Victor E. Schwartz and Mark A. Behrens *
Any corporate counsel or practitioner who represents defendants
in tort cases should take serious note of three legal tactics being
promoted by the plaintiffs' bar. Two of these developments _ medical
monitoring and "Big Government" lawsuits _ would subvert
200 years of tort law. The third _ judicial nullification of state
tort law _ threatens attempts by state legislatures to restrain
judicial lawmaking and to restore balance and predictability in
Plaintiffs in medical monitoring cases have no present physical
injury. Instead, they seek recovery for the future cost of periodic
medical examinations to detect the possible onset of disease.
So far, most courts have rejected medical monitoring claims. They
have been unwilling to abandon the 200-year old rule that a plaintiff
cannot recover damages without proof that he or she actually suffered
a physical injury. This "physical injury rule" has served
as the traditional gatekeeper to recovery in tort law.
Most notably, in Metro-North Commuter Railroad Co. v. Buckley,
521 U.S. 424 (1997), the United States Supreme Court rejected a
medical monitoring claim brought under the Federal Employers' Liability
Act. The plaintiff, a former railroad pipefitter, had been exposed
to asbestos in his work, but did not suffer from any asbestos-related
disease or injury. The Court warned that recognition of medical
monitoring as a "remedy" for injuries that had not occurred
and might not occur would produce a flood of claims and delay access
to justice for persons already suffering from serious physical injuries.
Other courts, however, have paid little attention to these concerns.
For example, in another asbestos case, Bourgeois v. A.P. Green Industries,
Inc., 716 So. 2d 355 (La. 1998), the Supreme Court of Louisiana
allowed plaintiffs to pursue the creation of a judicially-administered
fund to cover the costs of periodic future medical surveillance.
Concerned by the court's evisceration of the physical injury rule,
the Louisiana legislature promptly passed a statute overturning
Most recently, in Bower v. Westinghouse Electric Co., 1999 WL 518926
(W. Va. July 19, 1999), the Supreme Court of Appeals of West Virginia
adopted what may be the most liberal medical monitoring cause of
action to date. The court held that, to be entitled to medical monitoring,
a plaintiff is "not required to prove that a particular disease
is certain or even likely to occur as a result of the exposure."
One dissenting justice, however, argued strongly that the court
lacked the authority to engage in judicial lawmaking.
Decisions like Bower are troubling for a number of reasons. First,
the cases brush aside the fundamental (and sensible) "physical
injury rule." If a plaintiff no longer has to prove that he
or she suffered a physical injury _ much less that the defendant
caused it _ one can just imagine the contingency fee lawyer advertisements
that may begin to run. The familiar question, "Have you been
hurt?" may soon be replaced by, "Don't wait until you're
hurt, call now."
Second, the potential liability is both astronomical and impossible
to predict. On a daily basis, almost everyone comes into contact
with numerous materials that could arguably warrant medical monitoring.
Third, medical monitoring awards are often totally unnecessary.
Most workers today already receive access to medical check-ups through
a health plan. A tort award would simply provide a windfall recovery.
Fourth, medical monitoring is subject to widespread and serious
abuse. When the cost of medical monitoring is awarded in a lump-sum,
there is no guarantee that any recovery will actually be spent on
medical monitoring. In fact, experience tells us that lump-sum awards
are more likely to be spent like a lottery jackpot _ to purchase
a new car, a television, a boat _ not on medical care. This will
almost certainly be true in the vast majority of cases where monitoring
is already provided by a "collateral source."
Finally, as the United States Supreme Court has said, medical monitoring
claims may further clog our courts and adversely affect potential
plaintiffs who depend on a tort system that can distinguish reliable
and serious personal injury claims from unreliable and relatively
Nevertheless, the plaintiffs' bar will push the envelope on medical
monitoring, as well as other tort claims that do not involve a present
physical injury, such as novel emotional distress or "fear
of injury" claims. A primary reason is that the plaintiffs'
bar understands that medical monitoring recoveries could be extremely
lucrative _ particularly in states like West Virginia that have
lax class action certification standards. The combination of medical
monitoring and unrestrained class action certification is a powerful
"double whammy" that could subject businesses to potentially
Regulation and Taxation Through
The second major development in tort law that is cause for serious
concern is the attempt by some governmental entities _ often working
in partnership with private contingency fee lawyers _ to seek regulation
and taxation through litigation. Texas Governor George W. Bush has
aptly labeled this spectacle, "Big government through big lawsuits."
For more than 200 years, tort law has provided that an injured
person's claim is primary; it is equal to or greater than the claim
of any party that has suffered only an indirect economic loss.
Automobile accident litigation provides a common example of this
settled rule. If you are involved in an automobile accident, the
other driver sues you, and you win in court, that driver's insurance
company cannot sue you directly. Instead, the insurer must "stand
in the shoes" of the insured _ if you beat that driver in court,
you beat his or her insurer too.
Another common example of the traditional rule is found in workplace
injury cases. If a worker is injured in the workplace as a result
of a defective tool, he or she will receive workers' compensation.
The worker also may bring a product liability action against the
tool's manufacturer. The employer may put a lien on the employee's
recovery to recover economic losses it may have suffered as a result
of the employee's injury (e.g., worker compensation paid to the
employee, loss of profits while the employee was out of work, or
the cost of hiring a replacement worker), but the employer cannot
bring an independent action. Furthermore, if the tool manufacturer
defeats the injured worker's product liability claim, the employer's
indirect claim is cut off.
Under this traditional legal principle of subrogation, a party
that suffers indirect economic loss must "stand in the shoes"
of the person who was directly injured. Similarly, if the government
suffers an indirect economic loss on account of harm to a citizen,
it should be subject to any defenses that could be raised against
Today, governmental entities (often in partnership with private
contingency fee lawyers) are working to cast aside the 200-year
old subrogation remedy. They argue (most recently, in the tobacco
cases) that state and federal governments' claims are "independent"
of the claims of individual citizens, therefore, government plaintiffs
are not subject to the defenses that could be raised against those
individual. The government plaintiffs are seeking to crown themselves
"super plaintiffs" with enhanced legal rights that go
far beyond the rights of individual citizens with actual physical
Courts should not discard the 200-year old principle of subrogation
and permit independent lawsuits by governments, regardless of the
popularity of the defendant. If courts do so, they are engaging
in unsound and radical judicial lawmaking.
Former Clinton Administration Labor Secretary Robert Reich candidly
admitted this in an editorial he wrote in February 1999 in USA Today.
He said that "The era of big government may be over, but the
era of regulation through litigation has just begun." He advocated
that courts be the regulators of society, deciding whether certain
products or services should be available, how they will be marketed,
and at what price.
Mr. Reich's vision of the world violates the bedrock principle
of separation of powers. The Constitution provides that the job
of courts is to decide cases and controversies _ to interpret the
law, not make it. When courts "legislate" they upset this
structure. Furthermore, courts lack the broad information-gathering
tools that legislators use in formulating sound public policy.
"Big-government" lawsuits represent another trend _ one
that Mr. Reich tellingly omitted _ an era of taxation through litigation.
To many politicians' chagrin, the public has said loud and clear
that it does not want to pay higher taxes. Legislators on both sides
of the aisle know that adverse political consequences can follow
in the wake of even the smallest tax hike. Consequently, those who
want tax increases to pay for big government programs are hoping
that the courts will become substitute tax collectors.
Taxation through litigation subverts our democracy and constitutional
framework. The Founding Fathers made clear their intention that
Congress, not the executive or the judiciary _ and certainly not
a small group of contingency fee trial lawyers _ be the branch of
government with the power to raise and spend money. They also insisted
that any bill introduced to raise revenue must originate among the
members of the House of Representatives _ the branch of government
most accountable to the people.
If government lawsuits that overturn established principles of
tort law and democracy are permitted to flourish for the sake of
political expediency, the power of taxation will be removed from
Congress and state legislators, and as a result, the control of
The third development _ state courts' use of state constitutional
provisions to nullify legislative decisionmaking and limit legislative
independence in liability law _ represents another serious threat
to our system of government. Besides further blurring the already-compromised
separation of powers, it also could stop legislatures from doing
anything to curb runaway liability created by medical monitoring
or big-government lawsuits.
The growing willingness of state courts to substitute their own
views of proper tort law for that of state legislators has been
facilitated by contingency fee lawyers who try to "game"
the legal system by relying solely on obscure state constitutional
provisions that have little historical explanation or precedent
of judicial interpretation. Indeed, Association of Trial Lawyers
of America ("ATLA") President Mark Mandell recently bragged
that a brief written by ATLA _ and argued by liberal Harvard Law
Professor Laurence Tribe _ resulted in an Indiana health liability
statute being overturned based on an state constitutional provision
"that was previously regarded as toothless."
By relying solely on state constitutional provisions, plaintiffs'
lawyers know that they can not only sculpt self-serving precedent,
but also prevent the defendant from appealing a pro-trial lawyer
decision to the United States Supreme Court.
Plaintiffs' lawyers also know that the United States Supreme Court,
in adjudicating constitutional challenges under the Fourteenth Amendment's
Due Process and Equal Protection Clauses, has long distinguished
a state legislature's power to enact laws that violate a person's
"fundamental" federal rights from a legislature's enacting
policy measures that affect "economic" rights and interests.
During the now-discredited "Lochner Era," which lasted
from the 1890s to the mid-1930s, the Court routinely invalidated
legislation based on vague concepts of economic rights. Since then,
however, the Court has (usually) shown appropriate deference to
legislatures' public policy judgments, even where the Justices did
not personally agree with the legislature's action, or if the law
affected or abridged economic, as opposed to civil, rights.
Most state courts have followed the lead of the United States Supreme
Court and have rejected invitations to issue decisions that ignore
the legislative role in developing liability law. By almost a two-to-one
margin, state supreme courts across the country have sustained rational
state legislative efforts to formulate state liability law.
For example, in Pulliam v. Coastal Emergency Services of Richmond,
Inc., 509 S.E.2d 307 (Va. 1999), the Virginia Supreme Court upheld
a $1 million limit on recoveries in medical malpractice actions.
In McDougall v. Schanz, 597 N.W.2d 148 (Mich. 1999), the Michigan
Supreme Court upheld a statute establishing standards for the qualification
of experts in medical malpractice cases. The court concluded that
the legislature had exercised its legitimate lawmaking function.
On the other hand, some courts have embraced the arguments of contingency
fee lawyers. For example, in State ex rel. Ohio Trial Lawyers v.
Sheward, 715 N.E.2d 1062 (Ohio 1999), the Supreme Court of Ohio
narrowly overturned Ohio's 1996 civil justice reform statute, even
though there was not a case or controversy before the court. The
Ohio Association of Trial Lawyers ("OATL") filed an original
action directly with the Ohio Supreme Court, arguing that the law
would cut into its members' contingency fees and make it harder
for OATL to recruit members!
In a salute to contingency fee lawyer politics, the majority invented
a new judicial doctrine to get around the established common law
principle of standing. Now, in Ohio, any public interest group can
file a direct action with the Ohio Supreme Court to challenge the
constitutionality of virtually any legislation that may affect its
members. This aspect of the majority's opinion was vehemently criticized
by the dissenting members of the court.
The majority's holding with respect to the substance of the legislation
was equally shocking. The court virtually up-ended the doctrine
of separation of powers and the notion of mutual respect between
the legislature and the courts. Without so much as a passing reference
to the need to preserve legislative independence in creating liability
law, the court broadly declared tort law to be within the exclusive
domain of the judiciary.
The majority also held that statute violated the "one-subject
rule" of the Ohio Constitution, which prohibits totally unrelated
subjects from being bundled in a single statute. Even though the
statute was plainly focused on just tort actions, that was not enough
for the members of the court who were bent on overturning the law.
They held that the legislation focused on more than one subject,
because they do not like civil justice reform.
By relying solely on the Ohio Constitution, the Ohio Supreme Court
was able to preclude any appeal to the United States Supreme Court.
Unfortunately, the Ohio Supreme Court has not been the first state
court to embrace the arguments of contingency-fee trial lawyers.
For example, in December of 1997, the Illinois Supreme Court overturned
a comprehensive Illinois tort reform statute in its entirety, holding
that it violated the Illinois Constitution. The court's overreaching
opinion in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997)
ignored the fundamental separation of powers principle. As Justice
Benjamin Miller wrote in his dissent: "Today's decision represents
a substantial departure from our precedent on the respective roles
of the legislative and judicial branches in shaping the law of this
state. Stripped to its essence, the majority's mode of analysis
simply constitutes an attempt to overrule, by judicial fiat, the
considered judgment of the legislature."
What Can Be Done?
1. Amicus Support Critical
When contingency fee lawyers urge courts to adopt medical monitoring,
ask courts to engage in regulation and taxation through litigation,
or challenge the constitutionality of state tort reform, solid amicus
briefs are needed in response. These briefs can signal to the court
the importance of a particular case and draw the court's attention
to broad public policy issues that may not be covered by the attorneys
representing the private parties in the case.
The very best amicus brief will not "save the day," however,
if judges are unwilling to listen. This is one reason why multiple
paths need to be pursued.
2. Election of Judges
For years, contingency fee lawyers have understood that judicial
selection is an important factor in the overall legal reform debate.
They heavily support judicial elections. Businesses should do the
same. They should identify and support qualified candidates for
the state judiciary.
While no one should ever expect a particular outcome from a court,
the public has a right to expect a balanced judiciary that is appropriately
deferential to the perspectives of other elected leaders, including
state legislators and governors. This is true with respect to both
tort reform and other key areas of public policy.
3. Publicity: Let the Public Know
What is Going On
The late United States Senator Everett Dirksen once said, "When
they feel the heat, they will see the light." Another truism
is that "the Supreme Court follows the election returns."
Both aphorisms apply here.
It is difficult to get the public's attention focused on topics
as complex as medical monitoring, big government litigation, or
the constitutionality of legal reform, but if messages are framed
in a fair, balanced, and thoughtful way, the public, and the judges
themselves, will appreciate that government functions best when
there is cooperation among the co-equal branches of government.
4. Federal Legislation
Lastly, although most tort reform successes have occurred at the
state level, the need for federal legislation to complement state
tort reform efforts is worth mentioning, because it represents one
more way of addressing the problem of judicial activism in liability
law. In particular, federal legislation may be the most direct way
of responding on a national level to the problem of judicial nullification
of state tort law.
The Supremacy Clause in the United States Constitution assures
that federal liability reform legislation cannot be attacked under
state constitutions. If constitutional attacks are to be launched
against federal reform laws, they must be grounded in the United
States Constitution. For almost a century, the United States Supreme
Court has repeatedly upheld federal legislation altering state tort
While Congress is not likely to "federalize" the entire
civil justice system, federal legislation may provide some hope
for states that would not otherwise have any means of addressing
the problem of unfair tort liability.
The start of the new millennium may bring about the most radical
changes in tort law since the late 1960s and 1970s. Medical monitoring
and other novel emotional distress claims that do not involve present
physical injuries, as well as big government lawsuits, seek to overturn
well-founded 200-year old tort law rules. Judicial nullification
of state tort law could cripple efforts to do anything about it.
Serious education efforts are needed. If courts and the public
understand the full policy implications of the contingency-fee lawyers'
"wish list," wiser courts will not go down that path _
and the public will not support those courts that do.
* The authors are attorneys in the Washington, D.C., law firm of
Crowell & Moring LLP. They serve as counsel to the American
Tort Reform Association.