West Virginia's Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead

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January 10, 2018

Over three short years, West Virginia has transformed itself from a litigation outlier to an inspiring example of change. With the support of its governor, the legislature brought West Virginia’s liability laws into the mainstream, adopting common sense reforms ranging from curbing joint and several liability to product liability reform. With the help of a new attorney general, the legislature adopted good government legislation ending pay-to-play hiring of private contingency-fee lawyers to enforce state law. It also restored balance to West Virginia tort law by responding to court decisions that had endorsed novel theories of liability, eliminated longstanding defenses, and allowed inflated damage awards.

These advances were reflected in the most recent edition of ILR’s Lawsuit Climate Survey, in which West Virginia achieved its highest ranking in the 15-year history of the survey, moving from 50th to 45th. While a jump of five places may seem like a small step, West Virginia Secretary of Commerce Woody Thrasher rightly praises it as the “kind of incremental progress that shows the business community we are starting to get our act together in the Mountain State.”

This research documents the most serious flaws in the Mountain State’s civil justice system, the steps West Virginia has recently taken to address them, and the route forward to a more rational legal climate for business.

Suggested reforms include:

  • Establishing an intermediate appellate court that provides all litigants with full appellate review.
  • Requiring that recoveries in actions seeking future medical monitoring costs be placed in court-supervised funds, rather than paying out such recoveries in cash.
  • Amending West Virginia law to provide that use or nonuse of a seatbelt by any driver or passenger is admissible in any civil action as evidence of comparative negligence or failure to mitigate damages.
  • Revisiting the state’s venue law to curb the filing of lawsuits in West Virginia that lack a substantial connection to the state.
  • Adapting the rule governing class actions in West Virginia’s courts to reflect changes occurring at the federal level, with an eye to ensuring that class actions truly serve class members, and not just their lawyers. (See ILR’s 2017 paper Unstable Foundation: Our Broken Class Action System and How to FixIt for more information on this issue)
  • Subjecting lawsuit lending to the same types of safeguards governing other businesses that provide consumer loans or credit.
  • Prohibiting common misleading practices in lawsuit advertising, including presenting lawsuit ads as “public service announcements”, displaying the logos of government agencies in a manner that suggests affiliation with those agencies, and using the word “recall” when referring to a product that has not in fact been recalled.