Why Judges Matter, Part 1

Many people are aware when the U.S. Supreme Court issues a landmark opinion. Think Roe v Wade or Brown v Board of Education. These decisions are of transcending importance to our national fabric.

What most people are not aware of are the thousands of decisions made every day by lower courts. These decisions have a profound impact on our courts, our businesses, our institutions, and our own responsibility and accountability. These decisions magnify the critical nature of selecting judges to sit on the bench. One such case was recently decided by the U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Kentucky, Ohio, and Michigan.

In Gass v Marriott Hotel Services, the Sixth Circuit reinstated a lawsuit filed by two women against Marriott and an exterminating company, in which the women claimed that they were injured by pesticides sprayed in their Maui hotel room after they complained about seeing a dead cockroach.

This case is especially troubling because of the following:

• The two plaintiffs did not seek treatment from a physician specializing in environmental medicine until a month and a half after they returned to Michigan from Hawaii (they did see a general practitioner -- the husband of one of the plaintiffs -- when they got home);
  
  
• The specialist tested the plaintiffs for -- but could not find -- any detectable levels of the chemical compounds found in the pesticide used, and he did not test for any others;
  
  
• An expert toxicologist testified that there has never been any peer review study linking the one pesticide admittedly used to any toxic effect in humans;
  
  
• A renowned clinical psychiatrist testified that the physical symptoms of the two plaintiffs were likely a psychological reaction to stress, and that the plaintiffs had "demonstrated a tendency to react to stress in the past with physical symptoms";
  
  
• There was no evidence that any of the pesticides that potentially could have caused the plaintiffs' problems were used in the hotel room;
  
  
• There was no evidence that the pesticide admittedly used in the hotel room was used in sufficient quantity to cause any problems, nor was there any evidence about the length or intensity of the plaintiffs' exposure, the ventilation, etc., all factors that bear on whether the defendants caused the plaintiffs' alleged injuries.

Thus, there was no evidence that the plaintiffs were actually exposed to any harmful chemicals or that the exposure was at a level that is harmful. As a result, there is no way the plaintiffs could establish that exposure to a chemical actually caused them any harm. Nevertheless, in a 2-1 decision, the Sixth Circuit found there was enough to send the case to trial.

Of course, this result was a foregone conclusion. The majority consisted of Judges Eric Clay and Karen Nelson Moore, both appointed by Bill Clinton, while the dissenter, Chief Judge Danny Boggs, was appointed by President Reagan.

This case and others like it weaken evidentiary requirements, making it easier to file and pursue marginal, even frivolous, lawsuits. This increases the expense of doing business, will drive up insurance costs and prices, and further burden our courts while making it more difficult to get rid of groundless claims.

This is nothing new, of course -- read The Litigation Explosion or anything else by Walter Olson. It illustrates, however, the continuing crisis in our courts, driven by the tension between the rule of law and the political desire to bend (or ignore) the rules to promote a social agenda.

Just another reason why judges -- and votes -- matter.