West Virginia Record

Sunday, July 21, 2019

Speed of legal reform an issue in wake of 'Hellhole' report

By John O'Brien | Dec 12, 2012

WHEELING – West Virginia’s inclusion on this year’s “Judicial Hellholes” report published by the American Tort Reform Association does not surprise the president of the state’s trial lawyers group.

Scott Blass, an attorney with Wheeling’s Bordas & Bordas and the president of the West Virginia Association for Justice, says the American Tort Reform Association keeps putting the state on its list because decision-makers in the state, in a way, encourage it.

“They’ve been doing this for 11 years and it never ceases to amaze me,” Blass said after learning West Virginia was named the No. 2 Judicial Hellhole by ATRA in its annual report.

“Regardless of what reforms are passed or whatever is done to appease what I consider ill-advised concerns, they continue to list us… They see it works.”

A history of reforms passed in response to West Virginia’s ranking only encourages ATRA to keep putting the state on its list, Blass feels.

“If you continue to tell lies over and over again, sooner or later people will begin to believe them,” he added. “Our leaders in business, government or otherwise need to stand up to these corporate interests and say this isn’t true.”

The head of West Virginia Citizens Against Lawsuit Abuse, a legal reform group, says other states are passing West Virginia by when it comes to meaningful changes.

CALA Executive Director Richie Heath says neighboring states Pennsylvania, Ohio and Kentucky are examples of work that needs to be done in West Virginia.

“West Virginia seems to have fallen further behind as other states work to improve their legal climates,” Heath said.

“While our state has seen significant improvements with regard to the West Virginia Supreme Court, and more recently in the Attorney General’s Office, the failure to fix core problems with our laws continues to plague the state.”

Heath pointed at the case of Philadelphia, a two-time No. 1 on the list that was downgraded to the watch list this year because of reforms passed in the city’s Court of Common Pleas.

Among them were the elimination of reverse bifurcation (a process that allowed juries to determine damages before liability), 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.

Ohio’s legislature recently passed a bill that is designed to prevent fraudulent asbestos lawsuits. It is awaiting Gov. John Kasich’s signature.

“If we expect to keep pace economically with other states, we must pass laws that will provide the meaningful right of appeal already afforded in more than 40 other states, eliminate ‘overwhelming abuse’ of asbestos litigation in the state, and protect individuals and small business owners from frivolous lawsuit filings,” Heath said.

But Blass isn’t sure that’s the case. He said many “Draconian” tort reform measures have been passed in the last eight years – “You give them an inch and they try to take a mile,” he said.

Heath says a legislature full of personal injury lawyers in key leadership positions has been hesitant to act on positive reforms.

“Legislation protecting property owners from abusive lawsuit filings died in the House of Delegates earlier this year,” Heath said.

“And state lawmakers were criticized for passing legislation essentially making West Virginians’ automobile insurance coverage ‘a matter of public record’ for personal injury lawyers.”

As for the right of appeal mentioned by Heath and the ATRA report, the state Supreme Court currently explains, in writing, its reasons for deciding not to hear an appeal. An intermediate court of appeal would give litigants an automatic right to appeal.

Blass sees such a court as a waste of taxpayer money, noting that the state’s budget is still in good shape despite tough economic times around the country.

“It would be unbelievably costly and a waste of resources,” Blass said. “Just because we’re doing well fiscally and staying appropriately frugal doesn’t mean we need to waste money.”

Blass added that another appellate court would delay the resolution of cases even further. He also took issue with the language in the report that he feels accused some unnamed members of the state’s judiciary of being biased.

“If it had named anybody, it would have been defamatory. The judiciary should be outraged,” Blass said.

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