Judicial reformers have had their way since Republicans took control of the West Virginia Legislature in 2014. Lawmakers have passed 17 bills supported by the West Virginia chapter of Citizens Against Lawsuit Abuse in only two sessions.
Now CALA and the American Tort Reform Association — a business-backed organization that supports civil justice reform — are coming back to the Legislature for more. ATRA lobbyist Greg Thomas has nine legal reform bills his organization will be pushing when the session begins next month.
At the top of the list is legislation creating an Intermediate Court of Appeals. Thomas says West Virginia is the only state that does not provide an automatic right of appeal. He argues that that discourages businesses from locating here because they are worried about limited options for appealing a large verdict against them.
However, the West Virginia Association for Justice (the state’s trial attorneys) argues that every verdict can already be appealed to the state Supreme Court and that an intermediate court will be another significant expense for a state with serious budget challenges.
“The proposed intermediate court would not only cost the state more than $5 million per year in direct costs, but millions more to pay for the additional expenses incurred by the West Virginia Attorney General’s office, Public Defender Services and other state agencies,” said WVAJ president Jane Peak.
ATRA is also going to make another run this session at significant changes to the state’s controversial medical monitoring law. The West Virginia Supreme Court has ruled that individuals may be entitled to paid medical tests if they have been exposed to a hazardous substance, even if they are not sick.
Thomas argues current law encourages massive class action lawsuits with the potential for huge settlements and millions of dollars in payments for medical monitoring. For example, in 2010 DuPont agreed to a settlement over pollution at an old facility in the Harrison County community of Spelter, where the company will pay an estimated $80 million over 30 years for medical monitoring even though no plaintiff was ill.
The bill, which passed the Senate last session, but failed in the House of Delegates, would place the medical monitoring award in a trust that would be used to pay for medical expenses and treatment only if or when a person gets sick.
The trial attorneys argue that if individuals have to wait until they are sick before they can have their bills paid by settlement funds, it’s too late. “The purpose of medical monitoring is to provide regular testing to ensure that any illness is caught early enough to treat the condition,” according to a statement from WVAJ.
Expect a lot of debate about these and other legal reform bills this session. Trial attorneys are going to try to stop their losses after a string of defeats while judicial reformers believe they have the momentum — and the votes — on their side.