WASHINGTON – Once a perennial seat holder at the head of the holiday dinner table, West Virginia now barely gets its foot in the door of the American Tort Reform Association’s Judicial Hellhole report.
The annual list, which was released Dec. 15, has the Mountain State at the bottom of the group’s Watch List. ATRA President Tiger Joyce even says “we hope our report is never again forced to include mention of West Virginia.”
Just two years ago, West Virginia was listed third on the report, and was at or near the top since it was started in 2002.. Topping this year’s list are the civil court systems in St. Louis and California. The entire report can be found online.
“This once perennial Judicial Hellhole has made significant progress in restoring balance to its civil justice system over the past two years,” ATRA says of West Virginia, which is also describes as “rapidly reforming.” “On the heels of major reforms in 2015, the Legislature took several more positive steps in 2016.
“Voters also elected a moderate to their state high court (Beth Walker) and re-elected their reform-minded attorney general (Patrick Morrisey). Still, after decades of trial-lawyer control over Mountain State courts and policymakers, the formidable task of undoing the damage isn’t quite complete.”
ATRA credits the 2014 election of “reform-minded majorities in both houses of the state Legislature as well as “open-minded” Gov. Earl Ray Tomblin for working to make West Virginia more attractive to economic development.
“We hope our report is never again forced to include mention of West Virginia,” Joyce said. “But even with the election this year of a moderate high court justice, a liability-expanding majority on that court might yet act to strike down some of these reforms, so at least more turn on the Watch List seemed appropriate.”
The Judicial Hellholes report lists some of the reforms made, including the abolition of joint liability, a limitation on punitive damages, the enactment of an asbestos trust transparency bill and consumer protection reform in 2015. And in 2016, the Legislature enacted more reform, including:
• Adopting a learned intermediary doctrine, the principle that drug companies have an obligation to educate doctors, not directly warn patients, of potential side effects of their products.
• Bringing transparency to the state attorney general’s hiring of private attorneys on a contingency fee basis by placing guidelines and regulatory parameters on the practice.
• Passing a wrongful conduct bill protecting defendants from liability for injuries that occurred when a potential plaintiff was committing a crime.
“During the past two years Mountain State lawmakers have enacted several pieces of affirmative reform legislation that should, if not ultimately struck down by the state’s still plaintiff-friendly high court, begin to appreciably improve fairness and predictability in civil courts,” the report said.
It credits West Virginia voters for electing Walker to the state Supreme Court over “Bill Wooton and former justice and longtime state AG Darrell McGraw, who for years almost singlehandedly kept West Virginia at or near the top of annual Judicial Hellholes rankings.”
ATRA also suggests more tort reform for the 2017 legislative session “to ensure that economically-challenged West Virginia remains on the road to redemption, and that business executives from across the country and around the world can begin to invest confidently in the once decidedly litigious and anti-business state.”
Its legislative agenda includes judgment interest reform, a limit on phantom damages so awards in personal injury cases reflect a plaintiff’s actual medical costs instead of what is initially billed but never paid, allowance at trial admission of evidence showing a claimant did not use a seatbelt in car accident cases and innocent seller legislation protecting sellers from lawsuits over products they did not manufacturer.
ATRA also says West Virginia needs to create an intermediate appellate court and changes to the state’s rules on medical monitoring claims.
“Lawmakers should seek to end the state’s uniquely troublesome practice of allowing medical monitoring claims,” the report states. “The West Virginia Supreme Court is the only court in the country that still permits cash awards to uninjured people who bring speculative medical monitoring claims.”
The president of a statewide group for trial attorneys dismissed the report as a corporate PR campaign.
“ATRA’s so-called ‘report’ is part of a well-funded PR campaign that has been discredited by the media, state and national legal experts and academics for more than a decade," Jane Peak of the West Virginia Association for Justice said. The media have proven that ATRA has received millions from corporate CEOs who want to increase their profits at the expense of our individual rights and liberties. It has never provided an accurate analysis of our state courts nor our legal climate. It's wrong.
"ATRA and the corporate CEOs behind it lied to our lawmakers. They convinced the West Virginia Legislature to pass bad laws that limited accountability and took away our rights. They claimed it would help grow our economy and bring new jobs. It hasn't worked yet, and it never will.
"The only ones who have benefited from ATRA's attack are the CEOs who funded it. Those out-of-state millionaires have lined their pockets at the expense of our safety, our bank accounts and our constitutional rights. They get richer, and we're left holding the bag."
The executive director of West Virginia Citizens Against Lawsuit Abuse praised the ATRA report and credited state leaders for the improvements.
“Thanks to the strong bi-partisan leadership of Governor 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 over the last two years, the Mountain State continues to show improvement in the Judicial Hellholes report,” Roman Stauffer said. “We applaud Attorney General Patrick Morrisey for his leadership in working with legislators to pass and enact a much-needed outside counsel policy.
“Attorney General Morrissey has proven to be a transparency leader at the state capitol. He put an end to former Attorney General Darrell McGraw’s ‘good ole boy system’ of awarding lucrative outside counsel contracts to campaign donors.”
Stauffer also said the reforms have brought West Virginia's civil justice system into the mainstream nationally.
"(They) will provide West Virginians access to a legal system that is fair and balanced," he said. "Additionally, these reforms will make West Virginia more attractive to job creators, which will create more opportunities for all West Virginians."