WASHINGTON – West Virginia again finds itself on the American Tort Reform Foundation’s annual Judicial Hellholes Watch List.
The report, which was released December 8, is meant to “shine a light on lawsuit abuse and its effects” caused by “unjust local courts and state civil justice systems.”
West Virginia has been listed on the report since it began, actually being named the top Judicial Hellhole several times. It’s been on the Watch List for five consecutive years.
Morrisey
This year’s report calls the Mountain State a “former and recovering perennial” Judicial Hellhole. It places West Virginia sixth on the Watch List for three reasons.
“Asbestos litigation abuse continues, recent West Virginia Supreme Court of Appeals elections have led to the election of a judge sympathetic to plaintiffs and the state’s Attorney General has started to play an activist role,” the report states.
The president of a group for state trial attorneys denounced the report.
"ATRA and the global special interests it represents want to pad their profits at the expense of working people, our bank accounts and our rights,” President Jonathan Mani, president of the West Virginia Association for Justice. “That's wrong.
"ATRA wants our state government to pass new laws and regulations that restrict our Seventh Amendment rights to trial by jury in civil cases. It our Seventh Amendment rights that protect us from big government and ensures all of the other rights, liberties and freedoms we enjoy as Americans.
“West Virginia lawmakers should be protecting those rights, not destroying them on the basis of a fake study that has been discredited by the media and experts for more than 10 years."
The executive director of a statewide legal reform group said the state's inclusion on the Watch List is troubling.
“Job creators, healthcare providers and West Virginia families should be concerned," Jordan Burgess of West Virginia Citizens Against Lawsuit Abuse said. "While the Legislature has made many reforms to our state’s legal system, there is much work yet to be done.
"We hope that the Legislature will make legal reform a top priority for the 2021 session.”
In its section devoted to West Virginia, the 2020-21 ATRF report discusses the trend of overnaming defendants in asbestos litigation.
“Plaintiffs’ attorneys have their tricks for gaming the system,” the report says. “In West Virginia, plaintiffs’ firms, once they are able to find an injury, sue everyone under the sun. …
“A West Virginia judge has noticed this disturbing trend. Judge Ronald Wilson acknowledged the ‘abuse’ and was taken aback by the plaintiff attorney’s unwillingness to settle the disputes. The judge, seeking to promote a settlement, mentioned that the West Virginia Supreme Court of Appeals is quite conservative explaining ‘you [plaintiff attorneys] reap what you sow.’”
Speaking of the state Supreme Court, the ATRF report discusses how Justice John Hutchison’s campaign received more than $100,000 from “personal injury lawyer interests” in the 2020 election and how Hutchison authored a November opinion it calls “an extraordinary liability-expanding decision.”
“West Virginia’s statute of limitations for (Consumer Credit and Protection Act) claims seemed to clearly bar the suit, as it does not permit civil penalties for violations ‘occurring more than four years before the action is brought,’” the report states. “The high court, however, allowed the amendment and adopted a ‘discovery rule’ that circumvented the statute of limitations.
“But that is not all. While the lawsuit sat, the state Legislature amended the CCPA to increase the maximum civil penalty that had long been no more than $5,000 to $5,000 per violation. This change allowed for penalties in the hundreds of thousands of dollars – for each product sold or advertisement, for example. The court ruled that these higher civil penalties applied retroactively.
“On top of this, the court ruled that the state did not have to produce basic information, such as how many faulty respirators it contends were actually used by workers and how many workers were allegedly misled. The court found that information “expensive, irrelevant, and unnecessary” to deciding the CCPA claim. In sum, what is generally viewed as a conservative state Supreme Court surprisingly breathed new life into an old lawsuit, involving even older conduct, with higher penalties and less opportunity to defend against the claims.”
It also mentions another lawsuit pending in Wyoming County against Amazon.
“Like several other jurisdictions, a West Virginia trial court is considering whether Amazon can be held liable as if it were a product manufacturer or seller for a product sold by a third party over its online platform,” the report states. “A woman was injured after a charger shorted and produced flames. Even though the charger was not designed, manufactured, or shipped by Amazon, the plaintiff chose to name Amazon as a defendant. The case is before former West Virginia Supreme Court Chief Justice Warren McGraw, now serving as a judge in the Wyoming Circuit Court.”
The ATRF report also is critical of Republican AG Patrick Morrisey, saying he “has been litigating liberally.” It mentions the lawsuit he and other AGs filed against Walmart and CVS claiming the companies “failed to monitor and report suspicious orders of prescription painkillers to their retail pharmacies in a state ravaged by the opioid epidemic.”
“Walmart and CVS are not the manufacturers of the drugs; rather, they are simply filling lawfully prescribed medication ordered by a licensed doctor,” the Judicial Hellhole report states. “In fact, pharmacies have been sued for not fulfilling opioid prescriptions. When CVS decided not to fill certain opioid prescriptions, plaintiffs’ attorneys saw the opportunity to profit and launched a class-action for discriminating against patients.
“Thanks to the AG’s actions, pharmacies in the state find themselves between a rock and hard place. In fact, Morrisey had already launched lawsuits against Walgreens and Rite-Aid in June. In both cases, he has requested the assistance of outside private counsel.”
ATRF says Morrisey’s actions will do more harm than good.
“Major public crises demand a major response by government leaders, but the continued wave of contingency-fee litigation brought by state and local governments is the wrong approach,” the report states. “It won’t do much to help victims or solve the crisis, and instead creates lasting problems for the civil justice system.”
The report also is critical of Morrisey for a lack of transparency.
“During his 2020 election campaign, General Morrisey refused to sign a transparency oath that ATRA sends to all candidates for state attorney general,” it states. “The oath requires that, if elected, the candidate will release information on outside counsel bidding if an attorney general plans to hire a private law firm.
“Transparency is essential to ensure that the citizens of a state can be confident that litigation brought on behalf of a state with private outside counsel is truly in the public interest.”
ATRF calls Morrisey’s refusal to sign the oath “both surprising and disappointing given the focus he placed on transparency and ethics reforms early in his tenure.”
“In July 2013, he publicly adopted a sound transparency policy with respect to his office’s hiring of outside counsel,” the report states. “This policy embraced many of the same policies included in the ATRA oath. Increasing government transparency and reducing excessive litigation are critical aspects of enhancing a state’s economic development climate and growing job opportunities.”
Morrisey's office dismissed the report.
"It’s one thing for the American Tort Reform Foundation to ignore Attorney General Morrisey’s tremendous success in bringing fairness and transparency to the state’s court system, but it’s wholly unacceptable for ATRF to blatantly ignore the enormous devastation caused by opioid abuse in West Virginia," spokesman Curtis Johnson told The West Virginia Record. "Every aspect of the pharmaceutical supply chain must be held accountable, and our office makes no apology for taking aggressive action.
"It is precisely because of such measures and the major changes made at the DEA (driven in part by his lawsuit) that the number of pills coming into West Virginia has decreased sharply."
Johnson also addressed the AG's office's lawsuit Walmart and CVS.
“The Attorney General’s lawsuit alleges the national chain distributors absolutely should have known they were dramatically oversupplying the state, and for that, we seek to hold these companies accountable," he told The Record. “As the authors recognize, Attorney General Morrisey has made great strides in West Virginia toward creating an open and competitive bidding system for outside counsel. In fact, the office’s process for hiring outside counsel has saved the state more than $34.9 million since 2013.
"This keeps more money for consumers and the state of West Virginia, which in turn eases the financial burden of state taxpayers.”
ATRA's yearly report ranks legal jurisdictions considered unfriendly to businesses and where they are perceived not to be given a fair shake in court. Philadelphia Court of Common Pleas and the Pennsylvania Supreme Court top this year’s rankings due to high-dollar mass tort verdicts, expanding medical liability litigation and a lower reliability standard for expert witness evidence, among other issues. New York City, California, South Carolina Asbestos Litigation and Louisiana round out the top five.