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Washington Examiner
December 27, 2005

Judicial activism opens up legal hellholes

In this season of Supreme Court vacancies, judicial activism is a hot topic. For a crash course in what that term entails, scan "Judicial Hellholes 2005," just out from the American Tort Reform Association — 53 pages of text and 473 footnotes. It's free on ATRA's Web site at

Judicial hellholes are the legal system's covens of judicial activism. To see one up close, consider West Virginia. The state has worked its way up ATRA's ladder of infamy from a mere "Dishonorable Mention" in 2002 to the No. 3 spot this year.

West Virginia sank into hellholedom around 1999, the year of Bower v. Westinghouse Electric. Plaintiffs claimed they were exposed to toxic chemicals in a pile of waste material left over from the manufacture of light bulbs.

But they showed no symptoms of disease. They were just worried that they might become sick. So the federal trial court submitted the main legal question to the state Supreme Court of Appeals for an answer: "May a party assert a claim for expenses related to future medical monitoring necessitated solely by fear of contracting a disease from exposure to toxic chemicals?"

A simple "No" could have rested on a U.S. Supreme Court opinion issued two years earlier in a similar case. A railroad worker named Michael Buckley had been exposed to asbestos dust on the job; he wasn't sick, but he sued for money damages for emotional distress and the cost of future medical monitoring.

The court ruled that "Buckley cannot recover emotional distress damages unless, and until, he manifests symptoms of a disease." And absent an underlying injury, Buckley couldn't recover money for medical monitoring.

Rather than follow the U.S. Supreme Court, the West Virginia supremes issued a 5,000-word opinion that amounted to a sweeping legislative act. Among its provisions:

By the way, plaintiffs are given lump-sum payments up front. For all the court cares, they can spend the money on racehorses and corn liquor.

The questions the court addressed in its ruling would be fair game in a legislative debate. That's the point. The West Virginia supremes simply assumed legislative powers and created an expansive new cause of action for medical monitoring.

The court even furnished a list of "potentially deleterious" substances, including aluminum, copper, chromium, iron, manganese, magnesium, nickel, vanadium and zinc. If you take multivitamins, you probably swallow most of those every day.

The ruling opened the courtroom doors to an unlimited stream of litigants whose only "injury" is a fear that they might someday become ill — and an unlimited stream of awards and settlements.

Contrast that high-handed ruling with one issued last summer by the Michigan Supreme Court. Dow Chemical was sued by plaintiffs who said they had been exposed to dioxin. They claimed no illness as a result, only a fear of becoming ill. Like the plaintiffs in the West Virginia case, they also wanted money to pay for medical monitoring.

But unlike the West Virginia Court, the Michigan supremes respected the limits of their judicial powers: "It may be desirable that our tort law should expand to allow a cause of action for medical monitoring," the majority wrote. "But what we as individuals prefer is not necessarily what we as justices ought to impose upon the people."

Rather, "it is the legislative branch that ought to chart the state's course through such murky waters."

There, in a nutshell, is why ATRA lists this decision under "Points of Light" and why The Wall Street Journal calls the Michigan Supreme Court "the finest court in the nation."

The current debate about judicial activism concerns one of most fundamental principles at every level of American government: separation of powers. Most judges respect that principle. Weeding out those who don't should be one of our top priorities as a nation.

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