Full opinion text
MEMORANDUM ORDER AND OPINION HALLANAN, District Judge. This matter is before the Court via the Defendant’s motion for summary judgment, the Plaintiffs' motion to certify questions of West Virginia law, and the Plaintiffs’ motion to reconsider and/or amend judgment. After careful consideration of the pleadings filed relative thereto, as well as the oral argument of counsel addressing the motion for summary judgment, the Court is now prepared to render its ruling. For the reasons listed below, it is hereby ORDERED that the Defendant’s motion for summary judgment is GRANTED, the Plaintiffs’ motion to certify questions of West Virginia law is DENIED, and the Plaintiffs’ motion to reconsider and/or amend judgment is DENIED. SUMMARY OF FACTS On or about the year of 1965, the Defendant Joy Manufacturing Company [hereinafter “Defendant”] began to manufacture and sell mining equipment. The Defendant utilized motors in its mining equipment which were manufactured and initially serviced by Reliance Electric and Engineering Company of Cleveland, Ohio. Some of these motors used a substance known as polychlorinated biphenyls [hereinafter “PCBs”] as a coolant. In December, 1968, the Defendant purchased a building in Bluefield, West Virginia, from Hart Electric in part for the purpose of repairing and rebuilding these motors itself. Part of the repairing and rebuilding process required the Defendant to degrease various parts of the motors. The vapor degreasor it used for this purpose utilized trichloroethylene [hereinafter “TCE”] as a solvent. In 1975, the Defendant began construction of a new facility in Bluefield, Virginia. The new plant was completed in 1977 and all operations and activities were transferred there by March, 1978, except for the tear-down and cleaning of fluid filled motors which continued at the West Virginia plant until September, 1980. A new vapor degreasor which used 1,1,1 trichloroethane, rather than TCE, was purchased for use at the Virginia plant. The Defendant had been a subscriber to the West Virginia Workers’ Compensation plan and contemporaneously with the move to Virginia became a subscriber to its Workers’ Compensation plan. The Bluefield, West Virginia, facility was subsequently sold to Elwin Al-iff. PCBs have been manufactured and used extensively throughout the world since the late 1920’s. The use of PCBs as a coolant in underground mining motors offered unique safety advantages because of its high flash point. Its use for this purpose was designated as permissible by the Mine Safety and Health Administration. However, in the late 1960’s the scientific and medical communities discovered that PCBs were widely disbursed and persistent in the environment. This discovery led the communities to begin studies to determine whether exposure to PCBs causes any potential adverse human health effects. In October, 1976, Congress passed the Toxic Substances Control Act [hereinafter “TSCA”]. Implementing regulations concerning PCB marking and disposal were established in February, 1978. A PCB ban rule, with an effective date of July, 1979, was promulgated in May, 1979. In addition to finalizing regulations implementing the provisions of TSCA, it also incorporated, recodified and modified the PCB marking and disposal rules. In October, 1985, various samples were taken at and around the Bluefield, West Virginia site by Elwin Aliff, the Defendant, and the West Virginia Department of Natural Resources to be tested and analyzed for PCB contamination. The various tests conducted on the samples revealed PCB contamination. On January 23 and 24, 1986, the United States Environmental Protection Agency [hereinafter “EPA”] conducted an inspection at and around the site. As a result, on February 20, 1986, Region III of the EPA issued a Superfund Cleanup order to the Defendant, Elwin Aliff and Lin-Elco Corporation of which Elwin Aliff was president. Part of the EPA’s findings of fact and conclusions of law included the following: 10. PCBs are toxic chemicals which are extremely stable and persistent in the environment. In laboratory animals, PCBs have been demonstrated to cause cancer, suppression of the immune system, liver damage, birth defects, impairment of reproductive capacity, and other illnesses and injuries. In aquatic organisms, PCBs are toxic and can cause death, reduced growth and impairment of reproductive capacity and other biological functions. PCBs are also toxic to humans, and can cause liver damage, adverse dermatological effects and changes in other biological functions. PCBs are regarded by EPA as a probable human carcinogen. Exposure to PCBs results in bioaccumulation, which means that the substance accumulates over time in living tissues in concentrations higher than the concentrations to which the organisms are exposed in the environment. 14. The disposal of PCBs at and around the Route 52 site [West Virginia plant], the presence of PCBs off-site and the potential migration of additional PCBs off-site all constitute releases and threatened releases of hazardous substances into the environment. 15. In order to protect the public health, welfare, and the environment, it is necessary that certain actions be taken to abate the release and threatened release of hazardous substances from the Route 52 site. Exhibit 2 to Plaintiffs’ Opposition to Defendant’s Motion For Summary Judgment. In response to the Superfund Cleanup order, the Defendant retained Remcor, Inc. to conduct a remedial clean-up of the site. Prior to this time, in 1984, Elwin Aliff had filed suit against the Defendant in the United States District Court for the Southern District of West Virginia alleging false representation in conveying the building. In September, 1987, Elwin Aliff was awarded a jury verdict against the Defendant. Plaintiffs allege that “[bjecause of the publicity surrounding Mr. Aliff’s suit and Remcor’s remedial cleanup of Joy’s former facility in Bluefield, West Virginia, many employees and former employees of Joy realized for the first time that during their employment with the defendant they had been exposed to highly toxic, carcinogenic chemicals without adequate ventilation, protective equipment, sanitation or safety instruction.” Plaintiffs’ Opposition To Defendant’s Motion For Summary Judgment at 3. The leading case in this consolidated action, Ball, et al. v. Joy Manufacturing Company, Civil Action No. 1:87-0268, consists of the claims of sixteen (16) Plaintiffs all of whom are present or former employees of the Defendant and was filed on March 17, 1987, in the United States District Court for the Southern District of West Virginia. By Order of this Court entered on August 10, 1989, the Ball case was consolidated with Thompson v. Joy Technologies, Inc., Civil Action No. 1:88-0133, and Levitt v. Joy Technologies, Inc., Civil Action No. 1:88-1691. In total, this consolidated action includes twenty (20) Plaintiffs. Eighteen (18) of whom have actually been employees of the Defendant [hereinafter “Occupational Plaintiffs”], while the other two (2) are spouses of two (2) of the Occupational Plaintiffs [hereinafter “Spouse Plaintiffs”]. The Occupational Plaintiffs claim that their exposure to these allegedly toxic chemicals while working for the Defendant constitutes a physical injury. Because of this “injury,” the Occupational Plaintiffs claim they now have an increased risk of developing various illnesses, including cancer. While not seeking damages for the alleged increased risk of future disease, in and of itself, they do seek damages for their emotional distress caused by their “injury” and for the costs of medical monitoring during the remainder of their lifetime which they claim is necessitated by such injury. The Occupational Plaintiffs allege that such exposure occurred in both West Virginia and Virginia. The Spouse Plaintiffs both claim damages for loss of consortium, while in addition, Spouse Plaintiff Thompson claims damages for emotional distress and medical monitoring alleging that she was also exposed to these chemicals, i.e., injured, because her husband carried them home on his body, clothing and other personal effects. The parties agree that it is widely accepted today in the medical and scientific communities that exposure to PCBs can cause a skin disorder known as chloracne. Chloracne, however, is reversible and is not malignant. Plaintiffs in part allege that a genuine question of material fact exists as to whether the chemicals involved in this case cause other adverse human health effects, such as cancer, and that therefore Defendant’s motion for summary judgment should be denied on that basis alone. Unsurprisingly, both sides have marshalled an impressive list of expert witnesses to support their various positions. Plaintiffs claim that at trial their experts “... will testify, to a reasonable degree of medical certainty, based on their general knowledge and experience, on animal studies, clinical work, and human epidemiological studies, that PCBs cause a variety of adverse health effects in human beings, including cancer, ... liver damage and impairment of liver function, ... and impairment of the immune system.” Plaintiffs’ Opposition To Defendant’s Motion For Summary Judgment at 7 (citations omitted). Defendant on the other hand contends that it will establish at trial that: [a]fter years of investigation, it is generally accepted in the medical and scientific community that they only known adverse human health effects associated with occupational exposure to PCBs, is a skin condition known as chloracne. The reported levels of PCBs for the plaintiffs are orders of magnitude below the levels observed by clinical manifestation of chloracne. Plaintiffs also allege exposure to by-products of PCBs, polychlori-nated dibenzofurans (“PCDFs”) and poly-chlorinated dibenzo-p-dioxins (“PCDDs”). Even assuming these by-products were created, which Joy contends they were not, it is likewise generally accepted in the medical and scientific community that the only observed adverse human health effects from occupational exposures to PCDFs or PCDDs is chloracne or other benign reversible skin conditions .... The reported adipose levels for the plaintiffs of these contaminants fall within the ranges for the general population and are substantially below the levels at which the clinical manifestations of chloracne or other minor skin conditions are observed. Trichloroethylene and Trichloroethane have been widely used in industry as cleaning solvents. It is generally accepted in the medical and scientific community that there are no adverse human health effects associated with chronic low level occupational exposure to either chemical compound, and none of the plaintiffs is at an increased risk of developing future injuries including cancer as a consequence of workplace activities. Memorandum In Support of Defendant’s Motion For Summary Judgment at 5-6. Plaintiffs also essentially contend that summary judgment is improper because a genuine question of material fact exists as to the knowledge of the Defendant regarding the toxicity of these chemicals and thus as to whether the Defendant intentionally, recklessly or negligently exposed the Plaintiffs to these alleged toxic chemicals. Many exhibits as well as depositions are cited by the parties in relation to the above two issues. What is not disputed at this time, however, as noted above, is that the Plaintiffs, except for Spouse Plaintiff Levitt, are claiming that their exposure to these chemicals is their “injury.” None of these Plaintiffs are claiming that they are presently suffering, or have suffered in the past, from any manifestations, symptoms or other injuries caused by their exposure. This Court held a hearing on Defendant’s Motion for Summary Judgment on August 3, 1990, for the purpose of clarifying issues and legal arguments. At such hearing, the following exchanges occurred: MR. LEES [counsel for the Plaintiffs]: The injury is the exposure, but the manifestation of the injury we are not claiming. So, it’s, yes, there is an injury for purposes of the actual exposure and manifestation may come about today or in ten years. We’re not dealing in this case with the manifestation of the injury. THE COURT: So, you’re dealing with emotional— MR. LEES: The emotional distress and the medical surveillance [as] basically protective medicine to pick it up when and if it occurs. Transcript of Hearing on Defendant’s Motion for Summary Judgment [hereinafter “Transcript”] at 5-6. MR. LEES: ... It may be a little bit wrongly worded in the pre-trial [order], but all we’re saying is one of the two items of damages in this case is the fact that these people, unlike you or I, now have to go to the doctor far more often because of the fact that they have these levels of a toxic substance in their bodies. The fact that they now have to go to a doctor more often than you and I, the fact that they have to have more tests and complicated tests than you and I because of this exposure is going to cost them out-of-pocket dollars through the rest of their life. Because the defendant was responsible for that exposure, it simply becomes an item of damages with respect to the surveillance on the— THE COURT: You’re talking now about the medical monitoring. MR. LEES: I understand. On the emotional distress, the exposure itself, as long as you have the injury or impact, my understanding of the law is emotional distress can be an element of damage recoverable in this case, as in any other case, if you prove the underlying injury or exposure. We’re not suggesting that’s somehow a separate action. We’re not suggesting it’s standing alone out there. They are obviously distressed when they are told finally, “You have a level of x amount of a toxic substance in your case.” It relates back to the tort. If, in fact, it is a tort, which is recoverable to expose somebody to a toxic chemical, then our position is that emotional distress, just like any other item of damage, is recoverable and it doesn’t have any special meaning in terms of this case. Transcript at 16-18. Because, for reasons which will be discussed infra, the Court finds that the mere exposure to toxic chemicals is not a com-pensable injury under the Workers’ Compensation Acts or common law of the States of West Virginia and Virginia, there is no need for the Court to discuss in any great detail the evidence presented by the parties regarding the above two disputed issues, i.e., (1) the possible medical causation of adverse health effects, such as cancer, and (2) the knowledge and degree of culpability of the Defendant. Any discussion of these issues and the evidence relevant thereto will be limited to where necessary for the Court’s actual holding. The Court will not address its holding. MOTION FOR SUMMARY JUDGMENT The standard for granting summary judgment was discussed by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). In Celotex, the Supreme Court held in part that: ... the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no “genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.... Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Of course, all justifiable inferences must be drawn in favor of the nonmoving party, “[credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. It is elementary that a United States District Court when acting with diversity jurisdiction must follow the settled law of the state in which it sits. Where such law is unclear or unsettled, a district court must faithfully predict how the highest court of such state would rule if the case were before it. Kline v. Wheels by Kinney, Inc., 464 F.2d 184, 187 (4th Cir.1972). And as stated by the Fourth Circuit in the opinion of Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.1989), “[fjederal courts are permitted under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and [United Mine Workers v.] Gibbs, 383 U.S. [715] at 715, 86 S.Ct. [1130] at 1130, [16 L.Ed.2d 218 (1966) ] to rule upon state law as it presently exists and not to surmise or suggest its expansion.” Washington, 870 F.2d at 962. If a party’s state claim is not one which would be recognized under state law as it presently exists, a federal court cannot according to its own sense of what is best expand such law so as to recognize the claim. It is only where a federal court can reasonably “predict” that the state’s highest court applying its presently existing law would recognize such a claim, that the federal court can do so. A federal court must also follow the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). West Virginia generally follows the Restatement (Second) Conflict of Laws (1971). A comprehensive choice of law analysis can easily require the greatest amount of a court’s effort in a given case, particularly where as here there are multiple plaintiffs, some of whom are domiciliar-les of different states, claiming they were injured in more than one state. Here all of the Plaintiffs are domiciliaries of either West Virginia or Virginia, except for one who is a domiciliary of North Carolina but who is presently residing in West Virginia. As noted above, the Occupational Plaintiffs as well as Spouse Plaintiff Thompson apparently claim they were “injured” in both West Virginia and Virginia. Counsel do not argue, however, over what state’s or states’ substantive law would be applied by the West Virginia Supreme Court of Appeals in this case. Except for the Defendant cursorily claiming that the Virginia Workers’ Compensation Act will govern for any occupational exposure which occurred in Virginia, both parties appear to assume that West Virginia substantive law will govern this dispute. “In general, West Virginia [still] adheres to the conflicts of law doctrine of lex loci delicti.” Syllabus point 1 Paul v. National Life, 352 S.E.2d 550 (W.Va.1986). The West Virginia Supreme Court of Appeals, however, has on occasion utilized “... the standards set forth in the Restatement [(Second) of Conflicts] to resolve particularly thorny conflicts problems.” Oakes v. Oxygen Therapy Services, 363 S.E.2d 130, 131 (W.Va.1987). Such occasions of “particularly thorny conflicts problems” have included cases involving complex, or unusual, contractual situations, see New v. Tac & C Energy, Inc., 355 S.E.2d 629 (W.Va.1987); General Elec. Co. v. Keyser, 166 W.Va. 456, 275 S.E.2d 289 (1981), and torts which very existence are dependent upon the breath and legality of contracts, see Oakes, 363 S.E.2d at 131. Lee v. Saliga, 373 S.E.2d 345, 350-52 (W.Va.1988). That Court’s adherence to the lex loci delicti doctrine, however, has been particularly pervasive in “clear-cut cases of physical injury.” Oakes, 363 S.E.2d at 131. It thus appears that as to the case at bar for the purpose of determining whether the Plaintiffs have suffered an actionable injury under the common law, the West Virginia Supreme Court of Appeals would apply West Virginia substantive law as to those exposures occurring in West Virginia and Virginia substantive law as to those exposures occurring in Virginia unless such application would contravene the public policy of West Virginia. See Paul, 352 S.E.2d at 556. As to the Occupational Plaintiffs, a corollary question arises as to whether they are barred from maintaining a civil action by workers’ compensation statutes. In this regard, as to those exposures occurring in West Virginia, it appears obvious that the West Virginia Supreme Court of Appeals would examine the West Virginia Workers’ Compensation Act to determine its applicability and preclusive effect if any. By its own terms, the West Virginia Workers’ Compensation Act also covers “... persons regularly employed in the State whose duties necessitate employment of a temporary or transitory nature by the same employer without the State_” W.Va.C. § 23-2-1a (1975); See also W.Va.C. § 23-2-1(3) (1976). Here, however, it would appear that once the Defendant sold its West Virginia plant, transferred its operations to Virginia, and subscribed to the Virginia Workers’ Compensation Plan, that the West Virginia Workers’ Compensation Act would not apply to any exposures occurring to the Occupational Plaintiffs as a result of their employment in Virginia. Certainly at such time, their employment in Virginia could not be found to be merely temporary or transitory under the West Virginia Workers’ Compensation Act. See W.Va.Code §§ 23-2-1 (1976) and 23-2-la (1975); Fausnet v. State Workers’ Compensation Com’r, 327 S.E.2d 470 (W.Va.1985). Thus any applicability of the West Virginia Workers’ Compensation Act to the Occupational Plaintiffs would likely arise, if at all, only as to exposures they suffered as a result of their employment in West Virginia. Hence, it would clearly appear that the West Virginia Workers’ Compensation Act is not a bar to the Occupational Plaintiffs’ maintaining a civil suit based on those exposures occurring in Virginia. The inquiry, however, does not end there for the next question becomes whether the Virginia Workers’ Compensation Act would constitute such a bar as to those exposures occurring in Virginia. Such an analysis of the Virginia Workers’ Compensation Act would appear to be a logical extension of West Virginia’s adherence to the lex loci delicti doctrine. As noted above, however, the West Virginia Supreme Court of Appeals will not mechanically apply the lex loci delicti doctrine where an application of the law of the state of injury would contravene the public policy of West Virginia. See Paul, 352 S.E.2d at 556; See also Kelly v. Guyon General Piping, Inc., 882 F.2d 108 (4th Cir.1989) (Fourth Circuit stating that the Full Faith and Credit Clause, U.S. Const. Art. IV, Sec. 1, would not require Virginia as the forum to apply the exclusive remedy provisions of another state and predicting that Virginia would not mechanically apply the law of the state of injury to determine whether workers’ compensation law provided the exclusive remedy for the particular injury alleged but instead would also look to other considerations such as the purpose of workers’ compensation acts and the public policy of Virginia). However, because the Court finds, for reasons which will be discussed infra, that the same result occurs when applying the substantive law of Virginia as that which occurs when applying the substantive law of West Virginia, an application of Virginia substantive law to those exposures occurring in Virginia would not appear to be in contravention of any public policy of West Virginia. The Court thus believes that the West Virginia Supreme Court of Appeals would so apply the substantive law of Virginia. A discussion of the substantive law of both West Virginia and Virginia is therefore warranted, and it is to this endeavor which the Court now turns. I. ARE THE OCCUPATIONAL PLAINTIFFS BARRED FROM BRINGING A CIVIL ACTION FOR DAMAGES BY WORKERS’ COMPENSATION STATUTES? WEST VIRGINIA LAW West Virginia Code § 23-2-6 (1974) states in pertinent part that: Any employer subject to this chapter who shall subscribe and pay into the workmen’s compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter.... (emphasis added). Defendant contends that it was a subscriber to the West Virginia Workers’ Compensation fund at the time of the Occupational Plaintiffs’ employment at its West Virginia plant. There is no evidence to the contrary or which would establish that the Defendant was in default of its premium payments or was in noncompliance with any provisions of the chapter at such time. West Virginia Code § 23-2-6a (1949), however, states that “[t]he immunity from liability set out in the preceding section [§ 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer’s business and does not inflict an injury with deliberate intention.” (emphasis added). The “deliberate intention” exception to an employer’s immunity from civil suit is discussed in West Virginia Code § 23-4-2 (1969) where it is stated in relevant part that: If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter. (emphasis added). This portion of the section has been in effect since the enactment of the Chapter in 1913. Cases in which employees bring civil actions against their employers based on this deliberate intent exception are commonly known today as “Mandolidis-type actions.” This pseudonym is in reference to the opinion of the West Virginia Supreme Court of Appeals in Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W.Va.1978). In Mandolidis, the Court found that: ... the phrase “deliberate intent to produce such injury or death” must be held to mean that an employer loses immunity from common law actions where such employer’s conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct.... While wilful, wanton, and reckless misconduct are well-established concepts, we wish to make clear that we are using the words “wilful,” wanton,” and “reckless” misconduct synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and appreciation of the high degree of risk of physical harm to another created thereby. Mandolidis, 246 S.E.2d at 914. The Court in Mandolidis, also noted a general inclination towards denying summary judgment in such eases, stating that “[w]e are of the view that complicated industrial ‘accidents,’ wherein the state of mind of company representatives is critical, seldom lend themselves to disposition by summary judgment, and where there is any doubt such a motion should be refused.” Id. at 918 [hereinafter “pre-1983 amendment law”]. In 1983, however, amendments to § 23-4-2 took effect which substantially narrowed the Mandolidis Court’s interpretation of the deliberate intent exception. The West Virginia Legislature made clear that in so doing, it: ... intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and ... to promote the prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter. W.Va.Code § 23-4-2(c)(l) (1983). To establish such intent, § 23-4-2 now requires that an employee must prove that the employer “acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee.” An employee can only satisfy this standard by establishing either an “actual, specific intent” or five specific elements designated by the section. W.Va.Code § 23-4-2(c)(2)(i) & (ii) [hereinafter “post-1983 amendment law”]. The Defendant contends that in light of the above law, it is clear that an employee or his/her dependent must first bring any claim for compensation for a work-related injury or death under the West Virginia Workers’ Compensation Statute. Only then, and only if it can be additionally shown that the employer acted with the deliberate intent to produce such injury or death, can such employee or his/her dependent bring a Mandolidis-type action for any excess of damages received or receivable under the Statute. The Defendant then contends that the post-1983 amendment law would govern this action, but that under either standard the claims of the Plaintiffs must fail because they do not allege an actionable injury nor can they prove that the Defendant acted deliberately or even recklessly for that matter. The Plaintiffs respond by saying that an exposure is either a compensable injury under the Workers’ Compensation Statute or it is not. If an exposure is not a com-pensable injury under the Statute, then the Statute is not a bar to them bringing an ordinary common law action for damages. If an exposure is compensable under the Statute, they may forego filing compensation claims under the Statute and instead recover all their damages in a Mandolidis-type action. As to the deliberate intent standard applicable, they contend that because their occupational exposure to the alleged toxic chemicals at the West Virginia plant, i.e., their injury, occurred prior to the 1983 amendment, the pre-1983 amendment law applies. They contend, however, that they can satisfy either. Because the Plaintiffs claim their exposure rather than their emotional distress as their “injury,” this Court believes that under West Virginia law the Plaintiffs’ position as to the applicable deliberate intent standard is correct. Lancaster v. State Compensation Com’r, et al., 125 W.Va. 190, 23 S.E.2d 601 (W.Va.1942); Cline v. Joy Mfg. Co., 310 S.E.2d 835, 837 n. 4 (W.Va.1983); Delp v. Itmann Coal Co., 342 S.E.2d 219, 220 n. 1 (W.Va.1986); Miller v. Gibson, 355 S.E.2d 28, 31 n. 2 (W.Va.1987). The West Virginia Supreme Court of Appeals in Lancaster stated: [bjecause the relation between the employer and employee, under the Workmen’s Compensation Act, is voluntary, it is contractual and the statute becomes an integral part of the contract.... Upon this theory courts generally postulate the rule that as regards an injured employee the time of injury is determinative of whether the earlier or later provisions of the Workmen’s Compensation Act apply.... The rule likewise prevails in this jurisdiction .... Lancaster, 23 S.E.2d at 602-03. § 23-4-2(d) also expressly provides that “[t]he reenactment of this section in the regular session of the legislature during the year one thousand nine hundred eighty-three, shall not in any way affect the right of any person to bring an action with respect to or upon any cause of action which arose or accrued prior to the effective date of such reenactment.” The Court needs not, however, make a final determination on this point for while such a ruling could ease the Plaintiffs’ burden in establishing the required intent of the Defendant, they still must prove that they have suffered an injury. This leads the Court to what is properly the initial inquiry — is an exposure to toxic chemicals a compensable injury under the West Virginia Worker’s Compensation Statute? For only if the answer to this inquiry is yes, does the Court believe that either deliberate intent standard is necessarily applicable to this action. This conclusion is the result of the Court’s theoretical acceptance of the Plaintiffs’ argument that if an injury is not compensable under the Workers’ Compensation Statute, the Statute is not a bar to an employee, so injured, bringing a common law action against his employer. Jones v. Rinehart & Dennis Co., 113 W.Va. 414, 168 S.E. 482 (1933); State v. Sims, 130 W.Va. 430, 43 S.E.2d 805 (1947). In Jones, the highest Court of West Virginia noted that: The language of section 2516 [23-2-6] providing that an employer subject to the compensation act, not in default, “shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring,” if considered isolated from the remainder of said section and from all the rest of the act, would sustain the contention of the defendants that an action for damages by an employee against an employer for injury arising from the employment may not be maintained even though such injury or disability is not compensable. But the meaning of that clause must not be determined from its cold phraseology alone. Consideration must be given to the background and purpose of compensation acts, to the evils sought to be corrected and the objects to be attained; to the rules of the common law with relation to right of action for industrial injuries and diseases, both occupational and otherwise; to the legislative history of our own act; and to all portions of the act which may be of assistance in determining the legislative intent with respect to the said phraseology of section 2516. Jones, 168 S.E. at 484. After conducting this inquiry, the Jones Court found that because silicosis was not a compensable disease under the Statute, the Statute was not a bar to the plaintiff bringing a civil suit. While the West Virginia legislature has at times responded to Jones and its progeny by amending the Workers’ Compensation Statute to make compensable “injuries” previously held noncompensable, such as it did with silicosis in 1935, this Court can find no evidence that the legislature has disapproved of the reasoning of the West Virginia Supreme Court of Appeals in the Jones line of cases. The Court believes that such reasoning is applicable here. With this in mind, it appears obvious that the legislature need not grant an exception to a statutorily created immunity where the Statute creating such immunity does not apply in the first place. Thus only if an exposure is an “injury” under the Statute will the Plaintiffs need to meet the requirements of the deliberate intent exception to bring this civil action. A further examination of the Workers’ Compensation Statute is therefore warranted. West Virginia Code § 23-4-1 (1976) states in pertinent part: Subject to the provisions and limitations elsewhere in this chapter set forth, the commissioner shall disburse the workmen’s [workers’] compensation fund to the employees of employers subject to this chapter, which employees have received personal injuries in the course of and resulting from their covered employment or to the dependents, if any, of such employees in case death has ensued, .... For the purposes of this chapter the terms “injury” and “personal injury” shall include occupational pneumoconio-sis and any other occupational disease, as hereinafter defined, and the commissioner shall likewise disburse the workmen’s [worker’s] compensation fund to the employees of such employers in whose employment such employees have been exposed to the hazards of occupational pneumoconiosis or other occupational disease and in this State have contracted occupational pneumoconiosis or other occupational disease, For the purposes of this chapter, occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment shall be compen-sable except when it follows as an incident of occupational disease as defined in this chapter. Except in the case of occupational pneumoconiosis, a disease shall be deemed to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances (1) that there is a direct causal-connection between the conditions -under which work is performed and the occupational disease, (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, (3) that it can be fairly traced to the employment as the proximate cause, (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment, (5) that it is incidental to the character of the business and not independent of the relation of employer and employee, and (6) that it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction. ... An employee shall be deemed to have contracted an occupational disease within the meaning of this paragraph if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease. Claims for occupational disease as hereinbefore defined, except occupational pneumoconiosis, shall be processed in like manner as claims for all other personal injuries. (emphasis added). It thus appears to this Court that if the Plaintiffs were presently suffering from cancer or some other disease and could establish through studies and research that such disease is clearly linked to a particular hazard of their workplace, a prima facie case of causation would arise upon a showing that they were exposed to the hazard and are suffering from such disease. Powell v. State Workmen’s Compensation Com’r, 166 W.Va. 327, 273 S.E.2d 832 (1980) (Court finding lung cancer to be a compensable occupational disease where medical evidence linked the cancer to occupational exposure to asbestos dust); Hoult v. Workers’ Compensation Com’r, 383 S.E.2d 516 (W.Va.1989) (Court finding renal and pulmonary problems to be compensable occupational diseases which substantially contributed to the employee’s death where medical evidence linked the problems to prolonged occupational inhalation of carbon tetrachloride and benzene vapors); Hannah v. Workers’ Compensation Com’r, 346 S.E.2d 757 (W.Va.1986) (Court finding hearing loss to be a compensable occupational disease where medical evidence linked the loss to occupational noise exposure). In light of the above section and cases, it seems clear that while showing an occupational exposure to a hazard of the workplace is a necessary condition to proving an “injury” compensable under the Workers’ Compensation Statute, it is not a sufficient condition alone — rather an employee must establish through medical evidence that such exposure is causally linked to a disease he/she presently suffers. In other words, medical evidence that such exposure can cause a particular disease is not sufficient to establish a compensable “injury” under the Statute without the existence of the disease itself. The Court has discovered that the date of the last exposure is considered the “date of injury” for several procedural purposes under the Statute — including the establishment of a date for the computation of benefits and the application of benefits (but for the application of benefits only if such date is later than that on which an employee was diagnosed as having a disease or should have reasonably known). See §§ 23-4-14 and 23-4-15, respectively. See also Ford v. State Workmen’s Compensation Com’r, 236 S.E.2d 234 (W.Va.1977); Anderson v. State Workers’ Compensation Com’r, 327 S.E.2d 385 (W.Va.1985). It is clear, however, when reading the above sections and cases in their complete context, that the mere exposure to a hazard in the workplace for substantive purposes is not sufficient to constitute a compensa-ble “injury.” Again, such exposure must be medically linked to a disease presently suffered by the employee or which substantially contributed to his/her death. It is such disease, when the other required elements are proven, that is a compensable “injury” under the Statute. As noted by the West Virginia Supreme Court of Appeals in the case of Hobday v. Compensation Com’r, et al., 27 S.E.2d 608, 612 (W.Va.1943), which involved a widow’s application for death benefits due to her husband’s death which she alleged was caused by silicosis contracted during his employment: “[t]he sole remaining question is whether the decedent, after this exposure, did in fact die of ‘silicosis’ as that term is used in the statute. It is not the mere exposure to silicon dioxide dust, however harmful, that justifies compensation. The exposure must produce silicosis, which, in turn, must produce the death.” (emphasis added). The Court, therefore, finds that an exposure to toxic chemicals is not a com-pensable “injury” under the Workers’ Compensation Statute. Such Statute is therefore not a bar to the Occupational Plaintiffs bringing a civil action for damages based on such an exposure. Additionally, because such Statute is not applicable, they need not satisfy the deliberate intent standard which is required under the Statute to bring a Mandolidis-type action, rather they may bring an ordinary, independent common law action for damages. The Court wishes to note, however, that if it had found that an exposure was a compensable injury under the Workers’ Compensation Statute and thus that this suit is governed by the requirements of the deliberate intent exception, it would then have granted the Defendant’s motion for summary judgment based on the Occupational Plaintiffs’ failure to file Workers’ Compensation claims. As noted above, West Virginia Code § 23-4-2 (1969) states in relevant portion: If injury or death result to any employee from the deliberate intention of his employer tó produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter. (emphasis added). The Defendant contends that the above language dictates that the Occupational Plaintiffs had to file claims for compensation under the Statute before maintaining this Mandolidis-type action. See Perry v. Beverage, 121 Wash. 652, 209 P. 1102 (1922). The Defendant argues that such section entitles it to an offset and that the Plaintiffs cannot destroy this right by choosing not to file their claims under the Statute. See Mooney v. Eastern Associated Coal Corp., 326 S.E.2d 427 (W.Va.1984). In other words, the Defendant contends that allowing employees to forego filing claims under the Statute would force all employers subject to this section to pay a double recovery for the same injury, since they would be getting no offset for the compensation which the employees could have gotten from the Workers’ Compensation fund — a fund which each subscribing employer has contributed to through premium payments for the express purpose of compensating employees who have suffered compensable injuries. The Plaintiffs contend, however, that Perry is not even persuasive authority in this jurisdiction because the States of West Virginia and Washington distribute the burden of proof differently — in West Virginia such burden is on the employer while in Washington the burden is on the employee. The Plaintiffs surmise that since it is not their burden to establish the offset they certainly cannot be required to file such claims. They also make several other arguments, including the following: (1) the statute states that an employee has the “privilege” to take under the chapter, not that it is a prerequisite; (2) the statute states that such action may be brought “as if this chapter had never been enacted,” obviously if such chapter had never been enacted there would be no requirement for them to file such claims; (3) because they did not file such claims, any damages they would now get would be “excess”; (4) because the pre-1983 amendment law allowed punitive damages, there would always have been an opportunity to get “excess” damages, thus explaining why the statute utilized the word “excess”; (5) the word “and” is not always used in the conjunctive sense and even assuming that it is so used here it only demonstrates that employees have both options available; and (6) employers will not be paying “twice” because if there are no compensation claims filed against them their future premiums will not be increased. The only grounds of agreement between the parties on this question is that both agree that the use of the word “receivable” only acknowledges that employees or their dependents may receive monthly payments rather than a lump sum payment. As to the above disputed issues, the Court agrees with the Defendant. It is true that West Virginia and Washington distribute the burden differently. In Mooney, the West Virginia Supreme Court of Appeals stated that “[a]n employer has the burden of proof because, although its right to credit for the benefits paid or payable is not a remittitur, it is a reduction of an employer’s exposure to damages.” Mooney, 326 S.E.2d at 430-31 n. 3. However, as urged by the Defendant, the mere fact that it is part of its burden of proof does not mean that the Plaintiffs can destroy such right by failing to file their claims under the Workers’ Compensation Statute. Also, the Court does not accept the Plaintiffs’ argument that employers will not be paying “twice” because their future premiums will not increase. For while the number of claims made against employers may affect the amount of the employers’ future premiums, it does not change the fact that such employers have already as required paid the premiums to have coverage for the suing employees at the time they allege they were injured. As to the other arguments, it is true that the language of the section in this regard is not crystal clear, however, the Court feels that a fair and reasonable reading of such section more readily supports the Defendant’s position than the Plaintiffs’. The Court also feels that the following language in Mooney implicitly, if not explicitly, supports this view: [Preventing the jury from hearing evidence of the compensation benefits awarded] cannot be sustained against the plain language of W.Va.Code, 23-4-2 that provides a “cause of action ... for any excess of damages over the amount" of the plaintiffs compensation award. Implicit is a requirement that a fact finder know what the compensation award will be. Assessment of damages is the jury’s job.... Unlike other instances in which the method of adjusting damages has been left to the trial court or the parties, ... in a Mandolidis action, evidence of the value of compensation benefits must be submitted to the jury with instructions that any verdict for the plaintiff shall be for damages in excess of such benefits. Id. at 430 (emphasis added). The Plaintiffs, however, also make the superficially appealing argument that if employees are forced to file Worker’s Compensation claims first, the limitations period for them to file a Mandolidis-type action may run before they get a final award in the Workers' Compensation proceedings. This, however, will certainly not always be true, and where it appears that such will be the situation, as suggested by the Defendant, employees may protect themselves by simply filing the Mandolidis-type action and having it stayed until their awards in the Workers’ Compensation proceedings are final. For all of the above reasons, it is the opinion of this Court that the Plaintiffs could not choose to bring only a Mandoli-dis-type action and forego filing their claims under the Workers’ Compensation Statute. The Court will now briefly discuss whether the Plaintiffs’ are barred from bringing a civil action for damages by the Workers’ Compensation Act of Virginia. VIRGINIA LAW Virginia Code § 65.1-40 (1968) provides that: The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death. The Defendant contends that the above section clearly establishes that the Virginia’s Workers’ Compensation Act is the exclusive remedy of the Plaintiffs for any injury they received as a result of their employment at the Defendant’s Virginia plant. The Defendant additionally notes that the Virginia Act, unlike that of West Virginia, does not provide for a deliberate intent exception. It is certainly true that the Virginia Workers’ Compensation Act does not expressly contain a deliberate intent exception. The United States Court of Appeals for the Fourth Circuit also noted in Joyce v. A.C. and S., Inc., 785 F.2d 1200, 1206 (4th Cir.1986), that “[t]he Supreme Court of Virginia has not yet addressed the question whether an employer’s intentional tort gives rise to a cause of action outside of the Act.” In Joyce, the plaintiff claimed that he developed pleural effusion and parenchy-mal asbestosis as a result of his occupational exposure to asbestos insulation. He sought damages for these injuries from both his former employer and various miners and manufacturers of the asbestos products. The district court had dismissed all but one of Joyce’s claims against his former employer pursuant to the exclusivity provision of the Virginia Workers’ Compensation Act. Joyce argued during his appeal that intentional torts are not within the scope of the Act and therefore are unaffected by its exclusivity provision. On appeal, the Fourth Circuit noted that many states recognize an intentional tort exception to their Workers’ Compensation Acts and that such exception is normally based on the fact that the applicability of such acts are often limited to situations of “injury by accident.” The Court stated, however, that the Virginia Act also provides for compensation for occupational diseases and noted that such coverage is not expressly modified by language requiring that the disease be accidentally produced. For this reason, the Court then surmised that an employee’s request for damages due to an occupational disease even where intentionally caused would be relegated to a claim under the Act. Id. The Court then, however, hypothesized that even assuming the Supreme Court of Virginia would recognize an intentional tort exception for injuries and would extend such exception to occupational diseases, “... the conduct alleged would be insufficient to invoke the exception, as applied in those jurisdictions which recognize an exception for intentional torts.” Id. at 1207. The Court reached this conclusion by noting that “[t]he Virginia Workers’ Compensation Act was modeled after the analogous statute in Indiana. Virginia courts have therefore considered decisions interpreting the Indiana Act in construing the substantially similar statute in Virginia.” Id. The Court thus felt that even in the event that the Virginia Supreme Court would decide to recognize such an exception, it would likely follow the Indiana rule which requires not merely that an intentional act cause the injury but that the act be actually designed to produce such injury. Because Joyce only alleged that his former employer knowingly exposed him to asbestos and not that such exposure was designed to cause asbestos-related diseases, the Court concluded that he had not alleged conduct of his former employer sufficient to invoke the exception. The above dictum of Joyce, however, was taken a step further in McGreevy v. Racal-Dana Instruments, Inc., 690 F.Supp. 468 (E.D.Va.1988), where Judge Ellis of the United States District Court for the Eastern District of Virginia held that the Supreme Court of Virginia would,' given the opportunity, recognize and adopt an intentional tort exception to the exclusivity provision of its Workers’ Compensation Act. But see Haigh v. Matsushita Elec. Corp. of America, 676 F.Supp. 1332 (E.D.Va.1987) (Judge Spencer finding it more probable that the Supreme Court of Virginia would not recognize an intentional tort exception to the exclusivity provision of the Act). Again, however, for essentially the same reasons as discussed above in relation to the West Virginia Workers’ Compensation Statute, this Court is of the opinion that the proper initial inquiry is that of determining the scope of the Virginia Workers’ Compensation Act to ascertain whether the Act is applicable in the first instance to the Plaintiffs’ claims. Thus, whether or not the Virginia Supreme Court would recognize an intentional tort exception is only relevant here if it is determined that an exposure to toxic chemicals is a compensa-ble injury or disease under the Virginia Worker’s Compensation Statute. Certainly, there are numerous opinions both in Virginia and West Virginia which support the view that Worker’s Compensation is the exclusive remedy for an “injury” arising out of and in the course of employment. One such decision is that of Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), in which the highest Court of Virginia discussed the reasoning behind such exclusivity. The Feitig Court stated: ... [The Workers’ Compensation Law] is as essential to industry as it is to labor. It compromises one of the most important branches of law. Upon its effectiveness depends the potential welfare of a large number of employees and their families. It places upon industry as an expense of the business the pecuniary loss, measured by the compensation provided in the statute, attendant upon all accidents to employees within the hazards of the industry. It extends the employer’s liability to all accidental personal injuries “arising out of and in the course of the employment,” the expense of which is added to the cost of production. The employer surrenders his right of defense on the ground of contributory negligence and the common-law doctrines of the assumption of risk and fellow servants. The rules of evidence are relaxed. The employee surrenders his right to a trial by jury and agrees to accept an arbitrary amount fixed by statute in lieu of full compensation for the injuries sustained. He gains a wider security. The issue of negligence or non-negligence of the employer and the fellow servants is eliminated. Long, costly and delayed litigation is avoided. A smaller but speedier recovery is guaranteed.... Feitig, 38 S.E.2d at 73-74 (emphasis added). The Feitig Court then held that the exclusivity provision of the Act would not apply where an employee was injured while performing the duties of his employer by the negligence of “a stranger to the business.” The Court felt that such injury was “... not truly and inherently within the industrial field.” Id. at 74. In reaching this conclusion, the Court relied partly on the earlier decision of Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530 (1942), in which it had held that the Act left unimpaired the common law right of action against an employer for damages for the personal injury or death of an employee when such injury or death does not arise out of and in the course of the employment. The Griffith Court noted in its analysis that “[ajlthough in derogation of the common law, [the Act] is highly remedial and should be liberally construed in favor of the workman.” Griffith, 20 S.E.2d at 533. The Court cautioned, however, that “[w]e should remember, too, that ‘the common law is not to be considered as altered or changed by statute unless the legislative intent be plainly manifested.’ ” Id., quoting Norfolk & Western R. Co. v. Virginian Railway Co., 110 Va. 631, 646, 66 S.E. 863, 868. The Court then reasoned that: [The Workers’ Compensation Law] deprives the employee or his personal representative of a common-law right of action for damages against the employer in a particular class of cases, that is, where the injury or death is from an accident arising out of and in the course of the employment, because the Act gives to the employee or his dependent in lieu thereof the right to an award of compensation. But to adopt the contention of the defendant in error would deprive the employee or his dependents of a long existing common-law right of action in a large number of cases without giving them anything in return therefor. Carried to its logical conclusion, an employee, merely because of the relationship existing between him and his employer, would have no remedy whatever for an injury sustained while he was working off duty and far removed from the place of employment. An employee, working in Norfolk on weekdays, injured on Sunday on the highway, through the negligence of the employer, would be entitled neither to compensation under the Act nor damages at law. He would be remediless. Such a result would be to construe the Act strictly against the employee and not in his favor. Moreover, it would be viola-tive of the principle that an existing common-law remedy is not to be taken away by a statute unless by direct enactment or necessary implication. Our conclusion is that the Workmen ’s Compensation Act is exclusive in so far as it covers the field of industrial accidents, but no further. To the extent that the field is not touched by the statute, we think that the legislature intended that the employee’s common-law remedies against his employer are to be preserved unimpaired. Id. 20 S.E.2d at 533-34 (emphasis added). The Griffith Court thus recognized that the Act itself is essentially an endeavor to achieve a humane compromise between labor and industry with give and take on both sides. In situations where the purposes of such compromise are not fulfilled, and perhaps even thwarted, the Act will not stand as a bar to a civil suit for damages. In other words, both sides of the coin must be given the benefit of their bargain before such bargain will be enforced. And, of course, situations not covered by such bargain will not be affected thereby. This rationale of Griffith was followed in the opinion of Perrin v. Brunswick Corporation, 333 F.Supp. 221 (W.D.Va.1971), in which Chief Judge Widener of the United States District Court for the Western District of Virginia held in pertinent part that: [i]n view of the finding of the Industrial Commission that bronchitis is an ordinary disease of life which is not com-pensable under the Virginia Worker-men’s Compensation Act, Perrin’s common law remedies against his employer are preserved unimpaired, since this condition is not touched by the statute. Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530 (1942). As stated in the Griffith case, quoting Euling Case Law, “But if for any reason the statute is inap