Negligence: Woman sues after she was exposed to cancer-causing gas

Where a woman alleged that she must pay for and undergo periodic diagnostic medical examinations now, because of her exposure to a gas that causes cancer, she has suffered an injury sufficient to confer standing.

Background

Lee Ann Sommerville, on behalf of herself and others similarly situated, sued Union Carbide Corporation and Covestro LLC for alleged exposure to ethylene oxide, or  EtO, a gas that causes cancer.  She appeals the district court’s exclusion of her proposed expert, Dr. Ranajit Sahu, and its grant of summary judgment to defendants for lack of standing.

Standing

The district court correctly recognized that Sommerville sought monetary relief to pay for the future cost of medical monitoring. And because Sommerville sought damages—not injunctive relief—the district court also correctly concluded that Sommerville must show a “present injury.”

The district court then framed Sommerville’s injury as an increased risk of “eventually getting cancer.” Then, relying on TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), the district court concluded that because the “possibility of [a] future cancer diagnosis” was not “concrete,” and because Sommerville did not have a present physical injury, Sommerville lacked Article III standing. This court disagrees.

Sommerville’s alleged injury is not an “increased risk of cancer development due to the alleged EtO emissions.” Sommerville’s injury is her “exposure itself” to “environmental toxins” tortiously emitted by the plant owners, “[which] affect the body in ways that often do not become manifest for several years” and “the concomitant need [to pay] for medical testing” today to mitigate an increased risk of illness which Sommerville would not bear but for the plant owners’ actions.

The plant owners contend that the district court didn’t hold that medical monitoring plaintiffs without a manifest physical injury always lack Article III standing. They insist that the district court granted them summary judgment because Sommerville “lacked admissible evidence [of] her exposure.” This argument is counterfactual.

Sommerville’s claim is not that the plant owners’ EtO emissions may have harmed her by putting her “at a higher risk of eventually getting cancer.” Rather, Sommerville’s injury is that the plant owners exposed her to EtO in such quantities that she must, in a qualified physician’s opinion, pay for and undergo periodic diagnostic medical examinations now. The district court’s order granting the plant owners summary judgment for lack of standing is reversed.

Expert

To establish liability, Sommerville acknowledges that she must put forth admissible expert testimony to establish that she was, relevant to the general population, “significantly exposed” to a proven hazardous substance. She offered Dr. Sahu to testify about the fate and transport of the plant’s EtO emissions between 1984 and 2019.

First, the district court found that Dr. Sahu’s choice of source parameters rendered his report unreliable. Excluding Dr. Sahu for these choices was an abuse of discretion. Dr. Sahu presented detailed reasons for his challenged assumptions.

Second, the district court found Dr. Sahu’s testimony was unreliable because he did not “validate” Union Carbide’s self-reported emissions data before inputting them into the “AERMOD” dispersion model, a computer program. The district court did not cite controlling case law imposing a “validation” requirement. Nor did it explain, in practical terms, how Dr. Sahu was supposed to undertake “validation.” Excluding Dr. Sahu for failing to “validate” his data was a glaring abuse of discretion. Nothing in Rule 702 requires an expert witness to “validate” data.

For the year 1984, Dr. Sahu relied on data Union Carbide reported to the West Virgina Air Pollution Control Commission. In the district court’s opinion, because Union Carbide had cast doubt on its own data, Dr. Sahu’s use of the data rendered his opinion unreliable. This conclusion was an abuse of discretion for two reasons.

The district court further found Dr. Sahu’s testimony unreliable because Dr. Sahu used 1985–1986 onsite meteorological data from the plant for the years 1984–2019. These conclusions were abuses of discretion.

Fourth, the district court faulted Dr. Sahu for how he chose to calculate “background” EtO levels. The district court found Dr. Sahu was “cherry-picking” data. This finding was an abuse of discretion.

Last, the district court abused its discretion when it concluded that Dr. Sahu’s report was unreliable because Dr. Sahu had wrongly maintained Covestro’s emissions rates constant from 1984–2019 in AERMOD. The district court ignored Dr. Sahu’s testimony that he had corrected this error in his supplemental report.

Reversed and remanded.

Dissenting opinion

Diaz, C.J., dissenting:

West Virginia courts have opened their doors to claims for damages, like Sommerville’s, in which the only claimed injury is a present need for medical monitoring. In my view, Article III standing principles prevent us from doing the same. Because my colleagues conclude otherwise, I respectfully dissent.

Sommerville v. Union Carbide Corporation, Case No. 24-1491, Aug. 18, 2025. 4th Cir. (Benjamin), from SDWVA at Charleston (Goodwin). Joshua Autry for Appellant. John L. Ewald and David A. Fusco for Appellees. VLW 025-2-339. 41 pp.