Friday, February 28, 2003

West Virginia Legislative Update

Here is your 30-second legislative update:

The ATV bill is bogged down in the mud.

The medical malpractice bill is looking for some healing.

The cigarette tax bill is burning strong.

The coal truck bill is rolling along.

Tuesday, February 25, 2003

Changes to the Supreme Court Web Site
Supreme Court Clerk Rory Perry has redesigned the Court's opinions page. The page now contains direct links to the XML newsfeeds for cases in the "Recent" "Civil" "Criminal" and "Family" categories. For those of you who use news aggregators such as Amphetadesk or the Radio Userland aggregator, you can subscribe to these XML feeds and stay up to date on recent additions to these topical weblogs. The new design moves more of the "good stuff" the clerk has been working on to the front page.
Joint committee reaches compromise on ATV bill
Dominion Post
Children can go without helmets on private land and ride with passengers anywhere under a compromise all-terrain vehicle safety bill adopted by a joint conference committee Monday.

Friday, February 21, 2003

Evolution wins
According to this Gazette article, "State Board of Education members on Thursday unanimously backed the teaching of evolution in West Virginia science classrooms." Welcome to the 20th century. Now let's see if we can move education into the 21st.
High court to hear appeal on grants
Charleston Gazette
In a unanimous vote Thursday, the state Supreme Court agreed to hear an appeal by a citizens group protesting the Economic Development Grant Committee.

Yesterday afternoon, Supreme Court Clerk Rory Perry posted some additional information about the court's rulings on the Clerk's official weblog. Rory promises to post links to the petition, responses, and all substantive briefs next week.

Thursday, February 20, 2003

Well-deserved praise for the WVSCA's web site
This article written by the famous appellate weblog author Howard Bashman ("How Appealing"), reviews some of the best and worst state and federal appellate court web sites. Mr. Bashman calls the West Virginia Supreme Court of Appeals' web site "very, very good," and he specifically mentions Clerk Rory Perry's weblogs as a key feature. Unfortunately, Howard refers to our high court twice as the "Supreme Judicial Court of West Virginia" instead of the "Supreme Court of Appeals." Oh, well. We know who he is talking about.

Wednesday, February 19, 2003

House bill would stop medical monitoring lawsuits
Charleston Daily Mail
This article in the Daily Mail reports that the House Judiciary Committee is introducing a bill which would overturn the Supreme Court's decision in Bower v. Westinghouse. In that case, the Court created a new cause of action allowing uninjured people who have been exposed to some toxic, disease-causing substance to sue and recover the costs of medical monitoring.

The article uses a poor example of the types of cases that can be brought under Bower. It states that "Medical monitoring has been likened to when a pedestrian is hit by a motorist running a red light. The pedestrian is rushed to the emergency room for all sorts of tests. Even if the tests show no injury, the motorist would be expected to pay for them."

Actually, the Bower case is restricted to instances in which the plaintiff has been exposed to some "hazardous substance" which creates an "increased risk of contracting a serious latent disease." If the Plaintiff can show that the increased risk makes it "reasonably necessary" for the plaintif to undergo periodic tests, he can recover the cost of the monitoring procedures that make early detection of the feared disease possible.

The problem with Bower is that it allows the plaintiff to recover thousands of dollars from the defendant for a lifetime of tests where there is only a slight chance that the disease will be contracted. By reversing the Bower holding, the bill would not prohibit the pedestrian in this example from recovering the costs of medical tests where he is hit by a car--even if the tests prove nothing is wrong.

A better example would be where a business is storing a substance such as a paint thinner in a garage. The paint thinner contains benzene, a known carcinogen. The barrell containing the paint thinner leaks and an independent contractor performing some structural repairs to the garage breathes the vapors for several days before the leak is discovered. The Bower case would allow the contractor to sue the business to recover the costs of regular cancer screenings, arguably for the rest of his life.


Friday, February 14, 2003

Doctor files suit against state trial lawyers
Charleston Daily Mail
Dr. Julie McCammon, a Clarksburg obstetrician has filed a lawsuit against trial lawyers in West Virginia, blaming them for instituting "frivolous, nonmeritorious and malicious lawsuits" against doctors. She claims to have suffered huge increases in her medical malpractice insurance premium as a result of such frivolous lawsuits.

Not surprisingly, McCammon is representing herself. The suit names as defendants the West Virginia Trial Lawyers Association and its president, William Frame, a Morgantown attorney, as defendants. This could be called the frivolous lawsuit to end all frivolous lawsuits.
Addendum to a Footnote
ABA Journal eReport
The Indiana attorney who was suspended last November for criticizing, in a footnote, an opinion of the state supreme court as results-oriented has had his suspension reduced to a public reprimand. This would seem to be a more fitting punishment, assuming any punishment at all was warranted.

He had to find out the hard way that the judges really do read the footnotes.
Should we add a woman to the state seal?
According to this Charleston Gazette article, the House of Delegates approved a resolution on Wednesday to study the addition of a woman to the state seal. The seal currently features a miner and a farmer, both of them men.

I have to say that our state seal is already pretty crowded with the two folks we already have. If we agree to add a woman, then we'll have to add other unrepresented groups as well that helped to shape West Virginia. How about a union soldier, an African American, a venerable senator, or Jessco White, the Dancing Outlaw? And we can't leave out the wildlife. I think that if the seal is changed at all, it should be to simplify it, not complicate it.

I was looking at the state seals of the other 49 states, and I noticed that some of them are worse-looking than ours. (Take Kentucky for example.)

I say we just take the plunge and adopt the unofficial symbol of West Virginia as the official one: the "Flying WV."

Tuesday, February 11, 2003

Appeal Filed in Grant Lawsuit
Dominion Post
The citizen's group that unsuccessfully sued the state's Economic Development Grant Authority to void the $145 million in economic development grants awarded by the committee appealed Judge Charles' King's decision on Monday. The committee filed its own petition seeking expedited resolution of the matter.
The Evolution Debate Rages On
Nearly seventy-eight years have passed since the Scopes "Monkey Trial," and we are still debating whether creationism should be taught in our schools alongside Darwin's theories. This Charleston Gazette article notes that "West Virginia school officials may add a 'qualifying statement' to new statewide science standards." The statement reads "the development, refinement and critical analysis of scientific theories will provide all learners a better understanding of natural phenomena.”

While such a statement seems uncontroversial, it is curious that our state education policymakers are still attempting to compromise with the neocreationists on this issue. The mandatory teaching of creationist theories has been banned since Epperson v. Arkansas, 393 U.S. 97 (1968). Supernatural theories are not scientific theories, no matter how they are dressed up. From a legal standpoint, the lines have been drawn: religious theories cannot be taught in public schools as science.

Besides, Darwin's theories do not attempt to explain the origins of the universe or of life itself. I still don't see what all the fuss is about.

Monday, February 03, 2003

JUDGE VOIDS LICENSE CLAUSE RESTRICTING WHAT CUSTOMERS CAN SAY ABOUT A COMPANY'S PRODUCTS
Technolawyer's IP Memes Newsletter
"In a ruling believed to be the first of its kind, a New York judge ordered Network Associates Inc. to stop placing restrictions on what its customers can say about its products. In particular, the court prohibited the use of increasingly-common language in software and other licenses to the effect that "prohibited customers from disclosing the result of any benchmark tests to any third party without the company's written approval, or publishing reviews of its products without NAI's consent." This case will give licensees a solid ground to delete or modify these onerous and often ambiguous clauses. Computer World Article"
Harrison judge plans annual mass Valentine's Day nuptials
Clarksburg Exponent-Telegram
"Circuit Court Judge Thomas A. Bedell will hold a mass Valentine's Day wedding ceremony in the Division II courtroom on the third floor of the Harrison County Courthouse. The event will begin at noon."

Sunday, February 02, 2003

Fourth Circuit Reverses Mountaintop Mining Decision
On Wednesday, the Fourth Circuit reversed the permanent injunction imposed by Judge Haden prohibiting the Army Corps of Engineers from issuing new Section 404 permits for the deposit of mountaintop debris in so-called valley fills.

Section 404 permits are critical to mountaintop removal mining operations because they allow coal operators to deposit rock and soil blasted away from mountains into valley waterways. The reversal is a major victory for appalachian coal operators.

In his ruling from last May, Judge Haden "found and concluded" that "fill material" as used in § 404 referred only to "material deposited for some beneficial primary purpose," not for waste disposal, and therefore that the Corps' "approval of waste disposal as fill material under § 404 [of the Clean Water Act] [was] ultra vires" and "beyond the authority" of the Corps.

The 55-page decision of a three-judge panel of the Fourth Circuit found that issuance of the permits did not violate the Clean Water Act, and that Judge Haden's decision was overbroad.

The case decision, KENTUCKIANS v RIVENBURGH, No. 02-1736 can be found here, and an article from the Washington Post can be found here.