Toriseva
Massie
CHARLESTON -- Legislation that would prohibit attorneys from including specific financial demands for damages in personal injury and wrongful death cases has drawn support from both trial attorneys and defense counsel.
Earlier this month, the state Legislature passed House Bill 4120, which prohibits such damage demands in ad damnum clauses. The bill provides exceptions for when a specific amount is required to obtain or preserve jurisdiction or otherwise required by an existing statute or rule. The legislation mirrors a similar law already in place for medical malpractice cases.
The legislation passed unanimously in both the House and Senate. Gov. Joe Manchin received the bill on March 17.
"Plaintiffs should collect damages for only what the evidence proves is justified -- not outrageous sums that cannot be substantiated," said Teresa Toriseva, president of the West Virginia Association for Justice. The WVAJ formerly was known as the West Virginia Trial Lawyers Association.
Toriseva mentioned two lawsuits filed last year that she said helped trigger public perception about "frivolous" lawsuits "even though the two cases were far outside the accepted practice of responsible attorneys."
One was the Washington, D.C., case in which a judge sued a dry cleaner for $54 million for losing a pair of pants. The other was here in West Virginia, a $10 million suit against McDonald's for putting cheese on a hamburger.
"These cases garnered national media attention, yet neither would have attracted any news coverage had the attorneys who filed the cases not included large, unjustified financial demands in the actual lawsuits," Toriseva said. "This legislation helps ensure that the damages sought by plaintiffs are fully supported by the evidence in the case.
"Just as important, it eliminates some of the anecdotal cases that corporate special interests like to cite when they try to claim that our court system is broken."
The president of the Defense Trial Counsel of West Virginia also is pleased the bill was passed, even if his reasoning is different.
"It's a good thing for the perception of the West Virginia judicial system," said Bob Massie, a partner at Huddleston Bolen in Huntington. "Some attorneys were abusing the practice just for publicity sake or to get some attention. And the backlash was hurting West Virginia.
Massie said the McDonald's cheeseburger case is a perfect example.
"He (the attorney) knew better, and the public reaction was justified," Massie said. "This legislation will prevent that kind of harmful reaction to a foolish act by a lawyer."
Massie stressed that the legislation would not have been necessary if not for the actions of a few attorneys.
"I wish that the lawyers in this state had not been in engaging in the acts that forced this type of legislation to be required," he said. "But this bill is good for the state. I think it removes that harmful backlash from the public."
Manchin has until early April to sign the bill or let it pass without a signature.
"We hope that Governor Manchin signs this bill into law as soon as he receives it," Toriseva said.
