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Dishonorable Mentions

“Dishonorable Mentions” recognize particularly abusive practices, unsound court decisions or other actions that erode the fairness of a state’s civil justice system.

Missouri Supreme Court Strikes down Noneconomic Damages Limit

In July 2012 a divided Missouri Supreme Court struck down the state’s $350,000 limit on noneconomic damages in medical liability lawsuits. In doing so the high court’s activist majority overruled 20 years of precedent that had held limits on noneconomic damages to be “rationally related to the general goal of preserving adequate, affordable healthcare for all Missourians.” In effect, the court has now sided with personal injury lawyers over doctors and those who rely on accessible, affordable medical care.

Missouri enacted the $350,000 limit on subjective damages for pain and suffering as the average award against medical care providers increased by 52% between 2001 and 2005. Especially for surgeons this represented the continuation of a deteriorating situation as the average payout on claims increased approximately 84% from 1999 to 2005. Over the same period, Missouri’s medical liability insurers experienced significant losses and had to increase premiums to avoid collapse. Those higher premiums in turn put greater financial strain on the medical community. Many physicians, particularly high-risk specialists, could no longer afford insurance and some chose to relocate as a result. The high court’s latest decision, reestablishing unlimited pain and suffering damages, threatens a return to the troubling environment doctors and their patients in Missouri suffered not long ago.

As with its infamous 2007 medical-monitoring decision in which the high court allowed plaintiffs to seek damages without having suffered an injury, Missouri again is an outlier, joining a minority of states in which high court decisions have stymied elected legislators and governors trying to head off physician shortages with reasonable limits on inherently subjective awards for pain and suffering. In fact, as noted among this report’s Points of Light (see p. 36), the high court in neighboring Kansas in 2012 upheld a $250,000 noneconomic damages limit applicable not only in medical malpractice cases, but all personal injury cases. So don’t be surprised to see Show Me State doctors moving west to the Sunflower State.

Washington Supreme Courts Hits Protective Equipment Maker with Liability

In a sharply divided decision in August, the Washington Supreme Court overturned a lower court’s dismissal of a case brought against manufacturers of respirators, federally-certified masks worn to protect against toxic substances in the workplace, finding that the equipment makers had a duty to warn of the dangers of exposure to asbestos. And although respirator manufacturers make products that shield workers from various contaminants, they are increasingly named among numerous defendants in asbestos and silica-related lawsuits because so many companies that actually made asbestos-containing products have been bankrupted and personal injury lawyers now look for new, still-solvent targets.

Leo Macias, who worked for 24 years as a tool keeper in a shipyard in Seattle brought one such case after he was diagnosed with mesothelioma. Mr. Macias claimed that his duties in cleaning respirators, during which he did not wear protective equipment himself, exposed him to asbestos dust that caused his injury.

Washington law appeared to favor the respirator makers since they did not make, sell or profit from the asbestos to which Mr. Macias was exposed, and it’s absurd to suggest they be required to warn specifically against countless contaminants from which their respirators offer protection.

Nonetheless, the court majority distinguished two earlier rulings in which the court found that manufacturers do not have a duty to warn about products containing asbestos sold by others because it found the danger of asbestos exposure “inherent in the use and maintenance” of respirators. The dissenting justices, however, found that manufacturers should not be liable unless they are in the chain of distribution of the asbestos-containing products. “If anything,” the dissenters reasoned, “the safety purpose of the respirators cuts against imposing liability here.”

Such an expansion of liability hurts not only respirator makers but the broader public interest. The financial impact of such litigation provides a strong disincentive for respirator makers and other manufacturers of protective equipment to continue making and selling their products in the United States. In fact, a significant amount of respirator manufacturing has moved out of United States to places such as China and Mexico, where companies are not subject to American tort liability. Should the supply of respirators fail to keep pace with workers’ needs for them, needless exposures to harmful contaminants could be considerable, and the risk to public health and safety could be enormous in the wake of a contagious disease outbreak, natural disaster or terrorist attack.

More troubling still is the notion that the Macias decision may not be an aberration. Some Washington court watchers have expressed concern that, while the Evergreen State is no California or West Virginia, its high court is generally moving in the wrong direction with a decidedly pro-liability majority.