West Virginia has become something of an enemy to tort reformers — so much so, that this state has placed second on the American Tort Reform Association’s list of Judicial Hellholes, behind only California. For the previous two years, the state had been third on the list, and has been on the list every year since it premiered. The reasons given by the American Tort Reform Association are that West Virginia judges “systematically apply laws and court procedures in an unfair and unbalanced manner,” especially against defendants.
Examples of West Virginia’s heresies include Supreme Court justices who made “liability expanding” decisions; the lack of an intermediate appellate court between the circuit courts and Supreme Court; “excessive” awards given by juries, such as $91.5 million in the case of a negligent nursing home; and asbestos litigation “abuse.”
Fortunately, all is not lost in this state, for the American Tort Reform Association sees “occasional glimmers of hope.” The group cites as a positive the fact that West Virginia voters replaced longtime Attorney General Darrell McGraw with his Republican opponent, Patrick Morrisey. McGraw made a practice of awarding no-bid state contracts to firms that contributed to his campaign.
However, that positive step could not overcome the fact that West Virginia judges had made decisions that caused insurance companies feel slightly less secure, or that jury awards had made nursing homes slightly more afraid to operate within the state.
We at the Wolfe Law Firm don’t disagree with all of the problems mentioned by the American Tort Reform Association. For instance, it could be to the benefit of West Virginians to have an intermediate-level appellate court, as the West Virginia Supreme Court has a heavy work load as the only court of appeal in the state. However, the sort of court we have in mind is not the same as the one the American Tort Reform Association has in mind. For us, intermediate appellate courts might be helpful only because they might allow cases to be heard sooner, relief to be dispensed faster, and people to get on with their lives sooner. For the business interests opposing people hurt by their products or services, it means getting a right to appeal in a state that currently does not provide an absolute right to appeal for all litigants. Some businesses, like Chesapeake Energy, have pouted and refused to make further investments in the state unless they could appeal verdicts against them.
So far, legislation to establish an intermediate court has gone nowhere. Business interests then tried to create a half measure in the form of an intermediate business court for judicial circuits with 60,000 residents or more. That, too, doesn’t seem to be getting much traction.
People can honestly debate whether it would be a good idea for West Virginia to have an intermediate-level court. However, we at the Wolfe Law Firm cannot quite sympathize with the good soldiers at the American Tort Reform Association. That is because frequently the injured parties do not have the power that businesses do, and sometimes their only recourse is to hire a West Virginia personal injury attorney and bring an action in court. If the West Virginia court system, as it exists now, benefits plaintiffs (the injured parties) more than big business, then it is only bringing fairness to an uneven playing field.