This news story originally provided by The Daily Mail 

11/6/03

State branded ‘hellhole'

Business group says W.Va.'s legal climate is unfair

Chris Stirewalt 
Daily Mail Staff

Thursday November 06, 2003; 10:00 AM

West Virginia's image in the business world took another blow today as the American Tort Reform Association declared the whole state, especially Kanawha County and the Northern Panhandle, a "judicial hellhole."

The annual report from the organization, which targets pro-plaintiff jurisdictions around the country, gave a scathing review of the state's legal system, saying that pressure and politics played by powerful trial lawyers have turned the state's judicial system into a "commodity business, akin to an ATM for claim filers."

West Virginia is the only state to have its entire court system held up as a bad example. Every other so-called "hellhole" was an individual circuit or jurisdiction in a larger state.

"This is obviously not a calling card for a state that is trying to attract business," association spokesman Michael Hotra said. "The cost of litigation is something that every company has to consider and the message here is that there isn't a guarantee of equal protection under the law in West Virginia."

The American Tort Reform Association is largely funded by business interests, which rely on the group for guidance on which court systems are likely to favor plaintiffs bringing civil suits.

Its members include the American Medical Association, large and small corporations and nonprofit groups.

Steve Roberts, president of the West Virginia Chamber of Commerce, said that while he hates having potential employers hear that the state is still a hotspot for lawsuits, it does have a bracing effect.

"Sometimes people can't face their own problems until someone else gets in their face and makes them confront it," Roberts said. "We have to be honest with ourselves and honest about how this is absolutely crippling our potential.

"I'd say that this is probably the single biggest problem we have, but it's also the easiest problem to fix."

The president of the West Virginia Trial Lawyer's Association, Marvin Masters, said that the study was deeply flawed and was the work of a special interest group that is trying to protect its members from being accountable for their own wrongdoing.

"The people who are making these allegations are the same people who historically have killed, injured and robbed West Virginians of their savings," Masters said. "What these people want to do is change the law to protect themselves from what they did in the past and what I assume they will continue to do in the future."

Wheeling lawyer Bob Fitzsimmons, one of the state's leading plaintiffs' attorneys, had one of his cases held up as an example of an unfair judicial system. The Wetzel County case resulted in a $39 million verdict after Marshall Circuit Judge Mark Karl stripped the insurance company being sued of the right to put on a defense as a punishment for breach of trial rules.

The state Supreme Court is considering whether Karl acted appropriately in the case, but Fitzsimmons said that the verdict, which was awarded to a man who lost his foot in an accident but was denied payment on an insurance policy, was the right one.

"You'd have to be a moron to think that was a bad decision," Fitzsimmons said. "The company denied that claim without ever considering it and then lied about having a medical review procedure. They accused him of cutting off his own foot to collect an $11,000 policy."

Fitzsimmons said that to have a group like the American Tort Reform Association hold up one of his cases as a bad example made him proud.

"I'm honored. That's probably one of the best things that I've ever had anybody say about me professionally," Fitzsimmons said. "Because that tells me we're doing our job and that these insurance companies and other big boys are sweating. They know we're not going to just let them victimize West Virginians because they can."

The biggest complaint from the study's authors concerned the landmark asbestos lawsuit conducted in Kanawha County last year. The suit involved hundreds of companies and thousands of plaintiffs and made international headlines.

"These cases were batched together despite the fact that they had nothing to do with each other: they involved many different types of alleged injuries (including no injuries at all), were alleged to have occurred in places all over the country and involved literally hundreds of different products," the report says. "The only commonality of the claim was the word ‘asbestos.' "

The group alleges that the purpose of the consolidation was to put corporate defendants in a precarious legal situation and force them into large settlements. Most of the companies settled rather than face the ultimate verdict of the jury.

"There's a situation where you have one set of laws for certain defendants that's different from what others can expect," Hotra said. "That kind of inequality is a red flag, and an indication that there is a systemic problem."

In the study, the association also hammers the West Virginia Supreme Court for allowing plaintiffs to sue for medical monitoring and for expanding the concept in a decision earlier this year.

The report blasts the court for allowing uninjured people to sue to have their health checked after alleged exposure to harmful substances, but finds particular fault with a February 2003 ruling that allows such plaintiffs to keep cash earmarked for testing.

Roberts said that he and his colleagues at the chamber have made the issue their top priority. He believes that West Virginia voters are waking up to the problem and will start enacting tort reform on their own.

"If you vote for better judges, you get better courts," Roberts said.

Masters said he took offense at having his state maligned. He believes that big business has targeted West Virginia not because of any real problem with the court system, but because of a desire to extract the state's natural resources "and continue to leave West Virginians out of the benefits."

"West Virginia is almost heaven. It's not a hellhole," Masters said.

Writer Chris Stirewalt can be reached at 348-4824.

This news story originally provided by The Charleston Gazette

11/6/03

Medicare drug bill would harm seniors, speakers say

By John Heys
Staff writer

A consumer advocate, a state labor official and a U.S. senator raised the alarm Wednesday about parts of proposed federal legislation to offer a prescription drug benefit through Medicare.

At a press conference at the state Capitol, they said the bill could do more harm than good.

Gary Zuckett of the West Virginia Citizen Action Group called a measure allowing private insurers to directly compete with Medicare a “poison pill” that would hurt the federal program in the long run.

Zuckett said the measure in the House version of the bill would let private health plans “cherry pick” the healthiest seniors, while leaving people with more expensive health problems to be covered by traditional Medicare.

Federal lawmakers in Washington are still trying to settle differences between the versions of the bill that passed in the House and Senate in June.

Legislators need to resolve several issues, including how much private insurers can directly compete with Medicare.

The Republican call for direct competition between Medicare and private insurance plans has Democrats worried seniors who stick with traditional Medicare could face higher premiums.

Other issues yet to be resolved include whether to make it legal to re-import drugs from Canada and a GOP proposal that would limit Medicare spending if costs rise unexpectedly.

Mark Ferrell, a spokesman for U.S. Sen. Jay Rockefeller, D-W.Va., read a letter from Rockefeller that said the state “would not fare well” under the version of the prescription benefit bill passed by the Senate.

The bill would charge different premiums based on where people live and would strip some retired people of the drug coverage they have now through their former employers, Rockefeller’s letter said.

Kenny Purdue, secretary-treasurer of the West Virginia AFL-CIO, said the bill could cause 4 million retirees to lose the prescription drug benefits they have now.

“This bill is nothing but a lemon,” Perdue said.

The proposed legislation would also benefit drug companies, the speakers said.

More than 60 percent of the Medicare dollars spent to buy more prescription drugs would end up as additional profits for drug makers, according to study by the Health Reform Program at Boston University.

“Seniors hate this bill, but drug companies love it,” Zuckett said.

In June, Rockefeller voted against the Senate version of the bill, as did Sen. Robert C. Byrd, D-W.Va.

Rep. Shelley Moore Capito, R-W.Va., voted for the House version of the bill, while Reps. Nick Rahall and Alan B. Mollohan, both D-W.Va., voted against it.

To contact staff writer John Heys, use e-mail or call 348-1254.