Update and Action Alert | Chemical Liability and Medical Monitoring

Members are encouraged to contact Senators to express their opposition to S.37, establishing criteria for medical monitoring liability related to chemicals, and to support the Governor’s veto of the bill.

S.37 would make sweeping changes to the potential liabilities that companies could face for medical monitoring costs that individuals might associate with releases of chemicals.  The major flaw in this legislation is that it is not consistent with what courts in other states have held regarding medical monitoring claims.  This will increase operational risks and costs for a wide range of Vermont employers, and make Vermont an outlier even compared to states that have recognized this as a remedy for plaintiffs.

The bill was vetoed by the Governor last year, but the Senate has not yet scheduled a vote on whether to override the veto.  The Senate Judiciary Committee voted last week 3 to 2 to proceed with a vote to override the veto, but it remains uncertain whether further discussions on compromises might take place.  If the Senate does override the veto, the House would have to follow suit for the bill to become law.

With 11 votes against the bill in the Senate last year, there are just enough votes to sustain the Governor’s veto if the vote count does not change.  However, a recent court decision strongly reinforces the case for sustaining the veto against S.37.

On December 27, the US District Court for Vermont issued a decision authorizing medical monitoring claims in the case addressing PFOA in Bennington.  In contrast to S.37, Judge Crawford’s decision in Sullivan v. Saint-Gobain Performance Plastics Corp establishes criteria for medical monitoring claims that are consistent with the 16 other states that have established this liability.  This is the approach that AIV and many other business and related stakeholders proposed to the Legislature last year as an alternative to S.37.  Judge Crawford’s detailed decision to allow medical monitoring claims will be followed by all other federal and state judges in Vermont in similar cases, rendering legislation unnecessary.

If S.37 is enacted over the Governor’s veto, however, it would effectively overturn the criteria laid out in this decision.  In particular, the Crawford decision establishes a higher and more reasonable standard for exposure above normal levels, seriousness of potential disease, and reasonableness of cost.  S.37, in contrast, would make Vermont an outlier on medical monitoring claims with comparatively lower and less reasonable thresholds for liability unlike any other state, thereby creating unnecessary costs and risks for Vermont employers as we have raised concerns about previously.

We believe there is no need to adopt S.37 given the court’s decision.  However, if the Legislature’s objective is to codify the criteria for Vermont citizens to bring medical monitoring claims in statute rather than letting the courts act, however, then it should codify what the majority of state courts, as well as Judge Crawford, have adopted as a valid test for those claims.  It should not adopt the unique and separate standards contained in S.37.

Contacting Senators

You can identify your legislators by clicking here.

You can find the contact information for senators by clicking here.

To contact Senate President Pro Tempore Tim Ashe:  (802) 828-3806  |  http://protem.vermont.gov/contact

If you have any questions about S.37, the Crawford decision, or other information about this issue, please don’t hesitate to contact William Driscoll at info@aivt.org.