Justice Menis Ketchum's dramatic dissent

By The West Virginia Record | Apr 2, 2010

At times, we wondered how long it would be before a state Supreme Court justice would denounce the predatory practices of some plaintiff attorneys, finally acknowledging the devastating impact of flimsy lawsuits that have overburdened our court system and done grievous harm to our faltering economy.

Our wait is over. West Virginia Supreme Court Justice Menis Ketchum issued a powerful dissenting opinion last Friday.

"It is easy to enrage a jury against a large multinational corporation," Ketchum wrote. "Nevertheless, our Constitution requires that plaintiffs must prove each of the elements of their case before the case can be submitted to the jury for its consideration -- and the plaintiffs simply failed to prove their case."

For the frustrated West Virginia business community, those words had the ring of conviction.

He was writing in response to an appeal of a $400 million class-action judgment against DuPont that seeks to hold the company responsible for health problems plaintiffs could some day develop as a result of exposure to pollutants released by a Harrison County smelter.

In his dissent, Ketchum highlighted the injustice of DuPont having to pay for "medical monitoring where no actual harm has occurred." He continued, "We should not allow an asymptomatic plaintiff to recover damages by way of medical monitoring for the possibility of contracting a disease in the unpredictable future."

Ketchum argued that even "a new trial ... will hardly make up for the numerous prejudicial errors throughout the trial." He cited improper admission of evidence, exclusion of exculpatory material, an unqualified expert witness, plaintiffs' closing arguments that "bore no relation to the facts," and the unwarranted assessment of punitive damages.

Ketchum also wrote of concern for the potential impact of the lower court verdict outside the courtroom, warning that by providing incentives for plaintiff's lawyers to exploit our state's ill-conceived "medical monitoring" law, the state's economy was being savaged. Plaintiff's lawyers based in Florida stand to make about $100 million in fees in the DuPont suit, according to the dissent.

"Damage suits by non-diseased and uninjured persons will only drive our remaining factories out of the state," Ketchum wrote.

The state Supreme Court did cut in half the $196 million punitive damages portion of the award against DuPont and did order a new trial to determine if the statute of limitations had expired. But we agree with Ketchum, who in condemning this verdict against DuPont through his dissent, made it clear that his court colleagues didn't go nearly far enough.

West Virginia's civil justice system won't lose its anti-business reputation until the judges who run it begin showing more common sense. Here's hoping for the day we can read it in a majority opinion.

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