West Virginia Record

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Groups react to Hellholes report

By Chris Dickerson | Dec 18, 2014

CHARLESTON – Two state groups have diverse viewpoints about the West Virginia Supreme Court being listed third on the annual Judicial Hellholes report.

West Virginia Citizens Against Lawsuit Abuse said its members are not surprised by the ranking, while the West Virginia Association for Justice called for leaders to stop citing the “discredited” report.

“Our grassroots members are not surprised by our ranking on the ‘Judicial Hellholes’ report,” said Roman Stauffer of WV CALA. “The litigation climate in West Virginia continues to discourage employers from locating here because of concerns about excessive verdicts, unbalanced rulings, and the lack of a right of full appellate review.”

Anthony Majestro, president of WVAJ, said the annual report released by the American Tort Reform Association, does not provide accurate information on the state’s legal climate and is an unwarranted attack that hurts the state’s national reputation and ability to attract new jobs.

“For more than a decade, the American Tort Reform Association has unfairly criticized West Virginia in state and national media,” Majestro said. “These are baseless attacks that damage our national reputation and hamper efforts to bring new businesses to our state.  Our lawmakers and business leaders should demand these attacks need to stop now.

“Parroting this misinformation is what really hurts West Virginia’s ability to provide our workers with good paying jobs. Instead of relying on a corporate-front group’s propaganda, West Virginia’s leaders should rely on independent, third-party data that provides an accurate analysis of our courts and shows that West Virginia is a good place to do business.”

The Hellholes report, released Tuesday, targeted several state Supreme Court decisions in its reasoning. It also touched on the recent ABC News report focusing on the sale of a Learjet by the husband of Chief Justice Robin Jean Davis to an attorney who had a case headed to the Supreme Court.

No one with the state Supreme Court chose to respond with comment for this story.

“The Supreme Court of Appeals of West Virginia is a major factor in the poor reputation of the state’s civil justice system,” Stauffer said. “The state’s only appellate court demonstrated a propensity to abandon traditional tort law constraints and embrace expansive theories of liability.

“The (ABC News) story has raised serious questions about the connections between Justice Robin Davis, out-of-state personal injury lawyer Michael Fuller, Davis’ husband Scott Segal, and the purchase of a Learjet for over $1 million prior to a large verdict and ruling by Justice Davis and the Supreme Court of Appeals of West Virginia.”

WVAJ says that, according to the National Center for State Courts, West Virginia always has been in the bottom 25 percent of states for the number of civil cases filed based on population. In 2010, the last year from which data is available for all 50 states and the District of Columbia, it says West Virginia ranked 39th.

WVAJ also says the data shows the number of filings in West Virginia continues to decline.  There were 4,302 civil cases per capita in 2010, and 4,098 per capita in 2012 for a decline of 4.7 percent. It says the data also shows that, on average, just 3.5 percent of civil cases are tort cases.  In West Virginia that’s just 143 cases per capita in 2012.

WV CALA also notes that the Hellholes report highlights reforms made by West Virginia Attorney General Patrick Morrisey regarding the use of outside counsel. Morrisey says the reforms have saved the state millions of dollars in outside attorney costs.

“The Judicial Hellholes report highlights significant legal issues in our state that need to be addressed,” Stauffer said. “These issues make it difficult to move our state forward, attract job creators, and grow our existing businesses.

“Passing legal reforms would be an economic development package that will help all West Virginians. We’re hopeful that the new legislative leaders act to reform our legal system and bring our state more into the national mainstream.”

WVAJ also questions the validity of the Judicial Hellholes report.

“The American Tort Reform Association (ATRA) was founded in 1986.  While it claims to have  ‘135,000 grassroots supporters’ and that its membership is diverse and includes ‘nonprofits, small and large companies, as well as state and national trade, business and professional associations, the truth is the members are largely Fortune 500 companies with direct financial stake in restricting lawsuits’ including ‘the tobacco, insurance, chemical, auto and pharmaceutical industries,’” it says, citing the Center for Justice and Democracy.

WVAJ also notes a 2007 New York Times report questioning the report.

The Times wrote that the report was not a valid analysis and the report’s authors admitted it.

“The question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly,” the Times wrote. “Here the report falls short ... It has no apparent methodology.”  ATRA responded by saying “we have never claimed to be an empirical study.”

WVAJ also cites an article focusing directly on the report and its impact on West Virginia.

“The explicit goal (of the Hellhole Report) is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy,” Elizabeth Dedman wrote in Judicial Hellholes, Lawsuit Climates and Bad Social Science for the West Virginia Law Review. “Judicial Hellholes are selected in whatever way suits ATRA’s political goals.  The choice is not based on research into the actual conditions in the courts.

“The point of the hellhole campaign is not to create an accurate snapshot of reality. The point of the hellhole campaign is to motivate legislators and judges to make law that will favor repeat corporate defendants and their insurers, and to spur voters to vote for those judges and legislators who will do so.”

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