Hellhole report draws varied reactions

By Chris Dickerson | Dec 14, 2010




CHARLESTON – Reaction to West Virginia's being placed again on the Judicial Hellholes list drew varied but expected responses from those state court watchers.

The president of a state trial lawyers group criticized the report as "nothing more than propaganda released by billion-dollar special interests," while the executive director of a statewide legal reform group and the president of a state defense counsel group both said improvements have been made, but that West Virginia still has much work to do.

West Virginia was ranked third in the American Tort Reform Association's annual list of Judicial Hellholes. The report was released Tuesday.

Michael J. Romano, president of the West Virginia Association for Justice, was critical of ATRA and its report.

"The American Tort Reform Association was created for one purpose -- lobbying for immunity when corporations break the law," Romano said. "It is a front group for big money corporate special interests, and its so-called report is not a legitimate analysis of either West Virginia's legal system or our business climate."

He said those special interests "want immunity when corporations break the law and risk the lives and financial security of West Virginia consumers and workers."

"ATRA is continuing its unrelenting attack on West Virginia and our civil justice system because our courts are the one place where these corporate wrongdoers can still be held accountable for their negligence and misconduct," Romano said.

Romano says that in this year's report, ATRA attacks the West Virginia for not having an automatic right of appeal in every case, but then attacks the West Virginia Supreme Court for accepting an appeal in a medical malpractice case.

"If it were not such a serious matter, one would think it was a joke," Romano said.

Romano said the new revised rules for appellate procedure, which went into effect Dec. 1, remove "any doubt that all appeals are fully reviewed by the West Virginia Supreme Court."

"While a full review of every appeal has always existed in West Virginia, these new rules ensure that every party will know why their appeal was accepted for further proceedings or denied based on the merits of the case as the Court will outline its decision in either an opinion or memorandum," Romano said. "This is justice in its most efficient form and will save taxpayers the burden of an additional $10 million a year for an unnecessary intermediate court of appeals."

The executive director of West Virginia Citizens Against Lawsuit Abuse, meanwhile, said the ATRA report shows that positive steps are being taken in the Mountain State.

"While West Virginia is once again listed as a Judicial Hellhole, this year's report does show positive signs that our state is moving in the right direction toward shedding its Hellhole distinction," Richie Heath said. "Legal observers are clearly taking notice of the steps West Virginia is taking to reform its courts -- for the second straight year, our state is also in the American Tort Reform Foundation's 'Points of Light' section."

But Heath said state leaders can't be fooled into thinking the job is complete.

"West Virginia still has much work to do, most notably in creating an intermediate appeals court that guarantees a meaningful right of appeal for all West Virginians," Heath said, adding that reform of the state's appeals process will be a determining factor as to whether or not West Virginia finally sheds its perennial status as a Hellhole.

"The Supreme Court's Revised Rules of Appellate Procedure are certainly an improvement for the state, but rule changes alone will not suffice," Heath said. "An intermediate appeals court would help ease the current burden on our state Supreme Court -- one of the busiest appellate courts in the nation -- develop more predictability in our state's case law, and ultimately build confidence in our state court system as a whole."

Like ATRA, Heath also singled out Ohio Circuit Judge Arthur Recht for his work on asbestos litigation.

"Recht deserves praise for his recent efforts to weed out baseless asbestos lawsuit filings," Heath said. "Embarrassing instances of lawsuit fraud have plagued West Virginia in the past, solidifying our reputation as a Judicial Hellhole. Our state needs more examples like Judge Recht's willingness to stand up to lawsuit abuse."

Heath also said he knows certain groups will try to dismiss the ATRA report.

"But it is an irrefutable fact that West Virginia is outside the legal mainstream on many important legal issues, including, but not limited to, our lack of an automatic right of appeal or intermediate appeals court, our partisan election of judges, and a medical monitoring standard that allows lawsuits to be filed with no proof of injury," Heath said.

Lee Murray Hall, president of the Defense Trial Counsel of West Virginia, said members of her group are "painfully aware of the reputation of West Virginia's civil justice system even in the absence of the 'Hellhole' label."

"DTCWV believes, however, that while the 'Hellhole' moniker brings attention to criticism of the system, it fails to account for the efforts our legislative, executive, and judicial branches have made over the past several years to improve the civil justice system," she said. "The Legislature has adopted several important tort reform provisions, some at the suggestion of the governor, and we also believe the recent updating of the West Virginia Rules of Appellate Procedure will bring more structure to the appeals process.

"We hope those efforts at reform will continue."

Still, Hall said DTCWV continues to support the formation of an intermediate appellate court and the implementation of other reforms called for by the Governor's Independent Commission on the Judiciary.

"West Virginia's failure to enact those recommendations –- at the legislative, executive and judicial levels -– undermine to some extent the goodwill created by the reforms already in place," she said. "We believe predictability is the key to creating a competitive and attractive business climate in West Virginia and we support legislation and judicial decisions which enforce the rule of law in a consistent fashion.

"Ultimately, DTCWV believes West Virginians need to be less concerned about the 'Hellhole' moniker and more concerned about seeing that all branches of government continue to work for reforms that ensure predictable and fair treatment of litigants. If those reforms come about, we think the 'Hellhole' label will take care of itself."

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