West Virginia is back on the American Tort Reform Association's list of the five worst "Judicial Hellholes" in the U.S., ranking fourth for 2013-14.
Over the past six years the Mountain State has consistently ranked in the bottom five – also finishing fourth in 2010-11, third in 2011-12, second in 2012-13 and 2009-10 and first in 2008-09.
ATRA says in recent years, West Virginia courts continued issuing what it described as "troubling rulings" in a number of areas, including an appellate court decision that puts the onus on property owners to protect guests "from even the most open and obvious of hazards," and another awarding millions of dollars in punitive damages based largely on the amount of the plaintiff's attorney's fees, a practice the group contends "amounted to punishing the defendant for defending itself in court."
The report also cited what ATRA sees as the court's propensity to "circumvent the workers' compensation system, issue excessive verdicts, and welcome questionable asbestos litigation."
And while they gave a nod to ethics reforms initiated by West Virginia Attorney General Patrick Morrisey, the group said a ruling that expanded the office's power to hire contingency-fee lawyers "could make for more trouble down the road."
West Virginia Association for Justice President Bernie Layne, however, insists the report is short on facts and full of opinion.
"I think any report that purports to be a study but is not should strike a reaction in everybody," Layne said. "It's a propaganda piece that's been proven time and time again to be a sham on the public."
He said the report perpetuates the image of West Virginia as a sue-happy state when, in fact, it actually ranks 40th in the number of civil cases filed per capita.
"Their report is just a survey of their corporate members and corporate attorneys, most of whom have never stepped foot in West Virginia," Layne said. "They're asked to rank (states), and the outcome is predetermined based on the political goal they're seeking to achieve. What they're seeking is legal immunity for their members … a 'Who's Who' of big business, folks who have the most to gain from making sure average folks don't have access to the courts."
But Steve Roberts, president of the West Virginia Chamber of Commerce, says the failing report card is bad news for West Virginia, adding that "about the only people who don't have a problem with it are trial lawyers and their traditional allies."
"It's clear we have a problem in West Virginia," Roberts added. "We're one of the only states that hasn't enacted meaningful reform."
Roberts said West Virginia needs to look at capping punitive damage awards, for instance. And he said Gov. Earl Ray Tomblin was on the right track when he suggested requiring a Jobs Impact Statement be done to determine how bills will impact job creation before they're passed.
"They need to talk to the people in West Virginia who are creating jobs, investing their money, and trying to make our schools better and safer and improve our business climate," Roberts said. "There's a lot of disappointment in the business community in the direction the Legislature is taking us."
Roberts also points to a U.S. Bureau of Labor Statistics study that pegs West Virginia as 52nd in the nation in terms of job creation as indicative of the problem.
"If they were serious about jobs and economic development, we wouldn't be 52nd," he said. "Nothing could be more illustrative of that than the Jobs Impact Statement they wouldn't take up. We have a left-leaning Legislature that hasn't been serious about job creation."