Judicial Activism

OPPORTUNITY WITHOUT INJURY EMPLOYERS THINK FOUR STATE JUSTICES SET THEM UP FOR RUIN

Publication: CHARLESTON DAILY MAIL, Published: 02/04/2000
Page: P4A Byline: PAUL OWENS

HOW would one describe a state Supreme Court ruling that allows West Virginians exposed to "hazardous materials" to sue for damages without having to prove injury?

"This is an illustration of good intentions gone awry," said Sen. Brooks McCabe, D-Kanawha, when the subject came up at a recent legislative breakfast.

The ruling attracted little notice from the general public when the high court issued it last July. But the state's employers were paying attention, if the standing-room-only crowd of business lobbyists at a legislative hearing last week is any indication.

Legislators, who have been wringing their hands about the decline in West Virginia's economy, should be concerned. But so far, there is no sign they plan to take any action.

The ruling, endorsed by four of five high court justices, sprang from a federal court case. Six people sued North American Philips Corp. and its successor for allegedly exposing them to toxic substances from a huge, 2-acre pile of debris - 42 feet deep in some parts - left over from the manufacture of light bulbs.

While none of the plaintiffs showed any health problems from their alleged exposure, they sought damages to cover the cost of regular medical monitoring for the rest of their lives, based on the risk that they might get sick.

The federal judge in the case, Irene Keeley, asked the Supreme Court to rule on whether West Virginia law would allow such a claim. Absolutely, said the majority, in a ruling written by Justice Warren McGraw.

Let's leave aside the question of whether the court acted within its role as interpreter of the law, as the majority maintains, or usurped legislative authority, as the lone dissenter, Justice Spike Maynard, has argued. (I'm not a lawyer but I know where I would place my bets, based on the way the Supreme Court has ruled in prior cases.) Instead, let's consider the question of whether the precedent established in the case would threaten other, more responsible employers that routinely use hazardous substances.

Under the court's ruling, plaintiffs who qualify for medical monitoring awards must first prove (1) they have been "significantly exposed" to (2) a "proven hazardous substance" through (3) the fault of the defendant. Furthermore, the plaintiffs must prove (4) the exposure has increased their risk of contracting "a serious latent disease," (5) the risk of the disease justifies regular medical
monitoring, and (6) such monitoring would allow for early detection of the disease.

At the legislative hearing, defenders of the ruling - lobbyists for trial lawyers, labor unions and environmental groups - argued those six conditions are strict enough to limit liability to the most
egregious cases of corporate negligence.

But a close reading of the majority's ruling belies that claim. McGraw seemed to go out of his way to make the six conditions as lenient as possible.

The court offers no definition for "significant exposure" beyond mere exposure. For a substance to be considered "hazardous," the plaintiff must present evidence showing only a "probable link" between the substance and a disease.

As for "increased risk," "the plaintiff is not required to show that a particular disease is certain or even likely to occur as a result of exposure."

And on the need for monitoring, the court ruled "the requirement that the diagnostic testing must be medically advisable does not necessarily preclude the situation where such a determination is
based, at least in part, upon the subjective desires of a plaintiff for information concerning the state of his or her health." Plaintiffs need not even show that a treatment exists for the disease that prompted them to sue for medical monitoring.

Steve Roberts, president of the West Virginia Chamber of Commerce, argued the ruling would subject not only chemical companies and other large manufacturers to lawsuits, but small businesses as well. The "hazardous substances" cited in the ruling could include materials
used by hairdressers, dentists and auto mechanics.

The court majority said at least six other states allow for medical monitoring lawsuits, but critics at the hearing said West Virginia's standards are far more lenient than anywhere else. John Snider, director of the West Virginia Development Office, said the ruling would hinder his agency's ability to attract new business to the state. That seems obvious. Why would an employer willingly take
on such risk?

But Snider also expressed concern for state government's liability. He noted many older buildings that house state facilities were constructed with asbestos.

Former Supreme Court Clerk Ancil Ramey, who filed a brief with the court for the Chemical Manufacturers Association, argued that West Virginia University would face an enormous liability based on the asbestos discovered in its now closed coliseum.

"Every season ticket holder of the West Virginia Mountaineer basketball team would have a cause of action under this," Ramey contended.

An analysis circulating among the lobbyists at the hearing pegged the university's liability at a minimum of $2.3 billion, based on the number of people who have attended events in the coliseum since 1970, their average age and life expectancy, and the annual cost of medical
monitoring for each of them.

Karen Price, director of the West Virginia Manufacturers Association, called the court's ruling "another nail in our economic development coffin."

So much for the court's good intentions. We all know what road they paved.

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