CHARLESTON – The West Virginia Association for Justice called this week's "Judicial Hellhole" report by the American Tort Reform Foundation "nothing more than propaganda released by billion-dollar special interests who want immunity when corporations break the law and risk the lives of consumers and workers."
"This is just the latest attack in ATRA's unrelenting and irresponsible campaign to strong arm and scare our state into passing laws that benefit insurance companies and corporate wrongdoers while depriving West Virginians of their right to hold those wrongdoers accountable in our courts," said Allan N. Karlin, president of the West Virginia Association for Justice, which formerly was known as the West Virginia Trial Lawyers Association. "ATRA has been getting away with this nonsense long enough."
In a press release, the WVAJ noted scholarly articles by law professor Elizabeth Thornburg of Southern Methodist University and West Virginia University political science professors Richard Brisbin and John Kilwein that it says have debunked such studies.
"It is time for West Virginians to stand together and tell ATRA that we are sick and tired of their attacks on the judges and citizen jurors who work hard to ensure justice for all -- not just the wealthy and most powerful," Karlin said in the release.
"The goal of the campaign is to scare lawmakers into passing 'tort reforms' that limit access to the civil justice system -- or risk being labeled by ATRA as a 'judicial hellhole.'"
The WVAJ release quotes Thornburg's article titled "Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia."
"ATRA's hellhole campaign began in 2002, and falls squarely within this tradition of scaring the public, but with a twist -- this time the explicit goal is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA's political goals.
"The choice is not based on research into the actual conditions in the courts."
It says Thornburg also notes that in the ATRA reports, "the stories are embedded in a framework of more general statements about West Virginia's legal system -- statements that are the opinions of persons quoted but that appear to be statements of fact. The reports do this by using quotations (unattributed in the text, but identified in the endnotes) -- often from the local leaders of ATRA affiliates -- characterizing West Virginia's legal system as if they were providing a neutral empirical analysis."
Karlin says ATRA and its "corporate special interests" do not care about the state or its citizens.
"They want immunity for insurance companies that refuse to pay fair and just insurance claims and for employers who knowingly expose their workers to dangerous working conditions," he says. "They believe that corporations shouldn't be held accountable when they put dangerous products on store shelves, pollute the environment or swindle employees out of their retirement."
The WVAJ also criticizes the ATRA report for its focus on the lack of automatic appeal of civil verdicts.
"Every defendant has the right to petition the West Virginia Supreme Court of Appeals," the WVAJ release states. "In those petitions, the defendants present what they believe is evidence that error occurred in the underlying trial. The justices on the court then review each petition, determine whether error occurred that affected the outcome of the trial and would require the court to hear the appeal.
"This process ensures that the court reviews every allegation of error."
The WVAJ also takes ATRA to task for attacking the state's venue law.
"In 2006, ATRA attacked the West Virginia Supreme Court of Appeals for overturning the state's venue law," the WVAJ release states. "During the 2007 session, the West Virginia Chamber of Commerce, the U. S. Chamber, other business interests and trial lawyers worked collaboratively to put together a new, compromise venue law. The revised law was based on a recommendation made by U. S. Chamber representatives -- the codification of forum non conveniens -- and was passed unanimously by the West Virginia Legislature.
"ATRA has now attacked the state two years in a row for passing for venue law."
The West Virginia Record is owned by the U.S. Chamber Institute for Legal Reform.
The WVAJ also notes ATRA's "attempts to characterize West Virginia's medical monitoring lawsuits as one of a kind."
"In medical monitoring claims, the plaintiff must prove that he or she has had significant exposure to a toxic substance through the misconduct of the defendant and, as a result of this exposure, has an increased risk of developing a disease," the WVAJ release states. "In these cases, the defendant pays for the plaintiffs to have periodic medical tests to ensure that no illness has developed.
"While ATRA likes to claim that West Virginia is out of the mainstream in allowing these cases, the truth is that 14 states and the District of Columbia allow these cases without any injury present and another 16 allow them with injury present."