WASHINGTON – For a second consecutive year, West Virginia finds itself on the Watch List of the American Tort Reform Association’s annual Judicial Hellhole report.

Once a perennial leader on the list, “West Virginia’s legal climate has vastly improved over the past three years,” according to the ATRA report that was released Dec. 5. It says that is “thanks to numerous statutory reforms undertaken after Mountain State voters decided they’d had enough of trial lawyer-controlled lawmakers – and jobs-killing expansions of civil liability – and threw many of the bums out on Election Day 2014.”

Florida, thanks to a string of liability-expanding decisions, earned the top spot in the newest Judicial Hellhole report of the “most unfair” courts in handling of civil litigation. California is ranked No. 2, followed by the City of St. Louis Circuit Court, New York City’s asbestos court and Philadelphia.

Just three years ago, West Virginia was listed third on the report, and was at or near the top since it was started in 2002. Last year, West Virginia also was on the report’s Watch List.

“In 2017 the Legislature passed two more important reform bills: one that lowered the prejudgment interest rate, and another that limits products liability for innocent sellers,” ATRA says in its report. “If not eventually struck down by the state’s still plaintiff-friendly high court, these and previously enacted reform statutes should continue to improve fairness and predictability in West Virginia’s civil courts.”

While praising the reforms made in the Mountain State, ATRA says “there still is work to be done,” noting issues it says should be tackled in the upcoming legislative session. Those include:  

• Allowing at trial the admission of evidence showing personal injury plaintiffs did not use their seatbelts in car accident cases,

• Limiting “phantom damages” so awards in personal injury cases reflect a plaintiff ’s actual medical costs incurred, not those initially billed but never paid, and

• Venue reforms that require plaintiffs to file claims in the appropriate court while cracking down on forum-shopping.

ATRA also mentions that West Virginia litigants do not have the same right to appellate review as those in other states.

“And perhaps most importantly, 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.”

While praising lawmakers and the executive branch of government, ATRA says the state Supreme Court “remains a concern and requires a watchful eye.”

“The high court is currently presented with the question of whether to adopt a novel plaintiffs’ bar theory, innovator liability,” the report states. “This case is a true litmus test for the court. Under innovator liability a brand name manufacturer can be held liable for injuries caused by a generic company’s product.”

In addition to not being good legally, ATRA says this practice can be harmful to people.

“Subjecting companies engaged in innovation to liability that bears no relation to their products or revenues can discourage future investments in, for example, medicines or technologies that can improve and even save lives,” the report states. “Innovator liability also undermines the predictability and fairness that civil courts should provide all parties to litigation.

“And no notion of basic fairness can tolerate a product manufacturer being forced to serve as an insurer for injuries caused by a generic competitor, which is why the vast majority of state courts that have ruled on innovator liability have rejected it. West Virginia should, too.”

The report also highlighted one Supreme Court ruling – Martinez v. Asplundh Tree Expert – ATRA liked.

“In this case, the court ruled that West Virginia’s statutory limit on punitive damages applies in cases tried after the law’s effective date, regardless of when the alleged conduct occurred or when the complaint was filed,” the report states. “The court correctly interpreted the Legislature’s intent and resisted the urge to legislate from the bench.”

Based in Washington, ATRA is a national organization dedicated to tort and liability reform through public education and the enactment of legislation. Its members include nonprofit organizations and small and large companies, as well as trade, business and professional associations from the state and national level.

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