This news story originally provided by The Register-Herald

W.Va. high in 'hellhole' rankings

By Mannix Porterfield/REGISTER-HERALD REPORTER

Once again, a national group devoted to civil justice reforms considers West Virginia a "judicial hellhole."

There is one dubious distinction saddled with this year's award.

West Virginia, ranked fourth among the 50 states in which the American Tort Reform Association feels justice isn't applied equally, stands alone as the only statewide hellhole. In every other instance, the group zeroed in on a specific court, or a city, or county.

Even though the Legislature accelerated civil justice reforms two years ago to meet a burgeoning medical malpractice crisis, the group felt there was "no cause for optimism" for 2004.

But looking ahead, ATRA said it found ample reason to view the coming year with a rosier outlook, given the ouster of Democratic Justice Warren McGraw by a Republican challenger, Brent Benjamin.

"Justice McGraw was known as one of the most anti-business members of the court," the group said.

ARTA pointed out the Supreme Court was considered the most critical one to West Virginia's future by the business community.

Benjamin campaigned for the 12-year term on the bench consistently on a theme of fairness and equality, dispensing justice based on law, not political ideology.

"Benjamin's ascension to the bench may tip the balance of power on the court, ending the anti-business, 3-2 majority, led by Justice McGraw and including Justices Larry Starcher and Joe Albright," ARTA wrote in its report detailing how the states fared.

"Instead of addressing the economic mess his court has contibuted to, Justice Starcher, whose term expires in 2008, has reacted to criticism of the judiciary for its questionable legal decisions by arguing that lawyers have a 'duty' to defend the court -- not criticize it."

Referring to West Virginia, ARTA said many issues "fanned the flames in this Judicial Hellhole," chief among them medical monitoring lawsuits.

"West Virginia is the only state where people can collect cash awards in these suits even without showing that there is a reasonable probability that they will become ill and there is no medical benefit to the checkups," the group said.

"Also, cash is awarded to the plaintiffs to use as they please."

Back in September, the group noted, DuPont was compelled to settle, albeit plaintiffs put up no proof the substance in dispute -- C8, a by-product of Teflon -- is dangerous or poses a health risk.

The upshot is a $70 million outlay by the chemical giant upfront, part of which finances a panel's research to see if ill health is caused by C8.

Another case revived the old Catch 22 dilemma for business: damned if you do, damned if you don't.

In April, the high court held an employer couldn't fire its safety director, even though he abused cocaine on the job.

The sole grounds for dismissal would have been "dishonesty." Even though he misrepresented his drug abuse in a contract, Starcher held there was no contractual violation, the group said.

In dissent, Justice Elliott Maynard raised the spectre of a safety director using cocaine around tanks of acetylene, oxygen and other explosives.

"The irony is that if there had been some explosion, or other accident which killed or seriously injured another employee, the victim of that accident could have successfully (sued) under our Workers' Compensation deliberate intent statute and obtained a large verdict," Maynard wrote.

"The court would doubtless have upheld the large verdict based on the fact that the company allowed a cocaine user to be its safety director."

ATRA pointed to other examples, such as the first class-action lawsuit in Roane County's 150-year history. Two, in fact, were filed in an 18-month span.

What's more, the group cited figures by the West Virginia Chamber of Commerce showing litigation rose 53.6 percent faster than the nation as a whole, and the costs of such nearly doubling over the past decade.

Between 2001 and 2006, the chamber estimated, West Virginia's legal system will cause a loss of $98.5 million in the gross state product and wipe out some 16,000 permanent jobs.

"West Virginia citizens experience higher inflation, less personal income, and few job prospects due to the unbalanced system," ATRA said.

-- E-mail:

mporterfield@register-herald.com