December 3, 2004

Court says lawsuit can't be tried as class action

Ruling in case over coal preparation plants also defines medical monitoring

By The Associated Press

A lawsuit alleging workers were exposed to toxic chemicals at coal preparation plants in seven states cannot proceed as a class action, at least not as structured by a circuit judge, the state Supreme Court has ruled.

The 4-1 ruling also further defined medical monitoring, or court-ordered tests of people exposed to harmful substances paid for by defendant companies.

The 2003 lawsuit focuses on residual acrylamide, a chemical compound added to water to wash coal of waste material. Acrylamide is considered a probable cause of cancer, and the lawsuit alleges workers were exposed to it at plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee, and Virginia.

Defendants in the case are Chemtall Inc., CIBA Specialty Chemicals Corporation, Cytec Industries, Inc., G.E. Betz, Inc., Hychem, Inc., Ondeo Nalco Co., Stockhausen, Inc. and Zinkan Enterprises, Inc.

Thursday's ruling partly granted a petition filed by the defendants challenging a September 2003 order certifying the lawsuit as a class action.

Chief Justice Elliott "Spike'' Maynard, who wrote the opinion, said Marshall County Circuit Judge John Madden incorrectly divided the potential class of claimants into subgroups based on the state where they were exposed. All the named plaintiffs in the case hail from West Virginia, leaving the other subgroups without representative plaintiffs.

But the court refused the chemical companies' request that the case proceed with only West Virginia claimants.

"In other words, we are unable to conclude, on the order and record before us, that a multi-state action for medical monitoring, including at least some of the other states in which proposed class members were injured, would not meet (court) requirements,'' the ruling said.

The ruling allows Madden to conduct more hearings and add plaintiffs to the case toward recertifying it as a multistate class action.

The court also found that Madden wrongly concluded there is no deadline for filing a medical monitoring claim.

"A medical monitoring cause of action accrues when a plaintiff knows, or by the exercise of reasonable diligence should know, that he or she has a significantly increased risk of contracting a particular disease due to significant exposure to a proven hazardous substance and the identity of the party that caused or contributed to the plaintiff's exposure to the hazardous substance,'' the ruling said.

Justice Warren McGraw dissented in part from the ruling and may issue a separate opinion. Justice Robin Davis recused herself from the case, and was replaced by Wayne County Circuit Judge Darrell Pratt.