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West Virginia

West VirginiaOnce perennial Judicial Hellhole West Virginia this year makes what optimists hope will be its last appearance in this report for many years to come, if not forever. During the past two years Mountain State lawmakers have enacted several pieces of affirmative reform legislation that should, if not ultimately struck down by the state’s still plaintiff-friendly high court, begin to appreciably improve fairness and predictability in civil courts.

Following an historic election in November 2014, the newly constituted legislature in 2015 achieved overwhelming success with the passage of several key reforms, including the abolishment of joint liability, a limitation on punitive damages, the enactment of an asbestos trust transparency bill, and consumer protection reform.

Lawmakers followed their successful 2015 session with still more civil justice reforms in 2016, including:

  • Adoption of the learned intermediary doctrine, the widely accepted principle that drug companies have an obligation to educate doctors, not directly warns patients, of potential side effects of their products.
  • Bringing transparency to the state’s Attorney General hiring of private attorneys on a contingency fee basis by placing guidelines and regulatory parameters on the practice.
  • A wrongful conduct bill protecting defendants from liability for injuries that occurred when a potential plaintiff was committing a crime.

If less sweeping than those in 2014, 2016’s election results are expected to improve still further Wild, Wonderful West Virginia’s legal climate. Voters reelected reform-minded Attorney General Patrick Morrissey, and they elected moderate candidate Beth Walker to the state’s Supreme Court. Walker defeated Bill Wooton and former justice and longtime state AG Darrell McGraw, who for years almost singlehandedly kept West Virginia at or near the top of annual Judicial Hellholes rankings.

ATRA’s post-election sources in Charleston say legislative leaders are teeing up another robust tort reform agenda for 2017, hoping to ensure that economically-challenged West Virginia remains on the road to redemption, and that business executives from across the country and around the world can begin to invest confidently in the once decidedly litigious and anti-business state.

Several important issues should be tackled as part of 2017’s legislative agenda, including:

  • Judgment interest reform
  • Limiting phantom damages so damage awards in personal injury cases reflect a plaintiff’s actual medical costs incurred, not those initially billed but never paid
  • Allowing at trial admission of evidence showing a claimant did not use a seatbelt in car accident cases, and
  • Innocent seller legislation protecting sellers from lawsuits over products they did not manufacturer.

Concern also persists in West Virginia about the fact that litigants do not have the degree of appellate review that is available in other states. And perhaps most importantly, lawmakers should seek to end the state’s uniquely troublesome practice of allowing medical monitoring claims. The West Virginia Supreme Court is the only court in the country that still permits cash awards to uninjured people who bring speculative medical monitoring claims.

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