmers. Also, Crawford’s decision to allow medical monitoring as a remedy is subject to legal appeals.
Last year, the governor supported an amendment to the bill proposed by Rep. Scott Beck, R-St. Johnsbury, that set stricter limits for people in an exposed area who could claim medical monitoring. Environmental advocates claimed the Beck amendment put up too many hurdles for people exposed to toxic substances.
Sears said he and other lawmakers had been talking with the Scott administration about crafting a bill for next session that would be somewhere in between the Beck amendment and the current version of the bill.
“I think in light of this decision, it’s more important that we just move on with S.37 and pass it,” he said Monday.
Joselson said Crawford still has to rule on the defendants’ motion for summary judgement on the issue of reduced property values. The parties have a settlement conference next month. Depending on the outcome of settlement discussions, the case could move to trial later next year.
