Wednesday, December 31, 2008

A Batch Of Dissents

The year of the West Virginia Supreme Court of Appeals has ended with a series (seven, by my count) of dissents and one reluctant concurrence from Justice Starcher. In a case involving a hospital's subrogation claim:

I dissent because, in my 12 years on the appellate bench, I have too often seen arcane procedural decisions like this one flow forth from this Court. These decisions brilliantly and eloquently describe the trees, while failing to recognize the surrounding forest.

  These kinds of decisions may be technically correct, but they wholly miss the public policy   waves that will ripple from the Court's decision...

Let me put it another way: the majority's decision is one more brick in a wall designed to keep injured plaintiffs from seeking justice in the court system.  The majority opinion allows company health insurers to turn a simple, state-law tort suit over a car wreck into a federal preemption case revolving around the unfathomable morass called ERISA.  It is my belief that this Court should always work to improve access to the Courts and to simplify the administration of justice.  Justice should not be determined by the size of one's   checkbook, and whether one can hire the most lawyers to create or navigate an administrative maze.  But that is exactly what the majority opinion encourages.                

The use of the word “preemption” in today's courtroom is an obscenity _ and I reach that view of today's world after 32 years on the trial and appellate bench. Parties who seek to preempt the effect of state law through the application of federal law are oftentimes not looking for justice or fairness _ they are looking to avoid responsibility. I cannot accept   that Congress intended for most federal laws, including ERISA, to be vessels of absolution   for wrongdoers.  State laws designed to stimulate responsible behavior by dependable   citizens, state laws designed to punish and correct transgressions, and state laws designed to hold citizens accountable for their actions, are not supposed to be wholly suppressed merely   by a litigant muttering the word “ERISA.”  But the majority's opinion is one step toward making such wholesale preemption of state law a reality.

A majority decision in a medical malpractice case is characterized as a "magnificent injustice." The dissents are linked here and are dated December 30. (Mike Frisch)

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