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Attorneys discuss whether WV is a 'judicial hellhole'

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Is West Virginia a tort hell or is it all about perception?

This is a question two attorneys addressed during the West Virginia Chamber's Annual Meeting and Business Summit, which takes place Aug. 28-30 at The Greenbrier.

Thomas Hurney Jr., a Jackson Kelly member, and Marc Williams, managing partner at Nelson, Mullins, Riley & Scarborough, presented their findings referencing the annual report by the American Tort Reform Association.

In the most recent report, West Virginia ranked No. 2 behind California and above Madison County, Ill. The Mountain State consistently has been in the top five. Williams said the report intentionally tries to be provocative and tries to force civil justice issues to the forefront.

"When they came up with the idea of designating certain jurisdictions as hellholes, it was counties. West Virginia was the first state to be given the designation for the whole state."

Some, however, have criticized this report as a "fake study."

Hurney and Williams said the positives of West Virginia's court system are rarely discussed. Williams said the report hasn't given West Virginia enough credit.

Some of the criticism, Hurney explained, comes from West Virginia's consolidation of claims, reverse bifurcation, medical monitoring and what the organization called a lack of a learned intermediary.

The organization also cites the lack of an intermediate appellate court.

Williams cited a recent presentation to the Legislature by West Virginia Supreme Court Clerk Rory Perry, who said the new rules of appellate procedure are working.

Perry explained the court switched to an appeal by right, instead of the previous process of appeal by permission. 

Under the new rules, a decision is issued in every case. Williams mentioned that in the Spring term, the court issued almost 1,000 memorandum decisions.

A memorandum decision, which makes up a majority of the issued decisions, is defined as an "abbreviated decision on the merits of a case," and they can be cited in court. 

"There is without question, an absolute right of appeal in West Virginia," Williams said. "Any argument to the contrary is erroneous."

Williams compared how the court is today compared to 2003, saying it was a "tale of two courts."

"Anyone who has been to the Supreme Court in its current alignment, will see that these are justices that like each other, get along, collegial and you no longer face the prospect of facing a snarky comment of your client or argument," Williams said. "The court is largely in the center and … is more predictable."

Williams also cited the addition of the Mountain State's business court division but said it's too early to tell the effects.

Mentioning medical monitoring, Williams said West Virginia is one of the few jurisdictions that allow it. Medical monitoring allows a person to recover damages for a potential future damage, even without a current injury.  

Hurney and Williams concluded with the legal improvement with list, which consisted of a learned intermediary, class action standards, medical monitoring and punitive damages restraints.