West Virginia has been known for years as a haven for abusive litigation – a personal-injury-lawyer-friendly legal system.
Courtroom abuses have been an issue for members of Citizens Against Lawsuit Abuse for more than a decade, but sometimes hearing the concern from afar can help others understand how we compare to other states.
Our judicial climate has earned the state a reputation as a "Judicial Hellhole," according to the American Tort Reform Foundation (ATRF), a nonprofit group in Washington, D.C.
Since 2002, ATRF has studied jurisdictions across the country to identify those where "the scales of justice are radically out of balance."
In its 2005 report, West Virginia is one of just six jurisdictions in the entire country to make the list and for the second straight year is identified as the only statewide "Judicial Hellhole."
With the West Virginia Legislature about to convene its new session, the governor and lawmakers have the opportunity to significantly address our longstanding reputation. They can settle the ongoing battle between those who wish to fix the lawsuit system in West Virginia, or those who wish just to profit from the broken system.
The system is broken because, under the still-standing medical monitoring rule authored by former Justice Warren McGraw, West Virginia courts say "No proof? No problem!" A lawsuit can be filed even if there is no evidence of an actual injury.
The system is broken because a defendant who is only partially responsible for an injury can still, in West Virginia, be held 100 percent liable.
The system is broken because personal injury lawyers can demand legal fees 20 times higher than the compensation awarded to their clients, as was the case recently in Kanawha County.
If West Virginia is to climb out of its "Judicial Hellhole," it must also enact tough ethics reform. We need reform that prevents our top legal official, Attorney General Darrell McGraw, from spending hundreds of thousands of dollars in public funds on shameless self-promotion.
We need reform that holds West Virginia Supreme Court Justice Larry Starcher to the Judicial Code of Ethics, which requires judges to be impartial. Justice Starcher called a corporate C.E.O. "a clown" and "stupid," yet he refuses to disqualify himself from a case involving that same corporate officer.
We need a sunshine law so the public will know just what contractual arrangement and hiring process Attorney General Darrell McGraw has for personal injury lawyers who deliver thousands of dollars to his campaign and then are chosen to represent the state in lawsuits that can pay them millions of dollars in legal fees.
ATRF's report does give the Mountain State reason for hope that it can shed its "Judicial Hellhole" image.
The governor and state legislature have taken some important steps toward reforming our civil justice system. Last year the legislature threw out so-called "third party bad faith" lawsuits that most states don't allow.
A few years ago, the legislature enacted reforms to medical lawsuits to help protect West Virginians' physician care. We have seen a more than 50 percent drop in medical malpractice lawsuits and settlements.
But for West Virginians to have access to quality medical treatment, junk science and baseless lawsuits against healthcare remedies and procedures must be kept out of the courtroom also.
Recent headlines have brought the junk science issue home to West Virginia, with the news that Bridgeport physician, Dr. Ray Harron, was hired by personal injury lawyers to perform mass screenings on potential asbestos claimants, many of whom were never examined by the doctor, and were said to be falsely diagnosed.
West Virginia juries must have accurate information from reputable experts if our courts are to be fair.
The challenge for West Virginian is clear. We have a problem and need to address it in a decisive and meaningful manner. Mountain State workers and their families need fair courts to help bring job opportunities and more accessible healthcare to West Virginia, and its time to make it happen.
Maybe next year, when the 2006 report is released, the story will be that West Virginia took the most dramatic strides of any state to bring the scales of justice back into balance.
Steve Cohen is executive director of West Virginia Citizens Against Lawsuit Abuse.
