The truth regarding these so-called 'reforms'

CHARLESTON – In 2014, corporate special interests funneled millions into West Virginia elections to buy themselves a Legislature to would pass laws that eliminate corporate accountability and increase corporate profits at the expense of West Virginia workers, consumers and small businesses.

West Virginia Citizens Against Lawsuit Abuse (WV CALA) was a big part of that effort, and now its chairman, Duane Zobrist, is touting the new lawsuit “reforms” the campaign contributions bought.

As with most things that involve CALA, there is a great divide between its claims and the truth.  CALA claims that our lawsuit climate is the worst in the country when independent data from the National Center for State Courts shows that West Virginia ranked 39th in the country for the number of civil cases based on population — 38 states had more cases than we did.

Civil cases declined from 4,302 cases in 2010 to 4,098 in 2012, a decline of 4.7 percent.  This does not point to an out of control legal system.  CALA also claims that “lawsuit climate” is a deciding factor for businesses, yet the “cost and frequency of lawsuits” ranked 71st of 75 concerns in the National Federation of Independent Businesses’ 2012 poll — dead last among problems associated with business costs.

Despite CALA’s claims to the contrary, this is not an issue that affects our business climate.  CALA even misrepresents itself, claiming to be a “citizens” organization when it’s really a front group funded by major corporations and industries seeking to escape liability when they harm consumers.  West Virginia CALA has refused to disclose its donors for more than 20 years.

Now CALA  is misrepresenting recently passed legislation.  It’s time for the truth.  West Virginians deserve to know what these changes really do and who benefits from them.

While praising West Virginia’s new comparative fault law, Zobrist fails to disclose that the new law will increase litigation and legal costs for businesses — the exact opposite of what CALA claim to want.

Under the statute, those responsible can drag more defendants into the case, including those who have limited responsibility, in order to shift their misconduct onto others.  Litigation will be more complex, expensive and harder to settle as courts attempt to sort out the relative fault of the defendants.

The new comparative fault law also removes our state’s long-standing doctrine for good faith settlement. Those companies that wish to accept responsibility, settle their cases and exit the litigation won’t be able to do so.  They will be forced to remain through the entire trial and pay attorneys’ fees.  The bill also eliminates personal responsibility and accountability.

When several wrongdoers are responsible, each should pay.  If one can’t, the others responsible should pay that part too.  When they don’t, the financial burden shifts onto the person or business that is harmed or tax payers.  Under this new law, plaintiffs could recover less than 50 percent of what’s owed.  Those people are getting hurt twice — first by the misconduct and then again when they aren’t compensated for it.

The Legislature also limited the ability to hold nursing homes accountable at a time when the number of severe deficiencies in state facilities has doubled in just four years.  The legislation extends West Virginia’s Medical Professional Liability Act and its $250,000 non-economic damages cap to nursing homes, pharmacies and other facilities.

The law is so broad that all acts are covered under the MPLA, including administrative decisions and other actions that would never be defined as “medical care.”  At the same time, it does absolutely nothing to address poor patient care and the serious problems in our nursing home industry.

The passed asbestos bill bears little resemblance to what industry wanted — immunity for manufacturers and wrongdoers while delaying or eliminating the majority of serious cases. That version was rejected since many of its provisions were unnecessary due to West Virginia’s current Case Management Order, which has handled cases fairly and efficiently for more than a decade.

A compromise bill removed the immunities in the original version; eliminated extensive new burdens of proof for mesothelioma and cancer patients, including new requirements for medical experts; and restored claims for those harmed through secondary exposure.  In the end, the only real change the compromise made to the existing CMO was full disclosure when claims are filed with the bankruptcy trusts.

Even the so-called open and obvious bill was misrepresented.  CALA and its allies wanted total immunity even when properties violate state or local building codes.  When you break the law, you should be held accountable — not get immunity.

There is also the issue not everyone is capable of fully understanding the risks that a hazard may pose.  Children, the mentally and physically-challenged and seniors may not understand the risks and will be more vulnerable.  The Legislature amended the bill to allow judicial discretion on a case by case basis.

Another issue, however, is that this law is going to hurt property values. No one is going to be required to keep up their property.  Dilapidated and dangerous property conditions will be a real threat to public safety and will pull all property values in the area down in the gutter with them.  That benefits no one.

The truth is that the billion-dollar corporate special interests behind CALA do not care about West Virginia’s small businesses, workers or consumers.  They don’t care about improving our state’s business climate. The only thing that matters is increasing their corporate funders’ profits and power. The first buys the second. The millions spent last year proves that.

As Americans, there are two places where we are all supposed to be equal — at the ballot box when we vote and in our courtrooms before a jury of our peers.  Ordinary people have lost our equality at the ballot box because we can’t compete with the secret corporate money in elections.

That leaves our courtrooms, but the legislation advanced by these corporate interests limits their accountability and locks us out of the courtroom.  Corporations get immunity and big profits.  West Virginia consumers, workers and small businesses get nothing.

Majestro is the president of the West Virginia Association for Justice and a partner with the Charleston firm of Powell and Majestro.