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West Virginia

To their credit, some West Virginia judges and other policymakers appear willing to reform their civil courts with an eye on ending their perennial citation in the Judicial Hellholes report. Sadly, resistance from others has slowed the pace of needed reforms.

The Mountain State is all but unique in that its civil defendants do not have a guaranteed right to appeal adverse rulings. As the Supreme Court of Appeals, the state’s highest and only appeals court, has acknowledged, it is already the “busiest appellate court of its type in the country.

West Virginia’s caseload exceeded by nearly 1,500 cases that of the next busiest state, Nevada, and was more than the states of Delaware, Maine, North Dakota, Rhode Island, and Wyoming combined.” Yet, the state lacks an intermediate appellate court and the high court can choose to deny parties’ petitions for review. For instance, in 2009, the high court refused to hear 2,756 of the 3,589 cases in which such petitions were filed, and it issued fully signed opinions in just 67 cases. In civil cases, the court granted review in less than 1 in 4 cases.

The 2009/2010 Judicial Hellholes report cited then-Governor Joe Manchin’s pledge to establish an intermediate appellate court among its Points of Light. He issued the pledge after an independent commission documented the need for such action. Supreme Court of Appeals Chief Justice Robin Jean Davis, however, challenged the need for an intermediate appellate court. She argued through an open letter that litigants in West Virginia already have a right of appeal – they can petition the court to review the case.  When the state’s business community and others took issue with her remarks, noting that asking the court to hear a case and having a court actually decide a case on the merits are hardly the same thing, the court proposed changes to its appellate rules.

The new rules, which went into effect December 1, 2010, require the Court to issue a decision on the merits in every case. But the rules also provide the Court with a shorthand option of issuing a “memorandum decision” in doing so. A memorandum decision only requires a concise statement of the reason for affirming or reversing the trial court’s ruling; it is different from a traditional judicial opinion that fully analyzes the claims in the case and can be cited as precedent. Without the force of precedent, memorandum decisions could result in significant confusion among lower courts.

Nevertheless, the overall effect of these newly adopted changes is that the Supreme Court of Appeals has, at least in theory, made it less likely that it will use the state’s appellate procedure in an arbitrary or prejudicial manner. It remains to be seen, however, whether the Court will employ these decision options to provide meaningful appellate review in all cases. If it does so, then the changes will build confidence in the West Virginia courts.

Still, the rule changes, at best, provide only a short term solution to address current abuses; the long-term solution remains the establishment of an intermediate appellate court system that guarantees litigants the full appellate rights provided in other states.

With even some former advocates backing away from restructuring West Virginia’s court system, the potential for the state to significantly improve its litigation climate has diminished. A bill to create an intermediate appellate court and provide a right to appeal was defeated in the state Senate’s finance committee, whose members are holding off until the court implements its new appellate rules.

One case the high court will consider this year is a challenge to the state’s limit on noneconomic damages in medical malpractice lawsuits. The state enacted the limit in 2003, among other reforms, as the state’s OB/GYNs had the second highest insurance premiums in the country and such care was not available in some rural areas. (There also was a shortage of neurosurgeons, orthopedic surgeons, and trauma care.)   The Court twice upheld a previous version of the law.  During his 2008 election campaign, West Virginia Justice Menis Ketchum said of the law, “I will not vote to overturn it. I will not vote to change it. I will not vote to modify it.” This pledge led the plaintiffs in the current case to urge Justice Ketchum to recuse himself.

Justice Ketchum initially refused to recuse himself on the basis that “even it were possible to select judges who did not have preconceived views on legal issues, it would be hardly desirable to do so,” noting that the U.S. Supreme Court has found that “[p]roof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” But he ultimately backed down, issuing a memorandum expressing frustration that the plaintiffs had exhibited a “win-at-all-costs” mentality and sought to “create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court.”

A divided West Virginia Supreme Court was also criticized this year for its ruling in a racially charged insurance case that will likely lead to more lawsuits and liability.

Positive news in West Virginia can be found in Ohio County Circuit Court Judge Arthur Recht’s dismissal of most of 1,400 asbestos claims filed by a Pittsburgh law firm, after the firm opted not to attempt to meet a court order requiring them to submit additional evidence of their clients’ alleged exposure to asbestos and medical history. The defendant, CSX Transportation, has filed a fraud claim in federal court alleging that the law firm worked with a radiologist, Dr. Ray Harron, whose diagnoses have come under increasing scrutiny, to fabricate the claims.

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