Judicial Activism

LAW TURNS INTO BIG BUSINESS

Publication: CHARLESTON DAILY MAIL, Published: 03/30/2001
Page: P1C, Byline: DON SURBER

THE West Virginia judiciary, which never met a workers' comp claim it didn't like, takes a lot of heat for its part in creating the state's business climate - which is as arid as the Sahara in July.

But the Supreme Court and Ohio County Circuit Judge Arthur Recht are making amends.

Their creative use of the law could turn West Virginia into the Silicon Valley for jurisprudence, creating a multibillion-dollar industry stretching from the courthouses of Wheeling to Williamson.

The coal barons of a century ago are gone. Long live the knights of jurisprudence.

Our legal alchemists have developed a method to spin gold out of bad habits. No longer does one have to prove any damage to win a product liability lawsuit.

In fact, the justices and the lawyers have created a method where companies have to cover the costs of developing evidence that could be used against them later.

Like all gold rushes, this one began innocently enough.

One day two years ago, Justice Warren McGraw was reviewing a case in which five people sued light bulb makers for being exposed to toxic chemicals.

The trouble was the five people suing hadn't suffered any injuries. Darn it.

A federal judge concluded that West Virginia law didn't allow people to recover damages unless they were actually damaged.

But McGraw figured that if the five people wait a while, some symptoms might develop - odds are one of the five will contract cancer. Besides, they already suffer from the fear that they might eventually die.

"Taken literally, this question asks 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,'" McGraw wrote.

Of course, McGraw was all for it. The rest of justices liked the idea - although Spike Maynard later changed his mind.

Thus, medical monitoring came into vogue. This is tort reform, West Virginia style.

No longer does a lawyer have to bother proving a tort - a legal wrong. Now the lawyer just has to show fear of a tort. Then the company pays for medical monitoring until proof of a tort occurs. Then the lawyer hauls the company back into court.

Thus Scott Segal, husband of Justice Robin Davis, and his co-counsel are in Recht's court. They want tobacco companies to put up $500 million to monitor the health of 250,000 smokers. If successful, the lawyers will skim their fees off the top - $170 million or so. That will leave a $330 million jackpot for doctors and the others who will actually do the monitoring.

This should end the animosity between the two professions. Medical suppliers will have a field day. Suddenly, Man Hospital will have a reason to exist.

As one of two states willing to smack tobacco companies upside the head like this, West Virginia should expect a flood of lawyers and smokers.

That's economic growth.

Sure hope the newcomers buy newspapers. Been mighty parched these last few years.

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