CHARLESTON –West Virginia's ranking at the top of this year's Judicial Hellholes list drew spirited reaction from both sides of the tort reform issue.
Steve Cohen, executive director West Virginia Citizens Against Lawsuit Abuse, said the ranking, released Wednesday by the American Tort Reform Foundation, said actions that have left the state open to out-of-state lawsuits is the reason for the ranking as well as why West Virginia has lost a projected 16,000 jobs.
"Important venue reforms passed by the West Virginia Legislature in 2003 were struck down this year," Cohen said, referring to the state Supreme Court decision in Morris v. Crown Equipment. "We in West Virginia, who pay for our courts, must now stand in line for justice behind out-of-state lawsuits. Voters in the next Supreme Court election can make it clear this ruling is ripe for abuse of our legal system."
Meanwhile, Jeff Jones, president of the West Virginia Trial Lawyers Association, called the report bogus and laughable.
"Here's the big question for Tom Donohue, the U. S. Chamber of Commerce and their front group, the American Tort Reform Association: How is it possible that West Virginia's ranking on its annual 'Judicial Hellhole' report keep getting worse every time that our legislature passes so-called tort reforms?" Jones' group wondered in a press release.
In 2002, West Virginia received a dishonorable mention in the Hellhole report. In 2003, it was sixth on the list, fourth in 2004 and third last year.
"In that same time period, the West Virginia Legislature has passed significant tort reforms pushed by the Chamber and ATRA, including caps on medical malpractice damages, the elimination of third-party bad faith, dramatic changes to our state's workers compensation system and changes to joint and several liability," the WVTLA said in the press statement. "The Chamber also said that our judicial climate would improve if Brent Benjamin was successful in defeating Justice (Warren) McGraw, but even though McGraw was replaced by Benjamin our ranking still fell."
"Three years ago, these big corporations told us that if we made it harder for patients harmed by medical malpractice to hold bad doctors accountable, things would improve," he said. "They told us that if we made it harder for workers hurt on the job to get compensation, things would improve. They told us that if we eliminated the right for consumers to hold insurance companies who cheated them accountable, things would improve. According to this report, things haven't gotten better -- they've gotten worse.
"Nothing shows this report's absolute lack of credibility better than the fact that there is clear correlation between the passage of tort reforms in this state and our ranking on the annual judicial hellhole report -- but it's not what they told us would happen. We keep passing these so-called reforms at the expense of consumer rights, and our ranking keeps getting worse.
"Someone once said that the definition of insanity if doing the same thing over and over again and expecting a different result. If that's true, then it would be insane for West Virginia to listen to the Chamber's latest call for even more tort reform. We obviously need to stop listening to the Chamber of Commerce and passing these bad bills."
Jones said large corporations and the U.S. Chamber of Commerce, which owns The Record, are "trying to put one over on Wes Virginia residents."
"They are willing to say or do anything to advance their political agenda of total corporate immunity and increased bottom lines -- even if that means lying and misleading West Virginians to do it," he said. "Our workers, consumers and their families deserve better than that."
Steve Roberts, president of the state Chamber of Commerce, said he hates the West Virginia has been given this black eye.
"It's a demerit that we'd rather not have," he said. "But as somebody said at a meeting the other day, most businesspeople are prized for their ability to solve problems.
"We've got people from around the country pointing at us, telling us we have a problem. We at the state Chamber are not pointing a finger at any group or individual. However, when you go out and look at various studies that have been done ...
"We've done our homework, and we find validity to our complaints and we have yet to hear why they're not valid."
Roberts said the state Chamber membership wants "modest, moderate reform" that, he said, would make West Virginia like most other states.
"We'd settle for being average," he said.
The WVTLA also cites the Morris v. Crown Equipment case, noting that Justice Benjamin was in the majority that overturned the 2003 venue law.
"Among the justices who agreed in that decision was Benjamin -- the Republican justice backed by the Chamber and big business in the 2004 Supreme Court race," the WVTLA release says. "Although the report says that the decision conflicted with U. S. Supreme Court decisions, the nation's highest court refused to hear an appeal on that case last week.
"ATRA likes to attack our courts and what it calls our 'activist' judges, yet last week a United States Supreme Court dominated by Reagan and Bush appointees rejected this case," Jones said. "Clearly, there is something wrong with that court, too. I want to know when ATRA is going to issue a statement attacking those activist judges."
Cohen, meanwhile, said two differing opinions in that case could be important in the 2008 state Supreme Court elections. He noted that Justice Spike Maynard's "would stop this abuse of our courts," while Justice Larry Starcher "would make West Virginia a playpen for personal injury lawyers and their out-of-state plaintiffs."
Both justices could seek another term on the court in 2008.
Jennifer Bundy, spokeswoman for the state Supreme Court said, "It would be inappropriate for the Court to comment on this report."
Jones also called for the U.S. Chamber of Commerce "to tell the truth."
"… And the truth is that it does not cost more to do business here and that our court system is not the worst in the country.," he said. "Independent analyses confirm that. The truth is that the U. S. Chamber doesn't care about West Virginia consumers, West Virginia workers or West Virginia jobs. The only thing that matters to the U. S. Chamber is protecting corporate profits at any cost."
Cohen also discussed state Attorney General Darrell McGraw's inclusion in the Hellhole report.
"Another reason West Virginia is Hellhole No. 1 in the ATRF report is Attorney General Darrell McGraw's hiring personal injury lawyers from whom he takes campaign money to share multi-million dollar legal fees from lawsuit settlements," Cohen said, noting that CALA has called for a Sunshine law to hold McGraw accountable for his hiring practices.
Fran Hughes, chief deputy attorney general, did not return calls seeking comment for this story.
Along with reining in the attorney general, Cohen said CALA is calling on the Legislature to:
* Protect West Virginia from an invasion of out-of-state lawsuits;
* Keep junk science out of our courts;
* Eliminate the "No Proof? No Problem" standard in West Virginia, where lawsuits can be filed without evidence of actual injury;
* Change the law which makes it possible for someone only partially responsible for an injury to be held 100 percent liable; and
* Change the system which makes it possible for personal injury lawyers to collect significantly more in legal fees than their clients receive in compensation
"For the job market to improve here, West Virginia's political leaders must settle the ongoing battle between those who want to fix our broken lawsuit system and those who only want to profit from it," Cohen said.
Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, hailed the Hellhole report.
"This Judicial Hellholes report is further evidence that the legal system is badly broken in some jurisdictions, and we commend ATRF for their ongoing efforts to call attention to them," she said in a statement. "Their branding of jurisdictions in West Virginia, Florida, Texas and Illinois as havens for lawsuit abuse corroborates the low rankings these states received in the 2006 ILR/Harris State Liability System Ranking study.
ATRA General Counsel Victor Schwartz said the state leaders should try to make residents aware of the problems highlighted in the report.
"I think that West Virginia needs to try to do the very best job it can to educate the voters in their selection of judges so men and women who really believe in equal justice under law are elected to higher and lower courts," he said during a press conference Wednesday. "Through legislation, try to improve things. Have rules to make sure judges act as gatekeepers. Also, enact legislation that will prevent unreasonable grouping of cases. It's wrong and unfair."
ATRF President Tiger Joyce offered an even more basic thought.
"Were we've seen success universal understanding that we have a problem," he said during Wednesday's press conference. "Use the power of broadcasting and putting the bright spotlight on these jurisdictions. Until you do that, it becomes a debating society among lawyers and legislators. It comes down to public education, understanding that you have a problem and that it isn't just an issue for lawyers. It affects everyone in the state."