CHARLESTON – Tort reform advocates are expressing concern over the failure of two bills to make it out of the state Senate Judiciary Committee.
But, a statewide group for trial attorneys say the defeat of the bills was a victory for West Virginia citizens.
Last week, Senate Bill 473 was tabled in the Judiciary Committee. That bill would have limited the cause of action for medical monitoring lawsuits, essentially eliminating such claims. The vote to table the bill was 11-4.
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And SB 543 would have changed the process for local governments to hire private lawyers on a contingency fee. The bill was defeated on a 5-11 vote.
Versions of both bills have made it out of the committee in previous legislative sessions.
The executive director of West Virginia Citizens Against Lawsuit Abuse called the bills two important legal reforms.
But, the West Virginia Association for Justice condemned WV CALA’s response, saying it targeted senators for votes “that protected the rights of West Virginia citizens.”
“For weeks, we had been waiting for this Legislature to bring up bills that would help create much needed jobs in West Virginia,” WV CALA’s Greg Thomas said. “This was the state Senate’s first opportunity to do so, and they overwhelmingly voted it down.
“It’s clear that personal injury lawyer interests hold significant influence over the leadership of this state Senate.”
Thomas said almost every senator on the Judiciary Committee campaigned on the idea of creating jobs.
“Their actions have proven that their messages of job creation and a prosperous West Virginia are just empty promises,” he said. “Not only did these two proactive measures fail, but almost every social conservative bill creates new causes of action for personal injury lawyers to sue someone.
“This is the best session the personal injury lawyers have had in Charleston since 2014.”
In 2015, Republicans gained control of both houses of the Legislature and began passing a series of legal reforms that earned the praise of national leaders. It was when West Virginia dropped out of the top spot on the American Tort Reform Association’s annual Judicial Hellholes list, and the state now no longer appears on the list at all.
But ATRA’s president says the Mountain State has fallen behind other states in improving the business climate and is no longer the leader in tort reform.
“I share the concerns about the failure of 473 and 543,” Joyce said March 17 on MetroNews’ Talkline radio program. Either the (Senate Judiciary) Committee fails to understand the importance of these issues or it is just some other factor. I can’t say, but it’s extremely disappointing for us.”
Joyce said the Legislature must work harder to keep their promises to West Virginians and support the enactment of meaningful tort reform laws to remain competitive and attract businesses.
“Right now, there are additional problems and matters that really require the focus and attention of the Legislature,” Joyce said. “These are failures to address these important topics.”
Without continued progress, Joyce says West Virginia risks sliding back into its former status as a Judicial Hellhole. ATRA hailed the changes that began in West Virginia in 2015, but he says other states now are doing more.
“We have identified all of these reforms that have been enacted, but right now, we have other states,” Joyce said. “Florida in 2023 as well as Georgia and South Carolina now … they recognize a balanced legal system is good for the economy and fair to all of those involved.
By contrast, your neighbors in Maryland and Pennsylvania continue to expand liability. It’s a question of which jurisdiction to you want to be associated with.”
Sen. Mike Stuart (R-Kanawha) is chairman of the Senate Judiciary Committee, and he agrees with Joyce's assessment of the stall in legal reform here.
"Tort and civil justice reforms are critical to a vibrant business climate, and it's a key factor considered by job creators," Stuart told The West Virginia Record. "We made strides, but we are backsliding at an alarming rate.
"It is a troubling fact that important reforms are almost impossible and, absent new measures to encourage job creators, West Virginia will have a very difficult time attracting and keeping businesses."
As for medical monitoring, Joyce said it currently is a right in West Virginia. In most states, someone has to have suffered an injury to have medical monitoring in case you develop symptoms in the future. He said West Virginia is one of only five states that allows this.
“The Legislature has tried for a number of years,” he said. “But the failure of the Legislature to address the issue has allowed it to continue. This should be a priority.”
Thomas agreed, noting that several of the senators who voted against these legal reforms were on WV CALA’s Dirty Dozen 2024 list of candidates who received the most money from personal injury lawyers during the election.
Senator Joey Garcia (D-Marion) led the WV CALA list with over $26,000 in contributions, while Senator Patricia Rucker (R-Berkeley) received $25,000, Senator Chris Rose (R-Monongalia) took more than $10,000 and Senator Craig Hart (R-Mingo) received just more than $4,000 from personal injury lawyer interests.
“West Virginia’s Legislature must work harder to keep their promises to West Virginians and support enactment of tort reform laws, like the secondary source bill and BRIM reform measures,” Thomas said.
Meanwhile, the legislative chairman for the WVAJ criticized Thomas.
“To paraphrase Ronald Reagan, ‘There he goes again,’” Anthony Majestro told The Record. “It’s just more of the same in Greg Thomas’ annual, unrelenting attempts to push bad legislation that hurts West Virginians. He claims his bills will create jobs, but all they do is take away our constitutional rights and give his corporate employers bigger profits. He wails about West Virginians paying a so-called tort tax, but then fails to mention that we have the second lowest rate in the country.”
Majestro said Thomas now is attacking senators “who saw through his sham and rejected his bills.”
“One bill would protect billion-dollar corporations, big pharma, polluters and vaccine manufacturers when we’re harmed and leave us powerless to hold them accountable,” Majestro said. “Another bill would have restricted the ability for counties and towns to hire and contract with their own lawyers, giving that oversight to the state attorney general.
“West Virginians should thank these senators for doing what’s best for their constituents and the local governments in their districts. They put us first, not the global, billion-dollar corporations hiding behind the front groups that sign Mr. Thomas’ paychecks. If he really wants to bring jobs to our state, he should stop wasting our Legislature’s time on these bad bills and let them get to work on education, job training programs, better roads and broadband.”
The WVAJ said medical monitoring is about “basic fairness.”
“If a corporation is negligent and exposes you to a hazardous substance that increases the risk for cancer and disease significantly, they should be held accountable,” Majestro said. “If your doctor recommends that you undergo periodic testing so that disease can be caught early and treated, that needs to be done. Early treatment can increase your chance for recovery and is likely to cost less.
“You shouldn’t have to pay for those tests — and neither should your health insurance or tax payers. The corporation that exposed you should pay for them.”
Because the bill to cut medical monitoring has been declared dead numerous times over the last 14 years, the WVAJ calls it a “legislative zombie.”
“Last week it was defeated by a Senate Republican supermajority that Greg Thomas helped elect,” Majestro said. “It’s been rejected 14 years straight in spite of the composition and leadership changes in the Legislature.
“In 2021, an amendment was passed that addressed every concern he had, but what did he do? He told lawmakers to kill it. It’s ludicrous and a waste of time.”
SB 543 would require the state attorney general to regulate when and under what terms local governments could hire outside counsel.
“This bill defined government overreach and would have taken away the ability for mayors, town councils and county commissions to decide when to hire an attorney and what should be in the contract,” Majestro said. “That power would have been handed over to the state government in Charleston.
“These decisions belong to the local elected officials, not Charleston. Huntington decides what’s best for Huntington. The Berkeley County Commission decides what’s best for its county. Anything else is wrong and violates one of the most fundamental conservative principles.”
Majestro said local governments led the legal fight against companies linked to the opioid epidemic.
“It led to the recovery of more than $1 billion in our state, and more than $55 billion nationally,” Majestro said. “We should applaud their efforts, not tie their hands and make them beholden to Charleston.
“Many of the corporations behind the opioid crisis fund the front groups that Greg Thomas represents. They claimed this bill would save taxpayers’ money, but they don’t care about that. This was about eliminating their responsibility when we’re harmed. Listening to them discuss the subject was like listening to a fox arguing why he should be in charge of the hen house.”
Stuart said the business community is partly to blame for the failure of the two bills as well.
"The (state) Chamber of Commerce has failed to prioritize critical business legislation in favor of playing politics," Stuart told The Record. "We need a Chamber focused on improving the business climate and less direct involvement in the social and political environment of West Virginia.
"The Chamber needs to lead on tort reform and other critical issues that demand their leadership in educating legislators on the positive impact of passing critical pro-business bills."