Workplace Safety and Health News Alert
Changes Made to Deliberate Intent Law in West Virginia
June 20, 2023
By: Jon L. Anderson and Gretchen M. Callas
During the 2023 regular session, the West Virginia Legislature passed House Bill 3270 amending the state’s deliberate intent law. HB 3270 became law without the Governor’s signature and will apply to injuries occurring on or after July 1, 2023.
HB 3270 made two changes. First, a requirement was added to § 23-4-2(d)(2)(B)(v)(IV) that when an employee asserts deliberate intent with respect to occupational pneumoconiosis, the employee “must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.” The application of and intent behind this provision appears to be primarily directed at the coal mining industry. Specifically, this provision makes clear that it is not sufficient for a plaintiff to rely upon the fact that a coal operator’s respirable dust samples exceeded the applicable standard on one or more occasions. This, of course, makes sense given that respirable dust standards are designed to reduce the risk of developing occupational pneumoconiosis over a working lifetime. For example, if the applicable respirable dust standard is 2.0 milligrams per cubic meter of air for an entire shift during each and every shift of a miner’s working lifetime, then having an average respirable dust level of 2.5 milligrams per cubic meter of air on one, ten, or twenty shifts is not going to present a significantly increased risk and should not be the basis for a finding of deliberate intent. Instead, a plaintiff must now prove that the employer “fraudulently concealed or manipulated dust samples or air quality samples.”
How this new requirement will be applied remains to be seen. For example, will a plaintiff be able to carry his or her burden by showing that a dust sample was manipulated on one occasion over a period of years? Or, will the plaintiff be required to provide that manipulation of dust samples was a pattern and practice throughout the individual’s entire period of employment? The latter would be the more reasonable approach and consistent with the intent of the amendment.
Lastly, it is unclear how this provision will apply in cases of occupational pneumoconiosis outside of the coal mining industry. Coal mining operators are required by law to regularly conduct and submit respirable dust samples. In cases of occupational pneumoconiosis in industries where regular dust sampling and/or air monitoring is not required, it is unclear how, or if, a claimant can carry their burden to prove fraudulent manipulation of samples when sampling was not required.
The second change made by HB 3270 was to add a new statute, § 23-4-2a, which places limitations upon the recovery of noneconomic damages. The statute provides that in a deliberate intent action, the maximum recoverable by an employee as compensatory damages for noneconomic loss is the higher of two times the economic damages before offset or $500,000 for each person, regardless of the number of plaintiffs or defendants.