West Virginia a ‘Test Ground’ of U.S. Chamber’s Anti-Lawsuit Efforts

May 8, 2007

In its ongoing, multimillion-dollar lobbying and advertising campaign decrying “frivolous” lawsuits and “jackpot” jury awards, the U.S. Chamber of Commerce has anointed West Virginia the poster child of all that ails the nation’s civil justice system.

The national group has honed tactics against its chief foes – the trial lawyers who file lawsuits on behalf of plaintiffs – with a string of legislative victories in the state since 2002. The chamber has helped cap medical malpractice damage awards and bar non-policyholders from filing”bad faith” claims against insurers.

Last week, the U.S. Chamber wrapped up its most recent television and newspaper ad salvo blasting the Mountain State as “closed” for business because of its courts. The ads play on the “Open for Business” slogan of Democratic Gov. Joe Manchin.

The chamber also continues to bankroll The Record, a weekly newspaper that focuses on the state’s lawyers and lawsuits. Modeled on a newspaper it started in Illinois, the chamber recently exported the concept to southeast Texas under the same name.

The chamber has applied its lessons in other states in the region, most recently in Tennessee where a debate over malpractice lawsuits continues among lawmakers.

Not new to the chamber’s crosshairs, West Virginia’s courts have been at or near the bottom of an annual, chamber-funded survey of corporate and insurance lawyers for six years running. But those dismal rankings, particularly considering the chamber’s recent successes, has critics crying foul.

“No matter what we do, it’s not going to be good enough for them,” said Jeffrey T. Jones, president of the West Virginia Trial Lawyers Association. “They just want to use us as some sort of what I call a test ground, for what they can do in other parts of the country.”

Jones cited how the chamber only surveys lawyers for companies with annual revenues of at least $100 million. This year, only 134 of the 1,599 lawyers polled offered any opinions on West Virginia’s courts, less than 9 percent of the total.

“When you run all these ads badmouthing West Virginia, it becomes a self-perpetuating prophesy and it just feeds on itself,” Jones said.

But Larry Akey, a spokesman for the U.S. Chamber’s Institute for Legal Reform, said the lawyers surveyed also represent some of the country’s biggest employers.

“They are also the people the CEOs talk to when they look at building a new plant or expanding an existing one,” Akey said.

The chamber has begun to feel some push-back in West Virginia to its “tort reform” campaign. The Legislature’s Democrat-controlled House of Delegates elected a trial lawyer as its speaker in January. Trial lawyers also chair the judiciary committees in both the House and Senate.

And when the most recent ads attacked the Senate’s judiciary chairman, the Wheeling Area Chamber of Commerce wrote U.S. Chamber President Tom Donahue asking him to stop.

But perhaps more significantly, the U.S. chamber’s in-state counterpart broke ranks last month and lined up with trial lawyers to support legislation meant to curb out-of-state lawsuits. Manchin signed the bill last month, ignoring a U.S. chamber-funded publicity campaign that demanded a veto.

The venue legislation also reflects an emerging, if fragile, spirit of compromise between the state chamber and trial lawyers.

“We’re talking to each other about our particular points of view,” said Steve Roberts, president of the West Virginia Chamber of Commerce. “We’re pleased that the plaintiffs’ bar has taken the time to meet with us to try to see where we’re coming from.”

Roberts also stressed that the state chamber shares the national group’s goal of more limits to lawsuits in West Virginia.

“Other states have done more in the areas of punitive damages, collateral sources and joint and several (liability) than West Virginia,” Roberts said.

He also cited a rise in general civil filings between 1997 and 2005, as reported in a 2006 study of the state’s circuit court caseloads. But those figures include more than just the tort cases loathed by the chamber. They also reflect real estate and contract disputes – often pitting business against business – as well as criminal habeas corpus petitions and other types of civil cases.

More recent figures show that the number of general civil filings began declining in 2004 and has dropped by more than 6 percent from five years ago. The nonpartisan National Center for State Courts, meanwhile, puts West Virginia’s civil filings on par with its population, ranking both at 38th nationwide in its most recent report.

Both Roberts and Akey said their groups have no figures charting West Virginia’s tort filings, settlements, jury trials or damage awards. The state’s Supreme Court hopes to shed more light on civil filings as it upgrades and expands the judiciary’s computer system, spokeswoman Jennifer Bundy said.

In the meantime, state chamber and the trial lawyers plan to keep talking.

“The encouraging thing for us is their willingness to sit down and discuss these issues,” said Carte Goodwin, the governor’s general counsel. “They’re not just retreating back to their camps and throwing stones at each other.”

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