W.Va. Chamber pushes tort reform for next legislative session

By John O'Brien | Oct 5, 2009

WHITE SULPHUR SPRINGS, W.Va. (Legal Newsline) - Civil justice reform is one of the many areas the West Virginia Chamber of Commerce would like to see state lawmakers focus their efforts.

The organization revealed its 2010 policy papers in September, claiming the state has "an unflattering reputation" for the way business are treated in its courts and that, though some tort reform measures have been passed, the state still has not fully addressed the problem.

"West Virginia's litigious environment has weakened the state's economic base and continues to undermine its business climate," the Chamber says.

"This situation has caused employers to examine how West Virginia's costly civil justice system affects their ability to do business, employ people and grow in our state. As employers determine that the risks and costs of actual and potential liability litigation are greater in West Virginia than in other states, they still are deciding that doing business in West Virginia is not worth the costs, lawsuits and hassles that result.

"Without enactment of comprehensive civil justice... reforms, West Virginia will stay an increasingly more unattractive place to invest and do business."

In the most recent judicial hellhole report by the American Tort Reform Association, West Virginia was called the least fair jurisdiction to businesses.

The Chamber suggests losing parties should have a right to appeal from circuit court decisions, a change in the way asbestos litigation is handled, the consideration of implementing business courts and the abolishment of partisan elections for Supreme Court positions, in addition to other tort reform measures.

The Chamber notes that only three states have no absolute right to appeal from a lower court decision, the other two being Virginia and New Hampshire.

"The mere existence of the right of appeal would materially improve the quality and consistency of rulings and decisions of West Virginia's circuit courts," the papers say.

"Additionally, West Virginia's circuit courts would benefit from the articulation of law and guidance by the Supreme Court on complex issues raised in today's litigation. Independent review by an appellate court is required to clarify applicable legal principles, unify precedent and stabilize the law."

The papers call West Virginia a forum for asbestos claims from both in-state and out-of-state residents and support legislation that would require of all asbestos bankruptcy trust claims filed and anticipated to be filed. At least 85 companies have gone bankrupt as a result of asbestos litigation.

With bankuptcy trusts, plaintiffs can recover in the court system and then from the trusts.

"Because of the lack of coordination between these venues, and the confidentiality requirements imposed through the bankruptcy process, unscrupulous claimants may recover both in the court system and then before a trust, without an appropriate setoff to their compensation," the Chamber says.

Without legislation to address this problem, defendants will pay more than their fair share in damages, certain claimants will receive more than they are entitled to, and other claimants, through reduced funds, will receive reduced compensation."

Business courts, meanwhile, have been established in Ohio, North Carolina, Rhode Island, Maine and South Carolina. West Virginia should investigate it too, the papers say.

"(T)he implementation of business courts... shows that more states are recognizing that
specialized courts for business disputes are instrumental in attracting and retaining businesses to a state," they say.

"Judges in business courts should begin to develop expertise in business litigation to ensure the expedient resolution of complex business litigation."

The Legislature, the papers add, also has the authority to end partisan elections for Supreme Court justices and should contemplate doing so. Gov. Joe Manchin has already created a commission to probe different judicial reform possibilities.

"Partisan elections for what is supposed to be an independent judiciary stand as ugly
reminders of 'the politics of the past' and our collective inability to join the mainstream of America in judicial reforms," the Chamber says.

"West Virginia is one of only seven states still electing all of its justices and judges in partisan elections. The Chamber supports proposals that other states have adopted to select justices for our highest court through a merit selection process or non-partisan elections, which the West Virginia Constitution already permits."

Other tort reform measures the Chamber endorses would:

-Require a defendant to be held liable for his or her own degree of fault as determined by a jury;

-Allow courts to consider amounts plaintiffs have already received as compensation from other non-family sources to cover costs in determining damages;

-Cap punitive damages;

-Establish a standard for non-economic awards; and

-Do away with medical monitoring awards, which were authorized by the state Supreme Court in 1999.

In one high-profile case, DuPont was ordered to pay $130 million in medical monitoring costs for the residents of a Harrison County town.

"This new cause of action exposes many of West Virginia's businesses to potential liability even though there is no actual injury associated with the exposure," the papers say.

"The Legislature should enact legislation to correct the Court's decision."

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

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