Judicial Activism

Supreme Court Ruling Welcomes More Lawsuits

By James R. Thomas, II, CALA of Southern WV, August 24, 1999

Few took notice recently when a ruling by the West Virginia Supreme Court broke open a whole new potential category for lawsuits. You no longer have to show injury in order to file lawsuits. If you have a "maybe-an-injury," you can enter a new and rewarding money game, suggests our Supreme Court’s ruling in Bower versus Westinghouse Electric Corporation.

That case involved materials leftover from the production of light bulbs, and people who claimed they may suffer future injuries because they were in the vicinity, no matter how briefly.

This ruling sprouted up when a federal court requested our Court’s opinion on a different question. Our Court responded by creating novel new reasons to sue - with thinking that flies in the face of 200 years of civil justice based on an injury coming before a lawsuit.

The ruling creates a new superhighway for personal injury lawyers to haul West Virginia businesses large and small, and private citizens, into court on behalf of "victims" who have not yet been victimized and may never be victims.

Potential victims abound in America today. A Washington State man, for instance, wanted to sue the dairy industry on the grounds that his clogged arteries resulted from drinking too much milk. Using the "logic" of West Virginia's new ruling, he'd have been eligible to sue from the second his lips first touched a glass of milk.

Going past the general idea of maybe-an-injury lawsuits and down to the specifics, things get even stranger. Our court’s ruling means:

One, you can get money for medical monitoring of your maybe-an-injury, even if there is only a tiny, tiny chance of you having maybe-an-injury;

Two, you can get the money all at once in an up-front payment;

Three, you may be able to get paid twice for monitoring if your health insurance also covers your doctor visits, and last but certainly not least,

Four, you don’t have to spend your medical monitoring money for monitoring your health at all -- spend it however you want to.

And don’t forget that the personal injury lawyer gets a new source of income for this novel new way to sue. Personal injury lawyers devote a lot of energy to finding new areas for lawsuits, and this presents yet another big opportunity for them. They will let us all know how righteous this court decision is because people with maybe-an-injury deserve a lump-sum medical monitoring check to spend as they choose.

Another fact: during our supreme court justices’ most recent campaigns to be elected to the bench, their campaign committees took in a combined total of more than one half million dollars from the personal injury lawsuit industry.

Where does this court ruling lead us? Just about any type of small or large business employing people in West Virginia might be targeted by maybe-an-injury lawsuits. We have some level of exposure to naturally existing materials and man-made products everywhere.

What will be the impact on jobs? We already have seen our state at the top of the list for high liability costs compared to our state’s business production. This ruling certainly won't help us get off the wrong end of that list anytime soon.

Is this a free ride for West Virginia consumers? Not likely. As we buy products or services, we’ll probably be paying even more to cover those maybe-an-injury lawsuits.

Shouldn’t new decisions about what is allowed and what is not allowed in West Virginia regarding medical monitoring be made in the legislature? Isn’t the legislative branch of government where new laws are supposed to be made?

:: Back to Eye on WV Justice