Advocates of a proposed law on medical monitoring hope they will be third-time lucky.
For the third time in four years, a Vermont legislative committee is taking up a bill that gives people the explicit right to sue a company for medical monitoring costs if they’ve been exposed to the company’s toxic emissions and meet certain criteria.
The Senate Judiciary Committee heard initial testimony last Wednesday on S.113, “an act relating to establishing a cause of action for medical monitoring expenses.” The two witnesses, attorneys specializing in environmental law, also appeared before the committee during previous versions of the bill in 2018 and 2019.
Both times Gov. Phil Scott vetoed the bills after they cleared the Legislature, concerned the law would scare away businesses.
With the recent success of a Vermont class-action suit that sought medical monitoring from a multinational corporation, the witnesses said this is a critical time to make it into law.
“Let's not litigate whether Vermonters can pursue the costs of medical monitoring. Let's take that one issue off the table,” said Jon Groveman, policy and water program director at the nonprofit organization Vermont Natural Resources Council. “There'll be plenty of other issues litigated as part of any of these toxic liability cases.”
A crucial section of the bill lays out the elements that people need to prove to receive medical monitoring shouldered by polluting companies: They are exposed to a proven toxic substance at a rate significantly greater than that of the general population, as a result of the company’s civilly wrongful conduct. Because of their exposure, the people are now at an increased risk of developing a serious disease.
This increased risk makes it medically necessary for them to undergo periodic medical examinations different from that of people who weren’t exposed to the toxic substance. And monitoring procedures exist that are safe and reasonably priced.
The bill and its predecessors were sponsored by Sens. Dick Sears and Brian Campion, both Democrats from Bennington. Sears chairs the Senate Judiciary Committee.
The pair first introduced a medical monitoring law after area residents discovered in 2016 that the chemical PFOA, perfluorooctanoic acid, contaminated their groundwater, drinking water and soil. Some also became afflicted with illnesses that studies have historically linked with PFOA exposure.
The residents allege that the substance originated from two former manufacturing plants in Bennington and North Bennington, which became well known for fiberglass fabrics coated in Teflon that were made using PFOA.
The residents sued the owner of the shuttered factories, Saint-Gobain Performance Plastics Corp., in 2016 and the parties reached a settlement agreement in November. As part of the $34 million settlement, the French company would provide up to $6 million for medical monitoring among qualified claimants. The federal court has given preliminary approval to the deal.
The elements people need to prove to receive medical monitoring, as delineated in S.113, are largely based on a court decision in the class-action suit.
The state needs a medical monitoring law because Vermont courts are not bound by this case decision, said Emily Joselson, one of the plaintiff attorneys in the lawsuit. More importantly, she told the Senate Judiciary Committee last week, residents harmed by industrial polluters ordinarily cannot afford to pay for attorneys, experts and court fees in a drawn-out legal battle.
Joselson said her firm and the two other plaintiff law firms took on the case knowing they wouldn’t get paid if they lost. Since 2016, she said, the firms have invested millions of dollars in attorneys’ fees and more than $1 million in litigation expenses. But she is not sure how often that could be replicated in Vermont.
“I’m approaching the end of my working life, and I'm not sure my firm will take on another case of this magnitude,” Joselson said. “I know few other Vermont firms capable of, or willing to risk, a five-plus-year litigation of this sort against a huge and well-financed corporation. The costs and the risks are simply too great.”
“We need S.113, so the law is clear that those injured by industrial polluters will have a clear legal right to seek a medical monitoring program,” she said.
Campion told VTDigger he is confident the bill would pass the Senate and the House. He has not heard of any opposition from the governor’s office and said he hopes this will finally be the year it becomes law.
“We, more than ever, need to recognize that in this country and in this state, polluters need to pay,” Campion said. “I think Vermonters more and more recognize that this is the right thing to do.”
Sears believes the bill has gained momentum from the outcome of the lawsuit against Saint-Gobain. But if it doesn’t pass, Sears said he and Campion will reintroduce it at another legislative session.
“That's not something we're going to give up on,” Sears said. “When somebody's been harmed through no fault of their own, they should have some redress to, hopefully, find early on if there's a cancer or other serious, long-term illness.”
The Senate Judiciary Committee is scheduled to hear additional testimony on the bill Thursday. The hearings can be viewed on the committee’s YouTube channel.
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