The Vermont Statutes Online

Title 12: Court Procedure

Chapter 219: Medical Monitoring

• § 7201. Definitions

  As used in this chapter:

  (1) “Disease” means any disease, illness, ailment, or adverse physiological or chemical change linked to exposure to a proven toxic substance. A disease is serious if it has the potential to cause death, disability, or chronic pain.

  (2) “Establishment” means any premises used for the purpose of carrying on or exercising any trade, business, profession, vocation, commercial or charitable activity, or governmental function.

  (3) “Exposure” means ingestion, inhalation, or absorption through any body surface.

  (4) “Facility” means all contiguous land, structures, other appurtenances, and improvements on the land where proven toxic substances are manufactured, processed, used, or stored. A facility may consist of several treatment, storage, or disposal operational units. A facility shall not include land, structures, other appurtenances, and improvements on the land owned by a municipality.

  (5) “Large facility” means a facility:

  (A) where an activity within a Standard Industrial Classification code of 10 through 14, 20 through 39, 40 through 42, 44 through 46, or 49 is conducted or was conducted; and

  (B)(i) where, at any one time, 10 or more full-time or full-time equivalent employees have been employed; or

  (ii) that is owned or operated by a person who, when all facilities or establishments that the person owns or controls are aggregated, has employed 500 employees at any one time.

  (6) “Medical monitoring” means a program of medical tests or procedures for the purpose of early detection of signs or symptoms of a latent disease resulting from exposure.

  (7) “Operator” means a person who manages, conducts, or directs the operations of a facility.

  (8) “Owner” means a person who owns or controls a facility. “Owner” shall not mean a person who without participating in the management of the facility holds indicia of ownership primarily to protect a security interest.

  (9) “Person” means any individual; partnership; company; corporation; association; unincorporated association; joint venture; trust; municipality; the State of Vermont or any agency, department, or subdivision of the State; federal agency; or any other legal or commercial entity.

  (10)(A) “Proven toxic substance” means any substance, mixture, or compound that may cause personal injury or disease to humans and that satisfies one or more of the following:

  (i) the substance, mixture, or compound is listed on the U.S. Environmental Protection Agency Consolidated List of Chemicals Subject to the Emergency Planning and Community Right-To-Know Act, Comprehensive Environmental Response, Compensation and Liability Act, and Section 112(r) of the Clean Air Act;

  (ii) the substance, mixture, or compound is defined as a “hazardous material” under 10 V.S.A. § 6602 or under rules adopted under 10 V.S.A. chapter 159;

  (iii) testing has produced evidence, recognized by the National Institute for Occupational Safety and Health or the U.S. Environmental Protection Agency, that the substance, mixture, or compound poses acute or chronic health hazards;

  (iv) the Department of Health has issued a public health advisory for the substance, mixture, or compound;

  (v) the Secretary of Natural Resources has designated the substance, mixture, or compound as a hazardous waste under 10 V.S.A. chapter 159; or

  (vi) exposure to the substance, mixture, or compound is shown by expert testimony to increase the risk of developing a serious latent disease.

  (B) “Proven toxic substance” shall not mean:

  (i) a pesticide when applied consistent with good practice; in conformity with federal, State, and local laws, rules, and regulations; and according to the manufacturer’s instructions; or

  (ii) ammunition or components thereof, firearms, air rifles, discharge of firearms or air rifles, or hunting or fishing equipment or components thereof.

  (11) “Release” means any act or omission that allows a proven toxic substance to enter the air, land, surface water, or groundwater.

  (12) “Tortious conduct” or “tortious” means negligence, trespass, nuisance, product liability, or common law liability for ultra-hazardous or abnormally dangerous activity. (Added 2021, No. 93 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 7202. Medical monitoring for exposure to proven toxic substances

  (a) A person without a present injury or disease shall have a cause of action for the remedy of medical monitoring against a person who is the owner or operator of a large facility from which a proven toxic substance was released if all of the following are demonstrated by a preponderance of the evidence:

  (1) exposure at a rate significantly greater than the general population;

  (2) to a proven toxic substance;

  (3) as a result of tortious conduct of the defendant;

  (4) as a proximate result of the exposure, plaintiffs have suffered an increased risk of contracting a serious disease;

  (5) the increased risk makes it medically necessary for the plaintiffs to undergo periodic medical examination different from that prescribed for the general population in the absence of exposure; and

  (6) monitoring procedures exist that are reasonable in cost and safe for use.

  (b) If the cost of medical monitoring is awarded, a court shall order the defendant found liable to pay the award to a court-supervised medical monitoring program administered by one or more appropriate health professionals, including professionals with expertise in exposure to toxic substances or expertise with treating or monitoring the relevant latent disease or diseases.

  (c) Upon an award of medical monitoring under subsection (b) of this section, the court shall award to the plaintiff reasonable attorney’s fees and other litigation costs reasonably incurred.

  (d)(1) This chapter shall be the exclusive remedy for a person without a present injury to bring a cause of action to seek medical monitoring due to exposure to a proven toxic substance.

  (2) Except as provided under subdivision (1) of this subsection, nothing in this chapter shall be deemed to preclude the pursuit of any other civil or injunctive remedy or defense available under statute or common law, including the right of any person to seek to recover for damages related to the manifestation of a latent disease. The remedies and defenses in this chapter are in addition to those provided by existing statutory or common law.

  (e) This section shall not increase the rights and remedies available under 21 V.S.A. chapter 9 to an employee who suffers a personal injury by accident arising out of and in the course of employment, provided that 21 V.S.A. chapter 9 shall not limit the right of a person who has not suffered a personal injury by accident arising out of and in the course of employment to bring a cause of action for medical monitoring. (Added 2021, No. 93 (Adj. Sess.), § 1, eff. July 1, 2022.)