Judicial Activism

West Virginia’s Unusual Medical Monitoring Court Ruling

Even though hundreds of years of legal tradition assumes a person cannot file a lawsuit without evidence of injury, Justice Warren McGraw authored a Supreme Court ruling stating just the opposite. Justice McGraw’s Bower vs. Westinghouse ruling created a new type of lawsuit for West Virginia based on the fear of injury, what some call the “No-Proof, No-Problem!” lawsuit.

While some states allow courts to order medical monitoring after a plaintiff has been found to be actually harmed, the McGraw rule allows lawsuits based solely on fear. Also, even though the term, medical monitoring, suggests there might be a healthcare benefit to the McGraw rule, plaintiffs are able to take cash awards based on their fear of injury lawsuits without getting any medical monitoring or treatment.

This example of judicial activism by the West Virginia Supreme Court places our state far outside our national legal mainstream.

Read more:

:: Justice McGraw's Bower vs. Westinghouse decision (PDF)

:: Justice Maynard’s dissent to Bower vs. Westinghouse
"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."

:: Law Turns Into Big Business, Charleston Daily Mail, Don Surber

:: Opportunity Without Injury Employers Think Four State Justices Set Them Up For Ruin, Charleston Daily Mail, Paul Owens

:: A Crass Action in West Virginia, Investor's Business Daily

:: Excerpts from law journal review of Bower decision

:: Supreme Court Ruling Welcomes More Lawsuits

:: National Spotlight on Monitoring Rule Dims WV Outlook for Jobs, Taxes & Reputation

:: Citizens Watchdog Group Questions State Supreme Court Ruling

:: Pocketbook Health: The Medical Monitoring Story

:: Back to Eye on WV Justice