Toriseva

By TERESA TORISEVA

In a recent article critical of three 2007 verdicts, The West Virginia Record failed to present a balanced analysis of these cases and our state's court system.

Yes, these three cases had verdicts that ranked them in the top seven of jury awards for last year, but this is an anomaly. In fact, West Virginia has not had a single case in the top 100 list issued annually by VerdictSearch since 2004.

Forget the top 10, we haven't been in the top 100. That being the case, we cannot point to three verdicts in a single year as proof of an out-of-control system.

Indeed, two of the cases involved contract disputes -- cases that never would be addressed with the so-called tort reform being pushed by corporate special interests and their lawyers. Contracts are legally binding agreements between businesses or businesses and individuals. They are written promises -- promises that can be enforced by law if they are broken.

Honoring those contracts is essential to not only the integrity of any individual business, but also the entire business community. When contracts are broken, it should be addressed to the fullest extent of the law.

In the Tawney v. Columbia Natural Resources case, the natural gas corporation was taken to court because it had withheld production costs and other expenses from the royalty payments it was making to the businesses and families that owned the land where the wells were located. It was also determined that Columbia had not paid royalties based on actual market value.

The contractual agreements -- nearly all of which had been in place for decades -- had said nothing about deducting these costs, yet in the 1990s, the corporation started to do so. The total amount withheld totaled more than $130 million. The punitive damage award was added because the corporation didn't even include the deductions on the owners' statements.

It shortchanged the owners for more than a decade and made no effort to disclose it. The litigation could have been avoided altogether had Columbia gone to the owners and renegotiated the contracts to legally include the deductions.

Wheeling-Pitt's case against Central West Virginia Energy, a Massey subsidiary, was over the coal company's failure to provide 104,000 of metallurgical grade coal per month as was required under their signed contract.

The lawsuit said that Central West Virginia Energy blamed slowed production for failing to meet the contract, but Wheeling-Pitt said that the company was diverting coal to another market where it could make more money.

Wheeling-Pitt employs 3,100 people in West Virginia, Ohio and Pennsylvania. It has been totally dependent on Central West Virginia Energy to supply its coal since 1983 -- and had a contract with them through 2010. You cannot just decide to divert coal that is contractually obligated to one customer to another market just to increase your profit on it.

There is no question that contracts can be changed or nullified, but it must be done with the knowledge and consent of all parties involved. Our West Virginia courts have sent a clear message to businesses -- we will protect you when your signed contract is ignored by the other party. That's good business.

The third verdict listed in The Record was the Harrison County case against DuPont, which contaminated the air, soil and groundwater with dangerous toxins from its facility in Smelter. These residents just happened to live near the plant and were exposed to arsenic, cadmium and lead.

Just because an individual does not have an immediate injury or show signs of disease now does not mean that one may not develop later. It may take years for toxic exposure to lead to a disease.

Think of it another way. In a recent decision to uphold a medical monitoring decision, the Court of Appeals for the District of Columbia provided a good example. A motorcyclist negligently knocks down a pedestrian named Jones. When Jones is knocked down, he hits his head. At the hospital, Jones undergoes a series of tests to ensure that there is no head injury. Fortunately, no head injury is found.

Who should be responsible for covering the costs of those tests since there was no injury? The court concluded that it was the motorcyclist because the diagnostic procedures would never have been needed had the motorcyclist not knocked Jones down.

If a manufacturer has knowingly exposed people to a dangerous carcinogen that may cause cancer 10 years from now, that manufacturer has a responsibility to pay for medical tests that could diagnose that cancer in its earliest stage.

Even if no disease is ever found, the costs for those tests should be paid by the manufacturer -- not the person who just happened to live near the plant and was exposed.

Finally, I find it ironic that the president of the Defense Trial Counsel would be critical of attorneys' fees. He and his members are guaranteed their attorneys' fees because defense attorneys typically charge by the hour. They get paid regardless of the outcome of the case.

Plaintiffs' attorneys usually take cases at their own risk, paying all costs to prepare and litigate the case. Their getting paid is contingent upon their success in court. If the plaintiff loses, the lawyer gets nothing.

The best solution to avoid paying all attorneys' fees -- both for the plaintiff and for your own defense counsel? Honor your contracts and be a responsible corporation.

In a recent letter, U. S. District Judge Royal Furgeson wrote, "There is no question that a well-functioning free market economy depends upon the rule of law. The attributes of the rule of law have recently been defined by the American Bar Association:

1. A system of self-government in which all persons, including the government are accountable under the law;

2. A system based on fair, publicized, broadly understood and stable laws;

3. A robust and accessible process in which rights and responsibilities based in law are enforced; and

4. Diverse, competent, independent and ethical lawyers and judges."

"In particular, I call your attention to the first and third elements in the definition: all personas are accountable under the law through a robust and accessible process to enforce rights and responsibilities. Without such accountability and such an accessible process, a free market system simply cannot exist."

Ensuring corporate accountability in West Virginia doesn't hurt our business climate -- it makes it better.

Toriseva is president of the West Virginia Association for Justice.

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1007 North Market Street
Wilmington, DE - 19899

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