Panel debates W.Va.'s 'hellhole' status

Justin Anderson Mar. 9, 2009, 4:36pm



CHARLESTON, W.Va. (Legal Newsline) - It wasn't hard to see the ideological division between the plaintiff and defense bars during a panel discussion over whether West Virginia deserves to be called a "judicial hellhole."

The defense bar wants more controls over various facets of the state's legal system while the plaintiffs bar generally says there's nothing wrong.

The panel discussion, moderated by MetroNews Talkline host Hoppy Kercheval, was part of the annual conference of the Independent Insurance Agents of West Virginia at the Charleston Marriott on Monday.

The discussion was called "Heaven or Hellhole: The Real State of West Virginia's Legal Climate."

Participating were Marc E. Williams, a local lawyer and president of the Defense Research Institute; West Virginia Managing Deputy Attorney General Fran Hughes; 19th Judicial Circuit Judge Alan Moats; Allan Karlin, president of the West Virginia Association for Justice; and Sherman Joyce, president of the American Tort Reform Association.

ATRA is the Washington, D.C.-based organization that annually puts out the judicial hellhole reports.

The group also has made it known that it doesn't agree with West Virginia Attorney General Darrell McGraw's no-bid hiring of personal injury lawyers to handle state cases and often reap millions from settlements. Some of those lawyers have turned out to be campaign contributors of McGraw's.

Joyce said his organization wants to see McGraw's office bid out those jobs just like the state would bid out paving jobs.

"This is the kind of situation that should be done more out in the open," Joyce said, adding that the attorney general and the personal injury lawyers he deputizes have different goals -- the latter is driven by profit while the former's motive should be to enforce the law.

Hughes blasted back.

"I think like much of what we hear in the news today, it's a lot of hypocrisy," she said.

Hughes said the hypocrisy is that groups like ATRA don't readily reveal who's funding them. Hughes said McGraw's office has complied with many Freedom of Information Act requests filed by ATRA and has been as open as possible about its process of hiring private law firms.

"We have never refused to provide information when asked," she said. "They haven't found anything wrong. The whole process is transparent."

Hughes added that state law exempts legal services from being subject to competitive bidding.

"More importantly, how would the bid look?" she said. "We don't know how long it's going to take, how much it's going to cost and you might lose money. So, sign up! And that's the situation we're looking at when we're trying to design a bid."

Karlin said the real problem is that the state doesn't have the kind of money other states have to fund an aggressive attorney general's office.

He said McGraw has done more for consumer protection than any previous attorney general. Giving private law firms the potential to make money off settlements is just a way to bring these cases to court at minimal cost to the taxpayer, Karlin said.

Karlin added that if McGraw has made the state a hellhole for anybody, he's made it a hellhole for companies bent on bilking consumers.

Moats said McGraw is not a part of the judiciary, so he doesn't need to be blamed for the state's judicial problems.

Williams commented that he believes there is an appearance of impropriety in the process, especially when some of the lawyers contributed to McGraw's political campaigns.

Joyce went on to criticize McGraw's practice of making grants with settlement money himself when he should be turning the money over to the Legislature for appropriation.

Hughes called this argument a "red herring."

"99.9 percent of the money has gone to the Legislature to control," she said.

Hughes pointed to the oft-criticized $10 million settlement between McGraw's office and the makers of OxyContin.

The settlement called for the money to be spent toward programs that combat substance abuse. Hughes said those are the kinds of programs to which the money has been granted.

"I don't care what the terms of the settlement were, it's the state's money," Williams said. "And it's inappropriate for the attorney general to issue press releases and grants to make it look like it's his money."

Hughes capped the argument by saying because the OxyContin money, and other settlement money, doesn't come from sources such as licensing fees or tax collections, it's debatable whether it's really the public's money.

The panel also touched on the issue of medical monitoring lawsuits, which are filed by people who had been potentially exposed to a harmful chemical but haven't yet suffered any effects.

Often, these cases end in judgments for the plaintiffs, who are awarded money for ongoing medical monitoring.

Moats could not comment on this issue because he was the judge on a case pending before the West Virginia Supreme Court.

Williams said the concept is "remarkably liberal." He said the most "absurd" part of medical monitoring lawsuits -- other than the fact that a plaintiff is awarded for an injury they may never suffer -- is that nothing requires a plaintiff to spend their award on health services.

Williams said he favors setting up medical monitoring funds that are set aside for those purposes alone.

Karlin said whether or not the plaintiff is injured at the time of the lawsuit doesn't matter. He said the injury is that plaintiffs could potentially be harmed by the past misconduct of a company. He said medical monitoring awards help shield taxpayers and keep health care costs down.

Joyce agreed with Williams in that the awards ought to be mandated to be spent on medical monitoring.

"This is a radical change," Joyce said. "It needs to be managed properly."

Hughes said a medical monitoring fund would be fraught with administrative problems and might discourage plaintiffs from taking action.

The panel also briefly touched on whether the state needs an intermediate appellate court, which would guarantee all appellants a full review of their case. As it is now, the state Supreme Court decides which cases can be argued.

Moats pointed out that the state Constitution authorizes legislators to create such a court.

"I think the issue is a public policy question of how much is it going to cost to do it?" Moats said. Moats said if every litigant were guaranteed a full review of their appeal, it would mean more staff for the attorney general and prosecutors, clerks to handle records, courthouses, judges staff and equipment.

Williams agreed that the extra level of judiciary would be expensive. But he said more in-depth review would result in a more finely tuned state code.

"We would have a lot of areas of law fleshed out, explained and described," Williams said.

Karlin said the matter should be something the state investigates.

But he and Hughes both said they've not seen an overall caseload in the Supreme Court that would justify an intermediate appellate court.

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