West Virginia Record

WASHINGTON – Despite “modest” improvements, West Virginia is still a judicial hellhole, a national legal reform group says.

On Dec. 17, the American Tort Reform Association released its annual Judicial Hellholes report, placing the Mountain State in the No. 4 position. It trails the jurisdictions of California, Louisiana and New York City, while placing ahead of Madison County, Ill., and South Florida.

California repeats as the top judicial hellhole, while West Virginia is down two spots from the 2012 report. West Virginia has appeared on the report every year since it began in 2002 and was ranked first in 2006 and 2008.

“Since it hit the #1 spot five years ago, there have been some modest improvements, including a slight expansion of the appellate rights of litigants, an occasional well-reasoned decision that does not expand liability, and replacement of the state’s notoriously plaintiff-friendly attorney general,” the report says.

“Yet the past year indicates that the state’s high court has not changed its ways, as it broke a century of precedent to expand the liability of home and business owners and granted undefined powers to the state’s attorney general.

“The litigation climate in the Mountain State remains one where businesses are subject to pro-plaintiff rulings, fear excessive liability and lack full appellate review.”

The state’s trial lawyers group, the West Virginia Association for Justice, called the report propaganda.

“The supposed report claims to be an analysis of our legal climate. It’s not – and it has been discredited by both the media and legal experts,” said Bernie Layne, WVAJ president and attorney at Mani Ellis & Layne in Charleston.

“It’s an annual piece of PR propaganda issued in an unrelenting campaign to destroy our 7th Amendment rights and leave West Virginia consumers, workers and small businesses at the mercy of the billion-dollar corporate special interests that fund ATRA and its campaign.”

This year’s report focused on several state Supreme Court decisions, one of which abolished the “open and obvious” doctrine and overturned a ruling in favor of a property owner who was sued after an elderly man fell down a set of stairs that had no handrail.

Other decisions ATRA found troubling involved the Attorney General’s Office. Though ATRA is pleased Darrell McGraw is no longer in office, having been voted out in 2012, it took issue with the court affirming McGraw’s decision to hire private lawyers on a contingency fee to represent the State.

McGraw often entered into such agreements during his time in office, but several companies recently argued to the Supreme Court that they were unlawful.

In an opinion released June 4 and authored by Justice Robin Davis, the unanimous court ruled the defendants in the lawsuits have not alleged any conduct that has resulted in an injury.

“The outcome of this case is a more powerful West Virginia Attorney General,” the report says.

“The court used the Petitioners’ challenge to the AG’s statutory authority to hire outside counsel to declare broadly that the AG has inherent common law powers and is not constrained by legislative appropriation.

“Ironically, the court overruled a prior decision authored by then Justice McGraw that had constrained the AG’s authority. Now West Virginia’s AG has undefined powers.”

Also mentioned in the report were:

-An Ohio County predatory lending lawsuit against Quicken Loans in which the company appealed a $2.8 million award. The state Supreme Court found the company committed fraud and violated a state consumer protection law and sent the case back to Ohio Circuit Court, where a new judge increased the penalty to $3.5 million;

-A lack of an intermediate appellate court;

-Employees being allowed to sue employers over workplace injuries by skipping the Workers’ Compensation system and claiming deliberate intent on the part of the employer;

-A more than $91 million award against Heartland of Charleston in a wrongful death case that is being appealed to the state Supreme Court;

-Pittsburgh attorneys found by a federal jury to have filed fraudulent asbestos claims in West Virginia courts; and

-Judge Ronald Wilson, who oversees the state’s asbestos litigation, being named “Judge of the Year” by the West Virginia Association for Justice.

“Needless to say, such recognition hardly makes defendants confident that they will get a fair shake in his courtroom,” the report says.

In response to the Quicken Loans case, WVAJ says the report leaves out the Supreme Court’s ruling that the company committed fraud, and that Judge David Sims was not bound to the first award decided by Judge Arthur Recht.

It also said an intermediate appellate court would cost state taxpayers more than $5 million.

“The 2012 annual report issued by our West Virginia Supreme Court showed that appeals are at a 25-year low – and that they’re declining at a rate three times the national average,” Layne said.

“The new appellate rules also ensure that written decisions on why cases are accepted or not are written for every appeal.”