Groups get geared up for legislative session

By Chris Dickerson | Jan 4, 2008




CHARLESTON -- With the 2008 legislative session set to begin, leaders of some statewide interest groups are talking about what they'd like to see lawmakers address this year.

Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, said his group will be pushing for laws to force reform in the state Attorney General's office.

WV CALA wants to see a "Private Attorney Retention Sunshine Act" sent to Gov. Joe Manchin for his signature.

"PARSA legislation would stop Attorney General Darrell McGraw from hiring campaign contributing personal injury lawyers to file lawsuits for the state and then reap millions of dollars in legal fees at public expense," Cohen said.

WV CALA also criticized McGraw's office "spending of lawsuit settlement dollars that are not his." That is another reform the group seeks, Cohen said.

"Darrell McGraw has essentially converted millions of dollars in lawsuit settlements into his own political slush fund for his pet projects," Cohen said, noting the 2004 $10 million OxyContin settlement as a prime example.

The West Virginia Chamber of Commerce has a long list is key legislative issues.

"Legal reforms will continue to lead the way, although the Chamber also is working with others to lower health care costs," West Virginia Chamber President Steve Roberts said. "We're going to be particularly active in some of the tax proposals the Legislature is dealing with. And we'll be working to get some environmental regulatory reform."

Still, Civil justice reform at the top of its legislative wish list.

"Over the past several years West Virginia has taken a number of steps in addressing much needed and long overdue civil justice reforms," the group's annual list of key issues states. "During the past three sessions, Governor Manchin and lawmakers passed several meaningful reform bills, including eliminating third-party suits against insurance companies.

"However, additional reforms still must be passed to bring West Virginia in line with the rest of the nation and to ensure a fair and balanced legal environment for all state employers and citizens."

The state Chamber says the needed reforms include:

* Comparative fault – Enact additional legislation that would require a person or entity to be held liable only for his or her degree of fault as determined by a jury.

* Collateral source – Allow courts to consider amounts that plaintiffs have received as compensation from other, non-family sources to cover costs in determining damages. When juries are trying to determine how much economic loss a plaintiff has suffered for compensation, they should consider all sources, which offset that economic loss in determining a just verdict and avoid unfair double-dipping by jury award winners.

* Punitive damage distribution and caps – Punitive damages are designed to punish those who are found liable for wrong-doing. Many states have limited these damages or have redirected their use for a public benefit instead of an additional reward for plaintiffs.

* Other non-economic damages – Establish a uniform standard for non-economic awards, taking into consideration whether the claim causing situations caused severe physical injury. If so, the maximum should bear some relationship to a standard formula beyond just compensation for damages determined by the verdict.

* Medical monitoring - In 1999, the West Virginia Supreme Court established a new cause of action, which allows an individual who has been exposed to a proven hazardous substance to recover damages for future medical monitoring when the individual has no physical injuries. This new cause of action potentially exposes many of West Virginia's businesses to possible liability even though there is no actual injury associated with the exposure. The Legislature should enact legislation to correct the Court's decision.

The state Chamber says much success in the area of medical malpractice claims has been realized since passage of reforms for the health care industry in 2004. It goes on to say these civil justice changes can provide similar successes in addressing legal reforms needed by state employers.

"West Virginia continues to trail the nation in terms of enacting legal reforms, such as limiting punitive damages, modifying our collateral source rules," Roberts said. "Because we want to be competitive, we really need to adopt these changes so that employers will want to expand and grow in West Virginia."

The president of the West Virginia Association of Justice said her group want to help current and potential state businesses.

"We need to attract new business and preserve the rights of those businesses already here by protecting the civil justice system," Wheeling attorney Teresa Toriseva said. "And those two principles go hand-in-hand. That's not done through legal reform. It's accomplished through infrastructure development."

The state Chamber also includes asbestos and silica claims reform on its list.

"Mass litigation involving asbestos claims has had a significant impact on our courts, employees and businesses. West Virginia needs to establish medical criteria for impairment by a qualified treating physician (including a medical exam, medical history and exposure history), an amended statute of limitations and no consolidation of cases," the Chamber says. "A separate bill also is needed to deal with transparency (no double-dipping) involving claims filed with bankruptcy trusts.

"Several other states have enacted standards as a way to help improve an injured persons' ability to adjudicate a claim and to receive appropriate compensation. These standards and criteria also have helped to combat abuses and to help provide a fair system and appropriate protection for employers."

Roberts said another important issue is how judges are put on the bench.

"We have a long-standing view that we need to re-examine how our judges are selected," he said. "Only seven states still elect judges through partisan elections. It looks like the time might be right for West Virginia to take a serious look at that and to take politics out of it."

The Chamber supports proposals, which other states have adopted, to select judges and justices for our highest court either through non-partisan elections, which the West Virginia Constitution already permits, or merit selection process.

WV CALA also is calling for the non-partisan election of judges "to get politics out of our courts."

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

Other issues being pushed by the state Chamber include tax modernization, a Business Franchise Tax and Corporation Net Income Tax credit for personal property taxes paid and health insurance affordability and access.

The Legislature opens its regular session on Jan. 9.

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