West Virginia places second on 'Judicial Hellhole' list

By John O'Brien | Dec 12, 2012

WASHINGTON – Despite “occasional glimmers of hope,” the American Tort Reform Association has nonetheless placed West Virginia high on its list of annual list of Judicial Hellholes again.

ATRA ranked West Virginia as the No. 2 hellhole in the country, trailing only California. The report, released every December, ranks jurisdictions wherein ATRF feels judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants.

West Virginia has made the list every year since 2002, when the list was created. It was ranked No. 3 the past two years, and claimed the top spot in 2006 and 2008.

A positive from 2012, ATRF said, was the defeat of longtime state Attorney General Darrell McGraw in the November election by Republican challenger Patrick Morrisey.

“West Virginia voters’ decision in November to retire their long-serving attorney general indicates they’d like to see reforms, too, but lawmakers and judges there continue to drag their feet, and problems with unbalanced civil courts persist,” said Tiger Joyce, president of the American Tort Reform Association.

The development, though, came too late in the year to affect the state’s ranking, ATRA said.

Singled out in the report are the state Supreme Court, a lack of an intermediate appellate court, multi-million dollar awards and asbestos litigation.

ATRA says the Supreme Court has made liability-expanding decisions in years past, but a pair of recent ruling gave ATRA cause for celebration. A 2011 decision that required an insurer to destroy claimant records, however, did not sit well with the group.

“Such protective orders, which are routinely used by some West Virginia judges, have the potential to place insurers in a position where they run afoul of document retention requirements set by state insurance regulators and inhibit insurers’ ability to monitor and report fraud,” the report said.

In November, the court allowed two such orders to stand in cases involving State Farm and Nationwide.

The court’s ruling said, “Insofar as the authority to manage discovery rests with the judicial branch, as implemented by the courts hearing cases in which discovery issues are presented, the authority to limit an insurer’s dissemination of confidential medical information obtained through discovery is governed by the presiding court, through a protective order or otherwise, and not by an administrative regulation applicable to insurance companies.”

Adding to ATRA’s issues with the state’s appellate process is the lack of an intermediate appellate court that would give litigants a right to appeal.

Currently, the state Supreme Court handles all appeals and has implemented a rule that requires it to put in writing its decision to refuse to hear an appeal. The state Senate had passed legislation that would have created an intermediate court, but it was defeated in the House Judiciary Committee.

“The bill later failed in the House Judiciary Committee, as Chief Justice Menis Ketchum hoped it would,” the report says. “He continued to reiterate his position, backed by the plaintiffs’ bar, that an intermediate appeals court is unnecessary.

“Tellingly ironic was what the president of the personal injury lawyers’ trade group called this proposal to ensure everyone’s right to a meaningful appeal: A ‘jackass stupid idea.’”

The appellate process is troubling considering the size of awards that come from trial courts, ATRA argues. The report says the state is known for excessive damage awards and cited a $91.5 million verdict against a nursing home, though the state Supreme Court decided in May the trial judge erred in refusing to include the defendant’s proposed verdict form in the record.

“(I)f allowed to stand, the $90 million West Virginia verdict will likely dissuade some nursing care providers from operating in the state, leaving residents with even more difficult decisions about where and how to care for aging or disabled loved ones,” the report says.

ATRA says West Virginia is also an example of asbestos litigation abuse. On Dec. 11, the trial began in CSX Transportation’s case against a former Pittsburgh firm that filed cases in the state.

It says the firm teamed with radiologist Ray Harron of Bridgeport to fabricate asbestos claims.

Persistent in the group’s criticism of the state over the years has been McGraw, who is completing his 20th year in office. His practice of handing no-bid state contracts to firms that contributed to his campaign fund has long troubled ATRA.

“But with his defeat at the polls in November, the perennial hellhole has a real opportunity to turn the page on the types of practices that raised concern among citizens and businesses alike,” the report says.

Behind California and West Virginia on the Hellhole list are:

-Madison County, Ill., which is known for its large asbestos docket;

-New York City and Albany, which, ATRA says, remain under the heavy influence of the plaintiffs’ bar; and

-Baltimore, which has seen its asbestos docket increase since 2008.

Philadelphia, which had been named No. 1 the last two years, fell to the watch list. The city’s Court of Common Pleas underwent several reforms. Among them were the elimination of reverse bifurcation, the limiting of consolidation in all mass tort cases and the limiting of the number of cases that can be tried by out-of-state attorneys annually.

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