Judicial Activism

Pocketbook Health: The Incredible History of the Medical Monitoring Ruling by the West Virginia Supreme Court

(A history compiled from news reports, public court documents and campaign finance filings.)

How did the West Virginia Supreme Court create a radical new medical monitoring law that places our state way out of the mainstream of American civil justice? The ruling is a class action lawsuit bonanza for personal injury lawyers, and at the same time it hurts small businesses, its workers and consumers.

Why is the story of this Court decision important? Because it raises serious questions about special influence in the courts, the appearance of impropriety in campaign contributions and among relationships of those on the Court. Citizens need to look carefully at how our court system functions, and our governmental leaders need to make sure that our court system is fair and that it holds the public’s trust.

Background: What is the Medical Monitoring Ruling?
The Bower v Westinghouse Electric ruling issued by the Supreme Court last July is the beginning of the story for a new breed of lawsuits in West Virginia. The ruling also is the culmination of a series of events leading up to the creation of this new law.

The West Virginia Supreme Court said that even though a person cannot show any injury, if that person was exposed to an amount of hazardous material the person is eligible to sue for future monitoring of his or her health. No specific limits were set for how much exposure might open the door for a lawsuit.

The straightforward explanation of the new medical monitoring lawsuits is this: Now, thanks to our Supreme Court, virtually anyone can sue anyone else for the slightest reason, and you don’t have to show that you’ve been injured when you sue, either. Anyone with the slightest chance of being exposed to an everyday harmful product may be able to sue you.

Medical monitoring lawsuits could be filed over exposure to almost anything. Just about anyone or any organization might be sued under this wide-open law created by the Court. Think of the number of harmful products in your utility closet at home, like bleach, and think of the number of harmful products used everyday at auto shops, beauty parlors and home centers, for example. Small businesses are at risk for being sued over almost anything under this Court ruling — from the gasoline pumped into your car, to the fillings in your teeth, to the fertilizer loaded into the back of your truck or car.

What’s more, if you’re sued and lose on a claim for medical monitoring, that means you are handing someone else a pot of gold — because even though the court award is supposed to be for medical monitoring reasons it doesn’t have to be spent for health purposes at all.

Speaking of money, by greatly expanding who can file lawsuits, the income of personal injury lawyers will likely go way up — this is all about the future health of their pocketbooks.

A Bad Idea Proven Wrong
The Louisiana Supreme Court tried to establish medical monitoring recently, but the Louisiana Legislature quickly reversed it when it learned how big the effect would be on small businesses.

How Did West Virginia Get into this Mess? The Answer Is the Question.
Early in 1999, a federal judge, Irene Keeley, submitted a question to the state Supreme Court in the case of Bower v. Westinghouse Electric. The question asked whether, if a person inflicts emotional distress on, but doesn’t physically injure, someone, then can the affected person sue for expenses for medical monitoring. The West Virginia Supreme Court didn’t answer the question posed by the federal court! They wrote their own question: whether a person who can’t show present physical injury can sue for expenses for medical monitoring.

So a federal request for a ruling opens the door for our state court to change the question and rule on it — creating a whole new type of lawsuits loosely governed by vague statements about who can file them!

1998-1999: State Courts Say “No… Maybe… Yes” to Medical Monitoring
In June 1998 Judge Risovich is named by Chief Justice Davis to sit on a mass litigation panel authorized to certify class action lawsuits. Many of the medical monitoring lawsuits are expected to be class action lawsuits.

In August 1998, Brooke County Court Judge Fred Risovich denies medical monitoring claims for Fen Phen plaintiffs, saying that the “legal and factual basis for the claim was lacking.” Then at a hearing in September 1998, Judge Risovich indicated he would be willing to reconsider the medical monitoring ruling if plaintiffs provided the Court a sufficient factual and legal basis for recognizing the cause of action.

In February 1999, Judge Risovich approves medical monitoring awards. One of his stated reasons was contained in a footnote — that the Supreme Court had accepted consideration of the Bower medical monitoring issue.

In July 1999, the Supreme Court issues its ruling establishing medical monitoring. Again, the Court had gone out of its way to establish medical monitoring by changing the question that the federal judge had asked the Court.

In September 1999, Chief Justice Larry Starcher names Judge Risovich to sit temporarily on the Supreme Court due to a vacancy.

The Personal Injury Court
For three of the justices ruling in favor of medical monitoring — Justice Warren McGraw (who authored the ruling), Justice Larry Starcher and Justice Robin Davis — some seven out of every ten dollars in large personal contributions to their campaigns for their court seats came from personal injury lawyer interests. Having a preponderance of some Justices’ campaign money coming from personal injury lawyers who earn their living based on court decisions creates the appearance of impropriety. These three Justices form a personal-injury-funded majority of the Court.

The Fen Phen Case
Personal injury attorneys likely to benefit from medical monitoring awards include 11 associated with the West Virginia Fen Phen case — they or their law firms gave more than $50,000 to winning Supreme Court justices in the past two campaigns.

Personal injury attorney Scott Segal is a lead attorney in the Fen Phen case in West Virginia. According to a report in the Charleston Daily Mail, Segal could “stand to make millions” from the Fen Phen case, where the article suggests medical monitoring awards might reach $60 million. Typical personal injury lawyers’ contingency fees for court awards are one-third or more — which in this case could be about $20 million. Segal is also involved in a medical monitoring class action lawsuit for smokers who show no signs of illness. News articles report that the medical monitoring awards for this class action might reach $200 million – which in this case might mean a contingency fee of $65 million for the personal injury lawyers. Scott Segal is the husband of Supreme Court Justice Robin Davis.

When Governor Underwood appoints House Speaker Bob Kiss to fill the Supreme Court vacancy in September 1999, a case is filed to undermine Kiss’ appointment — nine of the eleven attorneys who file this case are personal injury lawyers working on the Fen Phen case.

Code of Judicial Conduct
Justice Davis did not disqualify herself from the ruling, even though our state’s Code of Judicial Conduct says “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” The Code also states that a judge shall disqualify himself or herself when the spouse has an “interest that could be substantially affected by the proceeding.”

Public Trust in West Virginia Courts
Nevertheless, the history of this Supreme Court ruling suggests that a few powerful people may have changed the course of West Virginia’s lawsuit climate in ways that could affect every citizen for years to come. The events suggest special influence, close personal connections, the appearance of impropriety and more. Public confidence in our courts is no doubt shaken, and the public deserves answers about what has really happened.

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