Thursday, December 17, 2015

West Virginia no longer a top judicial hellhole

The good news is after 30 years, West Virginia is no longer listed on the American Tort Reform Association's Top 10 judicial hellholes.

The bad news is, West Virginia remains a judicial hellhole. The election of the first Republican-controlled legislature in 82 years did lower the temperature a little. The nonpartisan election of judges may help. We shall see.

From the report:
“The majority’s ruling permitting criminal plaintiffs to maintain these civil lawsuits ignores common sense and will encourage other criminals to file similar lawsuits in an attempt to profit from their criminal behavior.” 
—West Virginia Justice Menis Ketchum II, dissenting in Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo County (W. Va. 2015), which allowed people who criminally obtained, used, and sold prescription painkillers to sue pharmacies that filled some of their prescriptions.
Mind you, Justice Ketchum is a former trial lawyer. Even he sees the ruthless unfairness and disregard for justice in allowing criminals to sue like this. But as long as Robin Jean Davis -- wife of the multimillionaire trial lawyer Scott Segal -- is on the state Supreme Court, civil justice remains a crapshoot.

But the report did note:
In an encouraging move that may yet stall, perennial Judicial Hellhole West Virginia has dramatically managed to drop to the Watch List. The change results from the legislature’s enactment of several significant civil justice reforms in 2015, following the voters’ Election Day 2014 choice to demote the legislature’s trial lawyer-led majority to the minority. Voters’ earlier choice to replace former Attorney General Darrell McGraw, Jr. with reform-minded Patrick Morrissey also helped move the dial. But the West Virginia Supreme Court of Appeals, the state’s sole appellate court, continues to issue liability-expanding rulings, some of which the legislature laudably overturned this year. The high court’s latest travesty allows individuals who illegally obtain, use and sell painkillers to sue doctors and pharmacies that allegedly filled their prescriptions.
However, Morrissey has continued the McGraw tradition of suing private companies. The state needs to change its constitution to ban such litigation. The private sector has plenty of lawyers fully capable of suing.

But the report did have good news:
1. The legislature abolished the state’s antiquated and unfair rule of joint liability, which had required defendants that were 30% or more at fault for an injury to potentially pay 100% of a plaintiff ’s damages. Now, individuals and businesses sued in West Virginia will typically pay damages in proportion to their level of responsibility for an injury. The law also ensures that juries can consider the responsibility of all parties that may have contributed to an injury, not just those named in a lawsuit.
2. The legislature limited punitive damages to the greater of four times the amount of compensatory damages or $500,000. The new law also requires “clear and convincing evidence” of “actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others” to support an award of punitive damages, and it permits a defendant to request that the jury separately consider liability and punitive damages.
3. Lawmakers required courts to reduce damage awards in medical liability cases to reflect compensation the plaintiff has or will receive for the same injury from others such as private insurers and Medicaid, tightened expert witness requirements, tied the state’s limit on noneconomic damages to inflation, and included additional healthcare professionals and facilities within the noneconomic damage limits.
4. The legislature required plaintiffs’ lawyers suing solvent companies in the tort system to disclose any claims also filed with asbestos bankruptcy trusts on behalf of the same client.  This newly established transparency will prevent plaintiffs’ lawyers from hiding evidence that their client’s injury was caused by sources other than the companies they name as defendants and reduce the potential for fraud.  The legislature also precluded individuals who allege exposure to asbestos or silica from proceeding with a lawsuit unless they develop a medically-recognized condition.  This law will preserve limited resources for those who actually become sick and prevent questionable claims generated through mass screenings and fraud.
5. The legislature amended the law to require a plaintiff to show that a violation caused an actual out-of-pocket loss. The law also avoids inconsistency and over-regulation by excluding from coverage any act or practice permitted or regulated by a federal or state agency, and provides any party with the right to a jury trial.
6. The legislature restored the longstanding rule that property owners are not subject to liability for “open and obvious” dangers after a 2013 high court decision, highlighted in a previous edition of this report, abolished the commonsense rule. A separate law preserved the rule that landowners have no duty to protect those who trespass on their property.
7. The legislature tightened requirements for workers to sue employers outside the no-fault workers’ compensation system, which ordinarily provides compensation for work-related injuries. West Virginia courts had broadened the standard for “deliberate intent,” which, when shown, subjects employers to lengthy litigation.
But of course the state Supreme Court continues to be a handmaiden of the trial lawyer bar, which rakes in millions in contingency fees from the plaintiffs and millions in hourly fees from the defendants. The Democratic Party's judiciary cost West Virginia far more jobs than Obama's EPA did.


  1. Progress is incremental. Rome wasn't built in a day. Don't get cocky.