Judicial Activism
No. 25338 -- Wanda Sue Bower, Patricia E. Hawkins,
Bobbie Jo Hardesty, Tom Jay Hardesty, Kent Norman Huffman,
and Brenda Kay Spencer v. Westinghouse Electric Corporation,
a Pennsylvania corporation, and North American Philips Corporation,
a Delaware corporation
Maynard, Justice, dissenting:
I dissent in this case because
I believe that West Virginia law does not permit an independent
cause of action to recover future medical monitoring costs
absent physical injury, and this Court has no authority to
create such a cause of action.
Several things about this decision
trouble me. The first is the way in which the majority goes
beyond the narrow question presented by the District Court
in order to decide this case. I do not dispute the Court's
authority under our Uniform Certification of Questions of
Law Act to reformulate a question submitted by a certifying
court. I do dispute, however, the necessity of doing so in
the instant case. The District Court set forth a clear, concise
and limited question:
In a case of negligent infliction
of emotional distress absent a physical injury, may a party
assert a claim for expenses related to future medical monitoring
necessitated solely by fear of contracting a disease from
exposure to toxic chemicals.
This question is applicable to
the facts of the case before the District Court. It is also
pertinent in light of this Court's recent holding in Marlin
v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996),
concerning the availability of recovery for negligent infliction
of emotional distress based solely upon the fear of contracting
a disease. This modest issue, however, was not suitable for
the majority's grand designs. Consequently, the majority transformed
the issue into “whether West Virginia law permits an
independent cause of action to recover future medical monitoring
costs absent physical injury.” The majority's determination
to make new law despite the specific issue before it is further
illustrated by its summary rejection of settled tort law and
the previous decisions of this Court.
The second and obviously most
troubling aspect of this decision is the majority's violation
of the constitutional separation of powers doctrine by usurping
the Legislature's authority to enact laws. Article V, Section
1 of the Constitution of West Virginia provides that “[t]he
legislative, executive and judicial departments shall be separate
and distinct, so that neither shall exercise the powers properly
belonging to either of the others[.]” According to Article
VI, Section 1 of the Constitution, the legislative power is
vested in the Senate and House of Delegates. This Court has
described the legislative power as “the power of the
law-making bodies to frame and enact laws.” Statev.
Huber, 129 W.Va. 198, 207, 40 S.E.2d 11, 18 (1946). This is
in contrast to the judicial power which is, the power which
a regularly constituted court exercises in matters which are
brought before it, in the manner prescribed by statute, or
established rules of practice of courts, and which matters
do not come within the powers granted to the executive, or
vested in the legislative department of the Government.
Id., 129 W.Va. at 208, 40 S.E.2d
at 18. This Court's jurisdiction is prescribed and limited
by the constitutional provisions which create it, see Deitz
Colliery Co. v. Ott, 99 W.Va. 663, 129 S.E. 708 (1925), and
nowhere in the Constitution is this Court granted the power
to create causes of action. See Art. VIII, § 3, W.Va.
Const. This Court recognized long ago that “[t]he legislature
has the right to create new causes of action for the recovery
of money.” Norfolk & W. Ry. Co. v. Pinnacle Coal
Co., 44 W.Va. 574, 577, 30 S.E. 196, 197 (1898). We reiterated
more recently that the creation, augmentation, repeal or abolishment
of complete causes of action is a legislative power. See Robinson
v. Charleston Area Medical Center, Inc., 186 W.Va. 720, 414
S.E.2d 877 (1991). Up until approximately the last twenty-five
years, the Court respected that fact. This decision shows
just how far this Court has moved from its constitutional
underpinnings and its proper role.
Finally, even if this Court did
have the power to create causes of action, I would not agree
with the one created by this decision. The majority rejects
the fundamental 200 year old tort law principle that a plaintiff
may not recover damages unless he or she has a present injury,
and replaces it with the speculative and amorphous showing
of “increased risk.” The majority admits that
“the plaintiff is not required to show that a particular
disease is certain or even likely to occur as a result of
exposure” (citation omitted). Because of this decision,
plaintiffs will now be compensated when there is no injury,
thus providing a windfall for plaintiffs. As one commentator
has recently suggested, lawyers can now advertise, “Don't
wait until you're hurt, call now.”See footnote 1 1 In
fact, the practical effect of this decision is to make almost
every West Virginian a potential plaintiff in a medical monitoring
cause of action. 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.
We recently stated, “[t]he one area, above all, where
a court should exercise caution is when it is deciding its
own power.” SER Affiliated Construction Trades Council
___ W.Va. ___, ___ S.E.2d ___, slip op. at 15, (No. 26364,
July 14, 1999). The majority exercised no caution whatsoever
in this case. Consequently, it exceeded its legitimate powers
and usurped the function of the Legislature. As a result,
its holding here is not only judge-made law, it is bad law.
For these reasons, I respectfully dissent.
--------------------------------------------------------------------------------
Footnote: 1 Footnote: 1 1Victor Schwartz, Some lawyers ask,
why wait for injury? Sue now!, USA TODAY, July 15, 1999, at
17A.
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