WASHINGTON – West Virginia is on the Watch List for this year's Judicial Hellholes report because of the yearlong drama that has surrounded the state Supreme Court.
The report, which is published annually by the American Tort Reform Association, a national civil justice reform group, was released Dec. 4.
"The West Virginia Supreme Court of Appeals experienced a tumultuous year with justices being charged with unnecessary and lavish spending of taxpayer dollars followed by the Legislature calling for impeachment of all five justices," ATRA President Tiger Joyce said. "The creation of an intermediate appellate court in West Virginia was one of several reforms that the Legislature failed to address."
Joyce did praise some actions that took place in the state.
"In fairness, however, the Legislature did enact an important reform addressing 'litigation tourism,' and the Supreme Court rejected 'innovator liability,' which would hold the original manufacturer of a product liable for similar products sold by their competitors," he said. "But, the Court also issued a disappointing opinion on class certification in class actions that rejects U.S. Supreme Court precedent and encourages plaintiffs lawyers from all over the country to flock to West Virginia courts to file class action lawsuits.
"Thus, the mixed bag of results leaves West Virginia on our Watch List."
In the report, ATRA says the "Court in Chaos" drama of this year is proof West Virginia needs an intermediate court of appeals.
And, "before it fell into disarray, the West Virginia Supreme Court of Appeals issued a disappointing class certification decision that rejects U.S. Supreme Court precedent and encourages plaintiffs’ lawyers from all over the country to flock to West Virginia courts to file class action lawsuits," the report states. "Once a class is certified, a settlement usually follows because the risks for businesses are too great to take the case to trial, making the issue of class certification vital.
"The court has adopted a broad interpretation of class certification rules, signaling almost all classes will be certified by West Virginia courts."
The report also notes that lawmakers didn't pass legislation that would allow jurors to learn if people involved in a car accident were wearing seatbelts. And, it also says the Legislature failed to bring the state in line with most other states regarding its medical monitoring law that allow plaintiffs who believe they were exposed to a hazardous substance to collect cash awards for medical monitoring without a present physical injury."
A spokesman for a statewide legal reform group said he thinks the report's thoughts on West Virginia are accurate.
"I think it’s fair," said Greg Thomas of West Virginia Citizens Against Lawsuit Abuse. "There has been a lot of turmoil with the court. Hopefully that will settle down in the upcoming year. We’re encouraged by Chief Justice-elect Beth Walker coming in. She’ll bring much needed stability and fairness to the court.
And, listen. The Legislature keeps passing a few things each year, which is good. But if you look at everything, West Virginia still has a lot to do with legal reform. We're still way out of step on medical monitoring. And, seatbelt admissibility would go a long way to show we’ve fixed our courts. We’ve made a lot of progress, but we still have a lot of work to do."
A state group for trial attorneys called ATRA's report an "attack" and "fake news."
"ATRA and the global corporate interests it represents continues to attack our state and mislead our lawmakers with its hellhole PR campaign," said Stephen New, president of the West Virginia Association for Justice. "This so-called report isn't worth the paper it's printed on. It has been discredited by the media, state and national legal experts and academics for more than a decade.
"ATRA's only interest is lining the pockets of the corporate billionaires funding its fake news campaign. The rights and safety of West Virginia families, workers and small businesses shouldn't be taking a back seat to these global special interests who want to increase their profits at our expense."
California tops the list of jurisdictions, followed by Florida, New York City and St. Louis.
“(O)ur Judicial Hellholes program since 2002 has documented troubling developments in jurisdictions where civil court judges systematically apply laws and court process in an unfair and unbalanced manner, generally to the disadvantage of defendants,” Joyce said.
ATRA named nine specific Judicial Hellholes. They are California, Florida, New York City, St. Louis, Louisiana, Philadelphia Court of Common Pleas, the New Jersey Legislature, Madison and St. Clair counties in Illinois, and the Twin Cities in Minnesota.
California, the organization claims, is "a perennial judicial hellhole," as it was also named number one in 2015-2016, 2013-2014 and 2012-2013. It ranked No. 2 behind Florida in 2017's report.
“California judges and legislators expand liability at almost every given opportunity,” Joyce argued.
"This year, the court adopted ‘innovator liability,’ a novel and expansive theory concocted by the trial bar that has been rejected by more than 35 state and federal courts around the country. It holds brand-name drug manufacturers responsible for injuries caused by a generic drug, and serves only to disrupt innovation and hamper investment."
ATRA named Florida at No. 2. It came to its conclusion, in part, because the state’s Supreme Court "issued a series of liability-expanding opinions that invalidated civil justice reforms including rejection of the Daubert standard for expert witness testimony."
This Daubert standard is applied in all federal courts and in more than 30 states. It allows the defense, or a plaintiff, in any case to question more closely the bona fides of an expert witness and provides that the judge can keep that expert from testifying if his or her science is not reliable. The Frye standard allows such experts to present so-called "junk science" and requires the jury to weigh the credibility of the witness.
“Florida had a great opportunity to improve its ranking as a Judicial Hellhole, and they squandered it,” Joyce said. “The Florida legislature passed legislation in 2013 adopting the Daubert standard requiring judges to ensure that expert testimony in the courts is based on generally accepted scientific and technical principles, and this year the Florida Supreme Court deemed the bill unconstitutional, opening the door for ‘junk science’ in its courtrooms.”
In New York, ATRA complained that it is achieving distinction beyond having venues where those suffering from the effects of asbestos have a voice.
"The distinction expands to include other types of litigation in the city," ATRA said.
“While NYCAL (New York City Asbestos Litigation) continues to cater to New York personal injury lawyers with its plaintiff-friendly procedures and some of the largest payouts in the country, the courts also have been inundated with frivolous consumer class actions targeting the food and beverage industry,” Joyce said.
“The legislature also has failed to address excessive construction liability and asbestos litigation abuse, and has passed liability-expanding measures.”
At No. 4 on the ATRA list is the city of St. Louis, which the organization said saw a year "plagued by scandal, legislative ineptitude and continued lawsuit abuse." Joyce said St. Louis is a "top contributor" to Missouri being characterized as the "Show Me Your Lawsuit State."
“Judges continue to allow blatant forum-shopping, disregarding U.S. Supreme Court precedent, and judges allow plaintiffs’ lawyers to introduce ‘junk science’ in the city’s talc litigation," Joyce said. "The legislature had the opportunity to address many of the litigation abuses plaguing the courts, but failed to pass the much-needed reforms.”
ATRA named Louisiana at No. 5, laying the blame at what it called "a multitude of lawsuits and Governor John Bel Edwards’ hiring of private attorneys."
“Governor Edwards continues to hire former campaign donors to represent the state in litigation, putting his own personal interests ahead of those of the citizens of Louisiana,” Joyce said.
“Beyond the pay-to-play schemes, the Pelican State had the worst economic performance of 2017 and its economy actually shrank. Governor Edwards’ solution has been to target the oil and gas industry with a barrel of lawsuits in an effort to shore up the state’s budget.”
In sixth place is the Philadelphia Court of Common Pleas. The organization included the court on the list because of the "excessive pharmaceutical litigation pending in the court," and the large percentage of out-of-state plaintiffs. Traditionally, more than 80% of plaintiffs in the court's mass torts program who are suing over pharmaceuticals have come from outside of Pennsylvania.
“The Philadelphia Court of Common Pleas has become a jackpot for trial lawyers across the country who need a favorable venue to file frivolous lawsuits,” Joyce said.
“The cases flocking to Philadelphia that have no connection to the state, are a burden on the state’s taxpayers and create a court backlog that puts Pennsylvanians at a disadvantage. The state also remains a hotbed for asbestos litigation, thanks to its plaintiff-friendly rules and procedures.”
Others on the list include the New Jersey state legislature, which ATRA said has "pursued a liability-expanding agenda."
“While the Judicial Hellholes report typically focuses on courts, the New Jersey legislature is an exception, as it distinguished itself as the most plaintiff-friendly legislature in the country,” Joyce said, adding that the New Jersey Supreme Court has enacted the Daubert standard.
St. Clair and Madison counties in Illinois make the list due to the increase in "no injury" consumer class action lawsuits, many of which, ATRA said, target food producers for their labeling. The two counties also remain among the bar's favorite jurisdictions for asbestos lawsuits.
The Twin Cities make the ATRA list because of what it calls "Attorney General Lori Swanson’s mishandling of a 3M groundwater contamination case," which. the organization claimed, "ended in an $850 million grant settlement, with $125 million in contingency fees going to an out-of-state firm who handled the case."
"The state’s high court also expanded liability for Minnesota land owners and lower courts around the state have followed the high court’s lead," Joyce said. "To top it off, the Supreme Court recently determined that they would not employ the Daubert standard, making Minnesota an outlier as more than 30 state and federal courts have adopted the standard for their expert witness testimony.”
ATRA said it is watching the state supreme courts of West Virginia, Colorado, Georgia, Montana and Pennsylvania, as well as the city of Newport News, Virginia, and the Ohio 8th District Court of Appeals.