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West Virginia

In the former and recovering perennial Judicial Hellhole West Virginia, there remains reason for concern. Asbestos litigation abuse continues, recent West Virginia Supreme Court of Appeals elections have led to the election of a judge sympathetic to plaintiffs and the state’s Attorney General has started to play an activist role.

BETWEEN A ROCK AND A HARD PLACE

West Virginia Attorney General Patrick Morrisey (R) has been litigating liberally. In August 2020, he joined a host of other state attorneys general and sued Walmart and CVS arguing “they failed to monitor and report suspicious

orders of prescription painkillers to their retail pharmacies in a state ravaged by the opioid epidemic.” Walmart and CVS are not the manufacturers of the drugs; rather, they are simply filling lawfully prescribed medication ordered by a licensed doctor. In fact, pharmacies have been sued for not fulfilling opioid prescriptions. When CVS decided not to fill certain opioid prescriptions, plaintiffs’ attorneys saw the opportunity to profit and launched a class-action for discriminating against patients. Thanks to the AG’s actions, pharmacies in the state find themselves between a rock and hard place. In fact, Morrisey had already launched lawsuits against Walgreens and Rite-Aid in June. In both cases, he has requested the assistance of outside private counsel.

Major public crises demand a major response by government leaders, but the continued wave of contingency-fee litigation brought by state and local governments is the wrong approach. It won’t do much to help victims or solve the crisis, and instead creates lasting problems for the civil justice system.

LACK OF TRANSPARENCY IN AG OFFICE

During his 2020 election campaign, General Morrisey refused to sign a transparency oath that ATRA sends to all candidates for state attorney general. The oath requires that, if elected, the candidate will release information on outside counsel bidding if an attorney general plans to hire a private law firm. Transparency is essential to ensure that the citizens of a state can be confident that litigation brought on behalf of a state with private outside counsel is truly in the public interest.

Morrisey’s refusal to sign the oath is both surprising and disappointing given the focus he placed on transparency and ethics reforms early in his tenure. In July 2013, he publicly adopted a sound transparency policy with respect to his office’s hiring of outside counsel. This policy embraced many of the same policies included in the ATRA oath. Increasing government transparency and reducing excessive litigation are critical aspects of enhancing a state’s economic development climate and growing job opportunities.

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 plain- tiffs, 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 has 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.” The lawsuits are currently on hold due to the COVID-19 pandemic, and Judge Wilson has said he does not want to hold trials while masks are mandated. ATRF will be tracking this litigation.

THE COURTS

This June, West Virginians went to the polls to elect their supreme court justices. Three new justices were elected to the high court: Tim Armstead, William Wooton, and John Hutchison. Justice Hutchison received over $100,000 in campaign contributions from “Personal Injury Lawyer interests.”

In fact, in November, when the Supreme Court of Appeals issued an extraordinary liability-expanding decision, it was Justice Hutchinson who authored the opinion. Notoriously plaintiff-friendly West Virginia Attorney General Darrell McGraw filed that case in 2003 with the help of a private personal injury lawyer against three manufacturers of respirators and dusk masks. The complaint alleged that – in the 1970s and 1980s – the masks did not provide sufficient protection against illnesses, even as they met government standards. The case sat largely dormant until late 2016 when Attorney General Morrisey asked the trial court to amend the com- plaint –13 years later – and to separate Consumer Credit and Protection Act (CCPA) from other claims for trial.

West Virginia’s statute of limitations for CCPA claims seemed to clearly bar the suit, as it does not permit civil penalties for violations “occurring more than four years before the action is brought.” The high court, however, allowed the amendment and adopted a “discovery rule” that circumvented the statute of limitations. But that is not all. While the lawsuit sat, the state legislature amended the CCPA to increase the maximum civil penalty that had long been “no more than” $5,000 to $5,000 “per violation.” This change allowed for penalties in the hundreds of thousands of dollars – for each product sold or advertisement, for example. The court ruled that these higher civil penalties applied retroactively. On top of this, the court ruled that the state did not have to produce basic information, such as how many faulty respirators it contends were actually used by workers and how many workers were allegedly misled. The court found that information “expensive, irrelevant, and unnecessary” to deciding the CCPA claim. In sum, what is generally viewed as a conservative state supreme court surprisingly breathed new life into an old lawsuit, involving even older conduct, with higher penalties and less opportunity to defend against the claims.

Like several other jurisdictions, a West Virginia trial court is considering whether Amazon can be held liable as if it were a product manufacturer or seller for a product sold by a third party over its online platform. A woman was injured after a charger shorted and produced flames. Even though the charger was not designed, manufactured, or shipped by Amazon, the plaintiff chose to name Amazon as a defendant. The case is before former West Virginia Supreme Court Chief Justice Warren McGraw, now serving as a judge in the Wyoming Circuit Court. ATRF will be monitoring this lawsuit along with the others that seek to hold online sales plat- forms liable for products others design and sell.