December 15, 2016
Official Statement: ATRA Attack Helps CEOs Line Their Pockets at Our Expense
Charleston, W.Va. -- The West Virginia Association for Justice today released the following statement in response to the American Tort Reform Association's widely discredited "Judicial Hellhole" report:
“ATRA’s so-called ‘report’ is part of a well-funded PR campaign that has been discredited by the media, state and national legal experts and academics for more than a decade. The media have proven that ATRA has received millions from corporate CEOs who want to increase their profits at the expense of our individual rights and liberties. It has never provided an accurate analysis of our state courts nor our legal climate. It's wrong,” said Jane Peak, president of the West Virginia Association for Justice.
"ATRA and the corporate CEOs behind it lied to our lawmakers. They convinced the West Virginia Legislature to pass bad laws that limited accountability and took away our rights. They claimed it would help grow our economy and bring new jobs. It hasn't worked yet, and it never will."
"The only ones who have benefited from ATRA's attack are the CEOs who funded it. Those out-of-state millionaires have lined their pockets at the expense of our safety, our bank accounts and our constitutional rights. They get richer, and we're left holding the bag."
Get the Facts!
The Truth about West Virginia’s Courts
West Virginia’s civil case filings have declined more than 10 percent since 2010. According to the National Center for State Courts, there were 4,302 civil cases filed per capita in 2010. The total declined to 3,866 in 2014. (NCSC Court Statistics Project)
According to the National Center for State Courts, West Virginia has always been in the bottom 25 percent of states for the number of civil cases filed based on population. In 2010, the last year that data is available for all 50 states and D. C., West Virginia ranked 39th. The rankings for surrounding states were: Maryland - 1st, Virginia - 3rd, Ohio - 16th, Kentucky - 22nd, and Pennsylvania - 38th.
NCSC data show that on average just 3.7 percent of civil cases are tort cases. In West Virginia that’s just 143 cases per capita in 2014. Per capita civil case filings for surrounding states are: Maryland - 611, Kentucky - 179, Ohio - 171, and Pennsylvania - 129.
The Truth about West Virginia Appeals
According to West Virginia Supreme Court’s 2014 Statistical Report, the Court’s caseload declined from 3,569 in 1999 to just 1,346 in 2014. That’s a decline of more than 60 percent over 15 years. Based on data from the National Center for State Courts, that's a rate more than four times higher than the national average.
The number of written opinions has increased 68 percent. Under the Court’s new rules, decisions are published outlining why an appeal was or was not accepted for trial. It may be issued as a memorandum decision or a published opinion. In just four years, the number of memorandum and published opinions has increased from 678 in 2011 to 1,140 in 2014.
The “Civil Cases” cited by ATRA and other corporate special interests are less than 14 percent of appeals. The corporate special interests behind the push for an intermediate court cite the court’s civil caseload, yet civil appeals for tort cases, contract cases and property make up just 13.7 percent of the Supreme Court’s cases.
There were just 184 civil case appeals in 2014, down from 402 civil appeals in 2004—a decline of more than 54 percent in just 10 years.
More than 50 percent of the Supreme Court filings are in workers compensation, abuse and neglect and criminal felony appeals.
West Virginia is dealing with a major budget crisis. The direct costs for the proposed intermediate court total more than $5 million, and that figure doesn’t include the millions more in increased legal expenses that would be incurred by state agencies such as the West Virginia Attorney General’s Office. West Virginia Public Defender Services, the Public Service Commission and many others. County governments would see increased costs as well.
ATRA and Its Discredited Hellhole Attack
The American Tort Reform Association (ATRA) was founded in 1986. While it claims to have “135,000 grassroots supporters” and that its membership is diverse and includes “nonprofits, small and large companies, as well as state and national trade, business and professional associations, the truth is the members are largely Fortune 500 companies with direct financial stake in restricting lawsuits” including “the tobacco, insurance, chemical, auto and pharmaceutical industries.” (Center for Justice and Democracy)
West Virginia’s ranking in 2005 was based largely on two lawsuits regarding Teflon cookware that were never even filed in the state. Indeed, even the report’s own footnotes listed the states where those lawsuits had been filed—and West Virginia wasn’t included. When a reporter pointed out the error, ATRA said that it didn’t matter. "While we regret and apologize for the error, this does not affect the ranking of West Virginia as the third worst Judicial Hellhole. The overall pattern is the same, regardless of whether the lawsuit was filed there or not” (Charleston Gazette, December 15, 2005)
The New York Times reported in 2007 that the report was not a valid analysis—and the report’s authors admitted it. “The question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.” (New York Times, December 24, 2007)
“The explicit goal [of the Hellhole Report] is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA’s political goals. The choice is not based on research into the actual conditions in the courts.” (Elizabeth Thornburg, “Judicial Hellholes, Lawsuit Climates and Bad Social Science,” West Virginia Law Review, Vol. 110 No. 3)
“The point of the hellhole campaign is not to create an accurate snapshot of reality. The point of the hellhole campaign is to motivate legislators and judges to make law that will favor repeat corporate defendants and their insurers, and to spur voters to vote for those judges and legislators who will do so.” (Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia, p. 3)
An Illinois judge ruled that the Hellhole report was part of a PR strategy to damage courts and aid a defendant. Judge William Mudge issued an order which disclosed that Syngenta Crop Protection Inc., a defendant in a pending water pollution case, and its Chicago public relations firm developed a prejudicial PR campaign based on the Judicial Hellhole report. The judge found that the proposal “outlines a plan to tie the defense of this action into a negative public relations campaign that attacked the Madison County judicial system as a “‘judicial hellhole’ friendly to frivolous lawsuits” and a “source of ‘jackpot justice’” (St. Louis Post-Dispatch, April 21, 2011)
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