WASHINGTON – West Virginia no longer is a Judicial Hellhole.
The Mountain State, which perennially has been at or near the top of the American Tort Reform Association's annual list, has been moved to the "Watch List," according to the report released Thursday.
In discussing West Virginia, the ATRA report commends state lawmakers for enacting reforms that it says has helped the state.
"In an encouraging move that may yet stall, perennial Judicial Hellhole West Virginia has dramatically managed to drop to the Watch List," it says. "The change results from the Legislature’s enactment of several significant civil justice reforms in 2015, following the voters’ Election Day 2014 choice to demote the Legislature’s trial lawyer-led majority to the minority. Voters’ earlier choice to replace former Attorney General Darrell McGraw Jr. with reform-minded Patrick Morrissey also helped move the dial.
"But the West Virginia Supreme Court of Appeals, the state’s sole appellate court, continues to issue liability-expanding rulings, some of which the Legislature laudably overturned this year. The high court’s latest travesty allows individuals who illegally obtain, use and sell painkillers to sue doctors and pharmacies that allegedly filled their prescriptions."
The ATRA report lauds the passage of much-needed reform legislation, including the fair allocation of responsibility through comparative fault, bringing transparency to claims filed with asbestos trusts, protecting property owners from trespassers who may be injured due to their own carelessness and then choose to file a lawsuit, and fairness in exemplary damage awards.
ATRA now lists California as the nation’s biggest Judicial Hellhole. The state’s courts ranked as the “most unfair” in the nation in their handling of civil litigation, according to the tort reform group’s 2015-16 report.
New York City’s asbestos court, Florida, Missouri and Illinois’ Madison County ranked second, third, fourth and fifth, respectively.
The executive director of a statewide legal reform group hailed the ATRA report.
“For over a decade, West Virginia was labeled a ‘Judicial Hellhole’ because of our activist judges, rampant courtroom abuses by some personal injury lawyers and out-of-balance laws that have put our court system at odds with those in other states," West Virginia Citizens Against Lawsuit Abuse Executive Director Roman Stauffer said. "Thanks to the strong bipartisan leadership of Governor (Earl Ray) Tomblin, Senate President Bill Cole, House Speaker Tim Armstead and the coalition of legislators who acted boldly to address a number of issues with our state’s legal system, the Mountain State no longer carries the label of ‘Judicial Hellhole.' "
ATRA President Tiger Joyce called the change in West Virginia’s status a “dramatic move” and the “biggest newsmaker” found in this year’s report.
“For many years, civil justice reform could not be achieved in West Virginia because of the power and influence wielded by plaintiffs’ lawyers serving in the legislature,” this year’s report says. “But after voters on Election Day in 2014 decided to make a political course correction, the legislature, under strong leadership by Senate President Bill Cole and House Speaker Tim Armstead, made adoption of meaningful reforms a top priority in 2015.”
Meanwhile, a state group for trial lawyers asked lawmakers, the media and business leaders to demand ATRA stop attacking the state.
"Despite of the passage in 2015 of more than a dozen bills on ATRA’s legislative agenda, West Virginia is still included in the report’s judicial “watch list," West Virginia Association for Justice President Paige Flanigan said. "If there are any lingering doubts about the credibility of this so-called report, that should end today.
"We’ve been told repeatedly over the last decade that West Virginia would be taken off the list if our lawmakers would just pass ATRA’s legislative agenda. The bills on ATRA’s list reduce legal accountability for its corporate funders when they harm or cheat West Virginians and limit our constitutional right to trial by jury. This year the West Virginia Legislature gave ATRA what it wanted, but we’re still on the watch list — and now they want more. It’s outrageous."
Stauffer said his group's members will continue to encourage lawmakers to establish an intermediate court of appeals and enact into law the good-government, outside counsel policy implemented by Morrisey when lawmakers meet for their annual 60-day session starting next month.
“West Virginia continues to be the only state in the country that doesn’t provide an appeal of right for either civil or criminal litigants," Stauffer said. "And our state is one of only nine with no intermediate court of appeals."
The WVAJ said lawmakers need to focus on what's best for the state.
“The definition of insanity is doing the same thing over and over again and expecting the outcome to be different," Flanigan said. "How many times are state lawmakers going to believe ATRA’s promises? The attacks are going to continue until the billion-dollar corporations funding ATRA have total immunity and West Virginia’s consumers, workers and small businesses are at their mercy.
“Our lawmakers should be doing what’s best for West Virginians — not pandering to the billion-dollar, out-of-state corporate special interests that fund ATRA’s attacks on our state.”
Cole, the state Senate president who is running for governor, said the state's exit from the Judicial Hellhole list shows the reforms have made West Virginia more business friendly.
“These reforms have delivered proven results including lower insurance rates for businesses and families, and they will create new jobs here in West Virginia,” he said. “We’re moving our state in the right direction.
“However, it’s clear from being moved to the ‘Watch List’ that we still have our work cut out for us. We are ready to head into this legislative session to continue our progress, and to keep making improvements to West Virginia’s business climate. It is my goal to send a strong message to the nation and world that West Virginia is open for business so we can grow our economy and create good jobs for our workers.”
Earlier this year, the U.S. Chamber of Commerce’s Institute for Legal Reform recognized Cole and Armstead with its State Legislative Achievement Award. The ILR owns The West Virginia Record.
"We feel very strongly that this is great news for West Virginia," Armstead said at a morning press conference. "After at least 12 years on a very infamous list, the state of West Virginia now has been removed from the Judicial Hellhole list. We are very excited for several reasons.
"First of all, we believe we have struggled under a reputation nationally that has hurt us in terms of creating jobs in West Virginia. This has been a black mark on us for several years. Now, this is gone. Second, we’ve done this in a way that, I believe, has preserved the fairness of our court system. It made sure the scales of justice truly are fair.
"We have so much to offer. We have a great workforce. We want to seize upon that and say to the country that West Virginia is a great place to come, live and do business. ... We are taking this as not only a victory for West Virginia, but an opportunity moving forward."
Jeff Holmstrand, president of the Defense Trial Counsel of West Virginia, said his group long has supported a fair and balanced judicial system.
"We are encouraged by the enactment of measures by the Legislature that encourage adherence to the rule of law that create reliability and predictability in our court system," he said. "We are also encouraged that our members have successfully advocated for this in courts throughout the state and before our highest court."
While critical of the state Supreme Court of Appeals’ “liability-expanding majority,” the ATRA report reminds West Virginia voters they have an opportunity to express their views on the high court during next year’s election.
However, the report also praised positive civil justice reforms in 15 states, including West Virginia.
Notable reforms included greater transparency between the tort and trust fund systems for asbestos claims in Arizona, Texas and West Virginia; good-government safeguards when the state hires outside lawyers in Arkansas, Nevada, Ohio and Utah; and protections against expansions of property owner liability to trespassers in Nevada, South Carolina and Wyoming.
The tort reform group contends the three areas have the potential to alter the direction of state law -- for better or worse.
The annual Judicial Hellholes report compiles the most significant court rulings and legislative actions over the course of the year as documented in real-time online.
The report also reflects feedback gathered from ATRA members and other firsthand sources.
The group says it also receives tips and additional information, which it then researches independently through publicly available court documents, judicial branch statistics, press accounts and various studies.
The Judicial Hellholes program considers only civil litigation. It does not reflect on the criminal justice system.
