Judicial Activism

A Crass Action In West Virginia: Suit Seeks Funds For The Healthy

Copyright 2001 Investor's Business Daily, Inc.
Investor's Business Daily, March 15, 2001
SECTION: A; Pg. 22, LENGTH: 910 words
HEADLINE: A Crass Action In West Virginia: Suit Seeks Funds For The Healthy
BYLINE: By, Investor's Business Daily

BODY:

By Merrill Matthews Jr. A customer standing in line at a fast-food restaurant recently commented to me that his frequent visits probably explained his high cholesterol. "Why not switch to a healthier diet?" I wondered. "And give up the world's best hamburgers?" he replied. Is that customer's high cholesterol, which might increase his chances of a heart attack, a result of personal choice or a reason to sue the fast-food industry? That's a silly question everywhere - except in West Virginia. A group of 250,000 currently healthy smokers in the Mountaineer State have filed a class action lawsuit suing the tobacco companies for $ 500 million to pay for monitoring their health even as they continue to smoke. None of the plaintiffs has cancer, but they believe smoking puts them at increased risk for the disease, and so they want the tobacco industry to pay for medical testing and doctors to keep an eye on them.

This strange new West Virginia twist on "medical monitoring" appears to be little more than the newest ploy by personal injury lawyers to separate deep-pocket industries from their money. Unfortunately, it will also separate plaintiffs - and perhaps many other Americans as well - from any semblance of taking responsibility for their actions. While medical monitoring is not new, eliminating the notion that plaintiffs must demonstrate or even try to avoid harm is not only new, but revolutionary. Historically, it has always been crucial to a tort case that somebody has done something wrong - either by negligence or intent to harm - and somebody has been hurt by the action.

Medical monitoring cases blur both elements - especially those coming out of West Virginia. For example, consider an earlier West Virginia case that turned tort law on its head. In Bower v. Westinghouse Electric and North American Philips Corp. (1999), plaintiffs were concerned about exposure to toxic wastes. They asked the West Virginia Supreme Court to clarify whether "a plaintiff who suffers emotional distress without physical injury can obtain consequential damages in the form of future costs associated with diagnosing maladies precipitated 'solely by the fear of contracting a disease.' " The state Supreme Court affirmed that right and further stipulated that "victims" need not use reward money for monitoring their health.

Thus, under West Virginia's theory of medical monitoring, no one has to prove harm and there may even be no indication that a company or a person did anything wrong. Even more bizarre, the court ruled that money awarded for medical monitoring isn't required to be used for that purpose: Plaintiffs can receive a lump-sum cash settlement and spend it however they want. A coal miner, for example, could be worried about black lung disease but opt to use his medical monitoring payment for a satellite TV or a new motorcycle. And why not? The vast majority of plaintiffs will have health insurance and would get their periodic checkups covered without the settlement money. If tourists see West Virginia as "almost heaven," personal injury lawyers doubtless see the streets as lined with gold. And if the smokers' medical monitoring suit is successful, millions of plaintiffs will be knocking at the pearly gates to get in.

West Virginia Supreme Court Justice Elliot Maynard cogently noted in his dissent to Bower that the lawsuit would make almost every West Virginian a potential recipient of medical monitoring payments. "Those who work in heavy industries such as coal, oil, gas, timber, steel and chemicals as well as those who work in older office buildings, or handle ink in newspaper offices, or launder the linens in hotels have, no doubt, come into contact with hazardous substances. Now all of these people may be able to collect money as victorious plaintiffs without any showing of injury at all," according to the Justice. Of course, Justice Maynard's dissent assumes that people not only don't want to be exposed to these hazards, but often have jobs where they can't avoid them.

In the case now working its way through the West Virginia courts, however, smokers suing the tobacco companies have chosen to expose themselves to a hazard and to continue that exposure even after the dangers are widely known. If successful, such a case would suggest that corporations, rather than the individuals themselves, should be held accountable for people's actions over whom the companies have no contact or control. The implications are staggering. Does a frequent golfer, who begins to get some back pain after years of swinging a club, have a right to sue sporting goods manufacturers or the golf course to force them to pay for regular visits to a chiropractor? How about if he continues to call in for Saturday morning tee times? Such a precedent would flood the court system and bring it to a halt.

Recently, the West Virginia tobacco case hit a setback, but only a minor one. On Jan. 22, Ohio Circuit Judge Arthur Recht declared a mistrial because testimony was introduced that implied tobacco addiction, which is not part of the suit. But he let the class action go forward, so the case will likely be back in court. Maybe we will know soon whether courts will continue to hold people responsible for their actions, or whether we can blame corporations for everything we do.

Merrill Matthews Jr. is a Visiting Scholar at the Institute for Policy Innovation in Dallas, Texas.

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