Medical Monitoring

Vermonters exposed to toxic chemicals by polluters may develop debilitating or deadly diseases that do not become symptomatic until long after exposure. It is critical to detect any disease that does develop as early as possible. This is done through medical monitoring, which includes screening and ongoing observation to detect the symptoms early of diseases linked to exposure to a toxic substance. It ensures that those harmed are referred for medical care at the earliest possible time, when effective treatment can improve outcomes.

Last year, for the second time in two consecutive Bienniums, the legislature passed a bill that would require companies that have wrongly exposed Vermonters to disease-causing toxic chemicals to pay for medical monitoring. Under the bill, to prove that they are entitled to the remedy of medical monitoring paid for by the defendant, plaintiffs would have to convince a judge or jury that (1) the company wrongfully exposed them to a known toxic substance, (2) the exposure to the toxic chemical increased their risk of developing a latent disease, (3) the exposure was at a level that could credibly trigger the need for medical monitoring, and (4) there are diagnostic tests that can detect the latent disease. While it set a high bar of proof, the bill would have provided a path for Vermonters to receive a remedy that was not available under Vermont law.

Just as he had done when the prior version of the bill reached his desk the previous Biennium, the Governor vetoed the 2019 version of the bill, claiming that it would make it difficult for Vermont manufacturers to secure insurance or cover claims. This view, unfortunately, was based on speculation regarding insurance cost and availability. Testimony before the House Judiciary Committee did not provide any evidence that manufacturers in the 16 states allowing the remedy of medical monitoring have faced problems obtaining insurance. The Governor’s veto was based on being risk averse to business uncertainty when he should have been risk averse to the uncertainty faced by individuals who have been exposed to toxic chemicals and are worried about their health.

In any event, the Governor’s concerns about insurance have largely become moot in the past month. As the legislature sought to ensure that the remedy of medical monitoring was available to Vermonters, a lawsuit seeking that remedy had been progressing in Vermont federal district court. In December, the court ruled that, indeed, such a remedy is recognized under the common law (court-made law) of Vermont.

This ruling does not, however, mean that there is no need to pass legislation establishing the medical monitoring remedy. Creating the remedy in statute as opposed to court-made law would provide more certainty to Vermonters. The bill the legislature passed is more specific as to what plaintiffs must prove to show they are entitled to the remedy. In addition, under the bill, it would be less burdensome for plaintiffs to prove entitlement to the remedy than under the court’s ruling. It would still be difficult, just less so. The bill also exempts farmers and small businesses from being subject to the medical monitoring remedy whereas the court-created remedy has no such exemptions to its application. Finally, the court-recognized remedy is not yet assured as the case will likely go through a lengthy appeals process in the courts.

In short, when the legislature returns for the second session of the Biennium, it should override the Governor’s veto of the medical monitoring bill in order to provide Vermonters exposed to toxic substances the certainty they deserve.