Battle lines drawn after release of report

By Chris Dickerson | Dec 20, 2007



CHARLESTON – There are clear lines in the sand after the annual Judicial Hellhole report again ranked West Virginia near the top.

The West Virginia Association for Justice, formerly the West Virginia Trial Lawyers Association, questions the validity of the American Tort Reform Association, the group responsible for the annual list. West Virginia Citizens Against Lawsuit Abuse, meanwhile, says the report is a call to action.

"The ATRF Hellhole report is just another piece of propaganda funded by billion-dollar special interests in their unrelenting campaign for total immunity for corporations who break the law and risk the lives of their workers and consumers," Teresa Toriseva, president of WVAJ, said after the ATRA report was issued Tuesday ranking West Virginia fourth. "These corporations believe that the should not be held accountable when they refuse to pay fair and just insurance claims, produce unsafe products, put their employees in dangerous workplaces, pollute the environment or swindle employees out of their retirement.

"They are willing to say and do anything to advance their political agenda of total corporate immunity and increased corporation profits -- even if that means releasing phony studies and lying to West Virginians to do it.

Toriseva, who said ATRA is "a front for billion-dollar organizations that issue bogus reports that attack our West Virginia courts," said the civil justice system has two critical benefits.

"First, it allows individuals who have been injured through no fault of their own to be compensated for their losses -- even when taking on the wealthiest and most powerful corporations," she said. "Secondly, a strong civil justice system is an important deterrent that forces corporations to behave responsibly."

Toriseva also criticized the report for linking the state's civil justice system to problems in economic development.

But Steve Cohen, executive director of WV CALA, said that is just the way it is.

"This year's Hellhole report validates the widely held view by employers that West Virginia is open for lawsuits," he said. "Many other respected observers of state legal systems have concluded that lawsuit abuse drives job out of our state.

"The real issue is fairness. Without reform, West Virginia will continue to see its young people leave for jobs elsewhere."

Both Toriseva and Cohen referenced a recently released study by two West Virginia University professors that says 77 percent of West Virginia' circuit court judges do not see an "explosion of frivolous litigation" in the Mountain State.

In a press release, the WVAJ says, "Richard A. Brisbin Jr. and John C. Kilwein could have been talking about the ATRA report when they wrote, 'Business interest groups and the media produce stories about abusive litigation that neglect important, contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the 'research' arms of interest groups who neglect normal standards and practices of empirical social scientific research.'"

"The cases mentioned in the report authored and ruled upon by some of our most well-respected and even pro-business jurists," Toriseva said. "In light of the WVU study showing there is no tort crisis in West Virginia and that there is no increase in the number of filing of tort cases, I think the timing of the ATRA report really is interesting."

She said businesses only want decisions out of the court that are pro-business.

"Any that could be perceived as anti-business, they attack the entire court system," she said. "They (ATRA) pick two or three or four cases where a consumer was protected or an employee was protected, and they'll say the entire system is a judicial hellhole.

"That's because these corporations want total immunity. And they won't stop attacking our court system until they get that."

Cohen said politicians ultimately are to blame for the poor Hellhole ranking.

"One could easily conclude the failure of politicians to fix West Virginia's broken lawsuit system is the reason this state is rated so poorly for judicial fairness," he said. "West Virginia can climb out of its hellhole if it enacts meaningful venue reform. Right now, West Virginia is a dumping ground for personal injury lawyers and their out-of-state plaintiffs who clog our courthouses. It's not fair to us taxpayers who pay for our courts."

Toriseva said she hopes lawmakers follow recommendations in the WVU study rather than the ATRA report.

The WVU study states that the Legislature "needs to support the development and adoption of better data collection systems that would allow West Virginians to more intelligently assess and debate what our courts do and how that might be improved, rather than relying on self-interested representations of reality to pass for cogent analysis on the state of our courts."

Cohen, meanwhile, said the timing of media coverage about the WVU report is suspect to him. He said that study was published in the October edition of West Virginia Public Affairs Reporter, but wasn't written about by The Associated Press and Charleston Gazette until 48 hours before the release of the ATRA report.

That "may have tried to masquerade the reputation of West Virginia's broken legal system," Cohen said. "But it so lacks credibility."

Toriseva said she isn't even encouraged that West Virginia fell from first to fourth in the hellhole report.

"I don't see it as good news," she said. "I see ATRA as being a bogus phony organization – a front for corporations that are seeking immunity in the court system. They want a judiciary that protects corporate products.

"The entire report is not good or bad news. It's just bogus information. It's a political propaganda piece. It doesn't warm my heart. It's meaningless because it's so not based in fact.

"Actually, these types of bogus reports do more to harm the business climate in West Virginia than anything that any other group does. This scares businesses away, and it's not even based in fact. But people hear this mantra again and again, and they start to believe it. It's harmful to all of us who live, work and raise children in West Virginia."

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