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West Virginia ranks as a judicial hellhole -- but with 'modest improvements'

CHARLESTON, W.Va. -- West Virginia once again scored low as a judicial hellhole on the American Tort Reform Association's report but the organization says there have been "modest improvements."

This year, West Virginia took the fourth spot behind New York City, Louisiana and California.

The low ranking isn't new. Since the report's existence, West Virginia has ranked among the bottom five, hitting its lowest point five years ago at the top spot.

"With a legislature dominated by personal injury lawyers, too many trial judges willing to expand liability from the bench, and no intermediate level appeals court, West Virginia has become a perennial Judicial Hellhole," Tiger Joyce, the association's president, said in the news release.

However, the West Virginia Association for Justice said the report should be discredited because the organization says it's inaccurate. The association's news release cited a 2007 New York Times report, saying the judicial hellhole report wasn't a valid analysis.

"For more than a decade now, the American Tort Reform Association has unfairly criticized West Virginia in state and national media," Bernie Layne, president of the organization, said in a news release. "These are baseless attacks that damage our national reputation and hamper efforts to attract new businesses to our state. These attacks need to stop now."

This year's report once again criticized West Virginia's lack of an intermediate court.

Debate for an intermediate court in the Mountain State isn't new either. The report previously has criticized West Virginia for the court's absence.

West Virginia Supreme Court justices have expressed the view that the new rules of appellate procedure are working.

Since the adoption of the new rules, justices have been issuing a decision in every case, at the very least a memorandum decision, or abbreviated decision on the merits.

The state Chamber of Commerce, which previously expressed interest in the establishment of an intermediate court, said in August the new rules have established an automatic right of appeal.

However, the West Virginia Citizens Against Lawsuit Abuse argues the rules have not completely solved the problem, according to a previous article in the Charleston Daily Mail.

The American Tort Reform Association, said West Virginia does not have an absolute right to appeal, and noted the Mountain State is one out of two states without such a court.

The organization also criticized previous failed attempts to pass laws establishing the court, saying efforts to expand the right of appeal have "a snowball's chance in a hellhole." It also criticized the failure to pass a resolution that would have funded a yearlong study to see if the new rules are working.

The report also took issue with select state Supreme Court cases, including one allowing the state Attorney General to hire private attorneys to help with state cases.

According to previous reports, the ruling overturned a previous decision limiting the attorney general's ability to hire outside counsel. Justices also ruled the attorney general could appoint and pay special assistants.

"The outcome of this case is a more powerful West Virginia Attorney General," the report said.

Additionally, the report took issue with asbestos lawsuits targeting several defendants and the denial of a new trial in a Kanawha County nursing home case that resulted in a $91 million verdict. This case is pending before the state's highest court.

It wasn't all bad news. The report said the state has enacted "modest improvements" including expansion of appellate rights and decisions not expanding liability. It also said the election of West Virginia Attorney General Patrick Morrisey is a good start.

In particular, the report praised Morrisey's policy for hiring outside counsel, which uses a competitive bidding process.

"Attorney General Morrisey deserves considerable credit for bringing the hiring of outside counsel into the light," the report states. "And West Virginia voters deserve credit for choosing good-government reform over more of the same old shady dealings that had damaged their state's reputation. Digging out of a Judicial Hellhole is not easy, but it can be done when both citizens and policymakers grab shovels and work together."

The West Virginia Association for Justice argued the goal of the American Tort Reform Association is to "scare lawmakers into passing what it believes are 'reforms' that restrict 7th Amendment rights and access to the civil justice system." The association also said there isn't a drastic increase of civil litigation, noting West Virginia ranks 40th for the number of cases filed per capita and that last year, the number of appeals to the state Supreme Court went down to a 25-year low.


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