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US Chamber Institute report finds fairness rules ignored

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A new report released by the U.S. Chamber Institute for Legal Reform finds that court rules designed to bring fairness and balance to asbestos litigation in West Virginia have been ignored, contributing to the state's poor legal environment.

"Obstacles to Fair Trial: Asbestos Cases in West Virginia" outlines how the state puts incentives on settlements of even questionable lawsuits by confronting businesses with an overwhelming number of cases coming to trial at the same time, making it extremely difficult to defend cases. 

The report shows that asbestos docket judges' failure to enforce established procedures creates a system tilted against defendants and has encouraged a flood of suspect claims in the state. ILR's report outlines what it sees as meaningful reforms that West Virginia can make, including reducing the number of cases prepared for trial simultaneously, fully enforcing existing court rules and adopting legislation that would require plaintiffs' lawyers to disclose asbestos bankruptcy trust filings to defendants sued in court. 

Starting in the early 2000s, the West Virginia Circuit Court in Kanawha County, which handles many of the state's asbestos cases, adopted a series of rules seeking to better manage its docket and provide a more just trial system. However, the groups says plaintiffs' lawyers consistently defy those rules. 

Consolidated Coal Co. wants the wrongful death suit filed in Marion County by the widow of a man killed at Loveridge Mine in February 2013 heard in federal court.

Glenn Clutter, 51, was killed when he was struck by a metal bar while he and a coworker were trying to get a piece of equipment that had derailed back on track.

Debra Clutter is suing Consolidated Coal, Loveridge Mine Safety Director Wayne Conaway and turn foreman Steve D. Fox, claiming the company and his supervisors continued to use the underground rail line to move equipment even though they knew it was faulty, and ordered the two men to get the derailed equipment back on line even though they hadn't been properly trained in the procedure.

Consolidated Coal also asked the court to dismiss Fox and Conaway as defendants, saying nothing in Debra Clutter's suit suggested there was any indication the two men had intended for her husband to be killed. The company also noted that an investigation by the Mine Safety & Health Administration had identified two safety violations — the derailed equipment was not securely blocked in place before it was raised using an air bag and neither Clutter nor his co-worker had been adequately trained in using air bags to re-rail equipment — as well as three "non-contributory" violations — failure to notify MSHA within 15 minutes, failure to maintain the track where the accident occurred and failure to conduct an adequate pre-shift inspection of the track where the accident occurred, non of which mentioned either of the men.