Karlin

Cohen

BY ALLAN N. KARLIN

MORGANTOWN -- Steve Cohen is no friend of West Virginia.

If he were, he would stop trashing out state every time a West Virginia newspaper is willing to publish one of his slanted rants against our judicial system.

His recent Gazette column, which already had appeared in the U.S. Chamber-funded West Virginia Record, is the latest example of his willingness to damage West Virginia's reputation in pursuit of his anti-consumer agenda. If a state's judicial system could sue for defamation, Cohen's reckless disregard for the truth would make West Virginia Judiciary v. Cohen one slam-dunk of a case.

In his latest op-ed Cohen blames our courts for everything from our state's alleged brain drain to its birth and death rates. He relies, in part, on a recent "article" in Directorship magazine that claims West Virginia's courts system is the second worst in the country. However, Cohen neglects to mention that the "article" was not an objective news source, but a guest column written by Steven Hantler, the author of the American Justice Partnership's "study." As Cohen certainly knows, the American Justice Partnership is, like Cohen's so-called Citizens Against Lawsuit Abuse ("CALA"), an organization created by big-money corporate interests to promote attacks on the civil justice system because courts are one place where corporate wrongdoers can still be held accountable for their negligence and misconduct. In AJP's case, it's the National Association of Manufacturers-whose members include companies that have produced shoddy products and dangerous prescription drugs. AJP was created expressly for the purpose of lobbying to immunize those companies from responsibility for their negligence.

Shame on Cohen for attempting to pawn off Hantler's column as new evidence that there is something wrong with our court system. As Cohen should know, Hantler's column is not new data, Instead, it is based on two other discredited "studies"-the pacific Research Institute Study and the U. S. Chamber's Harris Poll.

The PRI study's source materials include the Tillinghast towers Perrin study, whose own authors admit that the costs tabulated in their "study" are not "a reflection of litigated claims or of the legal system." PRI also used fact sheets produced by ATRA, another tort reform group, and another PRI study that has been discredited by legal scholars who have labeled the report "pure fiction." Tom Baker of the University of Pennsylvania Law School, Herbert Kritzer of William Mitchell College of Law and Neil Vidmar from Duke University Law School authored "Jackpot Justice and the American Tort System: Thinking Beyond Junk Science." The professors leveled multiple criticisms on that PRI report calling it "advocacy disguised as science" and finding that it "lack[ed] scientific merit" and contained "highly dubious extrapolations."

Cohen also cites the U. S. Chamber's state legal rankings report, the Harris Poll. Even the Chamber's own pollster has admitted that the study does not measure the fairness of a state's legal system. Copley News Service reported that "Humphrey Taylor with Harris Interactive said the survey is based on the individual responses of the [corporate] lawyers because there is no hard data that can be used to measure the perceived fairness of a state's legal system" ("Survey says frivolous lawsuits hurt state's reputation," Copley News Service, 3/8/04). Despite this fact, the U. S. Chamber still tries to characterize the "study" as an accurate ranking of the nation's best to worst legal systems ("AdWatch," The Tallahassee Democrat, 3/12/05).

Recently, these studies were also discredited by a report issued by the West Virginia University Institute for Public Affairs. In "The Future of the West Virginia Judiciary: Problems and Policy Options," Richard A Brisbin, Jr. and John C. Kilwein wrote that these studies do not meet accepted research standards.

"The debate over the West Virginia justice system has at times become heated, where often hyperbolic and biased political rhetoric replaces systemic social scientific consideration of the issues at hand . . . 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' arm of interest groups who neglect normal standards and practices of empirical social scientific inquiry" (pp. 3 – 6).

For years, Cohen's friends in the insurance industry and big business board rooms have been funding various front groups to produce slanted reports that he and other front men trumpet as objective new evidence when, in fact, the studies simply rehash the same stale nonsense. Since December, we have been treated to the American Tort Reform Association's Judicial Hellhole report, the U. S. Chamber's state ranking report and then this PRI study. Yet each study cites the others' "findings" as fact even though those findings have already been discredited. These groups all represent the same billion-dollar corporations. They all claim each other as members. They all cite each other's "studies" as if the repetition of unreliable studies can somehow turn propaganda into truth. And, in West Virginia, Steve Cohen stands ready to lead the charge, heralding the arrival of each new "report" that attacks West Virginia without regard to the truth of the report or its damage to our state's reputation.

Cohen reminds us that three of the nation's largest verdicts came in West Virginia courtrooms last year. He conveniently forgets to mention that we have not had a single case appear in VerdictSearch's annual list of the Top 100 verdicts since 2004. He fails to mention that two of these cases involved contract disputes, matters not addressed by so-called tort reforms pushed by Cohen and the interests he represents. Nor does he mention the fact a major defense law firm was on the side of the plaintiffs in one of those cases or that the other contract case involved a business dispute between Massey Energy Corporation and Wheeling Pittsburgh Steel Corporation. Does Mr. Cohen contend that this was a case of corporate abuse of our judicial system?

Steve Cohen's endless attacks on our judicial system are an insult to West Virginia's hard working judges and to the many West Virginians who conscientiously serve as jurors in courtrooms throughout our state.

If Mr. Cohen is truly concerned about our state's national reputation, we welcome him to join us in telling the rest of the country what a very special place we have here in West Virginia.

Karlin is an attorney practicing in Morgantown and is the president of the West Virginia Association for Justice.

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