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West Virginia Chief Justice Maynard Faults Medical Monitoring Law

by BARRY BAUMAN on 8/1/00.

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For further information, call Richard E. Anderson of The Doctors Company at
(707) 226-0237.


Appearing at a recent briefing on the issue of medical monitoring, West Virginia Supreme Court of Appeals Chief Justice Elliot Maynard described his state's medical monitoring law as one which represents a "dramatic departure" from traditional tort law principles. Chief Justice Maynard, who appeared as featured speaker in the two-hour program sponsored by Lawyers for Civil Justice and the International Association of Defense Counsel, said the new medical monitoring law, as interpreted in his state's 1999 Bower decision, "makes virtually every citizen of West Virginia a plaintiff." Chief Justice Maynard was joined by Bayer Corporation's chief Litigating Counsel Tom Kerr, and other members of the IADC who appeared at the special CLE briefing.

"Under West Virginia law, we are all plaintiffs," Chief Justice Maynard said, adding, "It is wrong for lawyers to make fees of $ 200,000 per hour [in medical monitoring cases]" and that the West Virginia majority opinion violates separation of powers since it usurps the power of legislature. Courts are not democratic institutions and most states don't elect their judges. "Quite simply, judges ought not to make law," Chief Justice Maynard said.

The strongly held views expressed by Chief Justice Maynard represent his latest statement designed to separate himself from the opinion expressed by the majority in West Virginia's highest court involving a claim for medical monitoring. The majority in Bower v. Westinghouse Electric (1999) concluded that West Virginia recognizes a common-law cause of action for recovery of anticipated medical monitoring costs in circumstances where the plaintiffs have been exposed to toxic substances, but do not exhibit any physical injury resulting from the exposure. Chief Justice Maynard said that in Bower the Court created an entirely new cause of action which previously did not exist. In the Bower decision, the majority opinion, offered by Justice McGraw, said that a growing number of states have recognized [the medical monitoring] cause of action as a well grounded extension of traditional common-law principles. Speaking for the majority in Bower, Justice McGraw said that what these decisions "uniformly acknowledge is that significant economic harm may be inflicted on those exposed to toxic substances, notwithstanding the fact that the physical harm resulting from such exposure is often latent." The court then proceeded to define the elements of a medical monitoring claim as being (1) significant exposure; (2) proven hazardous substance; (3) tortious conduct; (4) increased risk; and (5) necessity of diagnostic testing.

During the IADC/LCJ symposium, Bayer's Tom Kerr warned against accepting medical monitoring as the law of the land and Washington attorney Kathy Blaner offered strategic advice for defeating medical monitoring claims.

GRAPHIC: Photo, Chief Justice Elliot Maynard