Judicial Activism

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

By Robert D. Mauk, December 18, 2000

West Virginia’s unusual medical monitoring law created by our state’s supreme court is now a poster child of judicial activism. It is featured in a law casebook, used by an estimated 15,000 law-school students nationwide. The unique West Virginia ruling also is being discussed in other forums around the country.

This national exposure is further evidence that the Court has gone too far, and I fear the effects will land squarely on the backs of West Virginians.

The ruling may mean higher taxes due to new lawsuits against our state’s universities and cities — and fewer jobs as we fight a national perception of being overly litigious.

The Court’s Bower medical monitoring ruling allows lawsuits by “victims” who can show no evidence of injury. It’s like saying, “No proof? No problem!”

An analysis by Citizens Against Lawsuit Abuse recently showed that the ruling is so vague as to create the potential for a lawsuit over serving someone a glass of milk!

And, the Court says money awarded does not have to be spent on healthcare! The cash awards might be channeled into new pickup trucks for “victims”, as well as personal injury lawyers’ pockets. Shouldn’t a health-related Court ruling attempt to have some public health benefit?

This one outlandish ruling by our Court has invited national scrutiny of our legal environment not unlike a hoard of medical students picking through a cadaver to see what went wrong. Consider:

A new law school casebook’s chapter on the proper role of courts and legislatures cites our Court’s medical monitoring ruling as its leading case study. The text then asks:

Is this change in the law of West Virginia a “well-grounded extension of traditional common-law tort principles” or a “rejecting of the fundamental 200 year old tort law principle” that requires plaintiff to prove present injury in favor of “the speculative and amorphous showing of ‘increased risk’”?

A recent law review article by mass tort specialist Arvin Maskin and other authors states,

[P]laintiffs in West Virginia courts can recover for prohibitively expensive diagnostic testing that a doctor would not ordinarily recommend, and are then free to spend the money on other purposes, merely because they express unassuaged fears about their future health.

Several months ago a national conference sponsored by the Federalist Society focused on how the West Virginia medical monitoring ruling and other cases present new pitfalls for our nation’s legal system.

USA Today printed some general observations on medical monitoring by defense attorney and law professor Victor Schwartz, who is counsel to the American Tort Reform Association:

If medical monitoring awards are to be made, legislatures should say how it is to be done…. A legislature can find criteria that would separate everyday exposures to substances that may cause harm from situations… highly likely to cause harm. Most importantly, a legislature can assure that any payment made would be used for medical monitoring and not to line the pockets of plaintiffs’ lawyers.

West Virginia’s medical monitoring ruling likely will undercut public trust of our legal system, expand the lawsuit lottery climate, consume precious state tax dollars and threaten jobs.

A nationwide focus on our “anything goes” liability climate is not going to help to grow our state’s job base and economy, and we are already well below the national average for job growth.

The medical monitoring lawsuit against West Virginia University is likely to send truckloads of taxpayer dollars into personal injury lawyers’ wallets. Other such lawsuits reportedly have been filed in West Virginia against a petroleum retailer, a city, and pharmaceutical, tobacco, coal and chemical companies.

Many others could easily be sued under the Court’s vague ruling — including homeowners.

Public faith in our courts will diminish given the appearances of impropriety related to this decision. The elections of justices and judges involved in establishing West Virginia’s medical monitoring lawsuits have, in large part, been funded by personal injury lawsuit interests.

With one single ruling, our Court has opened a Pandora’s Box for West Virginians. It is clear that the Court’s attempt at legislating is not helpful to anyone but the personal injury lawyers.

Robert Mauk, a Huntington resident, is Chair of Citizens Against Lawsuit Abuse of Southern West Virginia.

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