Vermont Business Magazine Representatives of Vermont's business community today expressed serious concerns with S37, a bill addressing liabilities that companies could face for medical monitoring costs. Speakers from Associated Industries of Vermont, the Central Vermont Chamber of Commerce, the Vermont Business Roundtable, and the Vermont Chamber of Commerce, called on Governor Scott to veto S37 and for the Administration, Legislature, business community, and other stakeholders to work together to develop new medical monitoring legislation that would be consistent with other states that have established medical monitoring through the courts.
These organizations are among 40 business associations, regional development corporations, and chambers of commerce that have expressed their opposition to S.37 and support for medical monitoring criteria based on those in the 16 states have recognized medical monitoring through court decisions. (see text of letter below)
"We are not opposed to medical monitoring liability," state William Driscoll, Vice President of Associated Industries of Vermont, "Companies that act negligently and put people at significant risk of developing a serious disease should be accountable. But we should have fair and reasonable standards for determining liability like the other states around the country that have addressed this issue."
The key problem with the bill is that it is inconsistent with other states and would make Vermont an outlier. This not only presents serious risks and potential costs to manufacturers and other covered companies operating responsibly, but the Department of Financial Regulation and insurance experts have raised concerns that the significant and broad potential liabilities created by S.37 could make insurance coverage for medical monitoring extremely expensive or even unavailable.
"If any employer cannot obtain or afford liability insurance, it can make operating in Vermont simply untenable regardless of how responsible and compliant they might be," noted Chris Carrigan, Vice President of Business Development for the Vermont Chamber of Commerce.
Bill Moore, President and CEO of the Central Vermont Chamber of Commerce stressed, "Whenever we look to new legislation or regulations to address real and serious issues, we also have to be mindful of negative unintended consequences, and to try to be balanced and reasonable in going after what we all agree is important."
"This is a real opportunity for everyone involved in this issue to work together on a common approach to a common goal," Lisa Ventriss, President of the Vermont Business Roundtable, stated, "Rather than creating a false choice between two extremes, we have a well-established path forward found in those states that have gone before us that we should be able to follow together."
Below: Text of letter from business organizations opposed to S.37
June 12, 2019
The Honorable Phil Scott
Executive Office of Governor Phil Scott
109 State Street, Pavilion
Montpelier, VT 05609
Dear Governor Scott:
As organizations representing employers of every type and size across Vermont, we strongly urge you to veto S.37. 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.
Some of the key problems with the bill include:
- Companies could be held financially liable for medical monitoring claims associated with any disease, as defined very broadly, without regard to the significance of the exposure or the seriousness of the disease.
- Medical monitoring liability could be associated with releases that are below levels set by state or federal permits and regulations and below state or federal environmental or health thresholds.
- Medical monitoring liability could be based on a wide definition of "tortious conduct" that goes beyond the "negligence" standard asserted in states that have established such liability through court decisions.
- The bill does not set clear or reasonable exposure thresholds that are linked to any established state or federal environmental or health thresholds or existing background levels for a plaintiff to make a claim.
- Companies could be held liable for medical monitoring costs for exposure that creates any increase in risk, however minimal, rather than a significant risk.
- By taking the unusual step of guaranteeing attorney and other legal costs for successful plaintiffs, the bill would further encourage marginal and nuisance suits. Other states do not do this.
- The bill will likely impact the cost and availability of insurance for many businesses in Vermont, compounding the increased risks and costs of doing business in the state.
- No other state has adopted such broad medical monitoring liability legislation, and S.37 is not in line with 16 states that have established more reasonable and balanced standards and criteria for medical monitoring claims through court precedents.
- The bill would create potentially significant risks and disincentives to continued investment and business operations in Vermont compared to other states.
There already exist a number of legal and regulatory options for citizens and for the state to seek appropriate compensation and remediation from companies responsible for chemical releases that harm Vermonters. As drafted, S.37 would fundamentally change the process for plaintiffs to bring these claims, resulting in unreasonable and unsustainable risks and costs. The negative economic consequences will only be compounded by the extent to which Vermont would be out of line with other states.
Vermonters can already seek medical monitoring damages in our state courts. Indeed, a major pending case is already addressing the question of medical monitoring and can be expected to establish criteria on this question just as courts in 16 other states have done. If the objective is to codify the criteria for Vermont citizens to bring medical monitoring claims in statute rather than letting the courts act, then the focus should be to codify what the majority of state courts have used as a valid test for those claims. S.37 does not do that.
Sincerely:
Associated Industries of Vermont
Addison County Chamber of Commerce
Addison County Economic Development Corporation
American Property Casualty Insurance Association
Associated General Contractors of Vermont
Barre Granite Association
Brattleboro Development Credit Corporation
Central Vermont Chamber of Commerce
Central Vermont Economic Development Corporation
Franklin County Industrial Development Corporation
Franklin County Regional Chamber of Commerce
Great Falls Regional Chamber
Greater Burlington Industrial Corporation
Green Mountain Dairy Farmers
Green Mountain Economic Development Corporation
Lake Champlain Islands Economic Development Corporation
Lake Champlain Regional Chamber of Commerce
Lamoille Economic Development Corporation
National Federation of Independent Business/VT
Northeast Kingdom Chamber of Commerce
Northeastern Vermont Development Association
Rutland Economic Development Corporation
Rutland Region Chamber
Springfield Regional Chamber
Springfield Regional Development Corporation
Vermont Business Roundtable
Vermont Chamber of Commerce
Vermont Farm Bureau
Vermont Forest Products Association
Vermont Fuel Dealers Association
Vermont Groundwater Association
Vermont Independent Electrical Contractors Association
Vermont Insurance Agents Association
Vermont Lakes Region Chamber of Commerce
Vermont Petroleum Association
Vermont Retail & Grocers Association
Vermont Retail Lumber Dealers Association
Vermont Ski Areas Association
Vermont Truck & Bus Association
Vermont Vehicle & Automotive Distributors Association