W.Va. third on Hellhole list

By Chris Dickerson | Dec 13, 2010


WASHINGTON, D.C. -- West Virginia again has found its way onto the annual list of judicial hellholes.

The American Tort Reform Association puts the Mountain State at No. 3 on its annual list, which was released Tuesday. West Virginia follows Philadelphia and California – particularly Los Angeles and Humboldt counties – on the list. West Virginia was second on the list in 2009, and it topped the 2008 list.

The three other locations on the Hellhole report following West Virginia are South Florida; Cook County, Ill.; and Clark County, Nev.

"Last year's report left off with West Virginia on the brink of adopting significant reforms – establishing an intermediate appellate court and a right of appeal," ATRA said of this year's ranking. "The end result, however, is a tremendous disappointment.

"Instead of following through on Gov. Joe Manchin's pledge, and an independent commission's recommendation, to provide these basic needs, West Virginia's highest court made only a modest change."

The state Supreme Court of Appeals did revise its rules for appellate procedure, and those changes took effect Dec. 1. Now, the Court will issue memorandum decisions for cases it doesn't grant a full appellate review.

"This will replace a system of wholly discretionary review in which the state's only appellate court declined to consider thousands of case each year," ATRA said. "While the new practice may be an incremental improvement, it is a lost opportunity to provide litigants with the same level of appellate review found in practically every other state.

ATRA notes that West Virginia is the only state in which "civil defendants do not have a guaranteed right to appeal adverse rulings."

"West Virginia is still considered a Judicial Hellhole, in large part because its high court squandered an opportunity this year to move the state toward establishment of a much-needed intermediate-level appellate court and a guaranteed right of appeal," ATRA President Tiger Joyce said. "Disappointingly, the state's only appellate court chose to make a very modest change that began this month.

Joyce said one upcomingn West Virginia case ATRA will watch is a challenge to the state Legislature's adoption of an upper limit on pain and suffering awards in lawsuits against doctors and healthcare providers.

"It remains to be seen whether the court will uphold the law, as it has on two similar occasions, or engage in 'judicial nullification' of a reasonable measure aimed at maintaining accessible and affordable health care for West Virginia residents," he said.

In last year's Hellhole report, ATRA cited then-Gov. Mancin's pledge to establish an intermediate appellate court as one of its Points of Light. An independent commission cited a need for such a court. Chief Justice Robin Jean Davis argued that the state didn't need to spend the money to create such a court, adding that litigants in West Virginia can petition the Court to review their case.

"When the state's business community and others took issue with her remarks, noting that asking the court to hear a case and having a court actually decide a case on the merits are hardly the same thing, the court proposed changes to its appellate rules," the ATRA report states.

The new rule, ATRA says, "only requires a concise statement of the reason for affirming or reversing the trial court's ruling." It says that is different from a traditional judicial opinion that "fully analyzes the claims in the case and can be cited as precedent."

"Without the force of precedent, memorandum decisions could result in significant confusion among lower courts," ATRA says. "Nevertheless, the overall effect of these newly adopted changes is that the Supreme Court of Appeals has, at least in theory, made it less likely that it will use the state's appellate procedure in an arbitrary or prejudicial manner.

"It remains to be seen, however, whether the Court will employ these decision options to provide meaningful appellate review in all cases. If it does so, then the changes will build confidence in the West Virginia courts."

Still, ATRA says the rule changes, "at best, provide only a short term solution to address current abuses."

"The long-term solution remains the establishment of an intermediate appellate court system that guarantees litigants the full appellate rights provided in other states," ATRA says in the report.

ATRA did find another Point of Light this year in West Virginia. It commends Ohio Circuit Judge Arthur Recht, who "after reflecting on recent instances of documented fraud in asbestos litigation, put in place various safeguards for cases filed in his court."

Recht, a former state Supreme Court justice, dismissed most of 1,400 asbestos claims filed by a Pittsburgh law firm after the firm opted not to attempt to meet a court order requiring them to submit additional evidence of their clients' alleged exposure to asbestos and medical history. The defendant, CSX Transportation, has filed a fraud claim in federal court alleging that the law firm worked with Bridgeport radiologist Ray Harron, whose diagnoses have come under increasing scrutiny, to fabricate the claims.

"Recht reflected on the 'bizarre' events he has seen in the litigation, from the forged signature of a doctor who did not exist to 'a doctor who has an imagination beyond description in reading certain X-rays,'" ATRA writes in its report. "Recht has required individuals who file asbestos claims to see a pulmonologist, rather than radiologists with a history of supplying questionable evidence in such cases.

"Pulmonologists who examine plaintiffs must testify as experts at trial. Plaintiffs must also submit a signed statement that he or she is aware of the lawsuit and believes the claim is well founded (this precaution grew out of evidence that a prominent law firm specializing in West Virginia asbestos claims purported to represent clients who did not know lawsuits had been filed on their behalf). ...

"Recht also requires plaintiffs to provide the defendants with their medical records and a history of other asbestos exposure claims they have pursued. And Recht had earlier rejected 'expert' testimony offered to prove that railroad workers exposed to a solvent could experience brain changes when it was learned the experts had failed to disclose their pay arrangement with plaintiffs' lawyers and the fact that said lawyers had referred their clients to the experts as research subjects."

The report can be found online at www.judicialhellholes.org.

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