W.Va.'s 'out-of-state' debate continues in DuPont saga

John O'Brien Sep. 4, 2008, 10:22am



CHARLESTON, W.Va. (Legal Newsline) - Businesses complain about out-of-state plaintiffs lawyers trying to run West Virginia's courts, while out-of-state attorneys gripe about out-of-state corporate interests attempting to influence state officials.

It's the standard song-and-dance in the ongoing fight over the state and its residents -- with the latest round coming via Gov. Joe Manchin and, that's right, a business and law firm based outside of West Virginia.

"You have a plaintiffs attorney that is potentially getting a large sum of money, when that amount is for (plaintiffs). How much of it is going out of state?" Dan Turner, a spokesman for industrial giant DuPont, said Wednesday.

"This story is not just about DuPont," said Mike Papantonio, the Florida lawyer fighting to uphold a $382 million verdict (and $135 million in attorneys fees) against DuPont. "It's about other associated industries and the U.S. Chamber of Commerce (the owner of Legal Newsline) influencing the governor's office and influencing regulatory agencies and courts in West Virginia."

And stuck in the middle is Manchin, who filed an amicus brief asking the state Supreme Court to take a look at the nearly $200 million punitive damages award in the class action case. Records show he met with DuPont officials before filing.

DuPont is alleged to have dumped arsenic, cadmium and lead at its Harrison County facility.

"What is amazing to me is that while our brief is based solely on the legal principles of due process and the right of appeal, the trial lawyers' brief, led by several big out-of-state law firms, does not address that legal issue in any way..." Manchin said.

Categorizing an individual or business as an outsider is nothing new. In recent years, Attorney General Darrell McGraw's office has alleged that Citizens Against Lawsuit Abuse is masquerading as a grassroots organization when it is funded by out-of-state businesses.

Tort reform groups have complained about out-of-state plaintiffs with their out-of-state counsel for clogging up in-state courts, and Supreme Court Justice Larry Starcher has criticized Don Blankenship, the owner of Richmond-based Massey Energy, for contributing to West Virginia political races.

"I think it's always easier to demonize something you don't know rather than turning the blame on your neighbor," state Sen. Erik Wells (D-Kanawha) said Thursday. "That's why you hear it used in a generic sense rather than being specific."

Wells owns his own media consulting company, Wells Media Group, and trains spokespersons. Obviously, a big part of his work involves finding the right talking point.

But is calling something "out-of-state" the most productive attack?

"I think often times it falls on deaf ears," Wells said. "I think the public is smarter than folks give them credit for.

"They can read between the lines very easily and understand where the rhetoric is and where the truth is."

Not being a true West Virginian, then, wouldn't be as bad as it's made out to be. Wells was born in California and elected to his spot in 2006, defeating a former West Virginia University football player.

He was termed "a California liberal" during his campaign.

Out-of-state businesses concentrate on West Virginia because they'd like to do affordable business there. Oklahoma-based Chesapeake Energy couldn't get its appeal of a $404 million award against it heard by the state Supreme Court, so it recently scrapped plans to build a $35 million regional headquarters in Charleston.

DuPont, based in Delaware for tax reasons, also wants to keep the cost of doing business in the state down. It is the 11th largest private employer in West Virginia.

And out-of-state firms feel they can have their place in West Virginia, too. Papantonio said his firm, Levin Papantonio Thomas Mitchell Echsner & Proctor, was brought on the case by a smaller in-state firm because of its expertise in environmental law.

The firm's deep pockets didn't hurt, either -- it has spent $8 million-$10 million on litigation so far, Papantonio said. For a firm that represented the State of Florida in landmark litigation against tobacco companies, finding the money to take on a business power is rarely too big of a problem.

West Virginians don't care where you're from, Wells said, just that you don't cross them. Just ask now-Michigan University football coach Rich Rodriguez, who promised to stay at West Virginia University before leaving last year.

It resulted in a bitter contract squabble and many Mountaineer fans wishing a winless season on the Wolverines.

"When you look at a situation where somebody says they're not ever going to leave the state, then a short time later get up and pursue their career elsewhere, people are let down because they promised to be here," Wells said.

"I don't think West Virginians resent anyone pursuing their career and making a better life for themselves."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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