Sherman "Tiger" Joyce
Victor Schwartz
CHARLESTON – West Virginia again stands alone as the only full state listed as a "Judicial Hellhole," according to a ranking announced Tuesday.
The list, compiled annually by the American Tort Reform Foundation, has West Virginia ranked third behind Texas' Rio Grande Valley and Gulf Coast and Cook County, Illinois.
The ATRF has released the list since 2002. And since then, West Virginia has moved higher on the list each year. The state was given a Dishonorable Mention on the inaugural list. In 2003, West Virginia – and especially Kanawha County – was ranked sixth, while the Northern Panhandle was given Dishonorable Mention. Last year, the state ranked fourth.
West Virginia is the only statewide "Judicial Hellhole" for the second consecutive year.
"The governor and Legislature must settle an ongoing battle between those who want to fix our lawsuit system and those who just want to profit from the current, broken system," said Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, a nonprofit watchdog group. "Most West Virginians clearly feel much more needs to be done to shed the Mountain State's Judicial Hellhole image."
The ATRF's report specifically mentions a few West Virginia examples.
One incident mentioned numerous times in the report and during Tuesday's press conference to unveil the list was state Supreme Court Justice Larry Starcher calling Massey Energy CEO Don Blankenship "stupid," "a clown" and "an outsider" before refusing to recuse himself when a case involving Massey affiliate Marfork Coal Co. as a defendant came before the court.
"That doesn't exactly inspire confidence," Sherman "Tiger" Joyce, president of the ATRF, said during Tuesday's press conference at the National Press Club in Washington, D.C. "If I were a litigant there, I'd be thinking twice."
The state's stance on medical monitoring also is mentioned in the ATRF report, which states that West Virginia is the only state where people can collect cash awards without showing at there is a reasonable probability that they will become ill and there is no medical benefit to checkups.
The report also focuses on "a strong alliance between plaintiffs' lawyers, the Attorney General and the courts."
"West Virginia personal injury lawyers have the help of the state's Attorney General, Darrell McGraw, in extracting large settlements," it states. "The latest example of this unholy alliance is the $3.7 million in contingency fees at a group of West Virginia and Washington, D.C., lawyers will share coming from the Attorney General's $10 million settlement of a state lawsuit related to the marketing of the painkiller OxyContin."
"Many of the local lawyers had reportedly contributed over $70,000 to Attorney General McGraw's election campaigns over the past eight years."
The ATRF report goes on to say McGraw's brother, former state Supreme Court Justice Warren McGraw, received $2.5 million in contributions from personal injury lawyers to fund his unsuccessful 2004 re-election campaign.
Citing a 2005 survey by the U.S. Chamber of Commerce's Institute of Legal Reform, the ATRF report says nearly 80 percent of West Virginia voters think the number of lawsuits in state courts is a serious problem. A majority of those surveyed also support civil justice reforms.
"West Virginia continues its distinction as the only statewide Judicial Hellhole," the ATRF report states. "West Virginia's courts are considered 'a favorite for wealthy personal injury lawyers.' Numerous multi-million dollar settlements occurred in West Virginia this year, likely spurred on by West Virginia's Hellhole status. 'With our national reputation for unfair courts, most lawsuits are settled long before they ever have a chance of going to trial. People sued in West Virginia often settle rather than take a chance in our unfair and unpredictable courts.'
"Some reasons why plaintiffs' lawyers prefer 'Wild, Wonderful West Virginia' is their ability to pick and choose where they file claims, a legal rule that allows monetary compensation simply if one might have been exposed to a toxic substance regardless of the absence of actual injury, the lack of any reasonable limits on damages and the potential for a defendant who s only partly responsible for an injury to be forced to pay 100 percent of the damages. West Virginia is also a place where lawyers often earn significantly more in legal fees than their clients receive in compensation."
Lara Ramsburg, spokeswoman for Gov. Joe Manchin, said the ATRF is ignoring the reforms passed by the state Legislature.
"Obviouusly, it shows that they really haven't paid attention to what's happening here," she said. "We've made significant strides in West Virginia in the last year.
"Take Mississippi, for example. We've made similar changes to the ones they've made, and they are off the list. But we're still on it.
"The governor feels he state is moving in the right direction. He's pleased with the direction we're heading."
The ATRF defines a Judicial Hellhole as one of "a few, but powerful, courts that have a disproportionately harmful impact on civil litigation."
"Litigation tourists, who neither lived nor were injured in these jurisdictions, are guided by their personal injury lawyers who seek out these places because they know they will produce a positive outcome, an excessive verdict or settlement, a favorable precedent, or both," the group said in a press release. This is venue shopping run wild."
Still, the ATRF's president says there is hope.
"It is possible to quench the fires in Judicial Hellholes with the help of judges, legislators, the electorate and the media," Sherman "Tiger" Joyce said. "By shining the spotlight on the abuses in these jurisdictions, Judicial Hellholes can become fair courts."
Cohen agrees, citing recent legislative actions to limit medical and third-party bad faith lawsuits that The ATRF's report call "reasons for optimism."
"West Virginia can climb out of its Judicial Hellhole," Cohen said. "But it won't happen overnight."
Cohen stressed the need to enact sunshine laws so the public is aware of when, how and under what financial agreement private personal injury lawyers are being hired by the Attorney General's office to represent the state in lawsuits and enforce strict guidelines to prevent public officials from using public funds to promote themselves.
The ATRF report said the spotlight on West Virginia's court has brought some changes, such as progress made in terms of medical malpractice reform. It says the number of medical malpractice lawsuits and settlements has fallen by more than 50 percent since the state Legislature began revising laws involving such cases.
Also, several leading insurers have pledged to reduce rates if the state passed medical malpractice reform and said they would begin rolling back insurance rates this year.
In August, West Virginia Physician's Mutual, the state's largest medical malpractice insurer, said the state is beginning to attract new doctors.
Also, the report notes reform on the front of third-party, bad-faith lawsuits that allow people to collect in some cases from the insurance company of a negligent driver as well as their own.
"Judicial Hellholes can be quenched by public light," said Victor Schwartz, general counsel for the ATRF. "The result is an impartial
court that subscribes to a fundamental value of our legal system: Equal Justice Under Law."