CHARLESTON – As the 2025 West Virginia legislative session kicks off, a few legal reform items likely will be addressed.
The 2025 session began February 12, and the projected $400 million budget deficit will be the key topic of the session, the first with new Gov. Patrick Morrisey. Healthcare, education and public employee pay also will be big items.
But tort reform issues also will be on the agendas of the House and Senate Judiciary committees, both of which have new leadership.
The leader of a statewide legal reform group says it has three key bills it is pushing toward passage.
“We have a robust agenda,” said Greg Thomas with West Virginia Citizens Against Lawsuit Abuse. “We’ve had some pretty good meetings with legislative leadership already, and some of the things we’re talking about are things the Senate has passed already.”
The three bills Thomas mentioned focus on medical monitoring, phantom damages and municipal government hiring of outside counsel. Versions of all three bills previously have been introduced in earlier sessions.
“With medical monitoring, West Virginia remains an extreme outlier,” Thomas told The West Virginia Record. “The Senate has passed versions of this bill several times.”
Thomas said West Virginia’s stance on medical monitoring claims is “troubling” because it still permits cash awards to uninjured people who bring speculative medical monitoring claims.
“West Virginia truly is out of step with the rest of the country on this,” Thomas said. “The law still in the books on this is from the late 1990s.”
Previous medical monitoring legislation didn’t do away with medical monitoring claims, instead they eliminated medical monitoring as a cause of action. Previous bills also would have established a medical monitoring trust fund where any money received through litigation would go to be used for actual medical monitoring.
Phantom damages refers to awards in personal injury cases given based on initial medical bills for a plaintiff than never are paid rather than the actual medical costs.
“With phantom damages, it’s something that’s been introduced before and had interest,” Thomas told The Record. “But we’re going to make a serious effort toward this year to get done. It pushes up costs for consumers.
“Several other states have taken care of it now. It’s a reasonable reform to do that will make West Virginia a better place create jobs and provide healthcare.”
A third bill being promoted by WVCALA would address municipal governments hirings of outside counsel. A version of the bill passed the Senate last year.
Thomas compared the idea to a 2016 bill that became law requiring transparency when the state Attorney General’s office hired outside counsel.
“The best example of why this needs to pass is that personal injury lawyers received $151 million from the opioid settlement,” Thomas said. “We were very critical of that. That should have been criminal for how little work some of them did. Some of them did no work at all.
“Remember, a judicial panel had to approve that compensation. Morrisey (when he was AG) filed a document in that hearing where he essentially said his office had to abide by these rules, but his lawyers working on behalf of the state made less than a third of this $151 million.
“If this law had been in place, that $151 million figure would have been half of that. It is something that absolutely has to be done. Otherwise, these personal injury lawyers will continue to abuse this by going to cities and counties to start litigation that they’ll get rich from.”
The current president of a statewide group for trial attorneys disputed Thomas’ claims.
“Do the counties want less of a settlement?” Steven Broadwater with the West Virginia Association for Justice asked, noting that the attorneys and law firms that represented the counties and cities took on the financial burdens of the case themselves with no monetary risks to the taxpayers. “These cities and counties had the right to contract with anyone they want. There were numerous hearings held. Attorneys had to jump through a lot of hoops to get hired. And now, we’re seeing the benefits. If they aren’t happy with the benefits, let’s talk about it.
“But, what if we have another situation like this? Who knows what the next national crisis is going to be. I’m not sure interfering with the freedom of our county commissioners and city leaders about who they want to hire to represent them will go over well.
“And remember, Governor Morrisey took a pretty active role in that litigation (as AG). He was at the trial. I’d be interested in what he has to say about that.”
Broadwater also disagreed with Thomas’ assessment of the medical monitoring and phantom damages legislation.
“I don’t think any of these bills they’ve pushed for have ever created a job here,” Broadwater told The Record. “If anything, they’ve made our state less attractive as a destination to live and work.
“We’re always willing to work with anyone who has good faith ideas for how they can build business in this state, attract more population or attract more workers. But that can’t be by granting blanket immunity. …
People are genuinely worried out there. There isn’t a lot of appetite for tort reform. I’d be interested in knowing if they have any real ideas to bring in jobs or people.”
With a decade of legal reform under Republican legislative control, Broadwater said WVCALA and other tort reform groups should have enough.
“Listen, we know there are certain tort reform efforts out there,” he said. “But quite frankly, I’m not quite sure what they can go after right now. We’re off of ATRA’s (American Torm Reform Association) Judicial Hellholes list. I’m just not sure where else then can go. And the state has so many more pressing issues.”
With medical monitoring, Broadwater says tort reform advocates haven’t offered real solutions.
“They’ve never proposed anything to help people who might be affected by medical monitoring,” he said. “It could be years before anything pops up requiring someone to need medical monitoring in these situations. I haven’t seen a version of any of these bills that would leave people any room to get some sort of recovery.
“It isn’t so much the recovery, but the incentive on industry to take care and watch after these people. We aren’t helping the state at all by giving them immunity.”
Broadwater said the same about phantom damages.
“How do you make that work? The measure in other states is what it costs. Basically, it’s insurance theft. If I pay all of this money for insurance, I should get the benefit.
“I’m just not sure how any of these bills actually would help us in terms of education, infrastructure, broadband and such.”
Broadwater did say the feeling at the state Capitol is one of optimism.
“There’s a new Legislature and lots of new members,” he said. “Everyone seems pretty motivated to do good, and it seems to be more than lip service. We’re here to help in any way we can.
“We’re willing to help, and we’re sincere about it. Our people have lost enough rights over the last decade here. Any way we can help advance the state without giving up our clients’ abilities to protect themselves and their families while also advancing the real issues we have, we’re here and we’re happy to help.”
Thomas said he’s optimistic about new leadership in the state Senate as well as two new attorneys leading the House and Senate Judiciary committees
“Mike Stuart (R-Kanawha and Senate Judiciary Chairman) could be potentially taking a job in D.C. (with the Department of Health and Human Services as general counsel), but it looks like he’ll be here for the session,” Thomas said. “He’s a friend of the legal reform community.
“And J.B. Akers (R-Kanawha and House Judiciary Chairman) is a well-respected local attorney here in Charleston. He voted for legal reform measures last year. We’ve had good conversations with both of them.
“We think we can get reasonable legal reforms passed that will help the people of West Virginia.”
The president of the West Virginia Chamber of Commerce said everyone knows the Legislature will be busy dealing with the budget and other key issues, but he is optimistic.
“At this point in the session, it’s very busy,” Steve Roberts told The Record. “Everyone is being cordial. The way these sessions unfold, your agenda changes through the session.
“We’re always optimistic at the beginning of the session, changing things up a little in the middle of the session and laughing at ourselves at the end of the session.”
Roberts said he thinks the Legislature will be working hard this session.
“They are dedicated to pursuing a better West Virginia,” Roberts said. “There is some differences in what the best way to do that is, but it’s going well so far.”
As far as possible tort reforms, Roberts said the Chamber is sticking with some more traditional issues that he thinks need to be examined. Those include phantom damages as well as collateral source rules.
The Chamber wants to repeat the collateral source rule to address “double-dipping” by allowing juries to have information on damages that have already been paid by other sources. And like WVCALA, the Chamber wants to enact phantom damages reform to prevent plaintiffs from receiving a windfall by being awarded damages for the full price of medical services incurred rather than the discounted rate actually paid by the health insurer.
“We don’t have an aggressive tort reform agenda, but we think we are taking a thoughtful and selective approach,” Roberts said, also noting an interest in reexamining some specific statute of limitations that are five and 10 years so they are more in line of those in other states.
Some other legal reforms mentioned in the Chamber’s 21st Century Competitiveness Agenda include evaluating current laws surrounding familial and custodial issues, instituting retention elections for judicial appointments, utilizing transparency measures to ensure judicial oversight to ensure accountability within the court system, prohibiting lawyer contributions to judicial races and passing fair mediation legislation that stipulates mediation should be conducted by someone other than the presiding trial judge.