CHARLESTON – Let’s talk about who and what are damaging West Virginia’s national reputation and ability to market our state as a good place for business — and why.
Despite claims to the contrary, the truth is that it’s the American Tort Reform Association and the lawmakers, paid political operatives and media who parrot the association’s widely discredited Judicial Hellhole attack. For more than a decade, ATRA has made its baseless attack, and every time its misinformation is repeated it hurts our state’s efforts to provide West Virginia workers with well-paying jobs. It’s time we stand together and demand that it stop immediately.
ATRA was founded nearly 30 years ago, and its “members are largely Fortune 500 companies with direct financial stake in restricting lawsuits.” Why? Because these billion-dollar corporate interests put their profits ahead of the safety and financial well-being of consumers, workers and our state’s small businesses. Our civil courts are the only place where they can be held accountable when we are injured by their misconduct and negligence. ATRA's goal is to take away our constitutional right to jury trial, lock the courthouse doors and leave us and our families with nothing.
The Hellhole attack is central to this PR campaign. While it claims to be a valid analysis of our nation’s courts, it’s not — and even its authors admitted that to the New York Times. The Times challenged the 2007 study, writing, “The question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short ... It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.”
In her study of West Virginia’s courts, Elizabeth Thornburg wrote, “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. 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.” That “accurate snapshot of reality” is very different from the Hellhole propaganda.
According to the National Center for State Courts, in 2010, the last year that data is available for all 50 states and Washington D.C., West Virginia ranked 39th in the number of lawsuits filed based on population. Thirty-eight states had more than us — including all five of our surrounding states, with Maryland ranking first and Virginia third. West Virginia filings continue to decline. There were 4,302 civil cases per capita in 2010, but just 4,098 in 2012 — a decline of 4.7 percent
The West Virginia Supreme Court was the primary target in this year’s attack, yet appeals are at a 29-year low, with just 1,319 cases in 2013. Over the last 15 years, case filings have declined from 3,569 in 1999 to 1,319 — a decline of more than 60 percent. Civil appeals for tort cases, contract cases and property totaled only 168 cases. ATRA declared our state’s highest court a “hellhole” based on decisions in just six of those cases. That’s just 3.5 percent of those civil cases — and less than one-half of one percent of all cases. Even if ATRA's case facts were accurate, those numbers don’t come close to a “hellhole.”
But ATRA didn’t bother to disclose critical information in the cases highlighted. ATRA again attacks the Court’s decision in the Hersh case, where a man was injured falling down a flight of stairs. Yes, stairs are a hazard — that’s why the City of Martinsburg’s building codes require handrails. The defendant didn’t have one. Building codes are enacted to keep us safe. If you break those laws and someone gets hurt, you pay the price. No excuses.
ATRA also continues to attack the verdict against a nursing home that caused a patient’s death because the staff did not make sure that she was given the most basic necessities — adequate food and water. Yes she was elderly and in poor health, but she died because she was malnourished and dehydrated. Even the murderers and rapists in our jails get food and water. Did the nursing home believe that it should get a free pass when an elderly woman starved to death?
In another case, ATRA misrepresents information on what our courts call collateral source payments. An injured person’s collateral source benefits are not a “recovery.” You buy and maintain insurance by paying your premiums. When you’re hurt, the insurance company pays claims because you purchased coverage. If there is a verdict or settlement in a lawsuit, the injured person is required to reimburse their insurance company. There is no financial windfall or double-dipping.
Changing this rule allows wrongdoers to present one-sided evidence about your medical expenses and payments in order to reduce their own debts. If they hurt you or your family, why should they get a financial break just because you were responsible and had the foresight to buy insurance? It’s wrong.
ATRA and its corporate-billionaire backers should not be allowed to continue this unjustified attack on West Virginia. It’s time our state leaders stand up and demand it stop. Our personal safety, financial safety and constitutional rights should not be sacrificed to increase their profits.
Majestro is a Charleston attorney and the president of the West Virginia Association for Justice.