Every December, for many years, West Virginia was ranked at the top of the annual Judicial Hellholes list published by the American Tort Reform Association.
As regular as Christmas light displays and ugly sweaters, the ranking was another sure sign we were right in the middle of the holiday season.
But now, times have changed.
A few years ago, the Mountain State dropped from the top ranking. Soon, West Virginia just showed up on the report’s Watch List.
And last year, the state wasn’t on the annual list at all. In fact, the state was on the “Escaped List” in 2021, and the state Legislature was listed as one of ATRA’s Points of Light in that report for its successes in enacting tort reform over the last few years.
The 2022 report, which was released December 6, again didn’t feature West Virginia in its naughty lists. The state again was only mentioned in the Points of Light section after the U.S. Fourth Circuit Court of Appeals upheld a state law regulating misleading lawsuit advertising practices by reversing a federal district court decision.
In 2020, the Legislature passed the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act. The act prohibits specific practices in lawsuit advertisements that give false impressions that they reflect medical or governmental advice. It also requires informational disclosures to prevent confusion and protect public health.
As an example, phrases such as “Health Alert” and “Public Service Health Announcement” are prohibited, as is use of the FDA logo.
“A unanimous Fourth Circuit panel rejected a First Amendment challenge mounted by West Virginia plaintiffs’ attorneys to the law,” the 2022 ATRA report notes. “The appellate court found that each of the bill’s prohibitions was tailored to address practices that are ‘inherently or actually misleading’ and that the law’s disclosure requirements were in response to ‘concrete concerns supported by empirical evidence.’
“The court concluded, ‘The act’s prohibitions and disclosures work together … to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice.’”
So, kudos to the state Legislature for its tort reform work over the last several years. It was meant to make West Virginia courts more in line with others across the nation, and it seems to be working.
To quote Cousin Eddie, “That’s the gift that keeps on giving the whole year.”
That it is, Edward. That it is, indeed.