Rickard, Roberts: Sensible reforms pull WV out of litigation wilderness (Charleston Gazette-Mail)

September 19, 2017

By Lisa A. Rickard and Steve Roberts | Charleston Gazette-Mail

West Virginia has transformed itself from litigation outlier to an inspiring example of reform.

Over the past three years, the state has enacted a series of common-sense measures designed to limit the power of West Virginia’s trial lawyers and restore fairness to its court system.

Progress that began in 2015 is evident in the recent release of the U.S. Chamber Institute for Legal Reform’s (ILR) survey of the lawsuit climate in 50 states.

West Virginia advanced five slots to 45th, a serious accomplishment given that the state had never ranked above 49 in the past 10 surveys spanning 15 years.

The depth of the change is evident in how West Virginia fared in individual categories.

In 2015, West Virginia ranked among the five worst states in all 10 categories of litigation fairness. This year, it ranked in the bottom five in only one.

It pulled ahead in a number of areas including treatment of class actions, damages, judicial impartiality and venue requirements.

A reform-minded state legislature, West Virginia Gov. Jim Justice and his predecessor, Gov. Earl Ray Tomblin, deserve a great deal of credit for this turnaround.

Over the past three years they enacted some of the most meaningful reforms in the nation, including laws to limit “double dipping” by asbestos claimants, rein in excessive punitive damages and eliminate joint and several liability where marginal defendants could be stuck with the full amount of a jury verdict.

Last year, with the help of Attorney General Patrick Morrisey, the Legislature passed an attorney general “sunshine” policy limiting contingency fees for outside lawyers, and restored a rule protecting pharmaceutical manufacturers from liability when the benefits and side effects of a drug are fully disclosed to prescribing physicians.

This package of reforms, combined with signs of significant change at the West Virginia’s Supreme Court — particularly with the nonpartisan election of Justice Beth Walker — suggests the state is poised to reap the benefits of an improved litigation climate.

The timing couldn’t be better — in ILR’s survey, 85 percent of corporate legal officers said a state’s lawsuit environment is likely to impact their company’s decisions on where to locate or expand. That’s an all-time high, and up significantly over the past decade.

While West Virginia is getting better, there are still significant opportunities for improvement. Measures the state should consider include:

  • tightening venue and class-action rules to reduce the state’s attractiveness as a magnet for out-of-state claimants
  • allowing juries to know whether plaintiffs in lawsuits involving car accidents were wearing seatbelts
  • creating an intermediate court of appeals to examine lower court rulings
  • eliminating West Virginia’s outlier status in the area of medical monitoring, removing trial lawyers’ ability to bring cases without proving actual injuries. West Virginia is the only state in the country with a Supreme Court ruling authorizing such cases.

For many years, West Virginia’s lawsuit climate was the worst in the nation.

But the Mountain State is now proving that with the right leadership, positive change will happen — and 2018 offers the opportunity for even more.

Lisa A. Rickard is president of the U.S. Chamber Institute for Legal Reform, and Steve Roberts is president of the W.Va. Chamber of Commerce.