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In the Legislatures

WEST VIRGINIA, ONCE A PERENNIAL HELLHOLE, EMERGES FROM WATCH LIST

Following another successful legislative session, West Virginia no longer finds itself on the Judicial Hellholes® or Watch Lists. West Virginia has taken great strides toward creating a fair and balanced civil jus- tice environment. The ATRF will keep a close eye on future developments in the Mountain State to ensure it continues to protect the rights of both parties.

In 2021, the West Virginia Legislature enacted a bill to establish an intermediate court of appeals in the State of West Virginia (S.B. 275). Prior to this, West Virginia was one of only nine states that did not have an intermediate appellate court.

The legislature also addressed the issue of over-naming in asbestos litigation. Plaintiffs’ attorneys have their tricks for gaming the system. In West Virginia, plaintiffs’ firms, once they are able to find an injury, sue everyone under the sun. For example, the Prim Law Firm has found just three plaintiffs, but it has been able to use those three plaintiffs to sue 169 defendants. Goldberg, Persky & White’s three plaintiffs are not far off, suing 162 defendants. And the Antion and McGee Law Firm’s eight plaintiffs are suing 166 defendants.

A West Virginia judge noticed this disturbing trend. Judge Ronald Wilson acknowledged the “abuse” and was taken aback by the plaintiff attorney’s unwillingness to settle the disputes. The judge, seeking to promote a settlement, mentioned that the West Virginia Supreme Court of Appeals is quite conservative explaining “you [plaintiff attorneys] reap what you sow.”

H.B. 2495 provides that within 60 days of filing an asbestos or silica action, a plaintiff must file a sworn information form that specifies the evidence that provides the basis for each claim against the defendant and include supporting documentation. Plaintiffs have a continuing duty to supplement the required disclosures.

Finally, the West Virginia Legislature enacted legislation to displace the longstanding provision that had excluded seat belt non-usage evidence for any purpose if the claimant stipulated a reduction of damages by a mere five percent. Juries will be allowed to consider and use evidence that a claimant had failed to wear a seat belt when they determine the damages resulting from motor vehicle crashes. (S.B. 439)

ADDITIONAL LEGAL REFORMS

  • Montana enacted legislation that addresses the definition of recoverable damages and the evidence admissible to establish the value of medical treatments (B. 251). Montana also enacted legislation that provides that, in general, a landowner does not owe a duty of care to trespassers with respect to the condition of the property. (S.B. 338)
  • North Dakota enacted legislation that requires asbestos claimants to support their claims with a medical report signed by a treating physician demonstrating that the claimant has asbestos-related impairment according to objective medical (H.B. 1207)
  • Ohio enacted legislation that reduces the statute of limitations on written contracts from eight to six years and on oral contracts from six to four (S.B. 13)
  • Tennessee enacted legislation that requires a plaintiff filing an asbestos claim to file, within 30 days of any complaint, an information form attested by plaintiff stating the evidence that provides the basis for each claim against each defendant and include supporting (H.B. 1199)

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