Judicial Activism

Citizen Watchdog Group Questions State Supreme Court Ruling

February 7, 2000

Charleston — A 1999 state Supreme Court ruling on medical monitoring continues to raise serious questions and has as many twists as a mystery novel, according to local watchdog group Citizens Against Lawsuit Abuse.

CALA compiled the information from many public sources to give citizens more details about the radical Bower v Westinghouse Electric ruling. The Court ruling is expected to have a deep impact on the lawsuit climate in the state, jobs and the economy.

“We feel that people need to find out more about this example of how their civil justice system operates,” said spokesperson Jim Thomas.

“When you look closely at court election contributors, the people who are involved in big-dollar lawsuits and other relationships, the public really has to wonder about the apparent impropriety and ethics of it all,” Thomas continued. “Someone needs to get to the bottom of this and help restore the public trust in our judicial system.”

The curiously vague ruling raises serious and ethical questions about how and why the judges made their decision.

For example:

Why in the Bower case did the state Supreme Court respond to a federal judge’s question by answering a different question and thus set up a new system for more personal injury lawsuits?

Why did the court make this ruling? One outcome of the ruling is that personal injury lawyers will have yet another source of income.

Why is the state Supreme Court usurping the legislative function by creating new laws?

Why did one Supreme Court Justice not recuse herself from voting on the medical monitoring ruling under the Code of Judicial Conduct when her spouse had been involved in a West Virginia medical monitoring lawsuit for the previous five months? The medical monitoring ruling set up the potential for financial gain for that Justice’s family and raises questions of impropriety.

Did a West Virginia circuit judge jump the gun in permitting a medical monitoring class action to proceed five months before the Supreme Court ruled that West Virginia can have medical monitoring lawsuits?

Why were the personal injury lawyers involved in that pending medical monitoring case involved in a recent lawsuit questioning the Governor’s appointment to the Supreme Court? At present the Court has a majority of Justices who were elected with 70 percent of their large individual contributions coming from personal injury lawyer interests.

If the Court’s intention is to protect citizens’ health, then why did it decide that plaintiffs could receive untargeted lump sum awards with no assurance that the money will be spent on medical monitoring?

Does it make sense for our state to allow lawsuits to be filed by people who can’t show that they have any injury?

Why are the conditions in the ruling so vague? The conditions as written would allow just about anyone to sue anyone for any reason. Don’t we have enough lawsuits already?

Thomas noted, “As an example of how far the Court went, its ruling is so vague that someone could be sued for serving a glass of milk. Milk’s potential for causing hardening of the arteries might qualify as actionable under the six tests listed by the Court. That may or may not happen, but this just shows how absurd the ruling is. The advertising slogan, ‘Got milk?’ might need to be changed to ‘Don’t admit you’ve got milk in West Virginia because you might be sued.’”

“CALA hopes that personal injury lawyers won’t take this ruling to this extreme, but they could, thanks to the Supreme Court,” said Thomas. “Who knows? We’ve seen personal injury lawsuits on toothbrushes, runaway shopping carts and inconvenience. Milk lawsuits could be next, but certainly all types of small businesses are at risk for medical monitoring suits. Consumers will be affected by the fallout, too.”

“The thousands of CALA supporters in West Virginia would like to see some answers to these questions. Our judicial system already has a cloud hanging over it due to other recent activities of West Virginia judges. Faith in the judicial system needs to be restored,” Thomas added.

CALA is a citizens’ watchdog group working to educate the public on a wide range of civil justice issues. It compiled the history of the medical monitoring ruling from public documents and news stories as well as its own research on contributions to Supreme Court Justices.

“As the old saying goes,” Thomas added, “it’s often useful to ‘follow the money.’”

Medical Monitoring for Milk?

As an example of how far the Supreme Court’s medical monitoring ruling has gone, someone could be sued for serving a glass of milk under the Court’s vaguely worded criteria for lawsuits.

Here is how the Court’s ruling could cover exposure to milk based on the six tests the Court set up for filing a medical monitoring lawsuit:

1. Significant exposure: Citizens have been significantly exposed to milk. The Court doesn’t say how much exposure is “significant.” Two glasses per day? Six? Twelve? And for how long?

2. Proven hazardous substance: When used in excess, according to scientific health studies, milk can cause hardening of the arteries and other ailments. In fact, numerous scientific studies about everyday products indicate many can be hazardous when used under some circumstances.

3. Conduct and fault of a defendant: If milk producers knew of the risks of drinking too much milk, a West Virginia court could say they have willfully and negligently exposed citizens to the product.

4. Increased Risk: A West Virginia court could find that there is an increased risk for disease among those who drink milk.

5. Necessity of Diagnostic Testing: A West Virginia court could find it reasonable that a physician would prescribe the testing of a milk drinker for hardening of the arteries.

6. Existence of monitoring procedures: The Court said that diagnostic testing procedures must be available — and tests are available to determine if someone has hardening of the arteries.

Moreover, you would not have to show that you have a medical condition, such as hardening of the arteries, to file a lawsuit. If the milk lawsuit scenario seems absurd, consider how absurd the medical monitoring ruling is.

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